Chapter § 12.2 Standard of Review Determines the Way the Appellate Court Will Analyze the Case



The standard of review is the method the appellate court uses to identify its role in deciding a particular issue on review. Standards of review range from the least deferential standard of review, with the appellate court engaging in the same inquiry as the trial court and reviewing the trial court decision de novo, to the much more deferential standard of review, with the appellate court granting considerable latitude or deference to the trial court and reversing only if the trial court has manifestly abused its discretion by deviating substantially from an acceptable range of decisions.

Appellate counsel should keep in mind the applicable standards of review in evaluating, briefing, and arguing issues on appeal. Unlike the rules of some jurisdictions, e.g., 9th Cir. R. 28-2.5, the Washington Rules of Appellate Procedure (RAP) do not expressly require counsel to brief the standard of review. Nevertheless, counsel should always ascertain the applicable standard(s) of review and either devote a section of the brief to them or set forth the applicable standard of review at the beginning of the argument on each particular issue. An attorney who is unaware of the standard of review will likely miss important points in briefing or focus on the wrong issues, and will likely be ineffective at oral argument when the judges want to focus on the standard of review.

The standard of review reflects the difference between the respective roles of the appellate court and the trial court. The trial court finds the facts and applies the law to the facts. The appellate court typically decides legal, not factual, questions. No evidence is taken at the appellate level, and the appellate court never sees or evaluates the witnesses. The standard of review also recognizes the unique and cherished role of the jury in our system of justice, as trial and appellate courts rarely interfere with the jury's determination of the facts.

Discerning the standard of review may sometimes...

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