Utah Standards of Appellate Review – Revised [1]

JurisdictionUtah,United States
CitationVol. 12 No. 8 Pg. 8
Pages8
Publication year1999
Utah Standards of Appellate Review – Revised [1]
Vol. 12 No. 8 Pg. 8
Utah Bar Journal
October 1999

Norman H. Jackson Judge

FOREWORD

Recently, several attorneys and judges have asked me, "When are you going to update your standards of review article?" I appreciate their expressions of interest and have been pleased to reply, "In 1999" This comports with my original plan which was to keep an eye on standards of review in Utah appellate opinions for about five years before doing a revision. In 1994,1 wrote: "For the serious appellate advocate I recommend careful study of the following Utah appellate decisions: Pena, Murmansk, Ramirez, Sykes and Vigil."[2] Those cases remain essential to understanding how standards of review developed after the court of appeals joined the Utah appellate system. Moreover, they show the policy considerations and systemic concerns in keeping a proper balance between trial court discretion and appellate court deference.

Pena, a landmark standard-of-review case, was published shortly before the 1994 article. In Drake v. Industrial Commission, 939 P.2d 177 (Utah 1997), counsel adroitly argued Pena, not to support the existing standard, but to change it. See id. at 180-82. When counsel convinced the Supreme Court to change the standard of review, he won the case. See id. at 180-84. Drake reveals astute appellate advocacy at its very best. Familiarity with Pena's progeny, together with other standard-of-review law, will allow you to navigate carefully through the seas of appellate advocacy. My goal has been to help you by compiling a "users manual" or "ready reference" with which to begin charting your client's course.

Please note that new sections have been added to the outline as follows: Pena mixed questions, juvenile cases, rules of civil procedure, rules of criminal procedure and certiorari. Further, I recommend that you retain the 1994 article as a useful supplement to your standards of review research. See Norman H. Jackson, Utah Standards of Appellate Review, Utah Bar Journal 9 (October 1994) (article also available on Westlaw and Lexis).

Finally, I praise and credit my present law clerks, Laurie D. Gilliland and Tawni J. Anderson.[3] They have kept this vessel afloat and steered it carefully into port. Their contributions of skillful analysis and painstaking research went far beyond the call of duty. They personally examined each Utah appellate decision since 1994 - numbering nearly 1200 cases – and evaluated whether it should be cited in tills outline. In my mind, their great work qualifies them as Utah standards of appellate review "experts." Again, I thank those clerks and externs, credited in the first edition, who laid the foundation for this publication. I hope that with this article as your compass you will avoid Titanic-like disasters, find peaceful passage, and reach safe harbor on your appellate voyage.

OUTLINE OF CONTENTS

INTRODUCTION

I. Appeals from Trial Courts

A. Challenging Findings of Fact

1. Introduction

2. Marshaling Requirement

3. Civil Bench Trial

a. Clearly Erroneous Standard

b. Marshaling Cases

c. Examples of Fact Questions

d. Adequacy of Trial Court's Factual Findings

4. Civil Jury Trial Verdict

a. Substantial Evidence Standard

b. Marshaling Cases

c. Examples of Jury Fact Questions

5. Criminal Bench Trial

a. Clearly Erroneous Standard

b. Marshaling Cases

c. Examples of Fact Questions

d. Adequacy of Trial Court's Factual Findings

6. Criminal Jury Trial Verdict

a. Sufficiently Inconclusive or Inherently Improbable Standard

b. Marshaling Cases

c. Examples of Jury Fact Questions

B. Challenging Discretionary Rulings

1. Introduction

2. Traditional Abuse-of-Discretion Standard

a. Civil Cases

(i) Examples of Pretrial Discretion

(ii) Examples of Discretion Exercised During Trial

(iii) Examples of Post-Trial Discretion

b. Criminal Cases

(i) Examples of Pretrial Discretion

(ii) Examples of Discretion Exercised During Trial

(iii) Examples of Post-Trial Discretion

3. Mixed Questions Analyzed under Pena

a. Introduction

b. Examples of Mixed Questions in Civil Cases

c. Examples of Mixed Questions in Criminal Cases

C. Challenging Conclusions of Law

1. Introduction

2. Areas of Application

3. Challenging Conclusions of Law in Civil Cases

a. Correction-of-Error Standard

b. Examples of Conclusions of Law

4. Challenging Conclusions of Law in Criminal Cases

a. Correction-of-Error Standard

b. Examples of Conclusions of Law

D. Challenges in Specific Practice Areas

1. Challenges in Divorce Cases

a. Challenging Findings of Fact

(i) Clearly Erroneous Standard

(ii) Marshaling Cases

(iii) Examples of Fact Questions

(iv) Adequacy of Trial Court's Factual Findings

b. Challenging Discretionary Rulings

(i) Abuse-of-Discretion Standard

(ii) Examples of Questions in Trial Court's Discretion

(iii) Example of Mixed Question Analyzed under Pena

c. Challenging Conclusions of Law

(i) Correction-of-Error Standard

(ii) Examples of Conclusions of Law

2. Challenges in Juvenile Court Cases

a. Challenging Findings of Fact

(i) Clearly Erroneous Standard

(ii) Marshaling Cases

(iii) Examples of Fact Questions

(iv) Adequacy of Trial Court's Factual Findings

b. Challenging Discretionary Rulings

(i) Abuse-of-Discretion Standard

(ii) Examples of Questions within Trial Court's Discretion

c. Challenging Conclusions of Law

(i) Correction-of-Error Standard

(ii) Examples of Conclusions of Law

3. Challenges to Evidentiary Rulings

a. Introduction

b. Specific Standards of Review

(i) Relevancy Challenges

(ii) Challenges to Witnesses

(iii) Expert Testimony

(iv) Hearsay Rulings

(v) Additional Challenges to Evidentiary Rulings within Trial Court's Discretion

(vi) Additional Challenges to Evidentiary Rulings Reviewed for Correctness

c. Harmful Error

4. Rules of Civil Procedure—Examples of Standards of Review

5. Rules of Criminal Procedure—Examples of Standards of Review

6. Review of Attorney and Judge Disciplinary Proceedings

7. Contempt

II. Appeals from State Administrative Agencies

A. Review of Informal Agency Proceedings

B. Review of Formal Agency Proceedings

1. Challenging Findings of Fact

a. Substantial Evidence Standard

b. Marshaling Cases

c. Examples of Fact Questions

d. Adequacy of Agencies' Factual Findings

2. Challenging Discretionary Rulings

a. Challenging Agency's Statutory Interpretation

(i) Explicit Discretion

(ii) Implicit Discretion

b. Challenging Agency's Application of Law

(i) Explicit Discretion

(ii) Implicit Discretion

(iii) Pena Factors and Case Examples

c. Challenging Determinations Contrary to Agency's Rule

d. Challenging Rulings Contrary to Agency's Prior Practice

e. Challenging Agency's "Arbitrary and Capricious" Action

3. Challenging Conclusions of Law a. Examples of Questions of Law

4. Appeals from the State Tax Commission

a. Examples of Fact Questions

b. Examples of Agency's Discretion

c. Example of Mixed Question of Fact and Law

d. Examples of Questions of Law

III. Challenges on Certiorari and upon Certification by Federal Courts

CONCLUSION

INTRODUCTION

An attorney's initial evaluation of whether to file an appeal is the most consequential of appellate activities. Attorneys who do not properly assess the appellate worthiness of their cases disserve themselves, their clients and Utah's appellate system.

Attorneys should not file appeals unless their cases present realistic reasons for reversing significant trial court rulings. Low reversal rates in Utah reveal the need for attorneys to be more reasonable about their decision to appeal. Justice Cardozo made a similar observation some time ago. He estimated at least 90% of cases appealed '"could not, with semblance of reason, be decided in any way but one,'" i.e., affirmed. Ruggero J. Aldisert, Opinion Writing 111 n.20 (1990) (quoting Benjamin Cardozo, Growth of the Law 60 (1924)). In other words, he estimated that no more than 10% of cases appealed would be reversed. His estimate finds statistical support in the 1998 figures from our appellate system. During 1998, 577 appeals were filed with the Utah Supreme Court. In the same year, 40 cases resulted in some measure of reversal. Thus, the reversal rate was only 7%. In 1998, cases at the Utah Court of Appeals resulted in an identical reversal rate. 711 appeals were filed while 50 reversals occurred, i.e., 7%.

This 7% reversal rate shows that many attorneys are not realistic when they decide to file an appeal. They are as" [t]he metaphorical descendants of Don Quixote ... out in full force tilting at windmills, seeking to overturn trial results that had been preordained from the moment the complaints were filed." Aldisert, supra, at 5. Attorneys need to be intellectually and dispassionately objective about the fact that trial court "determinations for the most part are final and binding, irrespective of impressive appellate briefs, thick volumes of records or eloquent argument. This reality of the judicial process is an aspect of the law lost upon most laypersons and many lawyers." Id. at 54 (emphasis added). Here, for attorneys with prospective appeals, I summarize three essential "reality checks" to use in evaluating a case for appeal. For brevity's sake, the words "trial court" or "lower tribunal" should be read to also include administrative agencies.

REALITY CHECKS

Reality Check #1: Has the trial court committed reversible error?

"Error" that does not affect substantial rights of the parties is not reversible error, but harmless error. See Utah R. Civ. P. 61; accord State v. Perez, 924 P.2d 1, 3 (Utah Ct. App. 1996). This rule places "upon an appellant the burden of showing not only that an error occurred...

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