Summer 2012 #3. Civil Appellate Advocacy: Effective Use Of The Standards Of Review.

Author:by Hillary J. Massey

Maine Bar Journal


Summer 2012 #3.

Civil Appellate Advocacy: Effective Use Of The Standards Of Review

Maine Bar JournalVOLUME 27 , NUMBER 3, Summer 2012Civil Appellate Advocacy: Effective Use Of The Standards Of Reviewby Hillary J. MasseyOne of the first cases I handled as a law clerk for a state supreme court justice involved one of those tricky issues that is neither factual nor legal, but mixed. After reviewing the briefs and observing oral argument, I eagerly met with my boss, the Chief Justice, hoping to impress her with my analysis of the issues and my recommendations for the decision. My ego was quickly deflated, however, when the Chief stumped me with her first question: what is the standard of review? I blankly stared at her as I realized for the first time that the parties had not set forth the standard in their briefs or argument. The Chief promptly ordered me back to my office to figure it out, explaining with great patience that the standard of review decides every issue in every case. Having left a bit of my pride on the route between the Chief's desk and mine, I will never forget that lesson. This article provides an overview of the three most common standards of review-de novo, abuse of discretion, and clear error-and emphasizes the importance of the standards of review to the entire appellate process, from advising a client about whether to take an appeal, to structuring the briefs and preparing for oral argument.

Overview of the Standards of Review

Appellate standards of review establish the degree of deference that an appellate court (in Maine, the Supreme Judicial Court sitting as the Law Court) affords a trial court's decisions and rulings.(fn1) At one extreme is the de novo (anew) standard. When the Law Court reviews an issue de novo, it does not give any deference to the determinations made by the lower court. Instead the Court takes a fresh look at the issue, standing in the shoes of the trial court, and decides the issue without any regard for the decision below. This standard applies to legal issues including the interpretation of statutes and ordinances; interpretation of contracts and other legal documents; application of the law to the facts; and review of summary judgment orders.(fn2) Deference to the trial court is not required because the appellate court is equally or more capable to decide these issues.

On the other extreme is the clear error standard. Under this standard, substantial deference is afforded the trial court's ruling. Clear error exists when there is not competent evidence in the record to support a lower court's finding.(fn3) The most frequent application of this standard is to judicial fact finding, but it also applies to other issues, including determinations of sufficient foundation for the admission of evidence. The lower court is entitled to deference on these issues because it is in a superior position to make the pertinent findings. For example, a trial court's determinations concerning credibility are entitled to great deference because the trial judge had the opportunity to observe witnesses at trial, as opposed to the appellate court's cold and distant review of a transcript.

Somewhere in the middle of the deference spectrum is the abuse of discretion standard. The overarching question for the Law Court in applying this standard is whether the trial court's...

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