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Tom Stilp JD, MBA/MM, LLM, MSC
As promised, we would discuss the third of three standards of review commonly exercised by appellate courts, state and federal, when reviewing cases. (By the way, if you have read the three standards of review in our synopsis, you have covered several weeks of a semester involving appellate advocacy in law school.)
To recap, 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.
The standard of review matters because it will influence your decision to appeal based on the probability of a successful change in decision.
The standard is sometimes said to represent a measure of “how wrong” the lower court’s decision must be to justify reversal. When taking an appeal, you must know which standard will apply because the standard will determine your success.
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.
The standards of review can be summarized into three categories: (1) De Novo, (2) Manifest Weight of the Evidence and (3) Abuse of Discretion. Here, we will discuss the third and final standard: Abuse of Discretion.
3. Abuse of Discretion: Under this standard, the appellate court is neither reviewing legal (De Novo standard) nor fact questions (Manifest Weight of Evidence standard), but procedural matters affecting how the trial court runs the courtroom. Abuse of discretion standard is most favorable for the trial court. Decisions whether to grant an extension of time, a continuance, allow a new party, or decide how the parties proceed with discovery all fall under the abuse of discretion standard. The abuse of discretion standard is the most 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)). |
