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Using Standards of Review to Prevail on Appeal

Using Standards of Review to Prevail on Appeal

DRI's For The Defense
(February 23, 2017)

Few legal principles are more important to appellate advocacy, but less effectively employed by advocates, than the standards of review that appellate courts must apply to every issue that they consider.

Those standards may be established by constitutions, statutes, court rules, or "a long history of appellate practice." Pierce v. Underwood, 487 U.S. 552, 558 (1988). They reflect the accumulated wisdom of the judiciary and the legislature pertaining to the amount of deference to be accorded the different kinds of decisions of trial courts and agencies—and, as a corollary, the amount of restraint to be exercised by the courts reviewing those decisions. "On most issues appellate review is deferential," and the reviewing court "has only a modest role to play." Joseph Schlitz Brewing Co. v. Milwaukee Brewery Workers' Pension Plan, 3 F.3d 994, 998 (7th Cir. 1993), aff'd, 513 U.S. 414 (1995). Not surprisingly, then, "[t]he standard… often affects the outcome of the case." United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.), cert. denied, 505 U.S. 1223 (1992).

Because standards of review establish the framework by which a reviewing court will determine whether the trial court erred, the standards should be a critical consideration in deciding whether to appeal and which issues to appeal. An appellant has the best chance of prevailing if it can identify questions of law, which are subject to de novo review. An appellee should frame the issues so as to afford as much deference as possible to the trial court's decision. Both parties should identify the standards in their briefs and demonstrate that the standards, as applied to the substantive law and the facts of their case, militate in favor of, or against, reversal of the trial court's decision.

This article seeks to explain what the standards of review are, why they matter, and how they should shape appellate practice.

What Appellate Standards of Review Are
An appellate court "must apply some standard of review to every issue it consid­ers." Vontsteen, 950 F.2d at 1091 (emphasis in original). Standards of review have been described as "the prism applied by the appellate courts through which a trial court's decisions are examined for error." Ann Crawford McClure & J. Christopher Nickelson, The Difference is Deference: Appellate Standards of Review, 36 Fam. Advoc. 45, 46 (2014). They also have been described as "a yardstick against which [an appellate court] will measure the facts and the law in order to reach its decision." Lynn S. Kuriger & J. Patrick Hazel, Stand­ards of Appellate Review, 14 Advocate Tex. 69, 69 (1995).

Standards of review generally are "arrayed along a degree-of-deference con­tinuum, stretching from plenary review at one pole to highly deferential modes of review (e.g., clear error, abuse of discretion) at the opposite pole," depending on the nature of the issue presented. In re Extradi­tion of Howard, 996 F.2d 1320, 1327 (1st Cir. 1993). The degrees of deference accorded to the different issues "enforce structural judgments about the relative expertise of trial and appellate courts, and the need for efficiency, fairness, and stability in the judicial process." Bahlul v. United States, 840 F.3d 757, 785 (D.C. Cir. 2016) (Millett, J., concurring). So "[s]tandards of review are thus an elemental expression of judi­cial restraint." Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 320–21 (4th Cir. 2008).

The Standards Applicable to Judicial Determinations
The standards of review applicable in fed­eral courts and state courts are by no means standard. In the federal courts, "decisions by judges are traditionally divided into three categories, denom­inated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion')." Pierce, 487 U.S. at 558. There are other federal standards, however, such as the ill-defined, deferential "rational basis" standard applied to jury verdicts. See, e.g., Grand Union Supermarkets of the V.I., Inc. v. Lockhart Realty Inc., 493 F. App'x 248, 251 (3d Cir. 2012); Helen Curtis Indus., Inc. v. Pruitt, 385 F.2d 841, 850 (5th Cir. 1967). Some standards, such as the "plain error" standard, are more common in criminal cases. See Fed. R. Crim. P. 52(b); Musac­chio v. United States, 136 S. Ct. 709, 718 (2016). And many state courts have devel­oped their own set of standards.

There are several sources that provide in-depth explanations of the various ap­pellate court standards. See, e.g., Appellate Practice in Federal and State Courts (David M. Axelrad ed., 2011); Steven Alan Chil­dress & Martha S. Davis, Federal Stand­ards of Review (4th ed. 2010); W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1045 (1993); Kelly Kunsch, Standard of Review (State and Federal): A Primer, 18 Seattle U. L. Rev. 11 (1994); Robert M. Tyler, Jr., Practices and Strategies for a Successful Appeal, 16 Am. J. Trial Advoc. 283 (1993). Below is a sum­mary of the most common federal stand­ards and their respective definitions.

The De Novo Standard of Review
The de novo standard of review applies to purely "legal" decisions, such as conclu­sions of law, rulings on motions for sum­mary judgment, and interpretations of statutes and contracts. See, e.g., Simmons v. Indian Rivers Mental Health Ctr., 652 F. App'x 809, 815 (11th Cir. 2016); Rai v. WB Imico Lexington Fee, LLC, 802 F.3d 353, 358 (2d Cir. 2015); Carl E. Woodward, LLC v. Acceptance Indem. Ins. Co., 743 F.3d 91, 95 (1st Cir. 2014); MDY Indus., LLC v. Bliz­zard Entm't, Inc., 629 F.3d 928, 937 (9th Cir. 2010).

Under the de novo standard, an appel­late court is "free to substitute [its] own judgment for that of the district court." Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1036 (7th Cir. 2004). For this standard, "no form of appellate deference is acceptable." Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991). That is because legal questions are "resolved through reasoning, com­parison with like cases, and review of a trial court record—tasks that the appel­late court is principally designed to under­take." United States v. Felder, 548 A.2d 57, 63–64 (D.C. 1988).

As a practical matter, an appellate court applying the de novo standard acts "as though no decision were rendered below." In re Traverse, 753 F.3d 19, 24 (1st Cir.), cert. denied, 135 S. Ct. 459 (2014). It applies the same standard as the lower court, but reaches its own conclusion. Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339, 1348 (Fed. Cir. 2015); In re McFarland, 790 F.3d 1182, 1186 (11th Cir. 2015). And because "de novo review involves only application of legal proposi­tions to the undisputed facts in the record, [the appellate court] may affirm on any ground supported by the record even if different from the reasons of the [trial] court." Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002).

The Clear Error Standard of Review
The clear error standard of review, which derives from Rule 52(a) of the Federal Rules of Civil Procedure, applies to pure questions of fact. Ornelas v. United States, 517 U.S. 690, 694 n.3 (1996). Under that standard, the trial court's factual findings are reviewed with the highest degree of def­erence because of "the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses and to weigh the evidence." Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 856 (1982); see also Fed. R. Civ. P. 52(a)(6).

Under the clear error standard, "[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985). A finding of fact is clearly erroneous only when, based "on the entire evidence," the reviewing court is "left with the definite and firm conviction that a mis­take has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). This might occur if the trial court "has credited patently improbable testimony or its credibility assessments conflict with its other factual findings." Morisch v. United States, 653 F.3d 522, 528–29 (7th Cir. 2011). As one judge noted, efforts to meet this highly deferential standard of review "have about as much chance of success as would an attempt to scamper up an oilslicked slide at an amusement park." Ralph Adam Fine, The How-to-Win Appeal Manual 84 (2d ed. 2008).

The Abuse-of-Discretion Standard of Review
The "abuse-of-discretion" standard of review applies to conclusions that are not mandated by rule or statute, but that are made within a range of permissible choices, such as whether to admit or exclude evi­dence, to award attorneys' fees, to allow a motion to amend pleadings, to exclude an expert witness, or to certify an issue for immediate appeal. Highmark Inc. v. All­care Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1749 (2014); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 12–13 (1980). This highly deferential standard recognizes that the district court, "which is intimately familiar with the nuances of the case, is in a far better position to make certain deci­sions than is an appellate court, which must work from a cold record." In re Bolar Pharm. Co. Sec. Litig., 966 F.2d 731, 732 (2d Cir. 1992) (per curiam); see also Wayte v. United States, 470 U.S. 598, 624–25 (1985).

In applying the abuse-of-discretion standard, an appellate court will reverse only if it has "a definite and firm convic­tion that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Etherton v. Owners Ins. Co., 829 F.3d 1209, 1228 (10th Cir. 2016). To elaborate, "[a] dis­trict court necessarily abuses its discretion if its conclusions are based on an errone­ous determination of law or on clearly erro­neous factual findings." Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 (2d Cir. 2000); see also Koon v. United States, 518 U.S. 81, 100 (1996). In applying the abuse-of-discretion standard, an appellate court also may vacate and remand if it is not "informed by the record of why the district court acted as it did." In re Bolar Pharm. Co., 966 F.2d at 732.

The Standards That Apply to Agency Determinations
There are two deferential standards of review that apply to the decisions of federal agencies. See 5 U.S.C. §706. These are the arbitrary and capricious standard and the substantial evidence standard, and under each, respectively, "[a] reviewing court reviews an agency's reasoning to deter­mine whether it is ‘arbitrary or capricious,' or, if bound up with a record-based factual conclusion, to determine whether it is sup­ported by ‘substantial evidence.'" Dickin­son v. Zurko, 527 U.S. 150, 164 (1999); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

The arbitrary and capricious standard is highly deferential because agencies "have expertise and experience in administer­ing their statutes that no court can prop­erly ignore." Judulang v. Holder, 132 S. Ct. 476, 483 (2011). In other words, a court can­not substitute its judgment for that of an agency. Id. On the other hand, the "courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking." Id. at 483–84. Courts must assess, among other mat­ters, "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 484.

As for the substantial evidence standard, "[t]he term ‘substantial evidence' has become a term of art to describe the basis on which an administrative record is to be judged by a reviewing court. This standard goes to the reasonableness of what the agency did on the basis of the evidence before it." United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963). To explain fur­ther, "[u]nder this rule, reviewing courts will defer to an agency determination so long as, upon an examination of the whole record, there is substantial evidence upon which the agency could reasonably base its decision." Marshall v. Consumers Power Co., 237 N.W.2d 266, 280 (Mich. Ct. App. 1975). At the same time, the Supreme Court has stressed the importance of not sim­ply "rubber-stamping agency factfinding." Dickinson, 527 U.S. at 162.

Why Standards of Review Matter
The standards of review "facilitate a better judicial system by balancing power among trial and appellate judges. They ensure judicial economy of time and resources." Amanda Peters, The Meaning, Measure, and Misuse of Standards of Review, 13 Lewis & Clark L. Rev. 233, 277 (2009). And they "tend[] to reflect the… accumulated wisdom as to which issues deserve [the ap­pellate courts'] attention and which issues should be left primarily to front-line trial courts and agencies." Mayer Brown LLP, Federal Appellate Practice 378, 379 (2d ed. 2013).

Because of the differences in the defer­ence owed, the various standards of review also enable litigants to assess their like­lihood of success on appeal. The more deference to be accorded a trial court's determination, the higher the burden for an appellant to overcome. This, in turn, should inform decisions about whether to appeal and which issues to appeal. As one court explained, appealing from "issues that have no chance because of doctrines like harmless error or the standard of review of jury verdicts… is overall bad ap­pellate advocacy." Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000).

The standard of review may even affect the analysis of when to appeal. See George A. Somerville, Standards of Appellate Review, 15 Litig. 23, 23 (1989) (noting that an interlocutory appeal from a prelimi­nary injunction is subject to review under the abuse-of-discretion standard, while an appeal from a final judgment allows for the possibility of de novo review).

As a practical matter, standards of review are important because a descrip­tion of the applicable standard may be a required component of an appellate court brief. In the federal courts of appeal, for instance, an appellant's brief must contain "for each issue, a concise statement of the applicable standard of review." Fed. R. App. P. 28(a). If "dissatisfied with the appellant's statement," the appellee can provide its own statement. Id. The reason for the fed­eral rule is that "requiring a statement of the standard of review generally results in arguments that are properly shaped in light of the standard." Fed. R. App. P. 28 (advi­sory committee note).

Omitting or glossing over the standard of review will never inure to the benefit of a party. Aside from the failure to adhere to any explicit rule requirement, the omission of the applicable standard almost certainly will adversely affect an advocate's credibil­ity. One judge opined that an attorney who is ignorant of the standard of review "can­not be trusted to perceptively analyze, and argue from, more complex legal issues." Fine, supra, at 84.

Moreover, "[h]iding the standard is a prescription for defeat, because the court will surely find and apply it." Michael R. Fontham et al., Persuasive Written and Oral Advocacy in Trial and Appellate Courts 274 (2002). Based on personal experience and articles written by other former law clerks, it appears that many judges and law clerks are provided treatises that set forth the standards of review applicable in their jurisdictions. See, e.g., Julia A. Follansbee, The Ninth Circuit: An Inside Perspective, Nev. Law. 14, 19 (Mar. 1997) (explaining that the Ninth Circuit has "documented its standards of review in a 154 page trea­tise, [which] is updated every fall and cir­culated to every Court chambers and to the lower courts within the circuit"). One should expect judges and law clerks to refer to those sources regularly.

In the end, an advocate who fails to identify and apply the correct standard of review "leaves a void in his brief which will be filled by his adversary, the review­ing court, or the court's clerk" and other­wise "misses the opportunity to persuade the reviewing court why the standard, as applied to the facts and the law, requires reversal" or affirmance. Hall, supra, at 868. That is an opportunity that should not be missed.

How to Use Standards of Review to Shape Appellate Practice
It is never easy to weave the standards of appellate review into appellate briefs, par­ticularly if the standard is unfavorable. Deferential standards should strike fear in the hearts of appellants. And the de novo standard can be a cause for disappoint­ment to appellees seeking affirmance of a trial court's legal conclusions.

But the first step is to identify the appli­cable standard. As relates to most issues, the standard is well settled. There is no need to "devote four or five pages to the standard of review, when the subject could be handled by a short paragraph." Harry Pregerson, The Seven Sins of Appellate Brief Writing and Other Transgressions, 34 UCLA L. Rev. 431, 434 (1986).

That does not mean that the description cannot be written in a persuasive manner. For instance, in appealing from a sum­mary judgment order under the de novo standard, an appellant should make clear that the appellate court owes no defer­ence to the trial court and that it can act as though no decision were rendered by the trial court. In appealing an agency's factual determination governed by the deferential "substantial evidence" standard, an appel­lant should focus on the Supreme Court's admonition to avoid "rubber-stamping" agency fact findings.

An appellee, for its part, should not uncritically accept the standard articulated by the appellant: "Even if the appellant acknowledged a restricted standard, that concession was probably quite grudging and stated in minimalist fashion. By con­trast, [the appellee will] want to highlight it." Mayer Brown, supra, at 378. In doing so, the appellee need not restrict itself to the standard standard of review. For example, in the Seventh Circuit, an appellee seeking affirmance of fact findings may want to remind the court of its earlier iteration of the "clear error" standard (i.e., that to be clearly erroneous, the finding must be "more than just maybe or probably wrong," but "wrong with the force of a five-week-old, unrefrigerated dead fish"). See Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).

With only three primary standards of review that are germane to judicial deter­minations in federal courts, an appel­late court's decision to apply a particular standard would seem to be a relatively straightforward task. But that is not always the case.

For example, the Supreme Court repeat­edly has recognized the often "vexatious nature" of distinguishing between ques­tions of fact and questions of law. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982); Baumgartner v. United States, 322 U.S. 665, 671 (1944).

There is no consensus regarding the standard of review to be applied to mixed questions of law and fact, which exist when the facts are admitted or established, the law is undisputed, and the sole issue is "whether the facts satisfy the [relevant legal] standard." Pullman-Standard, 456 U.S. at 289 n.19. Some circuit courts agree that a certain standard of review should presumptively apply to mixed questions, although they disagree whether that is the de novo standard or the clear error standard. Other courts have concluded that the applicable standard "varies depending upon the nature of the mixed question; the more fact-dominated it is, the more likely that deferential, clear-error review will obtain, and the more law-dominated it is, the more likely that non-deferential, de novo review will obtain." Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 181 (1st Cir. 1997); see also Tolbert v. Page, 182 F.3d 677, 682 (9th Cir. 1999).

The circuit courts also have split on which standard of review applies to other issues. See, e.g., In re SW Boston Hotel Ven­ture, LLC, 748 F.3d 393, 402 (1st Cir. 2014) (discussing a circuit split regarding the standard applicable to the bankruptcy doc­trine of equitable mootness); Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 132 n.3 (2d Cir. 2013) (discussing a circuit split regarding the standard for reviewing join­der of parties under Fed. R. Civ. P. 19(b)).

In each of those scenarios, the litigants have the opportunity to, and should, advo­cate for the standard of review that is the most favorable to their position.

The standard of review, once identi­fied, should not be used as meaningless phrase incorporated only in the "standard of review" section of an appellate brief. Rather, it should be used as a tool to orga­nize the entire brief.

The standard should serve as "the anvil on which the recitation of facts and the argument are both to be forged." Nathan L. Hecht, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1041, 1041 (1993). Stated differently, the fac­tual recitations and legal arguments used in a trial court must be recast to convince an appellate court that reversal is or is not required, under the applicable stan­dard. That, in turn, requires analysis of the trial court's factual findings and legal conclusions against the operative stan­dard of review, as well as the trial court's response to, and rejection of, the argu­ments made below.

The standard of review should be implicated in all other sections of an ap­pellate brief. Each issue presented should be framed to show that the applicable standard of review has (or has not) been satisfied based on the relevant substantive law and the facts of the case. The standard should also be discussed in the summary of the argument and the request for relief.

Although the appellate process has many complex components, the standard of review is surely one of the most impor­tant. The standard of review must be a crit­ical consideration in deciding whether to appeal and which issues to appeal. And the successful incorporation of the standard into an appellate brief may just be the key to winning an appeal.

Copyright 2016, DRI's For The Defense. Reprint permission granted.

Andrea K. Cataland
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F (404) 962-1255
Kip D. Nelson
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F (336) 433-7443
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