Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

Here are two stories, from nearly thirty years apart. They’re bookends on the subject of why standard of review counts.

Travel back with me, if you will, to the summer of 1983. I’m ten minutes out of law school, and I’ve just arrived in the chambers of Judge Dorothy W. Nelson of the Ninth Circuit, for whom I’ll clerk. Our wise and sagacious predecessor-clerks — out of law school for an entire year! — are introducing us to the job. (We overlapped for one week.)

One of my predecessor-clerks, John Danforth, asked the new group: “Do you think standard of review matters in appeals?”

I knew the answer, and I was about to pop off: “Of course not! Once you convince the court that your side is right, the judges will do whatever it takes to rule in favor of your client. Standard of review is just a silly lawyers’ game.”

Fortunately, Danforth talks quickly. Before I was able to make a fool of myself, he said: “Standard of review decides cases. It decides cases. That’s the most important thing I’ve learned in a year of clerking. Standard of review makes all the difference in the world.”

Why?

After a relatively short time on an appellate bench, a judge’s brain becomes hard-wired to examine standards of review. For federal appellate judges, that means that, if the standard of review is de novo, the court should think hard about the trial court opinion and reverse if the result seems wrong. If the standard of review is for clear error, then the judge knows that the appellate court should probably affirm. If the standard of review is for abuse of discretion, then you don’t really have to bother reading the briefs. Just get out the “affirmed in an unpublished memorandum disposition” stamp, and move on to the next case.

(There was a joke among the clerks at the time that standard of review actually varied by the identity of the trial court judge, not the nature of the legal issue presented. If the opinion came up from Judge X, reverse. From Judge Y, think about it. And from Judge Z, affirm. We of course were talking about particular trial court judges, and not the anonymous Judges X, Y, and Z. But we were just kidding. I promise.)

Flash forward to 2010. I’m talking to my outside counsel who’ll be arguing an appeal the following week. (He (or she, but I’ll use the masculine for the sake of convenience) is a partner at a large and well-known firm. You’d recognize the firm name in a heartbeat.) I ask the lawyer what he’ll say if a certain issue comes up. He says that he’ll give three answers to that question, and he recites the three substantive arguments that we’ll make.

“What about standard of review?” I ask, still in debt to John Danforth after these many years.

“It’s in the brief. The court knows that this issue is reviewable for abuse of discretion.”

So we chat. And we recast the appellate argument. We ultimately decide to open the argument by saying, more or less: “We’re on appeal on three issues. All of the issues are reviewable only for abuse of discretion, and they arise after a four-week jury trial.”

Summary affirmance.

If Danforth was right, this should do it. “Abuse of discretion” means “summarily affirm.” And “four-week jury trial” means “reverse over the trial judge’s dead body.” The other arguments are nice, but let’s start by telling the court (implicitly) that we’re right, the other guy is wrong, and the court has to affirm. That sets the table pretty nicely.

It worked like a charm. We opened the argument as we had decided. The most senior judge on the panel smiled and nodded at the end of the opening two sentences. My guy realized that this was working, and he improvised: “You might almost ask why we’re here.” The senior judge raised his or her eyebrows, leaned forward, and asked: “Why are you here?”

We started to feel pretty comfortable.

What are the lessons to learn?

First, appreciate your predecessor-clerks. They teach you important stuff (and show you where you can get a good, cheap lunch in downtown L.A.). (I don’t want to hear from some Google-happy reader that Judge Nelson sits in Pasadena, not downtown L.A. She sat in L.A. in ’83. And you can Google Danforth, too, if you want to double-check this entire post. Everything I write at Above the Law is the God’s honest truth, except for the stuff I make up and write about to entertain myself.)

Where was I?

Oh, yeah.

Second, you — outside counsel — should know this stuff, and I shouldn’t be teaching it to you. If you’re my appellate advocate, you have to know how appellate courts work. You can’t expect much repeat business if I’m teaching you how to do your job.

Third, think hard about standard of review when you’re working on an appeal. If you’re the appellant, find an issue that’s reviewable de novo and press that issue on appeal. If you’re the appellee, analyze the appellant’s issue and explain why it doesn’t actually turn on a question of law and is properly reviewed only for clear error or abuse of discretion. If we come up with a decent argument why the appellant’s issue isn’t really reviewable de novo, that’s probably worth a page or two of the brief. Standard of review, after all, decides cases.

Fourth, no matter which side you’re on, use standard of review to maximum effect. If you’re the appellee, depending on the circumstances, you might open your brief with a short paragraph about standard of review. For example: “After a three-week trial in this product liability case, the jury deliberated for just four hours before returning a unanimous defense verdict. Appellant asks this court to reverse that verdict and the resulting judgment on two grounds, both of which are reviewable on appeal only for abuse of discretion.”

Think about all the buttons we just pressed: “three-week trial”; “jury”; only “four hours” of deliberation; and the verdict was “unanimous,” which isn’t required in a federal civil trial all civil trials (many state courts don’t require unanimity), so the jury wasn’t struggling with this. And the appellee is raising issues that were committed to the trial court’s discretion? This goose is probably cooked, and we’re not yet into the second paragraph.

Similarly, if the standard of review cuts in your favor, plug it into your statement of the issues presented. That could be, for the appellant: “Did the trial court err as a matter of law when it held . . . ? ” Or it could be, for the appellee: “Did the trial court abuse its discretion when it held . . . ?”

Appellate courts will notice these things. Don’t take my word for it. Take John Danforth’s.

Earlier: Prior installments of Inside Straight


Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law.

You can reach him by email at inhouse@abovethelaw.com.


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