Standards of Review

Though the NCBE has not yet released any official Civil Procedure questions (that have actually shown up on previous exams) there are enough practice questions now floating around so that we can have a pretty good idea of the topics that are of special importance.   One topic that is showing up often requires an ability to specify what standard of review an appellate court should employ. In general, sometimes the appellate court gives great deference to the trial judge's ruling while in other circumstances far less is given.   Specifically, the following standards should be understood well for federal civil procedure questions:

De Novo:  This standard applies for questions of pure law.  If the issue reviewed by the appellate court is an issue of law, the appellate court will conduct a "de novo review."  Essentially, this means that the court will analyze the issue from scratch without giving any deference to the trial court's analysis.

Clearly Erroneous:  This standard applies for questions of fact.  Questions of fact decided by the trial court must not be set aside unless clearly erroneous.  Here, more deference is given to the trial court; the appellate court must give due regard to the trial court's decision regarding questions of fact.

Abuse of discretion:   When decisions are committed to the trial court' discretion, the appellate court will not reverse such discretionary decisions unless the appellate court believes that the trial court has abused its discretion.  This standard gives the greatest deference to the trial court.

Harmless Error Doctrine:  Though this isn't a standard of review in the same sense as the above three, it's worth noting as it is a means of assessing the seriousness of any errors that may be found by an appellate court.  Under this doctrine, even if the appellate court decides that a particular trial court's ruling was incorrect, the appellate court will not reverse the trial court's decision if the appellate court believes that the error was unlikely to have changed the outcome of the trial.