Appellate Insights

Apr 13, 2021 Laurie J. Hepler
You Gotta Have Standards

Appellate courts examine every issue through a lens—the “standard of review”—that deeply affects the analysis of whether prejudicial error occurred. Briefs must do so too.

  • The most lenient standard, “substantial evidence” review, applies to claims of error in fact-finding, because judges and juries are closest to the evidence. Appellate courts will affirm where even modest evidence supports a fact determination.
  • The most searching standard, “de novo” review, applies primarily to claimed errors in selecting (or interpreting) a rule of law. It applies in a wide range of contexts, including demurrer and summary judgment rulings.
  • Other standards control other kinds of issues, requiring careful assessment.
  • There is sometimes room for advocacy about the correct standard to apply. This is especially true for so-called “mixed questions of law and fact,” which turn on the application of a rule of law to a particular situation, such as whether a statute of limitation was tolled.

►  The practical message:  The standards of appellate review should shape any post-judgment case evaluation, and should frame your advocacy on appeal, whether you seek to affirm or reverse a judgment.