what’s the standard of review got to do with it?
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What’s the STANDARD OF REVIEW Got To Do With It?. Timothy J. Storm, The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court , 34 Southern Illinois University Law Journal 73 (2009). www.illapp.com. ►Role of the Standard of Review - PowerPoint PPT PresentationTRANSCRIPT
What’s theSTANDARD OF REVIEWGot To Do With It?
Timothy J. Storm,The Standard of Review Does Matter:
Evidence of Judicial Self-Restraintin the Illinois Appellate Court,
34 Southern Illinois University Law Journal 73 (2009)
www.illapp.com
► Role of the Standard of Review
► Illinois Standards of Review
► Need for Consistent Application
► Empirical Study
► Concerns
The Role of theStandard of Review
Dictates the reviewing court’slevel of deference
to the lower court’s decision.
The Role of theStandard of Review
Maintains the relationshipbetween courts at various levelsof the appellate review process.
Maintaining the RelationshipBetween Courts
Trial CourtsFact-findingApplying established law to facts
Reviewing CourtsError correctionMaintaining stable body of precedent
Why the RelationshipBetween Courts Matters
CERTAINTY
Why the RelationshipBetween Courts Matters
Certainty in Dispute Resolution(Fairness)
Predictive Certainty(Precedent/ Stare Decisis)
Certainty
Providing Certainty ByResolving Individual Disputes:
TRIAL COURTS
Certainty
Providing Certainty ByConsistent And Coherent
Legal Rules:
REVIEWING COURTS
Maintaining theCourts’ Different Roles
Appellate Jurisdiction▬
Standard of Review
Appellate Jurisdiction
The Court’s PowerTo Hear A Case
Standard of Review
Scope of theCourt’s Role in the
Case
The Role of theStandard of Review
Enhance CertaintyBy
Defining the ProperRole of VariousLevels of Courts
QUESTIONS?
Illinois Standards of Review
Legal Rulings
Fact Findings
Discretionary Rulings
Illinois Standards of Review
Legal Rulings
De Novo
The Standard forLegal Rulings
De Novo
No deference to thetrial court’s decision.
Illinois Standards of Review
Fact Findings
Manifest Weight of the Evidence
The Standard forFact Findings
Manifest Weight of the Evidence
“[A]ll reasonable people wouldfind that the opposite conclusion
is clearly apparent.”
Illinois Standards of Review
Mixed Questionsof Law and Fact
Clearly Erroneous
The Standard forMixed Questions
Clearly Erroneous
“[L]eft with the definite andfirm conviction that a mistake
has been committed”
Illinois Standards of Review
Discretionary Rulings
Abuse of Discretion
The Standard forDiscretionary Rulings
Abuse of Discretion
Very deferential to thetrial court’s ruling . . .
“[N]ext to no review at all.”
Illinois Standards of Review
► De Novo
► Clearly Erroneous
► Manifest Weight of the Evidence
► Abuse of Discretion
QUESTIONS?
Consistent Applicationof the Standards
► The importance of consistent application.
► Checking consistent application through further review.
► Other means to check for consistency.
Consistent Applicationof the Standards
Defining“Consistency”
The Need forConsistent Application
The standards regulate the role of the courts as a means to
maximize:
CERTAINTY
The Need forConsistent Application
Review mustassure application
of proper legal doctrine.
The Need forConsistent Application
An appeal cannot bea mere “do over”
of the trial.
The Need forConsistent Application
Without properlegal doctrine,
there is no predictive certainty.
The Need forConsistent Application
Without finalityof the trial court’s decision,
there is nodecisional certainty.
How can we know whetherthe standards are being
applied consistently?
Regulating ConsistencyThrough Objective Observation
Outcomes at various levelsare not self-evident.
Regulating ConsistencyThrough Further Review
Essentially unreviewablein practice.
Regulating ConsistencyThrough Further Review
Uncovering the wrong standard of review is easy, but . . .
Regulating ConsistencyThrough Further Review
Uncovering the wrong standard of review is easy, but . . .
Uncovering the erroneous application of the correct standard is far more difficult.
If an appellate court’s application of the
Standards of Review areinsulated from further review,
the system must rely uponjudicial self-restraint . . .
. . . but how can we knowwhether the appellate courtsare exercising self-restraint?
Consistent Applicationof the Standards
Clearly important, but how canwe be sure that the courts
consistently apply the standards?
QUESTIONS?
Are the Standards of ReviewConsistently Applied?
► Basic Outcome Expectations
► Study Design
► Study Results
Basic Outcome Expectations
Greatest deference =More affirmances
Lower deference =Fewer affirmances
Basic Outcome Expectations
Lowest affirmance rate:De novo
Highest affirmance rate:Abuse of discretion
Study Design
Review of all opinions in civil cases issued by all appellate court
districts during the years 2005 through 2007 and reported in the
Westlaw database.
1,204 decisions.
Study Design
Data Universe:
1,204 decisions
including
1,539 separate issues.
Study Design
Data Coding:
► Standard of review that the court applied to each issue.
► Disposition of the issue.
Study Results
Affirmance Rates
Study Results
Affirmance Rates
De Novo63%
Study Results
Affirmance Rates
De Novo63%
Clearly Erroneous62%
Study Results
Affirmance Rates
De Novo63%
Clearly Erroneous62%
Manifest Weight73%
Study Results
Affirmance Rates
De Novo 63%Clearly Erroneous 62%Manifest Weight 73%Abuse of Discretion77%
Study Results
Anomalies.
Study Results
Affirmance Rates
De Novo 63%Clearly Erroneous 62%Manifest Weight 73%Abuse of Discretion77%
Study Results
Affirmance and reversalrates for each standard
are reasonably consistent.
Study Results
Affirmance and reversalrates for each standard
are reasonably consistentfrom district to district.
Study Results
Affirmance and reversalrates for each standard
are reasonably consistentfrom district to districtand from year to year.
Are the Standards of ReviewConsistently Applied?
In short . . .
Are the Standards of ReviewConsistently Applied?
In short . . .
Yes!
QUESTIONS?
Notable Concerns
Timothy P. O’Neill & Susan L. Brody,Taking Standards of Appellate Review Seriously:
A Proposal to Amend Rule 341,83 Illinois Bar Journal 512 (1995)
Notable Concerns
► Failure to State the Standard
► Administrative Review Standards
► Abuse of Discretion Overinclusive
► Wrong Level of Deference
Failure to State the Standard
Most courts are now stating the standard.
Administrative Review Standards
Administrative Review standardsare still applied withoutsufficient explanation.
Abuse of Discretion Overinclusive
Includes discretionary rulingsbut
also includes other types of rulings.
Wrong Level of Deference
The study suggests thatappellate justices are
consistently applying thestandards and exercising
judicial self-restraint.
Conclusion
Standards of Reviewgenerally operating
as intended to maximize
Conclusion
Standards of Reviewgenerally operating
as intended to maximize
CERTAINTY
QUESTIONS?
Timothy J. StormAdjunct Professor,The John Marshall Law School
Storm Law Office227 North Main StreetWauconda, Illinois 60084847-526-6300