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Determining the standard of review for an appeal.

About the Standard of Review

During a trial, a jury determines issues of fact by listening to the witnesses.  The judge determines issues of law.  An appellate court rarely has unrestricted discretion to make decisions about a lower court case presented to them for review.  Typically, an appellate court is bound by a "standard of review" depending on what type of issue is being raised.  Except for a de novo review, deference is given to the appellee (the winner at trial).  The appellant (petitioner) has the burden of showing that there was error below and must argue for a standard of review that would most help his client.  The appellee and appellant may take different views about what is the most appropriate standard of review.  "[T]he fundamental notion behind a standard of review is that of defining the relationship and power shared among judicial bodies." The standard of review essentially prescribes the level of scrutiny applied by the appellate court. 1-1 Childress & Davis, Federal Standards of Review § 1.01.

Definitions

Standard of Review

The criterion and level of deference by which the decision of a lower court or tribunal will be measured on appeal. "At its clearest level, a standard of review prescribes the degree of deference given by the reviewing court to the actions or decisions under review." 1-1 Childress & Davis, Federal Standards of Review § 1.01.

It tells the appellate court what it must find in order to reverse the decision by the lower court or administrative agency.

To determine the standard of review, first characterize the issue in one of the following categories:

  1. Issues of law,
  2. Issues of fact (who, what, when, where, why),
  3. Issues of fact and law, or
  4. Discretionary matters.

De Novo Review

In a de novo review the appellant is asking the court to look at issues of law anew and affords the lower court no level of deference.  Mixed issues of fact and law are also reviewed under this standard though some mixed issues rooted in fact may be decided under the clearly erroneous standard. In a de novo review, the appellate court steps into the position of the lower tribunal and re-decides the issue. If the appellate court's decision is the same, it affirms; if different, it reverses. When reviewing questions of law, appellate courts must find errors of law and that such errors were prejudicial to the appellant.

Clearly Erroneous Review

The clearly erroneous standard is applied to issues of fact.  Deference is paid to the trial court's findings.  Generally, an appellate court must have a definite and firm conviction that a mistake has been made by the trial court. The burden is on the appellant to identify the alleged erroneous factual finding and to overcome the presumption of correctness applied to all lower court decisions.

Abuse of Discretion Review

Under the abuse of discretion standard, the reviewing court must have a definite and firm conviction that the lower court committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors. And, the lower court must have the discretion to make the judgment it did.  (Check the court rules.) The abuse of discretion standard affords virtually the same amount of deference to the decisions of lower tribunals as the clearly erroneous standard though the clearly erroneous standard affords lower courts slightly more deference.

Right/Wrong Standard of Review (Hawaii Evidence)

Where there can only be one correct answer to the admissibility of evidence, Hawaii appellate courts apply this standard.

"[D]ifferent standards of review must be applied to trial court decisions regarding the admissibility of evidence, depending on the requirements of the particular rule of evidence at issue. When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard. However, the traditional abuse of discretion standard should be applied in the case of those rules of evidence that require a 'judgment call' on the part of the trial court." Kealoha v. County of Haw., 844 P.2d 670, 676  (Haw. 1993).

Arbitrary and Capricious Review (Agency Appeals)

Under the arbitrary and capricious standard, the court considers whether the agency's decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.  The standard is highly deferential to the agency.

Substantial Evidence Review (Agency Appeals; Jury Verdicts; Jury Waived Trials)

Substantial evidence means more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The no substantial evidence standard affords even greater deference than the clearly erroneous standard.

Reasonableness Review (Agency Appeals)

An agency action that raises mostly legal rather than factual issues may be reviewed under a reasonableness standard.  The court determines whether the decision was a reasonable exercise of the agency's authority.

Finding the Standard of Review

Searching on Westlaw

To find the standard of review for your brief, search a case law database in your jurisdiction for similar facts.  Include the phrase, "standard of review" in your search query.  On Westlaw, you can use the Advanced Search form to conduct a phrase search or you can use the following syntax:

adv:”standard of review” & your search terms.

Once you've found the standard of review used for your issue(s), you must cite to the case that identifies the standard in your brief.

Using Court Rules

An argument for a different standard of review would use the court rules as the authority.  On Westlaw, find the court rule you want to appeal. Check the case citing references for the rule, then select the jurisdiction and search within for "standard of review."  Be aware that cases on appeal could have more than one issue with different standards of review.

Note:  the standard of review will likely be different in federal and state courts.  Check also the court rules for your jurisdiction.

Appellants

Those bringing the appeal are called appellants and had an unfavorable ruling at the lower level from which they appeal to a higher court for relief based on a particular standard of review.  This side should argue for the least deferential standard since the burden is on the appellant to show that there was error.

Appellees

Those defending an appeal are called appellees and had a favorable ruling at the lower level.  This side should argue for the most deferential standard since they have the most to lose and don't want the decision overturned by the appellate court.

ADDITIONAL MATERIAL & ARTICLES