# Goldfuss v. Davidson > Ohio Supreme Court · June 25, 1997 · 79 Ohio St. 3d 116 URL: https://www.frixlaw.com/law-library/cases/6775891 ## Case - **Full name:** Goldfuss, Admr., and Cross-Appellee v. Davidson, and - **Court:** Ohio Supreme Court - **Decided:** June 25, 1997 - **Citations:** 79 Ohio St. 3d 116; 679 N.E.2d 1099 - **Precedential status:** Published - **Opinion:** Concurrence by Cook - **Judges:** Cook, Douglas, Moyer, Only, Pfeifer, Resnick, Stratton, Sweeney, Syllabus - **Cited by:** 1,312 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6775891 ## How later opinions describe it (automated extraction) - holding that in civil cases, the plain error doctrine is applicable "only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the… - holding that plain error is limited to “those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice and where the error, if uncorrected would have a material adverse effect upon on 10 OHIO FIRST DISTRICT COURT… - holding that 8 OHIO FIRST DISTRICT COURT OF APPEALS plain error is limited to “those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice and where the error, if uncorrected would have a material adverse effe… - stating that "[a]s when they apply criminal plain- error review, reviewing courts applying civil plain-error review 'must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to pr… - stating that "[a]s when they apply criminal plain-error review, reviewing courts applying civil plain-error review 'must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to pre… ## Opinion text Cook, J., concurring in judgment only. Because I believe that the plain error doctrine should be held wholly inapplicable to civil cases, I concur in judgment only. Civ.R. 51(A) and Crim.R. 30(A) are identically worded. Both procedural rules bar a party from appealing as error jury instructions that were not objected to in a timely manner at trial. The Rules of Criminal Procedure provide a “plain error” exception that is applicable in the Crim.R. 30(A) setting. Crim.R. 52(B). A similar exception to Civ.R. 51(A) is not provided. The omission is not an oversight and there is no need for courts to recognize a judicial exception. Each of our cases recognizing narrow application of the plain error doctrine to defeat Civ.R. 51(A) contemplates situations where error that was not objected to at trial affects the legitimacy of the underlying judicial process. In light of the remedies available to a civil litigant, however, recognition of plain error is not necessary to preserve the integrity of the judicial process. *126 As noted by the majority, a civil litigant should not have two chances to defeat his opponent at trial because the counsel that he originally employed was ineffective. Unlike a criminal defendant, a civil litigant has no constitutional right to the effective assistance of counsel. See, e.g., Lavado v. Keohane (C.A.6, 1993), 992 F.2d 601, 605-606 ; Friedman v. Arizona (C.A.9, 1990), 912 F.2d 328, 333 . Accordingly, an unsuccessful civil litigant whose attorney has fallen below the professional standard of representation may recover losses caused by the deficiency in an action for legal malpractice against his attorney, but has no right to subject the opposing party to a new trial. See Verbanic v. Verbanic (1994), 70 Ohio St.3d 41, 46 , 635 N.E.2d 1260, 1264 (Wright, J., dissenting). Having removed the deficient performance of the unsuccessful party’s attorney as a reason to recognize plain error as an exception to Civ.R. 51(A), the “exceptional circumstances” that “challeng[e] the legitimacy of the underlying judicial process itself’ contemplated by the majority must relate to factors or influences outside the control of that party’s attorney. Civ.R. 59, however, answers this concern. Civ.R. 59(A) permits a court to grant a new trial on several grounds, including “[i]rregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial”; “[misconduct of the * * * prevailing party”; “[ajccident or surprise which ordinary prudence could not have guarded against[.]” Civ.R. 59(A) also contains a catchall provision authorizing trial courts to grant a new trial for “good cause shown.” Accordingly, if the reason for counsel’s failure to object to error may be attributed to a cause other than deficient performance, that cause may be addressed and reviewed pursuant to Civ.R. 59. Quite simply, Civ.R. 51(A) and Crim.R. 30(A) deal with waiver occasioned by failure of counsel to object to error at an appropriate time. The plain error doctrine of Crim.R. 52(B) is consonant with the criminal law, which, in certain circumstances, requires the state to endure a second trial because of errors committed by a criminal defendant’s counsel. The doctrine, however, is discordant with civil law, which binds a party to his counsel’s acts and omissions rather than visiting the sins of that party’s counsel on the opponent. Link v. Wabash RR. Co. (1962), 370 U.S. 626, 634 , 82 S.Ct. 1386, 1390 , 8 L.Ed.2d 734, 740, fn. 10 . This court has mistakenly imported the concept of plain error into the civil setting despite its omission from the Civil Rules and its fundamental inapplicability to the civil judicial process. I would take this opportunity to correct that mistake. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6775891. Public record. Not legal advice.