The Litigation Rear View Mirror: Types of Appellate Review

posted by Danielle Edwards October 26, 2015

Many litigants – and their lawyers – fail to realize the tremendous impact that the standard of appellate review will have on the outcome of their appeal. The standard of review is the level of deference that a reviewing court affords to a determination that was made by a trial court.

Imagine for a moment that you are going out of town for the weekend with your spouse. In addition to making hotel and dinner reservations, you make plans to leave your children in the care of a trusted babysitter. You leave on Friday evening and hear nary a peep from home – until your mobile rings on Saturday afternoon. Young Johnny is on the line, and he’s just been told by the babysitter that he cannot go to his friend’s home today because he did not clean his room before soccer practice. Johnny wants you to override the babysitter’s decision and let him go anyway. You know that your babysitter is reasonable, and that she would have given Johnny plenty of advance notice of his responsibility to clean his room. You also know that, if you override the babysitter in this situation, Johnny will call you every single time he wants a different outcome. So, you tell Johnny that he cannot visit his friend today, and that he must clean his room and apologize to the babysitter.

The level of deference that you afforded to your babysitter’s decision is akin to your own standard of review: you decided that, unless the babysitter’s decision was clearly wrong, you were going to support it.

Appellate judges apply similar reasoning to trial court decisions that are appealed. They generally give great deference to these decisions for several reasons. First, a trial court judge is in the best position to understand all of the aspects of a case as a whole, and to make decisions accordingly.  Second, it would be unduly expensive for the parties and the courts if every case could be retried before the Appellate Court at the whim of a losing party. If this were true, we would need to have as many appellate courts as we do trial courts!

Standards of Appellate Review Explained

So, what are the different standards of review that an appellate court may apply?  In the vast majority of cases, one of three standards is applied.  Generally speaking, the strictest standard of review, de novo – also called plenary – review, affords no deference whatsoever to a trial court determination.  This is the kind of standard that you might apply when the babysitter does something you did not authorize her to do, like lock Johnny in the basement all day as punishment for not cleaning his room.  This nondeferential standard is applied by appellate courts whenever an appeal presents a “question of law” or a trial court determination that the appellate court thinks required no judgment call because reasonable minds may not differ.

Clearly erroneous review is a substantially deferential measure. When an appellate court applies this standard, its function is to determine whether a trial court conclusion was legally correct and factually supported; every reasonable presumption is to be made in favor of affirming the trial court’s ruling. If you told the babysitter that she could ground Johnny if he did not follow instructions, and then she grounded him for not following instructions, this is the standard of review that you would apply to her decision.

Finally, abuse of discretion is also highly deferential.  In determining whether a trial court has abused its discretion, the reviewing appellate court must afford every reasonable presumption in favor of the correctness of the ruling, and it may only reverse the judgment of the trial court for “manifest” abuse of discretion or where injustice appears to have been done. Perhaps you did not expressly tell the babysitter that she could ground Johnny, but you did tell the children that she was in charge while you were away and that they had to obey her or else.  In this circumstance, you would apply the abuse of discretion standard to her decision.

Finally, some trial court determinations, including witness credibility, are subject to no review at all, and therefore, an appellate court may not pass judgment on the conclusion.  Imagine Johnny tells you that he cleaned his room, and the babysitter tells you that he did not. You will take the babysitter at her word since you are not there to see for yourself.

As you can see, it is unlikely that you will override the babysitter’s decision under either the clearly erroneous or abuse of discretion standards of review. You are more likely to consider overriding her decision if you apply de novo review. So it is with our appellate courts.

Which Standard Applies

The standard of review that applies in your case depends on the type of issue that is presented on appeal. For example, in most family cases, the abuse of discretion standard is generally applied. In appeals involving the proper interpretation of statutes or regulations, de novo review is applied. Often, several issues are presented on appeal and, therefore, more than one standard of review maybe applied.

It is worth noting that, as usual in law, standards of review are subject to nuance. Each standard may be characterized by appellate courts in a host of different ways, all of which are correct and yet subtly distinct. An adept appellate attorney will understand and leverage these distinctions.

Occasionally, the appellate courts will alter or “clarify” the standard of review that is to be applied to a particular kind of issue. Where either confusion or room for reconsideration exists, an adept appellate attorney may, again, add tremendous value to his client’s position by raising and clearly briefing the issue for the court. It may be possible to persuade an appellate court as to the appropriate characterization of the issue on appeal.

Call Cacace, Tusch & Santagata if you are considering an appeal of a trial court judgment, or if a decision in your favor has been appealed by the opposing party. We can advise you about the applicable standard(s) of review that will apply in your case, and how it may potentially affect the outcome of your appeal.

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