The Appellee’s and Respondent’s Best Friend May be the Standard of Review.
Posted on July 23, 2012
In my last post, I noted that appellants and petitioners, losers in the trial court, must be bold on appeal because the applicable standard of review is generally unfavorable. The opposite is true for appellees and respondents, and so they should embrace the favorable appellate standard of review.
Let’s briefly review those standards. The standards of review most likely to apply in an appellate matter will be most favorable to the appellee/respondent to least favorable: abuse of discretion; clear legal right (mandamus); substantial evidence (appealable judgment); and de novo (question of law). In a recent article in Litigation (a journal of the ABA), Andrea Ambrose noted the great advantage an Appellee usually has regarding the applicable standard of review:
The standard of review is perhaps the appellee’s biggest advantage on appeal because the appealed judgment or order is presumed to be correct, until the appellant proves otherwise.
Litigation, vol. 38. no. 3., p. 27. This also means that to win the appeal, you don’t have to win the battle (unless the issue on appeal is a question of law for which the de novo standard of review applies). In working with other attorneys in my prior firm and helping them with an appeal, I found on occasion that an attorney would be hesitant to take full advantage of a favorable standard of review. For example, where the abuse of discretion standard applied, there was hesitancy to admit that the trial judge was anything less than 100 percent correct. The problem with this is that if an appellee fails to fully embrace the abuse of discretion standard, the appeal become litigated based on the de novo standard, which is more favorable to the appellant. This may be very costly and, as in war, an appeal should be fought on the most favorable ground available, not the least. When you represent an appellee don’t be so in love with your facts or your arguments that you’re willing to give the appellant a fair fight because you think you can win even under a de novo standard of review.
Andrea Ambrose explained this in her article:
Discretionary trial court rulings are reviewed under the “abuse of discretion” standard. Under that standard, it is not enough for the appellant to argue that a different ruling would have been “better.” Rather, appellate courts disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice.
In opposing this type of argument, keep in mind that it is the appellant’s burden to establish that the trial court’s action was an abuse of discretion and that is a very high burden. …
Thus, as the appellee, it is important to emphasize that the trial court’s determination was reasonable in light of the whole record and did not constitute a miscarriage of justice, even if the trial court conceivably reached a different conclusion.
Id. at 28.
As I explained in an earlier post from January 16, the standard of review is the lens through which you view the appeal and determine how your will handle it. And in this post from April 30, I explained that the standard of review is critical to creating the gameplan for your appeal. As I’ve stated in the title of this post, the standard of review can be the best friend of an appellee or respondent. Embrace a favorable standard of review and remember you don’t have to win the battle to win the appeal. With the right standard of review, you can cede ground and still win the war.