§ 12.6 Working with The Standard of Review



Counsel should identify the appropriate standard of review as early in the appeal process as possible. Different standards will control different issues. The standard of review is highly relevant in advising the client as to whether to pursue an appeal, and as to the prospects for successfully prosecuting or defending an appeal. The standard of review is also very important in guiding the selection of the best issues for appeal and helping to focus the research and writing of appellate briefs.

Counsel should study recent cases dealing with the same or similar issues to identify the standard of review. Do not rely on headnotes or digests, which often do not address the standard of review. It is necessary to analyze the opinions (which may not always clearly identify the standard of review being applied) to ascertain what deference the appellate courts have given to similar trial court decisions in analogous cases.

If the standard of review appears unfavorable for a particular issue, consider whether the issue may be recharacterized to take advantage of a more favorable standard. Break the abuse of discretion standard down into its component parts, and analyze the different components individually.

In every appeal, the standard of review favors one side or the other. If the standard of review is favorable to your position, rely on it and argue it. For example, if you are appealing from an adverse summary judgment, all facts must be viewed most favorably to your client, and your client is entitled to the benefit of all reasonable inferences arising from the facts. Argue and apply this standard, taking full advantage of the facts and inferences that favor your client to show that a genuine issue of material fact exists for trial. If, as commonly happens, the respondent strays from the standard of review, use the reply brief to refocus the court on the proper standard of review.

Do not simply mention the standard of review and then ignore it. Appellants must show why reversal is necessary under a proper application of the standard of review. Respondents...

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