If the question of whether an appellate court has jurisdiction to hear a given appeal is the first question that appellate courts ask, a close and sometimes even more important question is “what is the standard of review?” They come in all shapes and sizes, and they instantly condition an appellate judge’s perception of an appeal’s likelihood of success even before the judge has considered a single fact or argument. De novo, clear error, abuse of discretion — the list goes on. Appellate courts are always mindful of the standard of review that they must apply in reviewing the case before them. In turn, failure to apply the correct standard of review is one of the most important errors that appellate judges are constantly looking for, both in lower court decision-making and in the parties’ briefing on appeal.

The right standard of review makes all the difference
Two recent cases illustrate the pivotal importance of standards of review in appellate litigation. On May 5, 2014, the U.S. Supreme Court summarily vacated a district court’s grant of summary judgment in favor of a police officer’s qualified immunity claim in Tolan v. Cotton (No. 13-551) — a grant that had been affirmed by the U.S. Court of Appeals for the 5th Circuit. The Supreme Court took this action for one reason: “[T]he court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.”

The ruling is both uninspired — everyone knows that standard — and remarkable given that, as Justice Samuel Alito noted in concurrence, “[a] petition for a writ of certiorari is rarely granted when the asserted error consists of … the misapplication of a properly stated rule of law.” Nevertheless, the court deemed it important to vindicate the core principle behind the standard of review in summary judgment proceedings: “The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system.”

Then consider United States v. Lavabit, LLC, Nos. 13-4625, 13-4626, 2014 U.S. App. LEXIS 7112 (4th Cir. Apr. 16, 2014), in which the U.S. Court of Appeals for the 4th Circuit affirmed a district court’s contempt order because the appellant failed to invoke and argue the proper standard of review on appeal. A private email service provider, Lavabit, refused to comply with a statutorily authorized “Pen/Trap Order.” The order required Lavabit to cooperate with the government’s efforts to seize information from Lavabit’s email servers relating to the target of a criminal investigation. Lavabit’s failure to comply with the order led the district court to hold Lavabit in contempt, and Lavabit subsequently challenged this contempt determination on appeal to the 4th Circuit.

In analyzing the district court proceedings, the 4th Circuit found that Lavabit had “failed to challenge the statutory authority for the Pen/Trap Order, or the order itself, in any way.” The court then proceeded to articulate the standard of review governing the effectively “new” arguments that Lavabit was now raising on appeal: “When a party in a civil case fails to raise an argument in the lower court and instead raises it for the first time before us, we may reverse only if the newly raised argument establishes ‘fundamental error’ or a denial of fundamental justice.”

Comparing this standard of review to the “criminal, plain-error standard,” the court found that “Lavabit failed to make its most essential argument anywhere in its briefs or at oral argument: it never contended that the district court fundamentally or even plainly erred …. Yet Lavabit bears the burden of showing, ‘at a minimum,’ plain error.” For this reason, the Fourth Circuit affirmed the district court’s contempt order insofar as Lavabit had “abandoned any argument that the district court plainly erred, much less fundamentally erred.”

Make standards of review work for you
Cases like Tolan and Lavabit reflect the simple truth that articulating the correct standard of review can make all the difference in winning or losing an appeal. Yet too many lawyers fail to consider this significant question when advising their clients on appeals. This is a particularly dangerous reality for attorneys seeking to reverse a judgment on appeal when one considers the actual likelihood of obtaining such a reversal. There is a very good reason that roughly 80 percent of appeals are not successful: The standard of review tilts the balance in favor of the lower court decision, sometimes dramatically.

Fortunately, there are a number of sources that can help illuminate the standards of review that may govern one’s appeal. The first place to look is Steven Childress and Martha Davis’s essential treatise Federal Standards of Review. Additionally, the Minnesota Court of Appeals publishes its own Standards of Review compilation, which may be accessed online at The U.S. Court of Appeals for the Ninth Circuit offers a similar resource on its own website ( pk_id=0000000368), which is periodically updated by the court’s staff. Other appellate courts may provide a similar resource, making it a good practice during an appeal to perform a Google search and see if such a resource is available.

It should also be kept in mind that in briefing a standard of review, one need not confine one’s self to the usual, formulaic recitations that pervade appellate case law. For example, in describing “clear error” as a standard of review, the U.S. Court of Appeals for the 7th Circuit has colorfully observed that: “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a 5-week-old, unrefrigerated dead fish.” Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988). Legal scholar Maurice Rosenberg has described “abuse of discretion” as “the noise made by an appellate court while delivering a figurative blow to the trial judge’s solar plexus.” And Roger Badeker has described this standard in even more vivid terms, explaining that it requires “eye-popping, neck-snapping, jaw-dropping egregious error.”

These are more than just colorful turns of phrase. They illustrate the fundamental principle that “[t]he purpose of appellate review is to determine whether the trial court made an error and not to try the case de novo.” Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 68 n.2 (Minn. 1979). Standards of review are gatekeepers that enable appellate courts to ensure they are not exceeding their proper judicial role. Accordingly, understanding this driving concern can spell the difference between winning an appeal and losing one.

Don’t expect the appellate court to do the work for you
Given the importance that appellate judges attach to standards of review, it may be tempting to assume that even if one’s brief is less than complete in addressing the applicable standard of review (particularly in the name of saving words to meet a tight word-limit), the court’s attentiveness will make up the difference. Bad idea.

As the U.S. Court of Appeals for the 7th Circuit has warned: “Judges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). And the U.S. Court of Appeals for the 9th Circuit has voiced the same sentiment: “The art of advocacy is not one of mystery. Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court. Particularly on appeal, we have held firm against considering arguments that are not briefed.” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).

It is therefore critical when presenting issues on appeal to clearly identify the standard of review and how one’s issues fit within that standard. G.J. Leasing Co. v. Union Electric Co., 54 F.3d 379, 382 (7th Cir. 1995) illustrates this reality: “The appeal is marred by a grave error on the part of the appellant. In the part of its opening brief labeled ‘Standard of Review,’ G.J. Leasing tells us that appellate review of the district judge’s resolution of mixed questions of law and fact is plenary. . . . . In this court the rule . . . is that a district judge’s determinations of mixed questions of fact and law . . . can be set aside on appeal only if clearly erroneous.”  The 7th Circuit subsequently concluded that “G.J. Leasing’s misstep concerning the standard of review is important because many of the questions in the case are mixed questions of fact and law … . G.J. Leasing has explained why it thinks the answers given by the district judge were erroneous, but not why it thinks the errors clear enough to be reversible by us.”

Final thoughts
Making the standard of review in a case work for you — even if it is a favorable standard — is hard labor. But the alternative, as cases like Lavabit establish, is potential abandonment of otherwise viable legal arguments and defeat on appeal. More than that, however, the applicable standard of review is important in deciding whether or not to pursue an appeal in the first place. Indeed, by carefully considering the lens through which an appellate court will view one’s arguments, one stands a much better chance of educating the client about the true costs of an appeal and avoiding the pursuit of an otherwise unwinnable appeal in the process.

This article first appeared in the June 16, 2014 issue of Minnesota Lawyer.
Reprinted with permission of Minnesota Lawyer ©2014

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