Chapter 26 APPLYING THE STANDARD OF APPELLATE REVIEW IN CIVIL CASES

• Jurisdiction: Maryland

Chapter 26 APPLYING THE STANDARD OF APPELLATE REVIEW IN CIVIL CASES

Derek M. Stikeleather¹

I. STANDARD OF REVIEW—GENERALLY

The first rule of successful appellate practice is obvious: "Be the appellee." Appellants usually lose. But why? It is not because appellants have inferior counsel. Instead, most appeals are won or lost in the trial court because the standard of review often requires appellate court deference to the trial court's discretionary decisions. A deferential standard of review often results in affirmance even from appellate judges who would have reached a contrary result if they had decided the question at trial. But the standard of review varies between appeals and can even vary among issues raised in the same appeal. For many reasons, one must understand the various standards of appellate review from the outset of the case and remain mindful of them through post-trial motions.

The appellate court's power to change trial-court rulings often depends on the type of decision being challenged and its timing. Appellate courts would normally show less deference, for example, to judgments granting motions to dismiss on a purely legal question before any discovery had occurred than they would to judgments entered on a jury verdict after a full trial. Summary judgments are reviewed de novo. But evidentiary rulings made at trial are afforded great deference under the deliberately rigorous standard requiring both error and prejudice to the complaining party.²

When formulating an appeal, prioritize composing a clear statement of exactly which purportedly erroneous trial-court decisions are being challenged and the applicable standard of appellate review for each challenged decision.

II. ADDRESSING THE STANDARD OF REVIEW IN THE BRIEF

Rule 28(a)(8)(B) of the Federal Rules of Appellate Procedure and Md. Rule 8-504(a)(5) similarly require "a concise statement of the applicable standard of review" for each issue on appeal. Brief writers can choose whether to place the statement of the standard of review "in the discussion of the issue or under a separate heading placed before the argument."³ The Federal Rule and the Maryland Rule differ slightly. Md. Rule 504(a)(5) requires all parties filing briefs to identify the applicable standard of review, Fed. R. App. P. 28(b)(4) lets appellees omit the statement of the standard of review "unless the appellee is dissatisfied with the appellant's statement." The better practice is often to provide the statement, even if consistent with the appellant's statement, because concisely stating the standard of review helps focus the argument.

Whether to state the standard of review comprehensively before the argument section or to start each argument section with "a concise statement of the applicable standard of review" for that section depends on which presentation is more effective in that case. As an appeal accumulates issues with different standards of review, a comprehensive statement becomes more difficult to compose. Whichever path a brief writer takes, a succinct statement of the standard of review must tell the appellate court the issue decided below, the stage of the proceedings (e.g., a motion to dismiss was improperly granted, or a motion for post-judgment relief was improperly denied) and the appellate standard of review for each challenged ruling (e.g., no deference for de novo review, abuse of discretion).

Appellants must directly and accurately present the controlling standard(s) of review, even if unfavorable. Ignoring or misstating the relevant standard is rarely effective and often diminishes the entire brief's persuasiveness. (If an opposing party misstates the controlling standard, do not miss the opportunity to state the correct standard, which is not only required but also helps establish your brief as more reliable as the court moves to the competing case-specific arguments.) Still, an unfavorable standard of review does not mean that appellants should stop being advocates when presenting the controlling standards. If, for example, an appeal has two potential issues and the standard of review for one is highly deferential (e.g., abuse of discretion), consider limiting the appeal to the issue that does not constrain the appellate court as tightly, ideally de novo review, or arguing the issue with the more favorable standard first, and the more adverse standard second.

An appeal is not a rematch. Instead, the standard of appellate review often involves some degree of deference to the trial court's ruling. Part V, infra, provides examples of various standards of review shaped by the issue decided below.⁴ Although appellate court deference is often required, practitioners often present appeals as if the court is deciding the case in the first instance. Although appellants understandably may want to draw the court away from deferential review, appellees should not follow. Appellees must keep an advantageous standard of review front-and-center when arguing for affirmance on appeal.

An appellate brief should deal directly and honestly with each asserted error and whether it merits reversal, i.e., whether it is legally "harmless." Many appellate briefs talk past each other, rather than meeting the same case head-on, because the appellant's argument focuses exclusively on the error below while the appellee addresses everything else in the case to argue that the error was harmless. Ideally, both briefs should address the same asserted error, from conflicting viewpoints, and whether it warrants reversal.

Excellent appellate brief writers make a virtue out of necessity. In this context, that may mean giving the court the correct standard to properly resolve the appeal and then, depending on which approach favors your argument, either emphasizing the standard of review or treading more softly. The crucial point is that the standard of review is central to a successful appellate argument, and every brief should reflect a deliberate choice in dealing with that issue. If the appellate court senses that an advocate either will not address or does not understand the controlling standard, it is unlikely to find persuasive much else that the advocate has to say.

III. THE DIFFERENT STANDARDS OF REVIEW

In general, there are three standards of review: de novo; clear error; and abuse of discretion.

De novo review—which generally applies to questions of law—amounts to the appellate court reviewing the issue without deference to the lower court. SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 427 (4th Cir. 2015); Rossello v. Zurich Am. Ins. Co., 468 Md. 92, 102, 226 A.3d 444 (2020). Legal error at any stage is generally subject to de novo review.

Under clear error review, reversal results only if the appellate court has a definite and firm conviction that a mistake was made.⁵ "A factual finding" for instance, "is clearly erroneous if there is no competent and material evidence in the record to support it."⁶

Finally, under abuse of discretion, the appellate court gives the trial court substantial deference and will reverse when the trial court acted arbitrarily or irrationally.⁷

Appeals may include wrinkles in applying the above standards. For instance, Md. Rule 8-131 governs reviews of bench trials, which receive less deference than jury verdict. And while plain error review is virtually nonexistent in civil cases, Md. Rule 8-131 gives appellate courts discretion to consider such issues "if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal."

IV. HARMLESS ERROR

Maryland appellate courts have long refused to reverse judgments based on error that is immaterial or harmless.⁸ At all stages, federal courts also must disregard error that does not affect substantial rights.⁹ This principle guards against appellate courts becoming "impregnable citadels of technicality."¹⁰

In civil cases, the appellant has the burden of showing probable prejudice from the trial court's error.¹¹

V. ILLUSTRATIVE STANDARD OF REVIEW CASES

The following non-exhaustive list of cases shows that appellate courts frequently invoke the standard of review and do so in wide-ranging contexts.

A. Motion to Dismiss

In reviewing a decision granting motion to dismiss, an appellate court will "assume the truth of all well-pleaded, relevant, and material facts in the complaint and any reasonable inferences that can be drawn therefrom."¹² The appellate court will affirm a dismissal "only if the alleged facts and permissible inferences . . . would, if proven, nonetheless fail to afford relief to the plaintiff."¹³

B. Motion for Summary Judgment

When deciding a motion for summary judgment, the trial court decides issues of law, not fact; accordingly, the standard for appellate review is de novo—that is, was the trial court legally correct.¹⁴ As stated by the Supreme Court of Maryland,

The question of whether a trial court's grant of summary judgment was proper is a question of law subject to de novo review on appeal. Livesay v. Baltimore County, 384 Md. 1, 9, 862 A.2d 33, 38 (2004). In reviewing a grant of summary judgment under Md. Rule 2-501, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Id. at 9-10, 862 A.2d at 38. We review the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party. Id. at 10, 862 A.2d at 38.¹⁵

Subject to certain exceptions, Maryland appellate courts review a grant of summary judgment only on the grounds stated by the trial judge.¹⁶ By contrast, the Fourth Circuit will affirm summary judgment on any ground supported by the record.¹⁷

C. Rule 702 Preclusion of Expert Witness

In Maryland state and federal courts, the decision to preclude an expert witness under Fed. R. Evid. 702 or Md. Rule 5-702

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