The Standard for Standards of Review

You’ve heard it mentioned in class or maybe around the law firm.  But you’re still not exactly sure . . . what is a “standard of review”?  That phrase is one of a multitude of legal phrases that one understands and yet at the same time remains puzzled.  According to a Georgetown article, “A standard of review is the measure of deference an appellate court gives to the rulings of a lower court. . . . The scope of an appellate court’s reconsideration is determined by the applicable standard of review.”  According to F.R.A.P. 28(a)(8)(B), the applicable standard of review must be included for each issue presented.

So what are the standards?  And how do we decide which one applies?  This article discusses standards of review at great length: Standard of Review (State and Federal): A Primer.  The standards are as follows:

• Abuse of Discretion: “Under this standard, an appellate court will “uphold any district court determination that falls within a permissible range of permissible conclusions.” Cooter & Gell v. Hartmarx Corp.,496 U.S. 384, 400 (1990). Under this standard, the court of appeals must affirm unless it determines that “the district court has made a clear error of judgment, or has applied an incorrect legal standard.” Alexander v. Fulton County, 207 F.3d 1303, 1326 (11th Cir. 2000).”

• De Novo: “The court gives no deference to the lower court’s decision and applies the same standard as the district court. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999).”

• Clearly Erroneous: “Review under the clearly erroneous standard is significantly deferential.” Concrete Pipe and Prods. v. Construction Laborers Pension Trust, 508 U.S. 602, 623 (1993). The appellate court must accept the trial court’s findings unless it’s left with the “definite and firm conviction that a mistake has been committed.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 855 (1982).

• Arbitrary or Capricious: “Under the arbitrary and capricious standard, a reviewing court must consider whether an agency’s decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . .The standard is “highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.”  Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agriculture, 499 F.3d 1108, 1115 (9th Cir. 2007).”  

• Substantial Evidence: “Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).”

• Reasonableness: “An agency action raising predominantly legal rather than factual issues may be reviewed under a reasonableness standard.  See, e.g., Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 964 (9th Cir. 2002); Ka Makani ‘O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 959 (9th Cir. 2002). The reviewing court must determine whether the agency’s decision was a reasonable exercise of its discretion, based on consideration of relevant factors, and supported by the record.  See California v. FCC, 75 F.3d 1350, 1358 (9th Cir. 1996).”

The applicable standard of review may often determine whether a trial court decision is worth appealing.  If there is little to no chance of the appellate court overturning the trial court’s decision, it may be in the client’s best interest to simply accept the decision and move on rather than appealing.  Regardless, knowing the applicable standard of review is vital as an attorney so that you can give your client the most accurate information about their possibility of success at the appellate level so that they can make an informed decision about whether to proceed with an appeal or not.

How do you determine the applicable standard of review?  

“Case precedent is important because the judge is most likely to apply the standard of review that has been used before in similar cases of that jurisdiction. Strategy also plays a role because, when the standard of review is not clearly defined by precedent, you may be able to persuade the court to develop or adopt a standard in your favor.”  Georgetown Law 

When researching the applicable standard of review, you must consider first whether you are appealing a question of law or a question of fact or both.  After that, you can look at cases with similar laws or fact patterns to see what type of review was applied in those cases.  This is not a fail-proof system, so you will need to exercise your own judgment on the final decision; however, the case precedent can prove invaluable.  Also, as mentioned above, you may attempt to persuade the judge that a particular standard of review applies if there is no clear precedent for your situation.  Developing your persuasive writing skills can prove invaluable if this situation ever arises.

Regardless of what area of law you practice, you may very likely end up with at least a few appellate cases.  When that happens, you’ll be grateful you deciphered the standards of review already.  For more information, check out the Federal Standards of Review in our library collection!