A scientist examining some aspect of nature has a range of optical implements at her disposal, such as a microscope, a magnifying glass, and a telescope. The view she obtains and the conclusions she reaches are in part a function of the instrument she selects.
An appellate court is in a similar situation, but instead of having a choice, the tool it must use is determined by the type of issue it is considering. The lens through which an appellate court assesses the ruling of a lower court is known as the standard of review. The standard of review applicable to a particular case can make the difference between an affirmance and a reversal.
The two most common standards of review are known as deferential review and de novo review. In deferential review, the appellate court determines whether the lower court’s decision was reasonable even if it disagrees with that decision. In de novo review, by contrast, the appellate court determines whether the lower court was right.
So, for example, imagine you lost a bench trial involving a claim for breach of contract and perceive two potential grounds for appeal: the judge misweighed the evidence and misinterpreted the contract. The appellate court will evaluate these two arguments differently.
On the first issue, the appellate court will apply the substantial evidence standard of review, which is a form of deferential review. It will determine if a reasonable person could have reached the trial judge’s conclusion about the evidence, regardless of whether the appellate court agrees with the trial court’s ruling or not. The theory behind this principle is that the trial judge observed the witnesses testify and was in the best position to evaluate their credibility. Even if you can show that a preponderance of the evidence supports your side, there still may be substantial evidence against you. In that case, the judgment will be affirmed. Successful challenges to judgments on substantial evidence grounds do occur, but they are relatively rare.
On the meaning of the contract, however, the appellate court will apply de novo review. The trial judge is in no better posture to interpret the written word that an appellate court is, so the appellate court will make its own determination of the meaning of the document.
An important component of appellate advocacy is choosing issues with an advantageous standard of review. In this simple example it might not hurt to raise both issues on appeal, but in more complex situations consideration of the standard of review is critical when selecting the issues to address on appeal.