Raise Your Standards: A Practitioner's Guide to the Effective Use of Appellate Standards of Review.

Author:Canfield, Rachel
Position:Appellate Practice

Litigants are often tempted to address the merits of a legal issue, without reference to the applicable appellate standard of review. However, litigators should first identify and alert the presiding court to the applicable standard of review because it defines the scope of the appellate court's inquiry, the level of deference to be paid to the lower tribunal's ruling, (1) and controls the outcome of the issue or appeal.

Many litigators unknowingly lose ground before they have even filed their notice of appeal. Trial courts are well aware of the lens through which a ruling will be reviewed and their decisions are tailored to comply with the standard of review long before any appeal is taken. An effective practitioner contemplates which standard of review will apply to each legal issue in a case because doing so helps 1) identify whether an issue is worth pursuing; 2) ensure that an issue is preserved for appeal; 3) predict the way a trial court will rule on the issue; and 4) and shed light on how to persuasively frame the issue during each stage of litigation. Without a firm understanding of the standards of review, a litigant will be hard-pressed to succeed on a motion or properly develop the record for success on appeal.

Categories of Trial Court Rulings

Effective use of a standard of review is informed by the rationale behind the occasion that gave rise to the need for the standard. The standards are a judicial construct, designed to efficiently and judiciously identify and correct harmful legal error.

Essentially, all trial court rulings fall into one of three categories: 1) conclusions of law; 2) findings of fact; and 3) discretionary decisions. (2) Because trial court judges preside alone and observe the presentation of evidence, the law presumes that a trial court is in a better suited position to oversee case management, weigh evidence, resolve factual disputes, and make credibility determinations in the cases over which they preside, (3) but their decisions are not binding and do not have precedential effect over other courts or cases.

Conversely, an appellate court's primary tasks are to review the actions of a lower tribunal for "harmful" or "reversible" legal error, interpret the law, establish uniform precedent and ensure uniform application of the law throughout the state, and administer justice. (4) An appellate court does not reweigh evidence, resolve factual disputes, or make credibility determinations because appellate judges do not have the benefit of observing the presentation of evidence at trial. Instead, they review the cold, hard record on appeal, which generally consists of pleadings, court filings, transcripts, and copies of exhibits. (5) Because Florida's appellate judges sit in panels of three or more, (6) the individual power of an appellate court judge is more limited than that of a trial court judge. This limitation reduces the potential for error and allows for appellate court decisions to have binding, precedential effect over lower courts.

The Relationship Between Trial Court Rulings and Appellate Standards of Review

There are only three categories of trial court rulings and just a handful of the most common standards of review that apply in civil proceedings. (7) Each category confers upon the trial court a lesser or higher degree of judgment. The level of deference paid by the appellate court is in direct proportion to the level of judgment conferred upon the trial court. Despite a body of well-settled law on each standard, the applicable standard is not always apparent or clear. (8) There may be many iterations of just one standard. It may be difficult to distinguish between a question of law and a question of fact, or the nature of the trial court ruling may be mixed. As a result, there are times when it is appropriate for the parties to disagree as to the applicable standard, or even one iteration of the standard, and to present persuasive argument to the court as to why one standard or another should apply. (9) To ignore an unfavorable standard will only cause the party to lose the opportunity to persuade the court to apply a more favorable standard, or to provide the court with an analysis of the legal issue through the appropriate lens. (10)

As discussed more fully below, to successfully navigate through murky legal issues in which the standard is unclear, it is critically important that a litigant understand the theory behind each category and standard to effectively identify and apply the correct standard.

The Most Common Appellate Standards of Review in Civil Cases

In civil cases, an appellate issue may be reviewed under one of the following most common appellate standards of review (or any combination thereof): 1) de novo; 2) competent, substantial evidence; 3) abuse of discretion; 4) harmless error; or 5) the Tipsy Coachman doctrine. (11)

Standards of review serve a number of important functions. Aside from their analytical value, they have practical value as well. Florida law requires that practitioners include in their appellate briefs "[a]rgument with regard to each issue, with citation to appropriate authorities, and including the applicable appellate standard of review." (12) The Florida Supreme Court has underscored the importance and function of the standards of review in appellate proceedings:

An appellate court's first obligation when reviewing a lower court's decision is to articulate its standard of review--i.e., its criterion for assessing the validity of the lower court's ruling. This requirement serves two functions: it informs the parties of the extent of the review and, most important, reminds the appellate court of the limitations placed on its own authority by the appellate process.... Application of the wrong standard of review may tilt the appellate playing field and irreparably prejudice a party's rights. (13)

As a result, a litigant increases the chance for success by clearly stating the standard and weaving it through each argument. To do so, a litigant must be able to correctly identify the applicable standard of review.

* Conclusions of Law are Subject to De Novo Review--Conclusions of law are subject to the furthest-reaching standard of review for an appellate court, "de novo" review, which is a Latin expression that means "of new" or "from the beginning," and expands the appellate court's review of the issue as if it was seeing it for the first time. A question of law does not place a trial court in...

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