8.4.9 STANDARD OFREVIEW

As you read in Chapter Two, the standard of review is the framework within which the court makes its decision. You must tell the court what standard of review applies to any decision you are asking it to review.

(b) The following statements should appear under a separate heading placed before the discussion of the issue: the statement of the standard or scope of review for each issue on appeal, i.e., whether the trial court abused its discretion; whether its fact findings are clearly erroneous; whether it erred in formulating or applying a legal precept, in which case review is plenary; whether, on appeal or petition for review of an agency action, there is substantial evidence in the record as a whole to support the order or decision, or whether the agency’s action, findings and conclusions should be held unlawful and set aside for the reasons set forth in 5 U.S.C. §706(2).

The sample appellate briefs in Appendix C place this section before the statement of the case, on the theory that knowing the standard of review may give the reader needed context before he or she begins reading the fact statement. Obviously, you should place the section where the court asks for it; if the court does not ask for it, you could create a separate section for the standard (presuming the court has not forbidden the creation of “extra” sections). In the alternative, you could include the standard in introductory material. If different issues are subject to different standards of review, the introductory material preceding each issue should include the standard for that issue. In contrast, if the same standard applies to all issues, you could include it early in the argument section in your overall introduction (unless court rules require otherwise, as does the excerpt above). Chapter Ten discusses incorporating the standard of review into introductory material; the third brief in Appendix C provides an illustration of this technique.