Standards of Review — Abuse of Discretion

In the last few posts, we’ve been working from the ground up to describe how an appeal works – what it is, how it works, and what appeals courts think about when they decide an appeal. In the last post, we discussed the simplest case—de novo review—in which the court of appeals takes a second look at an issue without giving any special weight to the views of the trial court. We discussed the types of issues which are best suited to de novo review – discrete, abstract, black-and-white issues of law. Of course, few decisions in the law really are abstract and black-and white. For example:

  • What evidence should each side be allowed present? Is some evidence so inflammatory that it would be unfair to let a jury see it?
  • In a divorce case, who gets what?
  • In a criminal case, once the defendant is convicted, what’s a just sentence?

What’s common to all of these questions is that they force the trial court to make a judgment call. Once that call has been made, the court of appeals won’t simply second-guess the trial court by deciding whether it would have made the same call. Rather, it will review the decision of the trial court for an abuse of discretion. In Colorado, “[a] trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair.” [1]    Similarly, in the Tenth Circuit, a trial court does not abuse its discretion so long as its decision “falls within the bounds of permissible choice in the circumstances and is not arbitrary, capricious or whimsical.” [2]

When trying to show an abuse of discretion, it won’t be enough for one side to convince the court of appeals that the trial judge was wrong. Rather, the plaintiff will have to show that the trial judge was so wrong that no reasonable judge in his or her position could have come to the same conclusion. You might say that a determination that the trial court abused its discretion is lawyer-speak for “what were you thinking?!”

There is, however, an interesting twist to the abuse of discretion. While the abuse of discretion standard is expressed along the deferential lines above, the courts have also said that “[a] misapplication of the law would also constitute an abuse of discretion.” [3]

This may seem a bit paradoxical. On the one hand, courts have said that the whole point of the abuse-of-discretion standard is that it’s different from, and more demanding than, the de novo standard. But if any “misapplication of the law” also counts as an abuse of discretion, what’s the real difference? The short answer is that this is a place where good lawyering can make a big difference. The appellant will do everything it can to try and convince the court of appeals that the trial court fell short of an explicit, definable standard. The appellee, on the other hand, will do everything it can to emphasize the mushiness of the legal problem and the reasonableness of the trial court’s solution to it.

Which side is successful will depend on the facts of the individual case, the skill of the lawyers, and the disposition of the court.

[1] Lombard v. Colo. Outdoor Ed. Ctr., 266 P.3d 412 (Colo. App. 2011)

[2] United States v. Battles, 745 F.3d 436 (10th Cir. 2014)

[3] In Re Freedom Colo. Info. Inc., 196 P.3d 892 (Colo. 2008)

* 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

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 *