Announcements

Beginning Friday at 10:50 a.m., you and your moot
court partner may sign up as Appellees or
Appellants.

The sign-up sheet will be posted on my office door.

Your Standard of Review assignment, which we will
discuss later in class, is due in class Monday,
January 31.
The Appellate Courts
Case
Case 1
Case 2
Case 3
Reversed
Affirmed
Standard
Final
Standards of Review
What Is It?

The “lens” through which the
appellate court views what
happened at the court below.

The standard of review defines
the degree of deference that a
reviewing court gives to the
decisions made in the lower
court.
Determining the Standard

Ask first whether the issue is a:
•
•
•
•
Factual question
Legal question
Mixed question of fact and law or
A discretionary decisions
Remember, during a trial

The Jury determines issues of facts by
listening to the evidence such as the
testimony of witnesses.

The Judge determines issues of law.
Determining the Standard

So you also need to know
who made the decision in
the lower court:
•
•
•
•
•
Jury
Judge
Agency
Master
Magistrate
Standards

With this information, you can
begin to determine which
standard should apply:
•
•
•
•
De novo
Clearly erroneous
Substantial evidence
Abuse of discretion
The Formula

Except for de novo, the standard of review gives
deference to the winner at the trial level or the appellee.
This is why so few appeals are successful.

The petitioner/appellant has the burden of showing that
there was error below, and the responsibility to advise
the court of the appropriate standard of review.

The parties may take a different view about what type
of review the court is empowered to apply and the
standard may differ depending on what type of issue is
being raised before the court.
Appeal De Novo
(No Deference)

(Means appeal from the beginning) When questions of law
come to the appellate court, it may exercise independent
judgment in the reviewing the case and is free to disagree
with the trial court.

For example, a trial judge’s decision about granting or
denying dispositive motions is reviewed de novo.
•
•
•
•
Purely legal questions
Made by the trial judge
In a civil case
Wide open “lens”
De Novo

De Novo is applied to legal questions because the
appellate court is in just as good of a position to research
a legal issue and reach a conclusion as the trial court.
Policy
Purely legal questions do not depend on the trial judge’s firsthand knowledge of evidence.

Appellate courts are charged to maintain some degree of
uniformity in the law throughout the jurisdiction.

But, the court does not re-evaluate the entire case. It
reviews only those portions of the record relevant to the
legal questions at issue on appeal.
Clearly Erroneous
(Substantial Deference)

The appellate court will not disturb findings of fact
unless such findings of the trial court are clearly
erroneous.

Fed. R. Civ. Pro. 52(a):
• A trial judge's "[f]indings of fact, whether based on oral or
documentary evidence, shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity
of the trial court to judge the credibility of witnesses.“
Clearly Erroneous
• The policy is that trial judge was at the trial and was able to
observe the demeanor of witnesses.
• The appellate court will defer to the trial court unless the
weight of the evidence shows that the judge’s decision is
clearly erroneous. As long as the fact findings are plausible,
they will not be set aside.
•
•
•
•
Factual determinations
Made by the trial judge
In a civil case
“Lens” partially closed.
Substantial Evidence
(Extreme Deference)

A JURY VERDICT must stand unless the appellant
can show that there is no substantial evidence to
support it, considering the evidence in a light most
favorable to the verdict with all reasonable inferences
deducible from evidence drawn in support of the
verdict.
• Facts
• Determined by a jury
• In a civil case
• The “lens” is almost fully closed.
Substantial Evidence

Based on the Seventh Amendment to the U.S.
Constitution, to affirm the verdict, the standard simply
requires evidence that a reasonable mind might accept
as adequate to support a conclusion.

Thus, an appellate court may overturn a judge's factual
finding even though there is evidence to support it (if
there is a clear error), but may not do so with a jury
verdict (unless there is no substantial evidence).
Abuse of Discretion
(Extreme Deference)

On matters entrusted to his discretion, the trial judge has
considerable latitude to decide the question either way
without being reversed.

The appellate court should find that a trial judge abused
his or her discretion if it is firmly convinced that the trial
judge acted arbitrarily or committed a clear error of
judgment.
• Discretionary decisions
• Of the trial judge
• “Lens” almost closed
Examples

Decisions that will be reviewed under an abuse
of discretion standard include:
• Whether the trial court was correct in sanctioning a
party.
• Whether the trial court correctly granted a
continuance in the trial date (in a civil case).
• Whether the trial court ruled correctly on a discovery
matter.
Mixed Questions
of Law and Fact

The standard of review for mixed questions of law and fact
varies depending upon whether the question is more
factual or more a matter of law.

The appellate court usually must accept trial court’s
findings of fact unless clearly erroneous but determination
of whether those facts satisfy a legal test is reviewed de
novo.

Example: Whether the defendant's conduct [a fact
question] amounts to negligence [a legal question].
Mixed Fact and Law

If a question is heavily
dependent on factual
ingredients that a trial
judge is in a superior
position to assess, it is
treated as a question of
fact, and thus reviewed
under the clearly erroneous
standard.

If a question involves
values and policies of
general concern and
involves a matter on
which there should be
jurisdiction-wide
uniformity, the court will
treat it as matter of law
and will apply the de novo
standard.
Strategy - Appellant

If you are the appellant, it is to
your advantage to be able to
characterize the issue on appeal
as a question of law.

You want a de novo review,
because you do not like the ruling
or verdict from the trial court.
Strategy - Appellee

If you are the appellee,
you want to
characterize the issue
as one of fact or as one
subject to the trial
court's discretion.

This is because you are
satisfied with the result
in the trial court and do
not want it disturbed.
The Appellate Courts
Case
Case 1
Case 2
Case 3
Reversed
Affirmed
Standard
Final
Researching the
Standard of Review

In addition to performing your own analysis on what the
standard of review should be, conduct research to see
what authoritative sources have said on the issue.

Case law, state rules and statutes address appropriate
standards for various issues.

The best way to find the appropriate standard of review is
to research your legal issue generally.

Recent cases in your jurisdiction that are on point legally
and factually may give the appropriate standard of review.
Standard of Review

What are the issues that serve the basis for
your search for the standard of review in
this case?

How do you find the appropriate standard of
review for the issues presented by the
notice of appeal in your problem?

What kind of cases should you use for the
standard of review?
Assignment

For next Monday, January 31, as you research the
problem, look for the standard of review for determining,
upon appeal, the grant of a Motion for Summary Judgment.

Citations for the standard of review of both issues should
be from authoritative sources (Cases most on point).

You will write the standard of review and cite on a 3 by 5
card I will give you at the start of our next class.
Research Path: Title IX

“No person in the United States shall, on the
basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected
to discrimination under any education
program or activity receiving Federal financial
assistance.”

How will you find documents that will help
define Title IX?
Hints/Questions