Whether an appellate court is an intermediate court of appeals or a court of last resort, whether it hears an appeal as of right or as a matter of discretion, it agrees only to review the decision below.

Hearing an appeal does not mean that the court will retry the case. Instead of observing the examination and cross-examination of witnesses, hearing opening and closing arguments, and seeing the attorneys present various evidentiary exhibits all over again, the court reviews important evidence (whether findings of fact, testimony, or exhibits) and the attorneys’ written arguments — in the form of briefs to the court — about the significance of that evidence.

When reviewing the decision of any lower court, the court — explicitly or implicitly — applies a certain appellate standard of review to that decision. The appellate standard of review¹⁰ is a label that a reviewing court puts on the level of deference it gives to the findings of the court below. The appellate standard of review tells the court how “wrong” the lower court has to be before it will be reversed.

The appellate standard of review that the court chooses to apply depends on which aspect of the case is under review: an evidentiary ruling, a finding of fact, a legal ruling, or some other type of decision. Some decisions can be reversed simply if the reviewing court disagrees with the lower court. Others can be reversed only if the reviewing court can identify a serious error on the part of the court below. Generally, courts give high deference to decisions about facts — that is, they are loathe to upset a finding of fact — and low deference to conclusions of law. Because the particular appellate standard of review can significantly affect the arguments that you make to the court, you should consider this issue early in your research process and decide what standard the court is likely to apply to the decision that you seek to have reversed or hope to have affirmed.