[MUSIC] The standard of review is the amount of deference given by an appellate court to various determinations made during an earlier part of the adjudication. There are three basic review standards, Clearly Erroneous, De Novo, and Abuse of Discretion that grow out of three different kinds of lower court determinations. Questions of Fact tend to be reviewed on what is called a clearly erroneous basis. Questions of fact are for the jury to decide. But you should keep in mind that all bench trials that add bench trials, judges can also decide questions of fact. The Trier of Fact can assess the demeanor of witnesses and hence has an advantage over appellate courts in deciding factual questions, because the appellate courts only have before them the paper record. Because the Trier of Fact is better placed to make factual determinations, appellate courts will only set aside a question of fact determination if it is clearly erroneous. Thus, even if the appellate judge believes that she would've found differently as a Trier of Fact, she as an appellate judge may be forced by the clearly erroneous standard to uphold the finding. A related, but less differential standard of review, substantial evidence, calls upon an appellate court to uphold a jury's question of fact determination, unless the determination is not supported by substantial evidence. But if you wake me up in the middle of the night and ask me, what's the standard of review for questions of fact? I'm gonna tell you, it's clearly an erroneous standard. In contrast to questions of fact, lower courts also make determinations about questions of law. At an initial trial, questions of law for the judge to decide. Whether the defendant sold synthetic marijuana would be a question of fact for the jury. Whether selling spice violates a criminal statue is a question of law for the judge to decide. In contrast, the questions of fact the lower court is deemed to have no advantage. Evidentiary or otherwise in deciding questions of law. Accordingly, appellate courts gives absolutely no deference with regards to lower court determinations about questions of law. Questions of law are reviewed on a de novo basis, meaning that the appellate court should decide those kinds of questions as if we're deciding the issue from scratch, De Novo. The reasoning of the lower courts analysis should only be deferred to the extent that it's persuasive. Appellate courts, as a theoretical matter, should treat the reasoning of the trial court as though it were an additional brief from one of the litigants. Something to be considered, but not deferred to. Because of the stark difference between the deference given to questions of law and questions of fact, it's crucial for appellate courts to be able to distinguish between what questions fall into which categories. The problem of categorization is made all the harder It was made all the harder as there is also an intermediate category of determinations called mixed questions of law and fact. The treatment of these intermediate questions are annoyingly complex, but if I had to summarize while standing on one leg, I'd say appellate courts give clearly erroneous review to mixed questions when factual issues predominate and give to no role review when legal questions predominate. Or, the realist in me suspects the courts might apply a sliding scale of deference depending on the extent to which factual questions or legal questions predominate. There's one last important standard of review and that is the abuse of discretion standard. When a judge is given the discretion to do something such as issue an injunction, an appellate court will only overturn that action if it determines that the original act was an abuse of discretion. Somewhat surprisingly, for most of our country's history, there was no well worked out jurisprudence of what constituted a question of law or a question of fact. Much less what constituted a mixed question of law and fact. But then in the 1980s, the judges on the Seventh Circuit Court of Appeals decided informally to include in each opinion an explicit discussion of what standard of review they were applying with regard to each issue on appeal. This informal circuit court rule had a dramatic impact on the law. Suddenly there were hundreds of cases explicitly grappling with what was the appropriate standard of review. The West Key Number System, which you will learn, catalogs under different key numbers, which cases address, which specific issues, suddenly saw an explosion in the number of cases discussing the standard of review. Now nearly all the circuits have adopted the practice and appellate litigants explicitly brief the standard of review issued that should be applied in each appeal. So the tool here, as you're reading appellate decisions, Is to, and especially older decisions, is to pay attention to which standard of review the court applied to particular issues. In the older decisions, they won't tell you which one they are applying so you're gonna have to infer it. More specifically, when you read an opinion, you should ask did adequate deference to jury determinations of factual questions? More generally, learning the standard reviews allows you better appreciate how our system limits and narrows the grounds for appeal. If you've won below on a factual issue you are in much better position then if you've won on a question of law. And now for discussion should appellate deference be as great, now that technology is providing HD videos of witness demeanor? [MUSIC]
