Note: This is the third of six articles on the appellate standards of review. Start at part one.

In part 2 of this series, I briefly discussed de novo review, a reviewing standard commonly understood as the least deferential standard of appellate review.

I am now going to discuss what deference means as it moves across the legal spectrum from least to most deferential – at which point terminology poses an immediate obstacle, as does context.

For instance, depending upon the jurisdiction, different words are used to describe more deferential review. Let’s begin here.

This or That

In its simplest form, appellate review is parsed into two categories: review with deference to the ruling under review and review that does not. De novo is the latter category (see part 2).

So what do we call the other category? It’s somewhat confusing.

First, as to actual terminology used by the courts, the Seventh Circuit has described deference through the actual ruling, asking whether the lower court “abused” its discretion. But cases abound that term the review as “clearly erroneous” as opposed to an “abuse of discretion,” with inconsistency both in this circuit and others as to its application.

Sometimes the terminology is intended to mean the same thing, and often, unfortunately, the two interplay within the same definition, such as: an abuse of discretion occurs if the district court reaches erroneous conclusions of law or premises its holding “on a clearly erroneous assessment of the evidence."¹

In contrast, the same deferential standard exists in Wisconsin, although the Wisconsin courts have not used the phrase “abuse of discretion” since 1992, when the Wisconsin Supreme Court, noting that the phrase carried unjustified negative connotations, replaced it with “erroneous exercise of discretion.”²

Although the name changed, the standard to be applied remained the same.

Second, apart from phraseology, the context of review plays perhaps the most important role – the context from which the ruling is derived by which deference is owed, and viewed. That is, regardless whether there is deference (or not), deferential review has never been intended as simply rubber stamp review. Instead, it is an approach where, when it comes to reasonable doubts in certain contexts, those doubts should be resolved in favor of the lower court’s ruling.³

One such example is review of actions tried without a jury, where, per Fed. R. Civ. P. 52(a), findings of fact must not be set aside unless “clearly erroneous,” giving “due regard” to the trial court’s opportunity judge witness credibility. Essentially, there is deference to the ruling and deference owed based on the context from which it flows.

A similar example can be found in Wis. Stat. section 805.18(2), where the Wisconsin legislature determined that, in matters such as jury selection and admission of evidence, the appellate court may not set aside a judgment or grant a new trial on that basis unless the error “has affected the substantial rights of the party” claiming the wrong.

Review on Court Policy

Moreover, certain types of issues – rather than subject to a general “abuse of discretion,” “erroneous exercise,” or even “de novo” standard – are better understood as reviewed based on court policy. An example is “plenary review,” which contemplates a review of the complete, full record, and is appropriate when there is a need for uniformity across cases or when the issue is so important that there is a need to authorize second‑guessing of the first‑line decision‑maker.⁴

Another policy example is review for “plain error,” reviewing an alleged error as to a factual finding based upon the entire trial record, or “clear error,” similar to plain error, but needs an objection at trial.

And yet, further policy examples exist when the review concerns issues with Constitutional implications or involves administrative law concerns, such as decisions from agencies, or arbitrators (which I will touch on in a future post, bringing us full circle to the Kentucky Derby – and, hopefully, more intriguing than a post such as this one that is mired in legalese).

Assumption Not Advised

The point is that, what should on its surface be a relatively simple concept – deference or not – requires at least some understanding that terminology may not be uniform amongst courts, nor should the practitioner simply assume one particular standard of review applies.

Which leads to my next post, Anatomy of an Appeal – Proceed with Caution.

Endnotes

¹ Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010)

² City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d 484 (1992)

³ Cook v. City of Chicago, 192 F.3d 693, 696-697 (7th Cir. 1999)

⁴ Id.