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. 9th Circuit Court of Appeals: Standards
of Review. Current ed., Portland, Or., Chambers of the Honorable
Otto R. Skopil, Jr., U.S. Courthouse. KF 9054 9th U54.
Childress, Steven. Federal Standards of Review. 3rd
ed. Charlottesville, Va., Lexis, 1999 KF 9050.C48
Federal Appellate Practice:Ninth Circuit. 2nd ed. Ch.
4. St. Paul, Mn., West, 1999 KF 9054.F43
Knibb, David. Federal Court of Appeals Manual.
4th ed. Ch. 30. St. Paul, MN, West 2000 KF 9052.K63
Oregon State Bar. Continuing Legal Education. Civil
Litigation Manual. 3rd ed. Ch. 33.74(a)(b)
Lake Oswego, Or., OSB, 1993 RESERVE KFO 2938.C58
Oregon State Bar. Continuing Legal Education. Appeal
& Review. 2nd ed. Various chapters. Lake
Oswego, Or., OSB, 1993 KFO 2955.A966
