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. Current ed., Portland, Or., Chambers of the
Honorable Otto R. Skopil, Jr., U.S. Courthouse. KF 9054 9th
U54. Also available onlin at http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000077.
Childress, Steven. Federal Standards of Review. 3rd
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 9054.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. KFO 2955.A966. LAW RESERVE.
