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The Standard for Standards of Review

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You've heard it mentioned in class or maybe around the law firm.  But you're still not exactly sure . . . what is a "standard of review"?  That phrase is one of a multitude of legal phrases that one understands and yet at the same time remains puzzled.  According to a Georgetown article, "A standard of review is the measure of deference an appellate court gives to the rulings of a lower court. . . . The scope of an appellate court’s reconsideration is determined by the applicable standard of review."  According to F.R.A.P. 28(a)(8)(B), the applicable standard of review must be included for each issue presented.

So what are the standards?  And how do we decide which one applies?  This article discusses standards of review at great length: Standard of Review (State and Federal): A Primer.  The standards are as follows:







The applicable standard of review may often determine whether a trial court decision is worth appealing.  If there is little to no chance of the appellate court overturning the trial court's decision, it may be in the client's best interest to simply accept the decision and move on rather than appealing.  Regardless, knowing the applicable standard of review is vital as an attorney so that you can give your client the most accurate information about their possibility of success at the appellate level so that they can make an informed decision about whether to proceed with an appeal or not.

How do you determine the applicable standard of review?  
"Case precedent is important because the judge is most likely to apply the standard of review that has been used before in similar cases of that jurisdiction. Strategy also plays a role because, when the standard of review is not clearly defined by precedent, you may be able to persuade the court to develop or adopt a standard in your favor."  Georgetown Law 
When researching the applicable standard of review, you must consider first whether you are appealing a question of law or a question of fact or both.  After that, you can look at cases with similar laws or fact patterns to see what type of review was applied in those cases.  This is not a fail-proof system, so you will need to exercise your own judgment on the final decision; however, the case precedent can prove invaluable.  Also, as mentioned above, you may attempt to persuade the judge that a particular standard of review applies if there is no clear precedent for your situation.  Developing your persuasive writing skills can prove invaluable if this situation ever arises.

Regardless of what area of law you practice, you may very likely end up with at least a few appellate cases.  When that happens, you'll be grateful you deciphered the standards of review already.  For more information, check out the Federal Standards of Review in our library collection!

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