More on standards of review

         Errors are reviewed under three general standards of review.  Some standards holds more promise for success on appeal than others.  Statistics exist that show how successful certain challenges are.  As an appellate practitioner, I am more optimistic about legal errors allowing for independent review than an appeal based on abuse of discretion or lack of substantial evidence.  I also tend to favor cases that are terminated early by a demurrer without leave to amend or a motion for summary judgment, both of which are generally reviewed de novo (although abuse of discretion may come into play in the areas of continuances and amendments).

          Some appeals will merely allege that the trial court committed error and fail to even identify the standard of review.  Big mistake!  You might think that the appellate courts have reviewed thousands of briefs and should know what standard of review to apply, but this is not as easy as it sounds.  Courts can disagree among themselves which standard applies, and the parties may hotly dispute the standard to be applied. Every brief should identify the standard of review as to each issue.

          In People v. Jackson (2005) 128 Cal.App.4th 1009, the court stated:

          “However convoluted the facts, or complex the issues, the standard of review is the compass that guides the appellate court to its decision.  It defines and limits the course the court follows in arriving at its destination.  Deviations from the path, whether it be one most or least traveled, leave writer and reader lost in the wilderness.”   (Id. at p. 1018.) 

In Footnote #3 referred to after this section, the court also noted, “Whether Robert Frost took the road less traveled is an open question.”