I was reading through CA4’s recent opinion in Le Doux v. Western Express, Inc., ___ F.4th ___ (4th Cir. 2025), when I came across this footnote:

Western Express and Worthy contend that we review the decision for plain error because Le Doux never briefed or argued in the district court whether Virginia law permits a negligent hiring claim to proceed where the employer has conceded its employee acted within the scope of their employment. That’s an odd contention, for two reasons. First, plain error review applies only in criminal cases. See United States v. Lavabit, LLC (In re Under Seal), 749 F.3d 276, 285–86 (4th Cir. 2014) (comparing the “fundamental error” standard in civil cases with the “plain error” standard we apply in criminal cases). But more importantly, the reason Le Doux never addressed the issue was that Western Express and Worthy never pursued it in the district court; in fact they disclaimed it. J.A. 465. The district court decided on its own. And Le Doux subsequently objected. J.A. 629. That’s enough to preserve the issue. “Lawyers and clients need not pursue the persistent strategies of rebuffed suitors in Victorian courtship novels.” Ward v. Soo Line R.R., 901 F.3d 868, 882 (7th Cir. 2018).

Brutal. But what, exactly, is the difference between these two standards? I posed that question to Westlaw’s AI assistant, and this is what it told me:

The “plain error” standard of review and the “fundamental error” standard of review are distinct in their application and criteria.

The “plain error” standard of review is applied in criminal cases when an error was not raised at trial. Under this standard, an appellate court may correct an error if the following four conditions are met: (1) there is an error, (2) the error is plain, (3) the error affects substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings (In re Under Seal, 749 F.3d 276 (2014))[1], (U.S. v. Robinson, 460 F.3d 550 (2006))[2]. This standard is codified in Federal Rule of Criminal Procedure 52(b) (Federal Rules of Criminal Procedure, Rule 52)[3].

In contrast, the “fundamental error” standard of review is more stringent and is typically applied in civil cases. This standard allows an appellate court to consider issues raised for the first time on appeal only if the error is “plain” and if refusal to consider the error would result in a denial of fundamental justice. The error must be so serious and flagrant that it goes to the very integrity of the trial (Snyder v. Ridenour, 889 F.2d 1363 (1989))[4]. The fundamental error standard is more limited than the plain error standard applied in criminal cases (In re Under Seal, 749 F.3d 276 (2014))[1].

In summary, the plain error standard is used in criminal cases to correct unpreserved errors that meet specific criteria, while the fundamental error standard is used in civil cases for errors that are exceptionally serious and affect the integrity of the trial.

The above response is AI-generated and may contain errors. It should be verified for accuracy.

Not bad.