We all apply “standards of review” every day, and in fact couldn’t navigate without these lenses to aid our decision-making.  When you trust a colleague, you take her word on important matters.  When you’re leery of a project or a medical treatment, you examine dangers and obstacles more carefully.  If you’ve always supported one political party, you presume you’ll vote for its candidate subject to persuasion otherwise.

Standards of review are likewise essential to the appellate process.  Every issue carries a specific standard that will frame and often abbreviate the reviewing court’s analysis.  Here is why it can be the key decisive factor: 

  • Some standards defer to the trial court result far more than others.   The most lenient review applies to claimed errors in fact-finding, because judges and juries are closest to the evidence, and are able to assess credibility.  Appellate courts will affirm where even modest evidence supports a fact determination.  In contrast, appellants benefit most from so-called “de novo” review, which applies to claimed errors in the selection or interpretation of a legal rule.  Other standards control other kinds of issues.
  • There is sometimes room for advocacy about which standard applies.  This is especially true for so-called "mixed questions of law and fact," which turn on the application of a rule of law to a particular situation.   A classic example is whether or not a statute of limitation was tolled under the circumstances of the case.
  • Attention to the proper standard of review on appeal – not just stating it, but briefing to it – is one hallmark of reliable advocacy.  It puts justices and clerks at ease to know that a litigant understands their job and is helping them to do it properly.
  • The practical message:   The standard of review on each issue should be the starting point for evaluating any appeal, and should frame your advocacy, whether you seek to affirm or reverse a judgment.