The Standard Of Review – How It Helps Your Case

We have discussed the trial court proceedings. ?But what about appeals?

In evaluating the strength of an appeal, the fundamental difference is that the trial court is a “court of record,” whereas the appellate court is not. ?There are no court reporters and no “evidence” is taken in the appellate court. ?The appellate court reviews the record that has already been established in the trial court. ?The appellate court then issues a written decision based on that record, the parties’ briefs and oral argument of counsel (if oral argument is allowed).

The power of the appellate court to correct or change the decisions of the trial court will depend on the?standard of?review, which is the?deference?the appellate court must give to the trial court’s decisions on the record. ?The?standard of review?is one of the important mechanisms working to confine the appellate court to its proper role of reviewing the record presented on appeal.

Why does the standard?of review?matter? ?Because it will?influence?your?decision to appeal?based on the probability of a?successful?change in decision.

The standard is sometimes said to represent a measure of “how wrong” the lower court’s decision must be to justify reversal. ?

In short, there are three typical outcomes. ? The appellate court can “affirm” the lower court decision (which means the winner in the trial court?remains the winner), “reverse” the lower court decision (which means the winner in the trial court?is now the loser), or “remand” for further proceedings in the trial court consistent with the directions of the appellate court. ?

The standards of review can be summarized into three (3) categories: (1)?De Novo, (2)?Manifest Weight of the Evidence and (3) Abuse of Discretion. ?We?will discuss the first standard,?De Novo, here and will discuss the other standards in the next In the Loop articles.

De Novo: ?Under this standard, the appellate court is looking to a broader question of law rather than the individual case. ?Consistency in the law is the key ingredient of predictive certainty from case to case – similar cases must be treated similarly.?The appellate court, therefore, has primary responsibility for maintaining a stable body of legal precedent to guide the trial courts. ?Errors of law are intolerable because the law itself should not vary according to which trial judge is applying that law. ?When determining what the “law” is, the power of the appellate court is at its fullest. The?de novo?standard is the least deferential?to the trial court.

Having handled dozens of appeals in both federal and state courts, and in?the Illinois Supreme Court,?familiarity with the correct “standard of review” and what it means for your case is essential for success.

(We gratefully acknowledge information from Storm, Timothy J., The Standard or Review?DoesMatter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court, 34 S. Ill. Univ. L. J. 73 (2009)).