June 28, 2012 Articles

Using the Standard of Review to Advance Your Arguments on Appeal

Don't overlook a useful tool in persuading appellate-court judges.

By Zachary Bolitho

It is late at night, and your brief is due tomorrow. You have completed the factual and procedural history and drafted your legal argument. Now you are putting the finishing touches on the brief and checking to ensure you have complied with the technical requirements set forth in Rule 28 of the Federal Rules of Appellate Procedure—table of contents, table of authorities, corporate disclosure statement, jurisdictional statement. Suddenly, you remember that Rule 28(a)(9)(B) requires a statement regarding the appropriate standard of review. You scramble to add a heading entitled “Standard of Review” at the start of your brief, toss in a two-line quote from a case, and then move on to the next technical requirement.

By adding the “Standard of Review” heading and throwing in the two-line quote, you have complied with Rule 28(a)(9)(B) because it provides that the standard of review may be set forth “under a separate heading placed before the discussion of the issues.” You have also done the same thing as countless other attorneys. But in treating the standard of review as just another technical briefing requirement akin to the table of authorities, you may have missed a critical opportunity to advance your legal arguments. The standard of review—particularly when it favors your side of the case—can be a useful tool in persuading appellate court judges.

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