29 Nov 23

Understanding the Standard of Review on Federal Appeal

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Last Updated on: 15th December 2023, 01:30 pm


Understanding the Standard of Review on Federal Appeal

So you lost your case at the district court level and want to appeal? Or maybe you won and want to defend your victory? Appealing a decision to a federal appeals court can be confusing, especially when it comes to understanding the standard of review.

The standard of review refers to how much deference the appeals court gives to the lower court’s ruling. Basically, how much the appeals court is willing to second-guess the lower court judge or jury. There’s different standards depending on what’s being appealed—whether it’s the judge’s legal conclusions, factual findings, evidentiary rulings, or something else.

Questions of Law

When a party appeals the lower court’s conclusions of law, the standard of review is called de novo. This means the appeals court will review the issues completely fresh, without giving any deference to the lower court’s legal analysis or conclusions. The appeals judges will basically pretend the lower court’s decision doesn’t exist and just focus on what they think the right answer is based on their own analysis of the law and facts.

This de novo standard applies whenever the appeal involves pure questions of law, like the interpretation of a statute or the Constitution, or the application of a legal standard. So if the lower court made an error in interpreting or applying the law, the appeals court won’t hesitate to reverse under this standard. Learn more about de novo review.

Findings of Fact

For appeals challenging the lower court’s factual findings, the standard is much more deferential. Factual findings can only be reversed if they are clearly erroneous. This means the appeals court has to be left with a definite and firm conviction that a mistake was made regarding the facts.

Since the trial judge or jury heard all the evidence and watched the witnesses testify, the appeals court doesn’t want to casually second-guess their assessment of who and what was more credible or persuasive. So unless the factual finding is obviously contradicted by the evidence or makes no sense, the appeals court will let it stand.

Some examples of factual issues that would get clear error review are: a judge’s finding that a defendant acted with discriminatory intent, a jury’s calculation of damages, or a judge’s conclusion that a witness was not credible. The appeals court has to be really convinced the lower court completely botched it to reverse on the facts.

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Discretionary Rulings

When a party appeals discretionary decisions like evidentiary rulings or sentencing decisions, the standard is abuse of discretion. This means the appeals court has to defer a lot to the trial judge’s discretion and can only reverse if allowing the decision to stand would be an abuse of that discretion.

So decisions about things like allowing certain expert testimony, admitting or excluding documents as evidence, giving jury instructions, and sentencing will only be overturned if the trial judge’s decision was arbitrary, irrational, or clearly against the logic and effect of the facts. As long as reasonable minds could disagree about the right call, the ruling will stand.

This abuse of discretion standard reflects that trial judges have a front-row seat to the litigation and appeals courts don’t want to casually second-guess their judgment calls in the heat of battle. See examples of abuse of discretion.

How the Standard Impacts Your Appeal

Understanding the standard of review is critical because it defines how large a hurdle your appeal faces. The more deferential the standard, the tougher it will be to convince the appeals judges to reverse—you can’t just argue the lower court got it wrong, you have argue they clearly or obviously blew it.

So when crafting your legal arguments, you need to tailor them to the applicable standard. If it’s de novo review of a legal issue, focus on why your interpretation of the law is right and the lower court’s was wrong. But for fact issues or discretionary calls getting clear error or abuse of discretion review, you need to emphasize why the errors were so plainly obvious or patently unreasonable that reversal is required.

The standard of review stacks the deck against reversal in many appeals—the system values finality and doesn’t want appeals courts constantly second-guessing trial judges and juries. So you need to pragmatically assess whether the lower court’s errors are realistically bad enough to meet the relevant standard. If not, appealing could be a waste of time and money.


I know delving into the standards of review can make your eyes glaze over—appellate law is notoriously complex and technical. But putting in the work to understand these standards is essential to crafting a compelling appeal that realistically has a shot at reversing the lower court’s judgment. You want the appeals court to confidently conclude that standard was met—that de novo review shows the lower court misinterpreted the law, or that factual mistakes were clearly erroneous, or discretion was clearly abused.


So be sure to tailor your arguments to the specifics of the standard—that’s the key to appellate success!! Let me know if you have any other questions!


Understanding the De Novo Standard of Review

Abuse of Discretion | Wex | US Law | LII / Legal Information Institute