Vail Daily column: Standards of review on appeal |

Vail Daily column: Standards of review on appeal

An appeal means you’re unhappy. You lost your trial – or a portion of your trial – and now you want things made right. “Right” by your lights, anyway. So you say to your lawyer something like:

“Let’s appeal this b—-! It just isn’t right. I’ll take it to the Supreme Court if I have to. I don’t care what it costs!!”

The lawyer smiles wolfishly. Appeals can be devilishly expensive. He leans in, but instead of reaching for your wallet, he says:

“Let me explain standards of review.”

You blink, you nod. “Go on,” you say.

The lawyer settles back, knits his fingers under his chin. He says, “Not all appeals are created equal.” He waits, accepts your silence as his cue to dole out more. “You see, depending on the way the court looks at a bunch of factors, the court’s scrutiny of your appeal may be higher or lower.”

“I see,” you say, not seeing at all.

“It’s how high the bar is set,” the lawyer says, warming to his topic now. “The standard of review is the measuring tool the appellate court uses to determine whether to reverse what the lower court has done.”

“Measuring tool,” you echo.

“Precisely. Standards of review span from the probing review of ‘de novo’ to the ‘clearly erroneous’ standard to the ‘abuse of discretion’ standard.” He smiles like you’re getting it. “‘De novo’ review means the appeals court gets to look at things with fresh eyes, as if for the first time. De novo review governs questions of law and permits the appeals court to revisit matters addressed in the trial court.”

“Un huh.”

“The ‘clearly erroneous’ standard provides for deferential review of the findings of fact. In other words, the higher court – the appeals court – gives deference to what the lower court has found. It’s not absolute, but the higher court errs in favor of the lower court. The ‘abuse of discretion’ standard is like setting the limbo bar just off the ground. If ‘de novo’ is the Olympic high jump, ‘abuse of discretion’ is like Harry Belafonte in his glory days. With the ‘abuse of discretion’ standard, the higher court is loathe to substitute its judgment for that of the lower court.

“Well, then,” you say, getting it “let’s go for de novo.”

“What a party appealing wants is the most favorable standard of review possible. What a party defending an appeal wants is the opposite. The appeals party wants de novo appeal. The defending party wants ‘abuse of discretion.'”

“Well we’ll be appealing. ‘De novo,’ right?”

“If we can get it.”

An unsettling silence takes a seat between you.

“By that you mean …?”

“Well it’s not that easy.” Breathing deeply in, then rapidly out, he offers in a rush, “Findings of fact are generally reviewed under a clear error or abuse of discretion standard. Conclusions of law are generally reviewed under a de novo standard. “

“So,” you meekly ask “What is a ‘fact’ and what’s a ‘law’? Even to you this sounds a little foolish but, as you think on it, the lines begin to blur.

“Exactly! That’s the rub. Which is which is sometimes hard to tell.” He leans into his words, enunciating each as delivering gems suitable for setting. “A ‘fact’ is an evidentiary finding of the court.” He cups his hand, looks into it. “A fact is an actual thing. It’s an actual happening in time and space. Or an event,” he adds, “mental or physical.”

You nod.

He concludes, “It’s something which has taken place. A point of law arises out of facts.”

You thought you had it. Now you’re not so sure.

He goes on, “A ‘law’ is that which is laid down, ordained or established. It is a rule or method. It is a principle, and is distinguishable from a fact because a law isn’t something that really exists or happened like a fact. It’s a convention, a way at looking at things.”


“Appellate courts defer to the factual findings of the trial court because the trial judge is in the courtroom, and is charged with the duty to find facts. Appellate courts may not undertake fact-finding. Law, however,” he says, striking his cupped hand, “is something else. Now that,” he offers, “is the court’s bailiwick! The appellate court is pleased to offer its take on the law.” He pauses. “Of course, there can be mixed questions or law or fact.”

“Of course,” you say. “So,” sheepishly, “were are we?”

“Well, we’ll try to convince the court that our issue is one of law and they should look at it de novo.”

“And the bad guys will try to convince them is a factual question and should only be disturbed if the trial court abused its discretion.”

“By God,” the lawyer says, “I think you’ve got it.”

“So which will it be?” you ask.

The lawyer summons up his lawyer face. “Only time will tell, son,” he says, then more reflectively, already plotting out how he will frame the issues, “Time will surely tell.”

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO Tv 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his email address,

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