Know your standards of review

Just trying a case is trying enough.  How can a trial attorney be expected to look beyond the immediacy of trial and anticipate what a justice (or even three of them) may need for an appeal that may never be filed?  It’s understandable that an attorney may want to focus on winning at trial, but the trial attorney is the only person who is in a position to protect the case in the event an appeal is required.

          At a recent seminar for trial attorneys, I asked them to list the standards of review on appeal.  Not one of them could give me the correct answer.  One attorney queried, “Preponderance of the evidence?”  When preparing a case for trial, the attorney must be mindful of who has the burden of proof on the elements of the claim and defenses.  The next question is whether that burden is satisfied by a preponderance of the evidence or clear and convincing evidence. 

         Standards of review only come into the picture after the trial, when there is something to review.  No wonder trial attorneys pay little attention to the appropriate standard of review.

          A standard of review indicates how the reviewing court looks at a purported error.  Perhaps it is easier to imagine the justices putting on a different set of glasses to look at different errors.  The standard of review must be established from the onset; how else does the court know how to view the error? 

          For the trial attorney, knowing the standard of review is important because it gives guidance to the attorney on how to approach the area, presenting a good record, and educates the attorney as to what must be demonstrated in the record to be successful.  These aspects of how to approach an error will be discussed as we go through the different standards of review.