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Invited Error Wisconsin Case Law

An appellate court will generally not review an error that was "invited" or induced by the appellant in the trial court. See Shawn B.N. v. State, 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992).

The concept of invited error is closely related to the doctrine of judicial estoppel, which recognizes that "it is contrary to fundamental principles of justice and orderly procedure to permit a party to assume a certain position in the course of litigation which may be advantageous, and then after the court maintains that position, argue on appeal that the action was error." State v. Gove, 148 Wis. 2d 936, 944, 437 N.W.2d 218 (1989).

That is precisely what occurred in Shawn B.N., where the appellant had requested the trial court to order an evaluation and then attempted to argue on appeal that the court had erred in doing so. See Shawn B.N., 173 Wis. 2d at 372.

The concept of invited error thus involves a deliberate change in a party's position as a matter of litigation strategy.

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