BlogsAll Blogs

Lite DePalma Greenberg Law Blog

Search our blog posts

March 3, 2016 by Bruce D. GreenbergDownload PDF

To Win on Appeal, Know the Standard of ReviewBruce D. Greenberg

Parties who lose at the trial level take comfort in knowing that they can go to a higher court for review. But not all appellate review is created equal. Both the party who appeals (the “appellant”) and the party who opposes the appeal (in New Jersey state court, the “respondent,” and in federal court, the “appellee”) need to know what level of review is implicated by any particular appeal.

Appellants are happiest with a broad, “de novo” review.  De novo review wipes the slate clean and allows the appellate court to take a fresh look at the issues raised as though the appellate judges were deciding those issues for the first time in the case.  De novo review applies to pure legal issues, such as statutory interpretation.  Review of the grant of summary judgment or other dispositive motions is generally de novo.    

The polar opposite of de novo review is the very deferential review given to fact-based findings or credibility decisions by a jury or a judge sitting without a jury.  The basis for such deferential review is that the trier of fact, whether judge or jury, saw the witnesses and was able to assess the credibility of witnesses in a way that appellate judges, who review only a cold record, cannot. 

Even if the appellate court thinks that it might have found facts or weighed credibility differently than did the finder of fact, the court on appeal is bound to defer if there was any reasonable basis for the factfinder to come out as it did.  As a result, an appellant whose best argument is that the finder of fact should have reached the opposite result is unlikely to win.  

A deferential standard of review can be the respondent’s best friend.  If such a standard of review applies, the respondent need only demonstrate that there was a reasonable basis for the result in the trial court, not that the outcome there was the only one that could have been reached. 

The standard of review often gives one side or the other an advantage on appeal in other contexts as well.  On appeals from actions of an administrative agency, the agency’s expertise is entitled to great deference.  That tends to favor the party who supports on appeal what the agency did.  As with judicial decisions, however, agency decisions on purely legal issues, as opposed to on matters of fact or policy as to which agencies have special expertise, do not receive deference on appeal.

Another context where the standard of review may be extremely important is where an issue was not raised at the trial level and is presented for the first time on appeal.  In that circumstance, the “plain error” rule applies.  In order to win on an issue not argued below, the appellant must show not merely that the result at the trial level was wrong, but that it rises to the higher level of plain error.  That is often a steep hill to climb, and it reinforces the need to be sure to bring up at the trial level all issues that might need to be addressed on any appeal.

There are many other applications of the standard of review as to numerous particular issues that might be raised on an appeal.  In general, appellants benefit from a more robust standard of review, while respondents do better when deferential review is the proper standard.  Thus, it is always important, for both sides, to know what standard of review applies to any particular issue, and to use the standard of review to their advantage as much as possible.