Standards of Review
What are standards of review and where do you find them?
On appeal the court first must be informed of its jurisdictional basis to hear the appeal and second the legal standard by which it is to review the actions of the trial judge, jury or administrative agency. Reviewable actions fall into questions of law (reviewable de novo), questions of fact (reviewable for clear error), and questions of discretion (reviewable for abuse).
Selecting the proper standard of review to apply to the action below is the key to framing arguments in the brief and on oral argument. The standard of review defines the degree of deference the court will follow in determining whether to affirm or reverse. Time spent researching standards of review is time well spent.
Standards of review are evasive animals and may be found by researching case law through the relevant state or federal digests * or, somewhat more easily, through the indices to various practice manuals such as those listed below.
* Digested under APPEAL and ERROR; Scope and Extent of Review; federal courts, state courts
- Carter, Tom. Standards of Review 9th Circuit Court of Appeals. Online at http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000368.
- Childress, Steven. Federal Standards of Review. 4th ed. Charlottesville, Va., Lexis, KF 9050.C48. Also available online/Lexis.
- Federal Appellate Practice:Ninth Circuit. 2nd ed. Ch. 4. St. Paul, Mn., West, KF 90549th.F43. Also availbale online /Westlaw.
- Knibb, David. Federal Court of Appeals Manual. 5th ed. Ch. 31. St. Paul, MN, West. KF 9052.K63. Also availbale online /Westlaw.
- Oregon State Bar. Continuing Legal Education. Appeal & Review. 2nd ed. Various chapters. Lake Oswego, Or., OSB. LAW RESERVE KFO 2955.A966. Available online/BarBooks.