The Standards of Review

The Standards of Review

Thomas Stilp,  JD, MBA/MM, LLM, MSC

From our prior “In the Loop,” the most important factor for a successful appeal is the standard of review.  The standard of review will make or break your appeal.  Although many attorneys do not explain the standard to clients, you should know what standard applies to determine your likely success.

The standards of review can be summarized into three (3) categories:

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.

Manifest Weight of the Evidence
Under this standard, the appellate court is looking to fact decisions on the particular case.  There is less concern in the court system for achieving consistency because there are diverse fact patterns that make each case unique, and the judicial system’s acceptable margin of error is much greater than compared to the system’s tolerance for error when assuring consistency in the law.

An error of fact is more tolerable because there is less likelihood that a wrong decision will affect other cases.  The manifest weight of the evidence standard asks whether reasonable people could find the opposite conclusion clearly apparent.  Although the standard is difficult for the appellant to meet, the appellate court cannot be entirely deferential to the trial court if the appellate court is to fulfill its corrective function.

Thus, the manifest weight of the evidence standard gives the trial court more deference (and more room to make mistakes) than the de novo standard.

Abuse of Discretion
Under this standard, the appellate court is neither reviewing legal nor fact questions, but procedural matters affecting how the trial court runs the courtroom.  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.

Oddly, the definition of some “procedural” matters also applies to a number of substantive determinations, like discovery sanctions or declaratory judgments.  The abuse of discretion standard is the most deferential to the trial court.

In summary, applying a percentage of reversal (that is, a chance to win) based on empirical data to the standards, we get:

De Novo Manifest Weight of Evidence Abuse of Discretion
Non-deferential Some Deference Most Deferential
Chance to Win: 25% – 35% 35%-65% 70%-90%

Thus, there is a better than even chance to lose if the appellate court applies the de novo standard to the issue, whereas there is a slim chance to lose (as low as 10%, meaning there is a 90% chance of a win) if the appellate court applies the abuse of discretion standard.

Attempting to predict the outcome of an appeal is very difficult; knowing the standard of review is often outcome determinative.  A good attorney will explain.  The standard of review is of singular importance to the success of an appeal.