Every appeal is viewed through the lens of the applicable standards of review. They are the core of appellate review. Considering the issues on appeal and the applicable standard of review for the first time following an adverse ruling is much like a house built out of sticks. It will blow over under the “huff and puff” of appellate review.
As a trial lawyer, it may seem that familiarity with standards of review would be of little benefit to your practice. However, to ignore them at the trial level hampers the design and strength of your case. Having a working understanding of standards of review will aid the trial attorney in framing the issues, developing effective strategies and evaluating settlement options. Knowing the standards of review, their applications and understanding the level of discretion given to a trial judge can aid you in deciding what issues to raise and what motions to file. The standards of review can act as a guidepost to determining the value and probable success of a motion. It may also prove effective strategy to anticipate the concerns of the trial judge and educate the trial judge on the standard of review. You may consider consulting appellate counsel early on in your case to assist in this process.
Standard of review reflects the limited role of the appellate court in our multi-tiered judicial system. In short, it defines the level of deference the appellate court affords the trial court. The appellate court does not defer to the trial court on issues of law because the trial court is not in a better position to define the law. On the other hand, the appellate court shows the trial court a great deal of deference on issues of fact. The appellate court is not the place to re-litigate facts and the trial court is in the best position to see and hear witnesses in resolving factual disputes.
There are three general types of adjudications, each with its own accompanying standard of review. Conclusions of law are reviewed de novo. De novo review is the proverbial second bite at the apple. When the appellate court applies de novo review, it literally examines the issue anew. Discretionary decisions by the trial court are reviewed for an abuse of discretion, and finally findings are fact are reviewed under a competent substantial evidence standard. In instances where the trial court’s determination involves a mixed question of law and fact, the reviewing court employs a mixed standard of review.
With this context in mind, let’s explore how to put it into action.<
In developing your pre-trial strategy, you want to tightly frame your issues to preserve them from the outset. If you have dispositive issues on questions of law, you want to properly develop and preserve a dispositive motion. Remember, a question of law will be reviewed de novo, with no deference given the trial court’s determination. From the perspective of an appellate practitioner, this is the ideal position for a potential client to be in. This is because the appellate court is tasked with enunciating the law; that is to develop and apply the law. The presumption of correctness can be easily overcome by showing that the trial court applied an incorrect principle of law.
Understanding the standard of review in the pre-trial stage of your case will highlight strengths and weaknesses in your case and perhaps even if your opponent’s case and allow you to effectively advise your client regarding settlement. Finally, applying the applicable standard of review and understanding the degree of discretion afforded the trial judge to proposed pre-trial motions will help you decide whether a particular motion is worth the time and expense of filing.
During trial, you should continually ask yourself, “What am I asking the trial court to do?” Is your issue centered solely on the application of the law? Does what appears to be a factual determination rest on an underlying legal conclusion? Do you have a mixed question of law and fact? Knowing the facts of your case and how the law applies to those facts, coupled with an understanding of the applicable standard of review, allows you to maintain a tight handle on the direction of your case and ensure that you have properly preserved the issues for appellate review.
Finally, following trial and final judgment, you might consider filing a post-trial motion for rehearing or new trial. Evaluating the motion through the lens of the applicable standard of review will help in determining whether the motion is worth the time and expense of filing. Again, understanding the degree of deference afforded the trial court will aid you in carefully framing the post-trial motion and as well as in preparing for and arguing your motion to the trial court. Finally, by applying the standards of review you can aid your client in considering settlement attempts and guide them through a cost-benefit analysis.