The Standard of Review is the Lens Through Which You View Your Facts and Issues.
Posted on January 16, 2012
Every lawyer writing an appeal brief, either for the appellant or appellee, knows an appeal is easier to win if you have a favorable standard of judicial review. Although there are various standards, an appellant would want the lower court ruling to be reviewed de novo and the appellee would prefer the ruling be reviewed under the abuse of discretion standard. However, many lawyers write the standard of review section of their brief and then seem to forget that the standard exists, or they may even write that section as they near completion of the brief without it being an integral part of their argument.
To the contrary, the applicable standard of review(s) must be identified at the beginning, and focused on as the brief is written. The standard of review tells you what mark your brief must meet in order to win each issue on appeal; it is the lens through which you view the facts and identify those you will emphasize in your attempt to meet that mark. It is also the means to determine what issues should be raised in an appeal, and what issues should be dropped from the brief. Perhaps, considering the standard or review, a party who would be the appellant might be wise to forego even filing an appeal, given the costs. Because the standard of review is so important in an appeal, every lawyer should become very familiar with the various standards applicable in their venue, which can vary from state to state (for example, Alabama applies a “strict scrutiny” standard to jury awards of emotional distress damages, differentiating it from other types of damages awards).
- Techniques Used in a Winning Appeal Brief. (brieflywriting.com)