Practice Pointers:

Unrefrigerated dead fish and other tips for making the most of the standard of review

Deborah Challener

Article by Deborah Challener Featured Author

Posted December 2024

The standard of review (“SOR”) is the lens through which an appellate court examines a trial court's or agency's decision making and often determines the outcome of an appeal. Consider the tips below to get the most out of the SOR.

  1. A former Tenth Circuit judge once remarked that to an appellate judge, the SOR “is everything.” Judge Deanell R. Tacha, former Chief Judge of the U.S. Court of Appeals for the Tenth Circuit, quoted in Harry T. Edwards & Linda A. Elliott, Federal Courts Standards of Review: Appellate Court Review of District Court Decisions and Agency Actions (Thompson West 2007). In drafting your appellate brief, stop and consider how your audience—judges and law clerks—will think about application of the SOR to each issue.
  2. SORs can vary widely from jurisdiction to jurisdiction. Take the time to research the SOR for each issue.
  3. Sometimes the SOR is clear, but sometimes it is undecided or ambiguous. Look for the wiggle room and use it to persuade the court to apply the SOR that benefits your client.
  4. Where the applicable SOR is decisive and benefits your position, weave it into your argument throughout the brief. Use it to identify the mistakes the trial court made. Put it in the summary of the argument, headings, topic sentences and concluding sentences. Remind the court about it in your conclusion. The SOR might be your whole argument!
  5. Where the applicable SOR is decisive on an issue and hurts your position, consider dropping the issue or put it at the end of your brief. If it’s clear that the SOR is the death knell for your appeal, consider whether the appeal is really worth it.
  6. Federal Rule of Appellate Procedure 28(a)(8)(B) requires a concise statement of the SOR for each issue. The statement may appear in the discussion of the issue or under a separate heading before the discussion of the issues. Don’t just recite the SOR here. Think carefully about where to place the SOR and how to word the statement. Cite case law that supports your position. Although the appellee is not required to include a separate statement of the SOR, don’t give up the opportunity to write the statement persuasively and cite favorable authority.
  7. >Find out if your jurisdiction has any specific rules about or has provided any guidance on the SOR. For example, the Fifth Circuit's Practitioners' Guide recommends two resources on SORs: Federal Standards of Review by Steven Alan Childress and Martha S. Davis and Appeals to the Fifth Circuit by George Rahdert and Larry Roth.
  8. Consider whether your issue involves (or arguably involves) a mixed question of law and fact. A mixed question asks “whether 'the historical facts . . . satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.’” U.S. Bank Nat. Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Village at Lakeridge, LLC, 583 U.S. 387, 394 (2018) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19 (1982)). The SOR applicable to a mixed question depends “on whether answering it entails primarily legal or factual work.” Id at 396. If the work is primarily legal, the SOR is de novo. If the work is primarily factual, the SOR is deferential. Use the ambiguity in the SOR for a mixed question to argue for the level of deference that benefits your position.
  9. When you're arguing in favor of a particular SOR, use the rationales behind the different levels of review to support your argument. For example, the more deferential standards of review, such as abuse of discretion and clearly erroneous, typically apply to issues that trial judges are in a better position to decide, e.g., credibility and the admissibility of evidence. If you're arguing that an appellate court should apply a deferential SOR, tell the court why a trial judge is in a better position to decide the issue than an appellate judge. If you want a de novo standard, tell the appellate court why it's in a better position to decide the issue than the trial judge.
  10. If you ever struggle to define the clearly erroneous standard for a court, consider using the Seventh Circuit’s definition: “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228 (7th Cir. 1988), cert. denied, 493 U.S. 847 (1989).

©2024. An earlier version of this article was published on the American Bar Association's Appellate Practice Committee website. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.