2.3.2 IDENTIFYING THEAPPROPRIATEAPPELLATESTANDARD OF REVIEW

Of course, knowing the standards is only the first step. You must then decide which standard or standards apply in your case. Some issues are obviously questions of fact (e.g., Did the defendant hit the victim? Did the officer ask a certain question of the defendant?), while others are obviously questions of law (e.g., Did the court apply the correct legal standard? Is a supervisor an “employer” within the meaning of the statute?).

Choosing one standard over another — for example, a clearly erroneous appellate standard of review rather than a de novo standard — can lead to a vastly different review of the same case. Accordingly, you should study the record below carefully. Identify the decisions, rulings, or findings that are at the crux of your client’s case. First, identify who made the ruling. The standard of review depends on whether the decision maker was a judge, a jury, or an administrative body. Second, focus on what kind of decision was made. If it was a ruling on an evidentiary matter, the abuse of discretion standard will probably apply. If it was a finding of fact, the court will apply the clearly erroneous standard. If, as is most likely, it was a decision of law, the court will apply a de novo standard. If you are arguing to a court of last resort, you may look to the court of appeals decision to see what appellate standard of review that court applied. If no standard is mentioned in the decision (and the standard is often not mentioned), the court probably applied a de novo standard. Of course, if appropriate, you may decide to argue that the lower court applied the wrong standard of review.³⁰

If you are in doubt as to the appropriate standard of review for the legal issue your case presents, do a little focused research.

Although the appellate standard of review is usually not controversial, at times it is at the heart of the appellate decision.³²If the standard of review in your case is de novo, it will have almost no impact on your argument. You will address the standard of review — either in the introductory section or in a separate, labeled section³³— and then you will spend the rest of the argument discussing the appropriate legal standards and how the appellate court should apply those standards.

If your case could or should be reviewed under a more deferential standard, however, that standard will have a significant impact on your argument, and you should expect to feature it in your point headings. For example, your heading might say, “the district court abused its discretion when...” or “the trial court’s finding as to X was clearly erroneous because....” Even if the court you are writing to asks for the standard to be announced in a separate section, you must still incorporate it into your argument. For example, if the clearly erroneous standard applies, your argument must identify the particular finding of fact that you assert to be clearly erroneous, and cite to the record. Then, you must show how the evidence indicates that the finding was clearly erroneous, and show how the erroneous finding changed the outcome of the case. Alternatively, if you must assert that the judge abused his or her discretion, you must identify the particular decision the judge made in error, use appropriate authorities to explain why it was wrong, and specify why and how the erroneous decision changed the outcome of the case.

As you must with any legal argument, make appellate standard of review arguments honestly. Do not create an appellate standard of review issue where none exists. If the standard genuinely makes a difference in the case, however, you can and should use it to demonstrate the justice of the result you seek.