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 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.

What is an Appeal?

One of the goals of this blog is to provide useful information to our readers about the legal process. In this post and those which follow it, we will discuss appeals.

An appeal is “a proceeding undertaken to have a decision reconsidered by a higher authority.” (Black’s Law Dictionary, 8th Ed.). In simpler terms, when a party files an appeal, that party asks a higher court to review the actions of a lower court. Undoubtedly, you have heard of the most important and influential appellate court, the United States Supreme Court. Whether the decision is Brown v. Board of Education, which desegregated US schools, or Roe v. Wade, which recognized a constitutional right to abortion, the decisions made by the US Supreme Court have a profound influence on the laws governing our country. In addition to the Supreme Court, there are twelve intermediate federal courts of appeals and scores of intermediate appellate courts in each state.

An appellate court differs significantly from a trial court. At trial, evidence is heard, through the submission of testimony and tangible exhibits, and the decisionmaker (usually a jury, sometimes a judge) applies the facts of the case to the law and makes a decision. Once a result is achieved at trial, any of the parties to the trial can submit the final decision to an appellate court for review to determine if any errors were made at trial.

Importantly, the appellate court does not listen to testimony or take in new evidence. The appellate court’s job is simply to take all of the information presented in the trial court and to then determine if any errors were made. While normally an appeal is filed by the party that lost at trial, an appeal can be filed by any party that believes the trial court made a mistake. An appellate court can affirm or reverse the decision of a trial court or a lower appellate court. If the appellate court decides that the trial court correctly applied the law, it will affirm the judgment of the trial court. If the appellate court concludes the trial court made a significant mistake, it can reverse the decision of the trial court and remand (send back) the case to the trial court.

The most important aspect of an appeal involves written submissions, called briefs, in which the lawyers for each side present their arguments to the court and explain why the trial court made a mistake. If requested, the court of appeals will also allow the lawyers to make an oral presentation to the judges to explain their arguments and answer the court’s questions.

There are many different types of appellate courts, and it is possible that after a trial has concluded, that there could be multiple appeals of that decision to successive, different appellate courts. Because of this, it is possible that a legal case may take years to be fully resolved if the trial court’s decision is appealed.

While this is a good, rudimentary introduction to what an appeal is, in future posts we will engage in a further discussion of the appellate process, including the specific methods used by appeals courts when reviewing the rulings rendered by trial courts.

* 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.