September 9, 2013
Throughout the fall, many of us are glued to our televisions or sitting in stadiums, watching the latest NCAA or NFL football game. Invariably, there will be some close calls on the field that will cause controversy among the fans. Was that a fumble or was the ball carrier already down when he lost control of the ball? Did the receiver catch the ball or did the ball hit the ground first? Did the ball cross the goal line for a touchdown or did the defense stop the runner before he could score? In those situations, whatever the officials called on the field will be questioned. There will be further review – this time by looking at instant replay. While we fans wait for the outcome of that further review, announcers will tell us that – unless there is “incontrovertible visual evidence” that the call was wrong – the call on the field will not be reversed. If replay shows that the call was correct, that call is “confirmed.” If the replay clearly and indisputably shows that the call was wrong, the call is reversed. But if the replay does not provide indisputable evidence one way or the other, the call “stands,” i.e., it will not be reversed. This often frustrates fans who think that the call was probably wrong. Their frustration arises from a failure to understand the applicable standard of review.
Standards of review are crucial. Just as a football fan or coach must appreciate the standard by which an official’s decision will be reviewed, a lawyer must understand the standard that an appellate court will employ to review a trial judge’s decision. Knowing the trial court record and the applicable substantive law is not enough. Counsel must know the standards that will control the appellate court’s review of the trial court’s decision. Different types of ruling are reviewed under different standards. Some standards are deferential to the trial court. Those standards include an abuse of discretion standard and a review for clear error. For other decisions, no deference is given and the decision will be reviewed de novo.
This article will review what those standards mean and will give a sampling of which rulings are reviewed under which standards. And as always, counsel must keep in mind the specific circuit where the case is being litigated. Different circuits might interpret and apply these standards differently.
Basic standards of review and what they mean
The clearly erroneous standard – One of the basic standards of review is the clearly erroneous standard. The Supreme Court long ago held that “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” This standard, however, “does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently . . . . Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.” The clearly erroneous standard of review recognizes “that district courts have a good deal of ‘expertise’ when it comes to fact-finding.” When findings are reviewed under the “clearly erroneous” standard, the appellate court must remember – and counsel arguing the case to the appellate court must remember – that “the court of appeals may not reverse [a district court] even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”
The abuse of discretion standard – Many trial court decisions are reviewed under an abuse of discretion standard. Exactly what constitutes an abuse of discretion can be complicated, as courts have used different definitions in different contexts. In short, when a district court is given discretion to decide something, the court is permitted to make a decision “that falls within a range of permissible decisions.” Although the abuse of discretion standard is a deferential standard of review, appellate courts do not simply “rubber-stamp” the discretionary decisions made by trial courts. “There is an abuse of discretion ‘if the district court relied on erroneous findings of fact, applied the wrong legal standard, misapplied the correct legal standard when reaching a conclusion, or made a clear error of judgment.’”
The de novo standard – Finally, many trial court decisions are subjected to de novo review. While the clearly erroneous and abuse of discretion standards are deferential standards of appellate review, “[d]e novo review is review without deference.” De novo review “is independent and plenary,” and the appellate court is looking at the matter “as though it had come to the courts for the first time.”
Application to particular types of rulings:
The Federal Rules of Civil Procedure provide that “[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Thus, a district court’s finding of facts issued after a bench trial are reviewed for clear error, as are other rulings that involve findings of fact. For example, when asked to rule on a “Batson challenge” to the use of peremptory jury strikes, a district court’s determination of discriminatory intent – i.e. whether the juror was struck due to his or her race or gender – is reviewed on appeal under the clearly erroneous standard.
The standard of review for jury instructions depends on the type of error being claimed. The Ninth Circuit has explained that it reviews de novo whether the instruction is wrong on the law, but reviews the formulation of the instructions in a civil case for an abuse of discretion. The First Circuit has labeled this as a split standard. “We review de novo questions as to whether jury instructions capture the essence of the applicable law, while reviewing for abuse of discretion questions as to whether the court’s choice of phraseology in crafting its jury instructions is unfairly prejudicial.”
Decisions regarding the sufficiency of evidence are legal rulings that are reviewed de novo. Thus, a district court’s ruling on a motion for judgment is reviewed de novo. Similarly, a district court’s grant of summary judgment is reviewed de novo. An appellate court asks if the trial court’s decision was legally correct.
Finally, evidentiary rulings are generally reviewed for abuse of discretion. For example, decisions regarding the admission or exclusion of expert testimony or the relevance of evidence are reviewed “‘for a clear and prejudicial abuse of discretion.’”
In conclusion, appellate counsel must know and understand the applicable standards of appellate review – for the standard of review can determine the outcome of an appeal. Indeed, appreciating the proper standard of review can help appellant’s counsel decide what issues to pursue, or whether an appeal should be pursued at all. In short, knowing and understanding the applicable standard of appellate review is crucial for the lawyer handling an appeal.
Brad McCullough is a commercial and business litigator and appellate attorney at Lerch, Early & Brewer in Bethesda, Maryland. Brad, who chairs the firm's appellate group, represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings.
This article originally appeared in the Fall 2013 edition of SideBAR, the quarterly publication of the Federal Litigation Section of the Federal Bar Association. ©2013 Federal Bar Association.