An appeal decision is not as straightforward as you might think.
To illustrate the point, I need to point you to an area in which I am almost completely stupid: Football.
I basically watch enough football to be dangerous. I don’t really understand what’s going on, but I know enough to be able to shout things at the television that at least sound like football-ish shouts.
One thing I have observed over the last several years of fair-weathered viewing is the rise of the instant reply review. Was it always this way? I don’t think so. It used to just be that the ref made the call and that was it. He or she might wrong, but that was just part of the game.
Not anymore. No, it seems like every play is subjected to intense scrutiny from 40 different angles. Plays are replayed and re-replayed and re-re-played to make sure that the ref did not make the wrong call.
If you watch football and have had to endure this charade, you’ve heard the sportscasters throw around this term: “Indisputable video evidence.” According to the sportscasters and, presumably, some body of rules, the refs are supposed to have indisputable video evidence to reverse the call on the field.
Interestingly, there is rarely indisputable video evidence to change the call, but they change them ALL THE DANG TIME anyway. But that’s a separate issue.
One of the many ways that being an appeals lawyer makes you a terrible person is that you subject everything in life to legal reasoning. So, what do I do? Naturally, I put on my lawyer hat when I’m watching these instant replays.
This is the point: When the refs review the instant replay, they are not supposed to use the same standard as if they were watching the case for the first time. The call on the field stands, even if it looks like the ref was wrong, unless there is indisputable video evidence. The instant replay review is to make sure that the ref did not completely miss the call. If the call is debatable or unclear, the instant replay folks will defer to the guy on the field. (There’s good reason for this: We can’t do instant reply on every play or the game would take 10 hours and no one would watch.)
Appellate judges are like the instant replay people. When a judge decides an appeal, he or she is not looking at the case like the trial judge did, just like the instant replay people don’t look at the play like the guy on the field. The standard is not whether the trial judge was right or wrong; the standard is (mostly, usually) whether the trial judge messed up so bad that the case should be reversed.
The “indisputable video evidence” is the standard of review for the instant replay people. (If they actually have a name, I do not know it.) If there isn’t indisputable video evidence, the instant replay people should not change the ruling on the field.
The standard of review for appellate judges is usually one of three possibilities:
- Abuse of discretion
- Clearly erroneous
- De novo
Certain legal questions are reviewed to determine if the judge made an abuse of discretion. An abuse of discretion standard is used when there is a decision that a judge has some leeway on. A lot of decisions that a trial court makes are not black-and-white; instead, the trial judge has to look at everything and try to make the best decision he or she can. Most of the time, those decisions will stand because it’s not good to second-guess everything that the trial judge does. In some instances, however, a judge does something that, while she had the right to do it, is just obviously wrong. In that instance, an appellate judge will determine that the trial judge abused her discretion.
Other legal questions regarding appeals are reviewed to see if they are clearly erroneous. In legal terms, these questions are normally “questions of fact.” A question of fact might be “Is this person telling the truth?” or “How much is this piece of land worth?” or “Did the doctor actually do everything she could do to save this baby?” or “Did this drunk person actually have control of the vehicle?” These are the kinds of questions that a jury decided if it’s a jury trial. When an appellate judge reviews questions like this, they are looking at everything to see if the trial judge made a clear error.
The third standard of review of appeals is called “de novo.” A de novo standard of review is used to determine questions of law. On questions of law, the appellate judge doesn’t really care what the trial judge did. To continue the analogy to football, a question of law might be when the instant replay people review a call and the ref applied a rule that doesn’t exist. They will defer to the ref’s eyes but they won’t defer to his knowledge of the rules.
Confused? It can definitely be confusing to know how (and why) judges make a decision in appellate cases.
So, Football isn’t hard, but appeals are so you should hire us to help you with yours.