Many clients who want to appeal misunderstand the process generally and the standard of review in particular. They view an appeal as a second bite at the apple with a 50% shot at winning. But because many standards of review are deferential to lower court's decisions most appellate courts reverse no more than about 25% of the civil cases they review and around 10% of the criminal appeals. In other words, clients need to know up front that most appeals are unsuccessful because the standard of review does not favor reversal. Conversely, clients and attorneys defending an order or judgment on appeal should be aware of the standard of review, particularly when deferential to the trial court, as this could be one of the most powerful arguments on appeal

The standard of review is now expressly required to be included in appellate briefs filed in the federal appellate courts and some state appellate courts. For example, the federal appellate rule provides that the argument section of the brief must contain "for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues). . . ." Fed. R. App. P. 28(a)(9)(B). An example of a similar state rule reads, "The argument must also include for each issue a concise statement of the applicable standard of review; this statement may appear in the discussion of each issue or under a separate heading placed before the discussion of the issues." Ind. Appellate Rule 46(A)(8)(b) (promulgated February 4, 2000, effective January 1, 2001). Even if the appellate court in which you are appearing does not have such a requirement, a section on the standard of review in your appellate brief is a good practice to adopt.

Most appellate courts in this country use some form of three, general standards of review: (1) de novo, a Latin phrase meaning anew; (2) clearly erroneous; and (3) abuse of discretion. If a party is taking an appeal, the de novo standard is the one most likely to result in reversal. Counsel should carefully review the decision on appeal and scour the record for issues raised below that fit within this standard of review. If a party is defending a lower court's order or judgment, the other two standards-clearly erroneous and abuse of discretion-rarely result in reversal. If appropriate, the issue should be recast to emphasize the more favorable standard for your client. In many appeals, the parties dispute the applicable standard fighting like in a war for the high ground. These standards are guides to the type of issues that will likely be of interest to appellate courts.

I. DE NOVO

Appellate courts decide questions of law de novo. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995). This is a searching inquiry without deference to the lower court's decision. E.g. Ornelas v. United States, 517 U.S. 690, 699-700 (1996) (de novo standard of review applies to determinations of probable cause and reasonable suspicion); Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 113-114 (1989) (de novo appropriate standard for reviewing employer's denial of benefits). This standard also applies when a lower court grants a motion to dismiss or summary judgment on some legal impediment based on the allegations in the pleadings or undisputed material facts designated to the lower court resulting in the termination of litigation short of decision by the finder of fact.

The rationale behind the de novo standard of review for legal questions arises from the institutional strengths of appellate courts when contrasted to trial courts. On the one hand, appellate court sit in multi-judge panels that reach decisions after carefully studying the briefs, listening to oral arguments, conferencing the case while hashing out differences of opinions, and finally drafting decision setting forth the reasons for disposing of the case in a particular manner. The hope is the court's opinion might help resolve the next case in the litigation pipeline. The process is deliberate, cautious, and collegial frequently resulting in an opinion that will bind other parties in similar situations.

On the other hand, the trial court judge sits alone in a busy courtroom quickly deciding issues without the time for introspection built into the appellate process. Many of the decisions are called for quickly in the middle of trial while the jurors, parties, and counsel quietly await a ruling. A trial court makes many more rulings in a span of a year than judges on an appellate court although many such rulings are nothing more than "granted" or "denied" without further explication. Such rulings apply to the parties but lack the precedential value of an appellate court's opinion thus the main focus of trial court judges is resolving the matter between the parties in front of them.

In summary, if a client contacts you wanting to appeal, search for those legal issues resolved by motion to dismiss or summary judgment so that you can appeal under the most favorable de novo standard of review. Some legal issues also arise during trial by way of judgment at the close of plaintiff's case or instructions, but those issues can be mixed with factual issues which decreases the likelihood of reversal. Once all the legal issues have been discovered, start with the strongest one first (e.g. an issue of first impression for the jurisdiction with other jurisdictions resolving the question differently), then the next strongest, and so on. Try to limit the number of issues to no more than three because the perception among appellate judges is that the more arguments you raise the weaker any individual argument seems. The de novo standard is the starting point for almost all successful appeals.

II. CLEARY ERRONEOUS

Questions of fact are reviewed under the "clearly erroneous" standard. First Options, 514 U.S. at 948. Although clients might believe that a factual finding is "clearly erroneous" from their perspective, the appellate courts look at the matter differently. By rule, "[f]indings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Fed. R. Civ. P. 52(a). If the trial court did not believe your client instead crediting the opposing party's testimony on a factual matter, an appellate court is not going to reweigh the evidence on appeal even if the appellate court believes your client told the truth: "If 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. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 573-574 (1985). The "clearly erroneous" standard requires appellate courts to uphold district court determinations that fall within a broad range of permissible conclusions. Cooter & Gell v. Hartmarx Corp., 496 U.S. 359, 400 (1990). Under the "clearly erroneous" standard, the record on appeal must be viewed in the light most favorable to the judgment (i.e. the trial court believed every one of their witnesses, accepted every factual argument they made) and only if no evidence at all supports a factual finding will it be reversed.

The reasoning behind the "clearly erroneous" standard is that the trial court is a better institutional position to resolve disputed factual matters than an appellate court. A trial court judge sees the witnesses face-to-face, such as seeing a client avert his eyes during a crucial bit of testimony, expressing non-verbal signs of lack of truthfulness, or hear something in the witnesses' voices. The cold record reviewed by the appellate court cannot convey such subtle nuances and, therefore, appellate courts largely defer to trial courts on factual matters.

If you are taking an appeal, steer away from any factual question at all. Sometimes clients are reluctant to let go of factual claims that were unsuccessful below wishing to raise them again on appeal. Appellate counsel should point out that factual arguments have little, if any, chance of reversal and that raising weaker factual arguments dilute the focus on the legal issues. The "clearly erroneous" standard of review is telling message from the appellate courts that they do not want to consider factual arguments on appeal.

III. ABUSE OF DISCRETION

Another code for matters not to raise on appeal is the "abuse of discretion" standard of review. Certain matters fall with a trial court's broad discretion to control its courtroom as the judge sees fit. For example, discovery disputes, motions for continuance, requests to hear witnesses out of order, time limits on opening statement or closing argument, and rulings on the admission of evidence all fall within the trial court's broad discretion. The appellate courts simply do not wish to interfere in how a trial court runs the courtroom.

The abuse of discretion standard has also been applied to some substantive areas. A court of appeals is to apply an abuse of discretion standard in reviewing all aspects of a district court's ruling under Fed. R. Civ. P. 11. Cooter & Gell v. Hartmarx Corp., 496 U.S. 359 (1990). Similarly, a district court's determination under the Equal Justice Act that "the position of the United States was substantially justified" is reviewed under the abuse of discretion standard. Pierce v. Underwood, 487 U.S. 552 (1989). The abuse of discretion is a difficult standard of review to meet.

For this reason, if you are defending a trial court's order or judgment you might try to fit the case within the confines of the abuse of discretion standard of review. Like the clearly erroneous standard, the abuse of discretion standard largely means that the appellate court will defer to the lower court's decision with little scrutiny. An abuse of discretion standard does not always result in affirmance, however, because if a question of law is lurking with the exercise of discretion and if the lower court has committed an error of law an abuse of discretion has been established.

* * *