Thomas Stilp, JD, MBA/MM, LLM, MSC
Winning the case often means the other side, which lost, will be appealing the case.
Because many lawyers think it is too complicated or time-consuming to explain one of the most important factors for a successful appeal, this factor is never discussed.
Our next issues of “In the Loop” will provide a primer on this most important factor.
In evaluating the strength of an appeal, the fundamental difference is that the trial court is a “court of record,” whereas the appellate court is not. There are no court reporters and no “evidence” is taken in the appellate court.
The appellate court reviews the record that has already been established in the trial court. The appellate court then issues a written decision based on that record, the parties’ briefs and oral argument of counsel (if oral argument is allowed).
The power of the appellate court to correct or change the decisions of the trial court will depend on the deference the appellate court must give to the trial court’s decisions on the record. The standard of review is one of the important mechanisms working to confine the appellate court to its proper role of reviewing the record presented on appeal.
Each issue on appeal is subject to a standard of review, which dictates the degree of deference that the reviewing court will afford to the lower court’s decisions. The standard is sometimes said to represent a measure of “how wrong” the lower court’s decision must be to justify reversal. In short, there are three typical outcomes.
The appellate court can “affirm” the lower court decision (which means the winner in the trial court remains the winner), “reverse” the lower court decision (which means the winner in the trial court is now the loser), or “remand” for further proceedings in the trial court consistent with the directions of the appellate court.
The standard of review is so significant that the rules of the appellate court require the appellant (the party appealing the trial court decision) to identify the appropriate standard of review for each issue addressed in the opening brief. Illinois Supreme Court Rule 341(h)(3).
Courts have observed that the standard of review applied in a particular case may be outcome determinative. A standard that is highly deferential to the lower court’s decision may dictate affirmance of that decision, whereas the same decision may have been reversed under a less deferential standard.
Although we can simply set forth the standards, it is important to understand why a certain standard might apply as it puts issues in context.
There is a strikingly different degree of deference that accompanies the various standards, ranging from none under the de novo standard, to almost complete deference when the abuse of discretion standard is applied. The appellate court is not bound by the standard identified by the parties, and even the trial court gets the standards confused, so that the context becomes critical for the issue on appeal.
Our next issue of “In the Loop” will review the standards that are always used to determine the success of an appeal. The standards are so critical that every client should have some understanding how they apply and affect the appeal.