Announcements

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Announcements

• Beginning Friday at 1050 a.m., you and your moot
  court partner may sign up as Appellees or
  Appellants.
• The sign-up sheet will be posted on my office
  door.
• Your Standard of Review assignment, which we will
  discuss later in class, is due in class Monday,
  January 31.

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The Appellate Courts
Standard
Final
Affirmed
Reversed
Case
Case 1

Case 2
Case 3
3
Standards of Review
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What Is It?

• The lens through which the appellate court
  views what happened at the court below.
• The standard of review defines the degree of
  deference that a reviewing court gives to the
  decisions made in the lower court.

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Determining the Standard

• Ask first whether the issue is a
• Factual question
• Legal question
• Mixed question of fact and law or
• A discretionary decisions

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Remember, during a trial

• The Jury determines issues of facts by
  listening to the evidence such as the
  testimony of witnesses.
• The Judge determines issues of law.

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Determining the Standard

• So you also need to know who made the decision in
  the lower court
• Jury
• Judge
• Agency
• Master
• Magistrate

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Standards

• With this information, you can begin to determine
  which standard should apply
• De novo
• Clearly erroneous
• Substantial evidence
• Abuse of discretion

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The Formula

• Except for de novo, the standard of review gives
  deference to the winner at the trial level or the
  appellee. This is why so few appeals are
  successful.
• The petitioner/appellant has the burden of
  showing that there was error below, and the
  responsibility to advise the court of the
  appropriate standard of review.
• The parties may take a different view about what
  type of review the court is empowered to apply
  and the standard may differ depending on what
  type of issue is being raised before the court.

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Appeal De Novo (No Deference)

• (Means appeal from the beginning) When questions
  of law come to the appellate court, it may
  exercise independent judgment in the reviewing
  the case and is free to disagree with the trial
  court.
• For example, a trial judges decision about
  granting or denying dispositive motions is
  reviewed de novo.
• Purely legal questions
• Made by the trial judge
• In a civil case
• Wide open lens

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De Novo

• De Novo is applied to legal questions because the
  appellate court is in just as good of a position
  to research a legal issue and reach a conclusion
  as the trial court.
• Policy
• Purely legal questions do not depend on the
  trial judges first-hand knowledge of evidence.
• Appellate courts are charged to maintain some
  degree of uniformity in the law throughout the
  jurisdiction.
• But, the court does not re-evaluate the entire
  case. It reviews only those portions of the
  record relevant to the legal questions at issue
  on appeal.

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Clearly Erroneous (Substantial
Deference)

• The appellate court will not disturb findings of
  fact unless such findings of the trial court are
  clearly erroneous.
• Fed. R. Civ. Pro. 52(a)
• A trial judge's "findings of fact, whether
  based on oral or documentary evidence, 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
  witnesses.

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Clearly Erroneous

• The policy is that trial judge was at the trial
  and was able to observe the demeanor of
  witnesses.
• The appellate court will defer to the trial court
  unless the weight of the evidence shows that the
  judges decision is clearly erroneous. As long as
  the fact findings are plausible, they will not be
  set aside.
• Factual determinations
• Made by the trial judge
• In a civil case
• Lens partially closed.

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Substantial Evidence (Extreme Deference)

• A JURY VERDICT must stand unless the appellant
  can show that there is no substantial evidence to
  support it, considering the evidence in a light
  most favorable to the verdict with all reasonable
  inferences deducible from evidence drawn in
  support of the verdict.
• Facts
• Determined by a jury
• In a civil case
• The lens is almost fully closed.

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Substantial Evidence

• Based on the Seventh Amendment to the U.S.
  Constitution, to affirm the verdict, the standard
  simply requires evidence that a reasonable mind
  might accept as adequate to support a conclusion.
• Thus, an appellate court may overturn a judge's
  factual finding even though there is evidence to
  support it (if there is a clear error), but may
  not do so with a jury verdict (unless there is no
  substantial evidence).

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Abuse of Discretion (Extreme Deference)

• On matters entrusted to his discretion, the trial
  judge has considerable latitude to decide the
  question either way without being reversed.
• The appellate court should find that a trial
  judge abused his or her discretion if it is
  firmly convinced that the trial judge acted
  arbitrarily or committed a clear error of
  judgment.
• Discretionary decisions
• Of the trial judge
• Lens almost closed

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Examples

• Decisions that will be reviewed under an abuse of
  discretion standard include
• Whether the trial court was correct in
  sanctioning a party.
• Whether the trial court correctly granted a
  continuance in the trial date (in a civil case).
• Whether the trial court ruled correctly on a
  discovery matter.

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Mixed Questions of Law and Fact

• The standard of review for mixed questions of law
  and fact varies depending upon whether the
  question is more factual or more a matter of law.
• The appellate court usually must accept trial
  courts findings of fact unless clearly erroneous
  but determination of whether those facts satisfy
  a legal test is reviewed de novo.
• Example Whether the defendant's conduct a fact
  question amounts to negligence a legal
  question.

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Mixed Fact and Law

• If a question is heavily dependent on factual
  ingredients that a trial judge is in a superior
  position to assess, it is treated as a question
  of fact, and thus reviewed under the clearly
  erroneous standard.

• If a question involves values and policies of
  general concern and involves a matter on which
  there should be jurisdiction-wide uniformity, the
  court will treat it as matter of law and will
  apply the de novo standard.

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Strategy - Appellant

• If you are the appellant, it is to your advantage
  to be able to characterize the issue on appeal as
  a question of law.
• You want a de novo review, because you do not
  like the ruling or verdict from the trial court.

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Strategy - Appellee

• If you are the appellee, you want to characterize
  the issue as one of fact or as one subject to the
  trial court's discretion.
• This is because you are satisfied with the result
  in the trial court and do not want it disturbed.

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The Appellate Courts
Standard
Final
Affirmed
Reversed
Case
Case 1

Case 2
Case 3
23
Researching the Standard of Review

• In addition to performing your own analysis on
  what the standard of review should be, conduct
  research to see what authoritative sources have
  said on the issue.
• Case law, state rules and statutes address
  appropriate standards for various issues.
• The best way to find the appropriate standard of
  review is to research your legal issue generally.
• Recent cases in your jurisdiction that are on
  point legally and factually may give the
  appropriate standard of review.

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Standard of Review

• What are the issues that serve the basis for your
  search for the standard of review in this case?
• How do you find the appropriate standard of
  review for the issues presented by the notice of
  appeal in your problem?
• What kind of cases should you use for the
  standard of review?

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Assignment

• For next Monday, January 31, as you research the
  problem, look for the standard of review for
  determining, upon appeal, the grant of a Motion
  for Summary Judgment.
• Citations for the standard of review of both
  issues should be from authoritative sources
  (Cases most on point).
• You will write the standard of review and cite on
  a 3 by 5 card I will give you at the start of our
  next class.

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Research Path Title IX

• No person in the United States shall, on the
  basis of sex, be excluded from participation in,
  be denied the benefits of, or be subjected to
  discrimination under any education program or
  activity receiving Federal financial assistance.
• How will you find documents that will help define
  Title IX?

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Hints/Questions