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In a recent post I explained the importance of standards of review in appellate practice. In brief, when it exercises deferential review, the appellate court determines if the lower court’s decision was reasonable even if the appellate court disagrees with it. By contrast, when it employs “de novo” review, the appellate court makes a fresh examination of the issue and decides if the lower court was right. When the appellate court determines if the lower court was right, it makes relatively little difference what result the lower court reached, because the appellate court is examining the question anew. However, if the appellate court has to determine if the lower court was reasonable, a defeat in the lower court makes appellate success much more difficult. The applicable standard of review depends entirely on the type of issue raised. The theory underlying deferential or reasonableness review is that a fair and capable judge has already examined the question and made a judgment call. The theory of de novo or rightness review is that the lower court had only one valid choice. This type of review would apply, for example, in determining what the law is or the meaning of a written document. It is critical for appellate lawyers to know how to take an issue ordinarily subject to deferential review and present it as one requiring de novo review. Suppose in a trial before a judge, one witness testifies the light was red and another says it was green. The judge must determine which witness is more credible. The appellate court is in no better position to make that evaluation than the trial judge was, so the appellate court will give the benefit of the doubt to the trial judge.

The verdict is certain to be affirmed unless the lawyer filing the appeal can turn the question of whether the trial judge’s choice was reasonable into an issue requiring the appellate court to determine if the trial judge was right. One way to do this is to show that the rationale for deferential review does not apply. If there was a logical or legal error in the trial judge’s decisionmaking process, there is no fair, capable, and reasonable judgment call for the appellate court to consider.

For example, de novo or rightness review of this verdict would be required if the appellant can show any of the following:

∙ The judge had a conflict of interest.

∙ The judge applied the wrong standard of proof (as by demanding proof beyond a reasonable doubt rather than by a preponderance of the evidence).

∙ The judge believed one witness over another for improper reasons (as in “I think police officers are always credible”).

∙ The judge improperly excluded testimony or evidence, or improperly limited cross-examination, or demonstrably misunderstood the evidence.

All of these illustrations show a flaw in the judge’s decisionmaking flowchart. If such an error can be established, de novo review should apply because the trial court did not make a fair and capable decision.

Many practitioners think if the issue on appeal is the factual basis for a verdict, deferential review always applies. The key is to focus not only on what type of issue the trial judge decided, but on how the judge decided it. Without such a creative and holistic examination of the judge’s decisionmaking flowchart, some appeals that might otherwise succeed are certain to fail.

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