Appellate texts and practice guides recite solemn homilies about the importance of the standard of review (and with good reason–but that’s another post). We are told that that standard of review defines the strength of the lens through which the appellate court will review the lower court’s decisions. Our standard of review should not be cut-and-pasted boilerplate, we are cautioned, but should be carefully crafted and woven throughout our argument.
Well, okay. But what does that mean? Let’s say I’m an appellant. I’ve decided that I’d like to have the court use a microscope rather than a telescope. Now what?
The first step is understanding the basic framework. At the risk of gross oversimplification, here are the basic standards of review you might encounter in state court, in declining order of deference.
- Legal error: The appellate court undertakes de novo or plenary review, giving no deference to the trial court. This is a fresh look–and for the appellant, a fresh start.
- Abuse of discretion: Most decisions about how a trial is run (e.g., questions about the admission of evidence) are committed to the trial court’s discretion. The appellate court will set them aside only if the trial court abused that discretion.
- Factual error: The trial court generally gets the last word on questions of fact. Its findings will be set aside only if plainly wrong or without evidentiary support. Va. Code Section 8.01-680.
- Area-specific standard: Some areas of law, like local government law or administrative law, have area specific standards like “fairly debatable.” I’m not a specialist and will get myself in trouble if I try to explain them, but they tend to be awfully stringent.
These are the ground rules of appellate review. You can think of them as a ladder.
The appellant always wants to climb the ladder. She wants to be talking to the court about legal error–in no small part because the appellate court, by nature, also wants to talk about law. A clever appellant will select her appeal points and frame her assignments of error accordingly. She will use the standard of review section of her brief as an advocacy tool.
For instance, an appellant challenging an evidentiary ruling may have to concede that an abuse of discretion standard applies–but she will remind the appellate court that an error of law is always an abuse of discretion. Then she can step up the ladder to talk about the trial court’s legal mistakes. Similarly, to sidestep a bad fact finding, an appellant might challenge the trial court’s application of the law to the facts. “Application of law” sounds like something a court might review de novo. (That’s not entirely settled, but it’s still better than challenging a fact finding.) Again, the appellant will try to pull herself up the ladder.
The appellant has a relative advantage: she gets to pick the assignments of error. The appellee has to play on her turf.
At the same time, the appellee will work to slide down the ladder. For instance, he may take every opportunity to show the court that the appellee is re-arguing questions of fact that were determined below. An appellee arguing an evidentiary point might remind the court that the appellant challenges questions committed to the trial court’s discretion–that is, areas where either answer may be acceptable.
The appellee has his own advantage here: it is generally easier to slide down the ladder than it is to climb it. The appellate court will look to decide an issue on the narrowest possible ground, and a stringent standard of review will let it do so.
How does this work out in practice? Take a look at Gray v. Rhoads, 268 Va. 81, 597 S.E.2d 93 (2004), for an example.