Standards of Review – De Novo

We are continuing to describe the appeals process at a basic level, adding a few concepts per post. So far we have discussed what an appeal is, how the appellate process works, and how issues in an appeal are identified. In the next few posts, we will start to discuss what it is an appeals court actually does when it decides an appeal.

That discussion begins with the standard of review. When the court reviews a case, it doesn’t simply “check over” each ruling made by the lower court. Rather, the court will only review the issue(s) that an appealing party asks it to review. The standard of review that the court uses will vary depending upon the nature of the issue, and, in simple terms, determines just how hard the appealing party will have to work to convince the judge(s) to reverse the decision of the trial court.

Standards of review are extremely important.   They promote consistency in appellate decision making and form the basis of the court’s analysis of any legal issue. There are many standards of review that courts will use, but some of the most common are “de novo,” “abuse of discretion,” “clear error,” and “plain error.”   In this post we’ll discuss de novo review.

De novo (Latin for “anew”) review is one of the simplest and most common standards of review in courts of appeals. When the court of appeals reviews an issue de novo, it gives no deference to the conclusions of the trial court. De novo review typically is reserved for the trial court’s conclusions of law—for example, “The Colorado Premises Liability Act does/does not cover “X” situation.” Common examples include instances in which the trial court dismissed a Plaintiff’s claim without a trial (say, by granting summary judgment or a motion to dismiss). In theory, the reason for applying de novo review is that the court of appeals is in just as good of a position as the trial court to decide an issue—the law is what the law is, regardless of the facts of a particular case.[1]

Because a court of appeals reviewing an issue gives no deference to the trial court, it is generally the most favorable standard of review for the appellant. The appellant doesn’t have to convince the court of appeals that the trial court exceeded its authority or acted unreasonably—just that “the law says X, but the trial court said Y.”

De novo review is the simplest and the easiest of the standards of review to understand. The challenge comes when two sides disagree about whether or not it applies. As we will see in future posts, the line between questions of law and questions of fact is not always as bright as it may seem.

[1]Those fifteen words would surely make a great number of legal academics cringe, but our point is not to endorse the theory—just to explain it.

* The author of this blog post, Logan R. Martin, has interned at the Colorado Supreme Court, and served as a law clerk on the United States Court of Appeals for Tenth Circuit. You can contact Mr. Martin by phone at (303) 915-5002, or by email at logan@westerfieldlaw.com.

The materials on this site are for informational purposes only and are not to be construed as legal advice. Reading or commenting on this blog does not create an attorney-client relationship. Every situation is unique, and you should consult an attorney if you have questions about your specific situation.

Leave a Reply

Your email address will not be published. Required fields are marked *