Seeing the appellate horizon: civil trial strategy and standards of review in the Eighth Circuit.

• Author: Lawson, R. Christopher

1. INTRODUCTION

   Some practitioners view the standard of review on appeal as an issue that need not be addressed until after an appellate argument has been drafted. For them, the standard of review is a mere afterthought that results in a paragraph dropped into the beginning of the brief to comply with a rule. For the "farsighted practitioner," (1) however, the standard of review is just the opposite. It is the filter through which a litigator's best and worst moments at trial are judged. It is the "first question that cries out for [an] answer," (2) the blueprint for success on appeal, and the tool that shapes every winning argument. In sum, the standard of review can be either the lawyer's best friend or his worst enemy.

   This article does not seek to catalog the infinite number of issues that arise in the appellate context. Instead, its purpose is to identify certain common situations in which the standards of review in the Eighth Circuit shape not only appellate strategy, but civil trial strategy as well. To be sure, the standards of review do not conveniently "fit into a checklist format." (3) Nor are they susceptible of precise definition in every context. (4) They are discussed here within the framework of issues that commonly arise during the course of a trial. They reveal the answer to the "first question" of appellate practice: No trial lawyer can afford to overlook the importance of the standards of review, for they will one day be the lens through which his client's day in court will be examined. (5)

2. STATING THE STANDARD

   Most lawyers cringe at the thought of discovering in an appellate opinion that a case has been decided on the basis of an issue never addressed in the brief. Unfortunately, it happens. And the standard of review can be the critical issue left unaddressed. (6) Lawyers must take care to insure that the standard of review is properly addressed and explained in their briefs.

   The Federal Rules of Appellate Procedure, as revised in 1993, require the appellant's brief to recite the applicable standard of review. Under Rule 28, a "concise statement of the applicable standard of review" must be included for each issue raised on appeal. (7) The statement may appear within the appellant's argument or under a separate heading before the discussion of an issue. This requirement reflects the sound principle that an accurate statement of the standard "generally results in arguments that are properly shaped in light of the standard." (8)

3. PRE-TRIAL RULINGS

   In cases big and small, issues on appeal often arise from rulings made before trial. While pre-trial skirmishes do not lend themselves to quiet reflection about a post-trial appeal, a trial lawyer should not forget that the nature of the dispute dictates the eventual level of scrutiny by an appellate court. Often the dispute implicates the "discretion" of the trial judge. If so, the trial judge's ruling, no matter how critical to the scope and course of the trial, will not easily serve as reversible error.

   In the heat of battle, for example, a pre-trial ruling on the admissibility of evidence may be perceived as the pivotal issue at trial. Because the scope of the trial can hinge on the admissibility of the evidence, a motion in limine is filed. The parties must vigorously defend their positions at a pre-trial hearing. A trial lawyer is well-advised to remember that the outcome of this pre-trial battle is committed to the sound discretion of the trial court. Although the trial court's discretionary rulings are certainly not unassailable on appeal, (9) the hurdle for reversal is high. As one distinguished appellate judge has pointed out, the lawyer who "blindly challenges on appeal the exercise of discretion might do better to take a leisurely stroll through an uncharted minefield." (10)

   A. Abuse of Discretion

   The abuse of discretion standard is applied to situations where the "formulation of legal rules [is] difficult or impossible" and the trial court has "superior knowledge of the issues, the record, the proceedings and the personalities." (11) An abuse of discretion "will be found only when the trial court's decision is based on an erroneous view of the law or a clearly erroneous assessment of the evidence." (12) In general, an abuse of discretion (13) occurs when (1) a relevant factor that should have been given significant weight is not considered, (2) an irrelevant or improper factor is considered and given significant weight, or (3) all proper factors, and no improper ones, are considered, but the trial court commits clear error of judgment in weighing those factors. (14) As explained by Judge Richard Arnold, the phrase "abuse of discretion" means "that the court has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law." (15) The trial court is thus given a "zone of choice within which [it] may go either way." (16)

   B. De Novo Review

   In contrast to rulings on the admissibility of evidence, the trial court's determination of purely legal issues has no advantage at the appellate level. Such determinations are reviewed de novo, which is sometimes referred to in the Eighth Circuit as plenary review. This means the trial court's rulings on purely legal issues are subject to independent appellate review with no deference. (17) The Eighth Circuit may affirm the trial court, however, on any basis supported by the record. (18)

   C. Discovery Rulings

   The trial court has broad latitude in matters relating to pretrial discovery. The court's discovery orders are reviewed "very narrowly" by the Eighth Circuit and will be upheld "unless there was a `gross abuse of discretion resulting in fundamental unfairness in the trial of the case.'" (19) The bottom line is that the trial court, as discovery referee, will not be overturned unless its rulings (even if incorrect) had a demonstrable impact on the outcome of the trial.

   D. Preliminary Injunctions

   As standards of review do not fit into a tidy checklist of situational rules, the dichotomy between abuse of discretion and de novo review is only a starting point for grasping the overall significance of these standards. How, for example, will the Eighth Circuit review the trial court's denial of a motion for preliminary injunction? Is the issue one of law or fact? The short answer is that the denial of a motion for preliminary injunction is reviewed for abuse of discretion. (20) Yet, the trial court's disposition of the motion naturally includes a legal conclusion: whether the moving party is likely to succeed on the merits. This legal issue is independently reviewed de novo on appeal. (21) The appellant should always be on alert to the possibility that "[l]legal error can be embedded in an apparently discretionary decision." (22) Moreover, the trial court's treatment of an issue as one of law or fact is not entitled to deference on appeal. (23)

   E. Common Motions to Dismiss

   The farsighted trial lawyer should also remember the standards of review for common pre-trial orders involving motions to dismiss. For example, an order of the trial court that grants a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) will be reviewed de novo on appeal. (24) The Eighth Circuit will "construe the allegations in the complaint in the light most favorable" to the plaintiff, and will affirm the dismissal only if "it appears beyond doubt that [the plaintiff] can prove no set of facts in support of his claim which would entitle him to relief." (25) Likewise, the Court will review de novo an order of the trial court dismissing a complaint for lack of subject matter jurisdiction. (26)

   The dismissal of an action under Rule 41(b) for failure to prosecute or to comply with an order of the trial court is reviewed for abuse of discretion. (27) Yet, because dismissals under Rule 41(b) operate as an adjudication on the merits, the Eighth Circuit does not look favorably upon them: "Dismissals with prejudice are drastic and extremely harsh sanctions. Cases should be dismissed with prejudice only where the plaintiff has intentionally delayed the action or where the plaintiff has consistently and willfully failed...