Standard of Review: Pesky Requirement or Powerful Tool?
| Publication year | 2020 |
| Pages | 0364 |
Abstract
Standards of review are required for all state and federal appellate briefs. Most advocates look upon standards of review as simply a requirement of an appellate court which is often hard to find within the court's own opinions. The standards of review, however, are far from an unnecessary procedural requirement. They are an indicator of your potential success on appeal as well as a powerful tool to craft a winning argument on appeal.
Introduction
As a young appellate lawyer engaged in private practice, I was in the process of putting the finishing touches on an appellate brief that just happened to be due in a few hours. While proofing the brief, I realized there was no standard of review. I had attempted to find the appropriate standard earlier in the writing process, but had abandoned my search out of frustration. That frustration reached the boiling point over the next hour or so as I desperately tried to find something to put in the standard of review section. The most disturbing part of the story is not that I waited until the last minute to add the standard of review, but instead, that I had obviously not incorporated or even referenced the appropriate standard of review into the argument section of my brief. Spoiler alert: I lost the case. The standard of review is not an afterthought or just another of the many requirements that appellate courts require from advocates who practice before them. In fact, it is perhaps the most important procedural aspect of your appeal next to any jurisdictional requirements and deadlines.
As illustrated above, many lawyers do not fully comprehend or appreciate the significance of the standards of review. I specifically recall a case which forever changed my view regarding the importance of the standard of review and the benefits of using it as a powerful tool of advocacy. In March 2009, an Assistant United States Attorney for the Middle District of Alabama filed a response to a defendant's post-trial motion for judgment of acquittal. What was unique about this response was how the prosecutor wove into the fabric of his response, at each and every key point, the highly deferential standard of review.1 The pleading began with a simple presentation of the standard of review that is commonly used in all federal and state criminal cases in which the sufficiency of the evidence is challenged in a motion for new trial and on appeal.2 But the prosecutor did not stop there. He then cited numerous legal authorities in support of his contention that the standard of review "narrowly circumscribes" the issues that the court could even consider at this point in the proceedings.3 The prosecutor expounded on his argument by supplying additional authorities as to the "heavy burden" carried by a defendant who challenges the evidence that supported his conviction.4
While this prosecutor laid a strong foundation for his position, the real damage that he did to his opponent's case was how effectively he repeatedly looped his convincing factual arguments back into the standard of review, which strongly favored the government's position. After factually demolishing the defendant's contentions, the prosecutor would immediately cite to specific language from cases that narrowly prescribe the authority that a trial court has to overturn a jury's verdict when granting a motion for new trial. Specifically, the prosecutor frequently pointed out that defendants are not entitled to relief just because they disagree with the jury's verdict and cannot accept the jury's rejection of their argument.5 Suffice it to say that after using this formula, both the trial court and anyone reading the government's response is left with the conclusion that not only was the defendant not entitled to any relief, but the law which governs the review of the defendant's claims compels their outright denial by any fair-minded jurist or appellate court.
Background: What Is the Standard of Review?
Far from being just another procedural requirement of an appellate brief, standards of review are the essential language of an appeal.6 Indeed, they are the "keystone to court of appeals decision-making."7 They are much easier to describe than they are to define.8 When a case is appealed, it is an appellate court's duty to review the results below to determine if there was any error that requires remand or reversal. That authority, however, has boundaries and those boundaries are set out either by the court's jurisdiction and/or the appropriate standards of review. Simply stated, the standard of review tells an appellate court "how wrong" a trial court must be before it will be reversed.9 In the words of Professor Maurice Rosenberg of Columbia University Law School, a noted expert on this issue, "[t]here are wide variations in the degree of wrongness which will be tolerated" by appellate courts.10
More importantly, standards of review serve the purpose of creating a more respected and consistent body of law by requiring appellate judges to exercise self-restraint.11 Specifically, standards of review require appellate judges to recognize that trial court proceedings are not just a "warm-up exercise," and therefore the decision reached in the trial court should be the final determination unless the error was harmful enough to require reversal.12 This prevents trial court decisions from being rendered meaningless.13 Practically speaking, standards of review, when properly applied, ensure that appellate judges view the issues presented in the appeal from the...
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