Nine Tips for Getting the Most You Can out of the Standard of Review

A former Tenth Circuit judge once remarked that to an appellate judge, the standard of review “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). It is the lens through which an appellate court will examine a trial court’s or agency’s decision making and often determines the outcome of an appeal.

1. In drafting your appellate brief, stop and consider how your audience—judges and law clerks—will think about how the standard of review applies to each issue.
2. Don’t assume you know what the standard of review is for each issue. Standards of review can vary widely from jurisdiction to jurisdiction. Take the time to research the standard of review for each issue in the applicable jurisdiction.
3. Sometimes the standard of review is clear, but sometimes it is undecided or ambiguous. Look for the wiggle room and use it to persuade the court to apply the standard of review that benefits your client.
4. Where the applicable standard of review 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 standard of review might be your whole argument!
5. Where the applicable standard of review is decisive and hurts your position, consider your options. If there is more than one issue and the standard of review doesn’t hurt you on every issue, consider dropping the negative issues, or, at a minimum, put them at the end of your brief. If there is only one issue or the standard of review hurts you on every issue, stop and consider whether the appeal is worth it.
6. Federal Rule of Appellate Procedure 28(a)(8)(B) requires a concise statement of the standard of review for each issue. The statement may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues. Don’t just recite the standard of review here. Think carefully about where to place the standard of review and how to word the statement. Cite a case or cases that discuss the standard of review AND support your position. The appellee is not required to include a separate statement of the standard of review unless they disagree with the appellant’s statement. Nevertheless, don’t give up this opportunity to use the standard of review persuasively. Even if you aren’t dissatisfied with the appellant’s statement of the standard, you can cite a case or cases that include the standard of review and support your argument.
7. Find out if the court you’re in has any specific rules for including the standard of review in a brief or has provided any guidance on the standard of review. For example, the Fifth Circuit's Practitioners' Guide recommends two resources that discuss the law and give examples of the standards of review: 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. Think about 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 standard of review applicable to a mixed question of law and fact depends “on whether answering it entails primarily legal or factual work.” Id. at 396. If the work is primarily legal, the standard of review is de novo. If the work is primarily factual, the standard of review is deferential. Use the ambiguity in the standard of review for a mixed question of law and fact to argue for the level of deference that benefits your position.
9. When you’re arguing in favor of a particular standard of review, 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 standard of review, 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 is in a better position to decide the issue than the trial judge.