The Standard of Review

Appellate courts do not retry cases; they review what the trial court did. On some issues, the appellate courts are very deferential to the trial court; on other issues, the appellate court exercises its own independent judgment without giving any weight to the trial court's decision. The relevant standard of review determines how deferential the appellate court is for a particular issue. The following discussion shows the importance of keeping the standard of review in mind when writing a brief or arguing a case.

Date sent: Sat, 13 Sep 97

I ALWAYS include a Standard of Review section first in my argument section, even in state courts where it is not required. For example, if it were an appeal from a summary judgment, I knew that I would be required to read the appellant's Statement of Facts in the light most favorable to the appellant. That can make a big difference in how one reads the Statement of Facts. If the appellee were to start arguing that the facts were wrong, it would certainly start to look like there were some issue of fact. Of course, one of the best appellant's briefs I ever read [as a clerk on the Alabama Supreme Court] managed to convince me there was a genuine issue of material fact--until I read the appellee's brief. If that appellee had retained a less competent attorney, he might have had his summary judgment reversed, simply because the appellant's attorney did such a good job.

Date sent: Tue, 28 Oct 97

Approximately one year ago, four colleagues and I, each representing a defendant in a complex first degree murder case in the Court of Appeal in Los Angeles, sat through two hours of argument before our case was called. Each of us is an experienced appellate practitioner and the bulk of all of our practices is criminal appeals, although several of us have civil background as well. All but one of the matters on calendar were civil.

We were all appalled at the number of lawyers who stood before the Court that day, reargued the facts, and seemed to have no understanding of the substantial evidence standard. In fact, few -- if any -- of the matters which preceded us actually involved issues of law.

It would be very refreshing to see our state appellate courts issue an opinion similar to N/S Corp v. Liberty Mutual. None of these lawyers was serving his or her client's interest.

Date sent: Wed, 29 Oct 97

I think the occasional well-timed article in a bar publication devoted to litigation in general would help. A short, unscholarly piece I did on the various standards of appellate review appeared in the North Carolina Bar Association Litigation Section's newsletter several years ago. I have been getting appreciative comments on the article ever since, even though it said nothing that wasn't apparent to anyone practicing seriously in the appellate area.

Date sent: 29 Oct 1997

In New York the problem is more complicated. Our Court of Appeals has no power to review any facts except in death penalty cases. The Second Circuit, of course, cannot review any fact finding that is supported by the evidence. Our Appellate Division, however, has the power to review the weight of the evidence, probably the broadest fact review power of any appellate court in the country. There are far too many lawyers who brief and argue appeals who do not even know that the powrers of the courts are diferrent.

The above discussion was taken from the Appellate Law Discussion list and edited.

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