Standard of Review, Appellate

A key question in appeals is how closely the decision of the lower court, tribunal, or agency will be scrutinized. Faced with the possibility of bringing an appeal, the first question a lawyer will ask will be what are the grounds for appeal—but the immediate and closely related second question will be what standard of review is applied to each potential ‘ground.’ Appeals will normally always consider whether the lower court made a fundamental error of law. However, the factual findings of a lower court can be considered in a number of different ways.

  • De novo means that the higher court, should, in principle, ignore any factual findings of the lower court and review the evidence again, reaching its own factual conclusions. While this is the strictest standard of review, it should be recognized that the appellate court is usually influenced, to a lesser or greater degree by the lower court’s decision. At each successive level above de novo, the lower court’s ruling is granted greater levels of deference.
  • The next level of review is usually described as “clear error” or “clearly erroneous,” where the appeals court will consider the evidence before the lower court and if there simply was not enough evidence to support the lower court’s decision, and/or the factual conclusions appear to be unambiguously at odds (not justified or contradicted) by the evidence, will reverse.
  • The next level is usually described as lack of “substantial evidence,” which requires a finding that the ruling of the lower court was unsupported by any substantial (i.e., credible and convincing evidence); this standard is difficult to reach because, by its nature the winner in a case usually has presented at least some evidence in support of its positions.
  • Finally “abuse of discretion” requires a showing that the lower court judge or the agency acted in an arbitrary and capricious manner, i.e., did not in fact apply discretion or judgment – that the decision is in effect a random outcome.

A key factor in appeals, that is almost never publicly stated, may be the opinion the broader legal community, and the appeals judges in particular, hold of the appealed from lower court judge or agency—if it is poor, successful appeals will often arise; further, the more often a judge or agency is reversed, the less trust, deference and respect it will attract in practical terms from the appellate court. To put it more simply, if a lower court judge has a reputation as a ‘nut’, ‘hack’ or ‘boob,’ appellate judges are likely to subject his/her decisions to a more searching review.

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