2. Announcements l Beginning Friday at 10:50 a.m., you and your moot court partner may sign up as Appellees or Appellants. l The sign-up sheet will be posted on my office door. l Your Standard of Review assignment, which we will discuss later in class, is due in class Monday, January 31.

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4. Standards of Review

5. What Is It? l The “lens” through which the appellate court views what happened at the court below. l The standard of review defines the degree of deference that a reviewing court gives to the decisions made in the lower court.

6. Determining the Standard l Ask first whether the issue is a: Factual question Legal question Mixed question of fact and law or A discretionary decisions

7. Remember, during a trial The Jury determines issues of facts by listening to the evidence such as the testimony of witnesses. l The Judge determines issues of law.

8. Determining the Standard l So you also need to know who made the decision in the lower court: Jury Judge Agency Master Magistrate

9. Standards l With this information, you can begin to determine which standard should apply: De novo Clearly erroneous Substantial evidence Abuse of discretion

10. The Formula l Except for de novo, the standard of review gives deference to the winner at the trial level or the appellee. This is why so few appeals are successful. l The petitioner/appellant has the burden of showing that there was error below, and the responsibility to advise the court of the appropriate standard of review. l The parties may take a different view about what type of review the court is empowered to apply and the standard may differ depending on what type of issue is being raised before the court.

11. Appeal De Novo (No Deference) l (Means appeal from the beginning) When questions of law come to the appellate court, it may exercise independent judgment in the reviewing the case and is free to disagree with the trial court. l For example, a trial judge’s decision about granting or denying dispositive motions is reviewed de novo. Purely legal questions Made by the trial judge In a civil case Wide open “lens”

12. De Novo De Novo is applied to legal questions because the appellate court is in just as good of a position to research a legal issue and reach a conclusion as the trial court. Policy Purely legal questions do not depend on the trial judge’s first- hand knowledge of evidence. Appellate courts are charged to maintain some degree of uniformity in the law throughout the jurisdiction. But, the court does not re-evaluate the entire case. It reviews only those portions of the record relevant to the legal questions at issue on appeal.

13. Clearly Erroneous (Substantial Deference) l The appellate court will not disturb findings of fact unless such findings of the trial court are clearly erroneous. l Fed. R. Civ. Pro. 52(a): A trial judge's "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.“

14. Clearly Erroneous The policy is that trial judge was at the trial and was able to observe the demeanor of witnesses. The appellate court will defer to the trial court unless the weight of the evidence shows that the judge’s decision is clearly erroneous. As long as the fact findings are plausible, they will not be set aside. Factual determinations Made by the trial judge In a civil case “Lens” partially closed.

15. Substantial Evidence (Extreme Deference) l A JURY VERDICT must stand unless the appellant can show that there is no substantial evidence to support it, considering the evidence in a light most favorable to the verdict with all reasonable inferences deducible from evidence drawn in support of the verdict. Facts Determined by a jury In a civil case The “lens” is almost fully closed.

16. Substantial Evidence l Based on the Seventh Amendment to the U.S. Constitution, to affirm the verdict, the standard simply requires evidence that a reasonable mind might accept as adequate to support a conclusion. l Thus, an appellate court may overturn a judge's factual finding even though there is evidence to support it (if there is a clear error), but may not do so with a jury verdict (unless there is no substantial evidence).

17. Abuse of Discretion (Extreme Deference) l On matters entrusted to his discretion, the trial judge has considerable latitude to decide the question either way without being reversed. l The appellate court should find that a trial judge abused his or her discretion if it is firmly convinced that the trial judge acted arbitrarily or committed a clear error of judgment. Discretionary decisions Of the trial judge “Lens” almost closed

18. Examples l Decisions that will be reviewed under an abuse of discretion standard include: Whether the trial court was correct in sanctioning a party. Whether the trial court correctly granted a continuance in the trial date (in a civil case). Whether the trial court ruled correctly on a discovery matter.

19. Mixed Questions of Law and Fact l The standard of review for mixed questions of law and fact varies depending upon whether the question is more factual or more a matter of law. l The appellate court usually must accept trial court’s findings of fact unless clearly erroneous but determination of whether those facts satisfy a legal test is reviewed de novo. l Example: Whether the defendant's conduct [a fact question] amounts to negligence [a legal question].

20. Mixed Fact and Law l If a question is heavily dependent on factual ingredients that a trial judge is in a superior position to assess, it is treated as a question of fact, and thus reviewed under the clearly erroneous standard. l If a question involves values and policies of general concern and involves a matter on which there should be jurisdiction-wide uniformity, the court will treat it as matter of law and will apply the de novo standard.

21. Strategy - Appellant l If you are the appellant, it is to your advantage to be able to characterize the issue on appeal as a question of law. l You want a de novo review, because you do not like the ruling or verdict from the trial court.

22. Strategy - Appellee If you are the appellee, you want to characterize the issue as one of fact or as one subject to the trial court's discretion. This is because you are satisfied with the result in the trial court and do not want it disturbed.

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24. Researching the Standard of Review l In addition to performing your own analysis on what the standard of review should be, conduct research to see what authoritative sources have said on the issue. l Case law, state rules and statutes address appropriate standards for various issues. l The best way to find the appropriate standard of review is to research your legal issue generally. l Recent cases in your jurisdiction that are on point legally and factually may give the appropriate standard of review.

25. Standard of Review l What are the issues that serve the basis for your search for the standard of review in this case? l How do you find the appropriate standard of review for the issues presented by the notice of appeal in your problem? l What kind of cases should you use for the standard of review?

26. Assignment l For next Monday, January 31, as you research the problem, look for the standard of review for determining, upon appeal, the grant of a Motion for Summary Judgment. l Citations for the standard of review of both issues should be from authoritative sources (Cases most on point). l You will write the standard of review and cite on a 3 by 5 card I will give you at the start of our next class.

27. Research Path: Title IX l “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” l How will you find documents that will help define Title IX?

28. Hints/Questions