2.4.3 IDENTIFYING THEAPPROPRIATEMOTIONSTANDARD OF REVIEW

With appellate standards of review, a few set standards apply to the many different kinds of decisions that can be reviewed. Motion standards of review, in contrast, are often specific to a particular motion.⁴⁹As with appellate standards of review, the language of the standard may be similar in both state and federal courts, but you should consult the appropriate rules and authorities in the relevant jurisdiction.

Because motion standards of review tend to be motion-specific, identifying the appropriate motion standard of review is usually a more mechanical process than identifying the appellate standard of review. If the motion is mentioned specifically in the civil or criminal rules, that is the place to start, but not end, your research. In addition to consulting the appropriate rules, you should conduct focused research to identify cases in which the relevant courts have applied the standard. Some of these courts may have elaborated on the meaning of the standard, and this “judicial gloss” may have become a part of the standard of review.

As with any legal research, when researching motion standards of review, you should try to identify cases that are recent, on point, in the relevant jurisdiction, and from the highest court possible. On occasion, a particularly germinal case will become “the” case to cite for the boilerplate version of the motion standard of review.⁵⁰When the motion standard and its application are both uncontroversial, it is fine to cite a germinal case for the standard. If either the standard or its application is in controversy, however, you should both update and focus your research. Furthermore, be sure to conduct fundamental research to verify that the germinal standard is still valid. As late as 2010, some attorneys continued to cite Conley v. Gibson as the standard for a motion to dismiss, despite the fact that it was all but overruled for this purpose in 2007.