We have discussed the trial court proceedings. But what about appeals?
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.
Why does the standard of review matter? Because it will influence your decision to appeal based on the probability of a successful change in decision.
Put it this way. Each issue on appeal is subject to a standard of review, and the standard 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 standard to be identified in the parties’ Appeal Briefs. (Supreme Court Rule 341(h) requires “a concise statement of the applicable standard of review for each issue, with citation to authority . . . “)
The standards of review can be summarized into three (3) categories: (1) De Novo, (2) Manifest Weight of the Evidence and (3) Abuse of Discretion. Such that you will have a clear understanding, we will discuss the first standard, De Novo, here and will discuss the other standards in the next In the Loop articles.
1. De Novo: Under this standard, the appellate court is looking to a broader question of law rather than the individual case. The appellate court decision carries implications of greater magnitude across a broad range of cases. Consistency in the law is the key ingredient of predictive certainty from case to case – similar cases must be treated similarly. The appellate court, therefore, has primary responsibility for maintaining a stable body of legal precedent to guide the trial courts. Errors of law are intolerable because the law itself should not vary according to which trial judge is applying that law. The appellate court assures the same law is applied in similar situations by all trial courts. When determining what the “law” is, the power of the appellate court is at its fullest. There is no hesitation of the appellate court to overturn (i.e., reverse) the lower court’s decision. The de novo standard is the least deferential to the trial court.
Having handled dozens of appeals in both federal and state courts, and in the Illinois Supreme Court, familiarity with the correct “standard of review” and what it means for your case is essential for success.
(We gratefully acknowledge information from Storm, Timothy J., The Standard or Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court, 34 S. Ill. Univ. L. J. 73 (2009)).
