2.3.1 PURPOSE ANDMEANING OFAPPELLATESTANDARDS OF REVIEW

Various public policies support the competing appellate standards of review.¹¹ Appellate courts use a low deference appellate standard of review for decisions about the law because they believe that those who must use the law benefit from uniformity.¹²Lowdeference standards give reviewing courts an opportunity to create a consistent body of law, which may be particularly important for issues of constitutional rights.¹³In fact, when a constitutional issue is involved, courts may decide to substitute the low-deference de novo standard for a higher-deference standard that might normally be appropriate for a given issue.¹⁴

A high-deference appellate standard of review promotes judicial economy and finality of certain types of decisions.

Although many advocates ignore the standard after articulating it, the appellate standard of review is really the context within which the entire argument rests. Because there is often no controversy about which standard applies, however, some litigators are lulled into complacency on this subject and may miss fertile ground for legal argument.¹⁵

As a practical lawyer, you should devote serious attention to the standard of review early in the research process in order to determine the role it will play in your case. The discussion that follows describes the most significant appellate standards of review, using the labels most commonly used in federal courts.

a. Clearly Erroneous

A clearly erroneous standard applies to findings of facts. Rule 52(a)(6) of the Federal Rules of Civil Procedure provides: “Findings of Fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” This standard reflects the attitude that the fact finder is often in the best position to observe the presentation of the facts. The United States Supreme Court has commented on the importance of the trial judge’s opportunities:

The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.... [T]he trial on the merits should be “the ‘main event’... rather than a ‘tryout on the road.’”... When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.¹⁶

Courts often note that a court should find clear error only when its review of the record leads to “a definite and firm conviction” that the court has committed a mistake.¹⁷The clearly erroneous standard is a high hurdle for an advocate to overcome. The Seventh Circuit has used a piscatorial metaphor to explain the standard’s meaning:

To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.¹⁸ Although not all courts use such vivid language to describe their reactions, all courts are extremely hesitant to overturn findings of fact.¹⁹ b.

Because most decisions that come before appellate courts are based on questions of law, the most commonly applied standard is the de novo standard. The de novo standard is a low-deference standard — or, more aptly, a no-deference standard — that applies when courts are reviewing the meaning or application of the controlling law. De novo review is sometimes referred to as “plenary review” (which might be paraphrased as “plenty of review”) because it allows the court to give a full, or plenary, review to the findings below. When courts apply the de novo standard, they look at the legal questions as if no one had yet decided them, giving no deference to legal findings made below. When this standard is applied, the reviewing court is willing to substitute its judgment for that of the trial court or the intermediate court of appeals.

Courts apply the de novo standard not only to questions of law, but also, in most (but not all) cases, to mixed questions of law and fact.²⁰A mixed question of law and fact is often characterized as a question about whether certain agreed-upon facts meet a legal standard. In Ornelas v. United States, for example, the United States Supreme Court decided that de novo was an appropriate appellate standard of review when it reviewed a trial court’s determination as to whether a police officer indeed had probable cause based on the undisputed facts.²¹ The Court justifies the de novo standard in mixed question situations, as it does when it reviews other questions of law, with the goal of unifying precedent and stabilizing legal principles.²²In 2018, however, the Supreme Court found that what it characterized as a “mixed question” should be reviewed “for clear error” because the particular issue, unusually, required the court to conduct “primarily... factual work.”²³

If the de novo standard applies, the legal findings of the courts below have no weight other than their intrinsic validity.

c. Abuse of Discretion

The abuse of discretion standard is typically used to review discretionary decisions such as a judge’s procedural rulings during a trial. These decisions might include decisions on nondispositive motions, objections, admissibility of evidence, or general conduct issues.²⁴ Commentators have noted that language such as “the court may” or “for good cause” are often predictors of an abuse of discretion standard of review.²⁵Like the clearly erroneous standard, this standard presumes some expertise on the part of the trial court judge. Some judges see the standard in the same light as the clearly erroneous standard. For example, the United States Court of Appeals for the First Circuit has noted that, as to evidentiary rulings, “[o]nly rarely — and in extraordinarily compelling circumstances — will we, from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.”²⁶

In 2017, the United States Supreme Court decided that it must use the abuse of discretion standard to review a district court’s decision to enforce a subpoena from the Equal Employment Opportunity Commission.²⁷In analyzing the issue, the Court noted that when deciding whether a deferential or “searching” review is appropriate, the court must first look to the “history of appellate practice” and then ask whether, “as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.”²⁸

d. Other Appellate Standards

Review of administrative agency decisions is governed by the Administrative Procedure Act, which provides at 5 U.S.C. §706 that reviewing courts should “set aside” agency “actions, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” When an agency holds a formal hearing that creates a record, the reviewing court may set aside agency decisions only when they are “unsupported by substantial evidence.”²⁹