What’s the STANDARD OF REVIEW Got To Do With It?

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

tjstorm@illapp.com