Robinson v. City and County of Denver

Judge DAVIDSON

specially concurring.

Most civil litigation is outrageously costly. And, if an appellate court finds instructional "plain error," the usual remedy is a new trial. Thus, the paradoxical result of "doing equity" in such cases is that the non-erring party bears the expensive burden of his or her opponent's errors. In my view, if an instructional error is such that it would constitute a miscarriage of justice sufficiently egregious to constitute plain error, then the more appropriate remedy is a legal malpractice action. The inevitable damage award to the erring attorney's client…