Standards of Review — Abuse of Discretion

In the last few posts, we’ve been working from the ground up to describe how an appeal works – what it is, how it works, and what appeals courts think about when they decide an appeal. In the last post, we discussed the simplest case—de novo review—in which the court of appeals takes a second look at an issue without giving any special weight to the views of the trial court. We discussed the types of issues which are best suited to de novo review – discrete, abstract, black-and-white issues of law. Of course, few decisions in the law really are abstract and black-and white. For example:

  • What evidence should each side be allowed present? Is some evidence so inflammatory that it would be unfair to let a jury see it?
  • In a divorce case, who gets what?
  • In a criminal case, once the defendant is convicted, what’s a just sentence?

What’s common to all of these questions is that they force the trial court to make a judgment call. Once that call has been made, the court of appeals won’t simply second-guess the trial court by deciding whether it would have made the same call. Rather, it will review the decision of the trial court for an abuse of discretion. In Colorado, “[a] trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair.” [1]    Similarly, in the Tenth Circuit, a trial court does not abuse its discretion so long as its decision “falls within the bounds of permissible choice in the circumstances and is not arbitrary, capricious or whimsical.” [2]

When trying to show an abuse of discretion, it won’t be enough for one side to convince the court of appeals that the trial judge was wrong. Rather, the plaintiff will have to show that the trial judge was so wrong that no reasonable judge in his or her position could have come to the same conclusion. You might say that a determination that the trial court abused its discretion is lawyer-speak for “what were you thinking?!”

There is, however, an interesting twist to the abuse of discretion. While the abuse of discretion standard is expressed along the deferential lines above, the courts have also said that “[a] misapplication of the law would also constitute an abuse of discretion.” [3]

This may seem a bit paradoxical. On the one hand, courts have said that the whole point of the abuse-of-discretion standard is that it’s different from, and more demanding than, the de novo standard. But if any “misapplication of the law” also counts as an abuse of discretion, what’s the real difference? The short answer is that this is a place where good lawyering can make a big difference. The appellant will do everything it can to try and convince the court of appeals that the trial court fell short of an explicit, definable standard. The appellee, on the other hand, will do everything it can to emphasize the mushiness of the legal problem and the reasonableness of the trial court’s solution to it.

Which side is successful will depend on the facts of the individual case, the skill of the lawyers, and the disposition of the court.

[1] Lombard v. Colo. Outdoor Ed. Ctr., 266 P.3d 412 (Colo. App. 2011)

[2] United States v. Battles, 745 F.3d 436 (10th Cir. 2014)

[3] In Re Freedom Colo. Info. Inc., 196 P.3d 892 (Colo. 2008)

* The author of this blog post, Logan R. Martin, has interned at the Colorado Supreme Court, and served as a law clerk on the United States Court of Appeals for Tenth Circuit. You can contact Mr. Martin by phone at (303) 915-5002, or by email at logan@westerfieldlaw.com.

The materials on this site are for informational purposes only and are not to be construed as legal advice. Reading or commenting on this blog does not create an attorney-client relationship. Every situation is unique, and you should consult an attorney if you have questions about your specific situation.

Standards of Review – De Novo

We are continuing to describe the appeals process at a basic level, adding a few concepts per post. So far we have discussed what an appeal is, how the appellate process works, and how issues in an appeal are identified. In the next few posts, we will start to discuss what it is an appeals court actually does when it decides an appeal.

That discussion begins with the standard of review. When the court reviews a case, it doesn’t simply “check over” each ruling made by the lower court. Rather, the court will only review the issue(s) that an appealing party asks it to review. The standard of review that the court uses will vary depending upon the nature of the issue, and, in simple terms, determines just how hard the appealing party will have to work to convince the judge(s) to reverse the decision of the trial court.

Standards of review are extremely important.   They promote consistency in appellate decision making and form the basis of the court’s analysis of any legal issue. There are many standards of review that courts will use, but some of the most common are “de novo,” “abuse of discretion,” “clear error,” and “plain error.”   In this post we’ll discuss de novo review.

De novo (Latin for “anew”) review is one of the simplest and most common standards of review in courts of appeals. When the court of appeals reviews an issue de novo, it gives no deference to the conclusions of the trial court. De novo review typically is reserved for the trial court’s conclusions of law—for example, “The Colorado Premises Liability Act does/does not cover “X” situation.” Common examples include instances in which the trial court dismissed a Plaintiff’s claim without a trial (say, by granting summary judgment or a motion to dismiss). In theory, the reason for applying de novo review is that the court of appeals is in just as good of a position as the trial court to decide an issue—the law is what the law is, regardless of the facts of a particular case.[1]

Because a court of appeals reviewing an issue gives no deference to the trial court, it is generally the most favorable standard of review for the appellant. The appellant doesn’t have to convince the court of appeals that the trial court exceeded its authority or acted unreasonably—just that “the law says X, but the trial court said Y.”

De novo review is the simplest and the easiest of the standards of review to understand. The challenge comes when two sides disagree about whether or not it applies. As we will see in future posts, the line between questions of law and questions of fact is not always as bright as it may seem.

[1]Those fifteen words would surely make a great number of legal academics cringe, but our point is not to endorse the theory—just to explain it.

* The author of this blog post, Logan R. Martin, has interned at the Colorado Supreme Court, and served as a law clerk on the United States Court of Appeals for Tenth Circuit. You can contact Mr. Martin by phone at (303) 915-5002, or by email at logan@westerfieldlaw.com.

The materials on this site are for informational purposes only and are not to be construed as legal advice. Reading or commenting on this blog does not create an attorney-client relationship. Every situation is unique, and you should consult an attorney if you have questions about your specific situation.

Issues on Appeal and Preservation

In the last post, we discussed the appellate process—how a case moves through the appeals process. In this post and the next few posts which come after it, we will discuss what an appeals court does with a case and how it makes its decision. In this post, we will introduce two new concepts: issues presented and preservation.

Issues Presented

A lot of clients who want to appeal are surprised to learn that an appeal is not a full “do-over” of a trial. As discussed in the first post, an appeals court does not listen to witnesses, examine evidence, or make factual findings. Moreover, in an appeal, the court will generally [1] only focus on those aspects of the trial that the appellate lawyer tells it to. Thus, the briefs that appellate lawyers submit to the court will always include a section marked “Issues Presented,” “Questions Presented,” or “Statement of the Issues.” The style in which the issues are written and framed depends upon the requirements of the court and the appellate lawyer’s skill. Indeed, one of the skills which separates average appellate lawyers from great appellate lawyers is the ability to find issues on appeal by carefully reviewing the record and then framing those issues in a way that will be persuasive to the court of appeals judges.

Preservation

There is another important limit on what an appellate court can do when it reviews the case, with some exceptions we won’t cover today, an appellate court will not address an issue if it wasn’t brought up to the trial judge first. An attorney who raises an objection to the trial court is said to have preserved the issue for appeal. Likewise, an attorney who fails to raise an issue before the trial court is said to have forfeited or waived the issue before the court of appeals.[2]

A case decided by the Tenth Circuit a few years ago provides a very useful illustration. In United States v. Turrietta [3], the defendant was charged with assaulting an officer. The judge, however, accidentally forgot to swear the jury in before the trial. While this was very likely a mistake (and a serious one), because defendant’s lawyer did not bring the matter up with the trial judge until after the jury reached its decision, the court of appeals affirmed his conviction. The court was especially critical of the defendant’s attorney for “sandbagging” the court—waiting to raise his objection until after he knew the outcome of the trial, remarking that “the law takes a dim view of such tactics.”

Conclusion

A good lawyer plays a very important role in the success or failure of an appeal. The court of appeals is limited in what it will review by what an appellate lawyer asks it to look at, and the court will not look kindly upon lawyers who raise arguments on appeal without giving the trial court a fair chance to fix the problem first.

Notes:

[1] We use the term “generally” because it can sometimes be a matter of debate whether an appeals court “needed” to address an issue to decide a case. For example, in the controversial Citizens United decision in 2010, Justice Stevens, in dissent, argued that the majority unnecessarily reached out to decide upon the constitutionality of parts of the McCain-Feingold Act: “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

[2] There is a technical difference between “forfeiture” and “waiver.” A lawyer forfeits an issue by forgetting or failing to bring it up to the trial court. A lawyer can waive an issue by affirmatively agreeing that the court’s decision on a particular point was correct.

[3] 696 F.3d 972 (10th Cir. 2012).

* The author of this blog post, Logan R. Martin, has interned at the Colorado Supreme Court, and served as a law clerk on the United States Court of Appeals for Tenth Circuit. You can contact Mr. Martin by phone at (303) 915-5002, or by email at logan@westerfieldlaw.com.

The materials on this site are for informational purposes only and are not to be construed as legal advice. Reading or commenting on this blog does not create an attorney-client relationship. Every situation is unique, and you should consult an attorney if you have questions about your specific situation.

 

The Appeals Process

In the last blog post, we discussed, at a basic level, just what an appeal is.  In this post, we’ll discuss the appellate process:  what actually happens in an appeal from start to finish.  Depending on the circumstances of a case, this can be a very complex process.  For now, though, we’ll stick with the simplest case: an appeal in a civil case from a district court in Colorado to the Colorado Court of Appeals.  The basic steps in an appeal are as follows:

  1. The district court case ends—When the district court has entered “final judgment.”  With a few exceptions we won’t get into now, a party can only appeal a “final judgment” of the district court.
  2. The appeal is filed—Normally, the “losing” side below files a document, titled a “Notice of Appeal,” with both the Colorado Court of Appeals and the district court.  The Notice of Appeal alerts the parties, and the district court, that one side is asking for review by a higher court.
  3. The record on appeal is created—As we discussed last week, unlike a trial court, an appellate court does not hear new evidence or listen to new witnesses.  Rather, it simply reviews all of the information heard by the lower court and decides whether the trial court made a mistake.The record on appeal is a set of documents, such as transcripts, pleadings, motions, and orders sometimes less than a hundred pages, sometimes thousands of pages—that tells the court of appeals just what happened in the court below.  Parties who argue to the court of appeals must “cite to the record”—that is, prove to the court of appeals that what they claim happened, actually happened.
  4. The parties file briefs—Briefs are the written documents the lawyers for each side file with the court of appeals to argue their case.  There are usually three: an opening brief, filed by the appellant and explaining what the district court did wrong; a response brief, filed by the appellee explaining why the district court’s decision was proper, and a reply brief in which the appellant gets a chance to rebut the arguments of the appellee.  Appellate briefs are the most important aspect of an appeal.
  5. The court hears oral argument—At oral argument, the parties get a chance to address the court of appeals in person and argue their case to the panel of judges.  Depending on the size and complexity of a case, oral argument can be as short as 20 minutes (10 minutes per side) or as long as an hour (30 minutes per side).  During oral argument, the parties will present their case to the court and answer any questions the judges may have.
  6. The court of appeals makes its decision—Unlike a trial, an appeal is heard by a panel of three (or more) judges who decide a case by majority vote.   After the briefs have been submitted and oral argument is complete, the judges decide whether to affirm or reverse the trial court’s order.  They then issue their opinion.
  7. The case is returned to the district court—Once the court of appeals reaches its decision, the case will eventually be returned to the district court.  If the court of appeals affirms the district court, there is very little left to do before the case is closed.  If the court of appeals reverses the district court, it will usually remand (return) the case to the district court with specific orders telling the court what it did wrong and what it needs to do to fix it.

And that’s the sketch.  In the next post, we’ll talk more about what courts actually do when they hear appeals.

* The author of this blog post, Logan R. Martin, has interned at the Colorado Supreme Court, and served as a law clerk on the United States Court of Appeals for Tenth Circuit. You can contact Mr. Martin by phone at (303) 915-5002, or by email at logan@westerfieldlaw.com.

The materials on this site are for informational purposes only and are not to be construed as legal advice. Reading or commenting on this blog does not create an attorney-client relationship. Every situation is unique, and you should consult an attorney if you have questions about your specific situation.

What is an Appeal?

One of the goals of this blog is to provide useful information to our readers about the legal process. In this post and those which follow it, we will discuss appeals.

An appeal is “a proceeding undertaken to have a decision reconsidered by a higher authority.” (Black’s Law Dictionary, 8th Ed.). In simpler terms, when a party files an appeal, that party asks a higher court to review the actions of a lower court. Undoubtedly, you have heard of the most important and influential appellate court, the United States Supreme Court. Whether the decision is Brown v. Board of Education, which desegregated US schools, or Roe v. Wade, which recognized a constitutional right to abortion, the decisions made by the US Supreme Court have a profound influence on the laws governing our country. In addition to the Supreme Court, there are twelve intermediate federal courts of appeals and scores of intermediate appellate courts in each state.

An appellate court differs significantly from a trial court. At trial, evidence is heard, through the submission of testimony and tangible exhibits, and the decisionmaker (usually a jury, sometimes a judge) applies the facts of the case to the law and makes a decision. Once a result is achieved at trial, any of the parties to the trial can submit the final decision to an appellate court for review to determine if any errors were made at trial.

Importantly, the appellate court does not listen to testimony or take in new evidence. The appellate court’s job is simply to take all of the information presented in the trial court and to then determine if any errors were made. While normally an appeal is filed by the party that lost at trial, an appeal can be filed by any party that believes the trial court made a mistake. An appellate court can affirm or reverse the decision of a trial court or a lower appellate court. If the appellate court decides that the trial court correctly applied the law, it will affirm the judgment of the trial court. If the appellate court concludes the trial court made a significant mistake, it can reverse the decision of the trial court and remand (send back) the case to the trial court.

The most important aspect of an appeal involves written submissions, called briefs, in which the lawyers for each side present their arguments to the court and explain why the trial court made a mistake. If requested, the court of appeals will also allow the lawyers to make an oral presentation to the judges to explain their arguments and answer the court’s questions.

There are many different types of appellate courts, and it is possible that after a trial has concluded, that there could be multiple appeals of that decision to successive, different appellate courts. Because of this, it is possible that a legal case may take years to be fully resolved if the trial court’s decision is appealed.

While this is a good, rudimentary introduction to what an appeal is, in future posts we will engage in a further discussion of the appellate process, including the specific methods used by appeals courts when reviewing the rulings rendered by trial courts.

* The author of this blog post, Logan R. Martin, has interned at the Colorado Supreme Court, and served as a law clerk on the United States Court of Appeals for Tenth Circuit. You can contact Mr. Martin by phone at (303) 915-5002, or by email at logan@westerfieldlaw.com.

The materials on this site are for informational purposes only and are not to be construed as legal advice. Reading or commenting on this blog does not create an attorney-client relationship. Every situation is unique, and you should consult an attorney if you have questions about your specific situation.