What’s the
STANDARD OF
REVIEW
Got To Do With It?
Timothy J. Storm,
The Standard of Review Does Matter:
Evidence of Judicial Self-Restraint
in the Illinois Appellate Court,
34 Southern Illinois University Law Journal 73
(2009)
www.illapp.com
► Role of the Standard of Review
► Illinois Standards of Review
► Need for Consistent Application
► Empirical Study
► Concerns
The Role of the
Standard of Review
Dictates the reviewing court’s
level of deference
to the lower court’s decision.
The Role of the
Standard of Review
Maintains the relationship
between courts at various levels
of the appellate review process.
Maintaining the Relationship
Between Courts
Trial Courts
Fact-finding
Applying established law to facts
Reviewing Courts
Error correction
Maintaining stable body of precedent
Why the Relationship
Between Courts Matters
CERTAINTY
Why the Relationship
Between Courts Matters
Certainty in Dispute Resolution
(Fairness)
Predictive Certainty
(Precedent/ Stare Decisis)
Certainty
Providing Certainty By
Resolving Individual Disputes:
TRIAL COURTS
Certainty
Providing Certainty By
Consistent And Coherent
Legal Rules:
REVIEWING COURTS
Maintaining the
Courts’ Different Roles
Appellate Jurisdiction
▬
Standard of Review
Appellate Jurisdiction
The Court’s Power
To Hear A Case
Standard of Review
Scope of the
Court’s Role in the
Case
The Role of the
Standard of Review
Enhance Certainty
By
Defining the Proper
Role of Various
Levels of Courts
QUESTIONS?
Illinois Standards of Review
Legal Rulings
Fact Findings
Discretionary Rulings
Illinois Standards of Review
Legal Rulings
De Novo
The Standard for
Legal Rulings
De Novo
No deference to the
trial court’s decision.
Illinois Standards of Review
Fact Findings
Manifest Weight of the Evidence
The Standard for
Fact Findings
Manifest Weight of the Evidence
“[A]ll reasonable people would
find that the opposite conclusion
is clearly apparent.”
Illinois Standards of Review
Mixed Questions
of Law and Fact
Clearly Erroneous
The Standard for
Mixed Questions
Clearly Erroneous
“[L]eft with the definite and
firm conviction that a mistake
has been committed”
Illinois Standards of Review
Discretionary Rulings
Abuse of Discretion
The Standard for
Discretionary Rulings
Abuse of Discretion
Very deferential to the
trial court’s ruling . . .
“[N]ext to no review at all.”
Illinois Standards of Review
► De Novo
► Clearly Erroneous
► Manifest Weight of the Evidence
► Abuse of Discretion
QUESTIONS?
Consistent Application
of the Standards
► The importance of consistent
application.
► Checking consistent application
through further review.
► Other means to check for
consistency.
Consistent Application
of the Standards
Defining
“Consistency”
The Need for
Consistent Application
The standards regulate the role of
the courts as a means to
maximize:
CERTAINTY
The Need for
Consistent Application
Review must
assure application
of proper legal doctrine.
The Need for
Consistent Application
An appeal cannot be
a mere “do over”
of the trial.
The Need for
Consistent Application
Without proper
legal doctrine,
there is no predictive certainty.
The Need for
Consistent Application
Without finality
of the trial court’s decision,
there is no
decisional certainty.
How can we know whether
the standards are being
applied consistently?
Regulating Consistency
Through Objective Observation
Outcomes at various levels
are not self-evident.
Regulating Consistency
Through Further Review
Essentially unreviewable
in practice.
Regulating Consistency
Through Further Review
Uncovering the wrong standard of
review is easy, but . . .
Regulating Consistency
Through Further Review
Uncovering the wrong standard of
review is easy, but . . .
Uncovering the erroneous
application of the correct
standard is far more difficult.
If an appellate court’s application of
the
Standards of Review are
insulated from further review,
the system must rely upon
judicial self-restraint . . .
. . . but how can we know
whether the appellate courts
are exercising self-restraint?
Consistent Application
of the Standards
Clearly important, but how can
we be sure that the courts
consistently apply the standards?
QUESTIONS?
Are the Standards of Review
Consistently Applied?
► Basic Outcome Expectations
► Study Design
► Study Results
Basic Outcome Expectations
Greatest deference =
More affirmances
Lower deference =
Fewer affirmances
Basic Outcome Expectations
Lowest affirmance rate:
De novo
Highest affirmance rate:
Abuse of discretion
Study Design
Review of all opinions in civil cases
issued by all appellate court
districts during the years 2005
through 2007 and reported in the
Westlaw database.
1,204 decisions.
Study Design
Data Universe:
1,204 decisions
including
1,539 separate issues.
Study Design
Data Coding:
► Standard of review that the court
applied to each issue.
► Disposition of the issue.
Study Results
Affirmance Rates
Study Results
Affirmance Rates
De Novo
63%
Study Results
Affirmance Rates
De Novo
Clearly Erroneous
63%
62%
Study Results
Affirmance Rates
De Novo
Clearly Erroneous
Manifest Weight
63%
62%
73%
Study Results
Affirmance Rates
De Novo
Clearly Erroneous
Manifest Weight
Abuse of Discretion
63%
62%
73%
77%
Study Results
Anomalies.
Study Results
Affirmance Rates
De Novo
Clearly Erroneous
Manifest Weight
Abuse of Discretion
63%
62%
73%
77%
Study Results
Affirmance and reversal
rates for each standard
are reasonably consistent.
Study Results
Affirmance and reversal
rates for each standard
are reasonably consistent
from district to district.
Study Results
Affirmance and reversal
rates for each standard
are reasonably consistent
from district to district
and from year to year.
Are the Standards of Review
Consistently Applied?
In short . . .
Are the Standards of Review
Consistently Applied?
In short . . .
Yes!
QUESTIONS?
Notable Concerns
Timothy P. O’Neill & Susan L. Brody,
Taking Standards of Appellate Review Seriously:
A Proposal to Amend Rule 341,
83 Illinois Bar Journal 512 (1995)
Notable Concerns
► Failure to State the Standard
► Administrative Review Standards
► Abuse of Discretion Overinclusive
► Wrong Level of Deference
Failure to State the Standard
Most courts are now stating the
standard.
Administrative Review Standards
Administrative Review standards
are still applied without
sufficient explanation.
Abuse of Discretion Overinclusive
Includes discretionary rulings
but
also includes other types of rulings.
Wrong Level of Deference
The study suggests that
appellate justices are
consistently applying the
standards and exercising
judicial self-restraint.
Conclusion
Standards of Review
generally operating
as intended to maximize
Conclusion
Standards of Review
generally operating
as intended to maximize
CERTAINTY
QUESTIONS?
Timothy J. Storm
Adjunct Professor,
The John Marshall Law School
Storm Law Office
227 North Main Street
Wauconda, Illinois 60084
847-526-6300
tjstorm@illapp.com