When you are the respondent or real party in interest, you have one job: PROTECT YOUR JUDGE. Once you’ve won your client’s case, your job is to defend the victory. You cannot defend a victory unless you protect the judge.
To demonstrate how important this is, take a quick quiz: Which is the more persuasive argument?
A. The judge is an idiot. He had no idea what he was going. Clearly, he got everything wrong and ignored all our best arguments. Please affirm his ruling.
B. The judge is a genius. He applied the law perfectly. This Court cannot reach any different decision under the law. Please affirm his ruling.
I’d go with B, every time.
The easiest way to protect your judge is to know your standards of review. Standards of review are the lenses through which an appellate court looks at a lower court’s decisions. The two most common are (1) abuse of discretion, and (2) de novo.
Abuse of Discretion
Under an abuse of discretion standard, the appellate court will only reverse the lower court if it finds that the lower court “abused its discretion.” This means that the appellate court will review the lower court’s determination to ensure that (1) it is supported by substantial evidence, (2) it did not overlook important facts, and (3) it applied the law correctly. MB Am., Inc. v. Alaska Pac. Leasing, 132 Nev., Adv. Op. 8, 367 P.3d 1286, 1292 (2016).
Abuse of discretion is your best friend when your client has won on a factually contested issue. Appellate courts are very reluctant to overturn factual findings because they are not “evidentiary” courts. They do not receive evidence or hear testimony. For this reason, appellate courts give great deference to the lower court on factual findings. If you are faced with a challenge to a factual finding, your job is not to argue the evidence in favor of your client. Your job is to highlight the evidence in the record that supports the lower court’s finding. The more there is, the less likely it is that the lower court abused its discretion.
Abuse of discretion is generally applied to all factual findings. It also applies to the following orders:
- Rule 11 sanctions
- Decisions on admitting or refusing jury instructions
- Denials or grants of preliminary injunctions
- Awards of attorney fees and costs
- Discovery orders
- Denial of motion for change of venue
- Denial of leave to amend
- Decisions whether to certify a class action
- Attorney disqualification orders
- Good faith settlements between joint tortfeasors
- Determination of fair value under appraisal statute
- Granting/denying equitable remedies
- Service by publication
- Specific performance
- Preliminary injunctions
- Decisions on motions to set aside default
- Appointment of receiver
- Anti-SLAPP motions
- Motions to grant new trials
- Decisions not to certify issues of law to state supreme courts from federal courts
- Most orders on procedural matters
Abuse of discretion is also your best friend if you are defending procedural rulings, because lower courts are granted extreme deference in managing their dockets.
De novo review means that the appellate court looks at the issue with fresh eyes, without deference to the lower court. De novo review applies to all questions of law that come up on appeal, even if those questions arise in the context of an order that is usually considered under an abuse of discretion standard. For example, an order declining to give a specific jury instruction is generally reviewed for an abuse of discretion. When the argument on appeal is that the order was wrong because the declined jury instruction was the correct statement of law, the question of whether the jury instruction adequately reflected the law will be reviewed de novo.
De novo review is your best friend when your client has won on an issue of first impression, or on an issue subject to a split of authority. Your job on appeal is not to argue the law supporting your client’s case. It is to show the appellate court how much law supports the lower court’s ruling. The more law there is, the less likely it is that the lower court erred.
De novo will apply to all issues of law, including the following:
- Absolute privilege
- Claim/issue preclusion (res judicata)
- Validity of premarital agreements
- Treaty interpretation
- Order granting motions to dismiss
- Attorney misconduct
- Whether damages are legally recoverable (not the amount)
- Good faith settlements of insurance claims
- Subject matter jurisdiction
- Personal jurisdiction
- Proper standard of proof
- Judicial estoppel
- Grants of summary judgment
- Contract interpretation
- Settlement agreement interpretation
- Statutory interpretation
- Constitutional challenges
- Regulation interpretation
- Construction of insurance policy
- Whether jury instruction is an appropriate reflection of law
- Validity of a judgment
- Equitable subrogation
- Entry of permanent injunction if no factual dispute
- Determination of state law, in federal courts sitting in diversity jurisdiction
- Determination of whether state or federal law should apply in federal courts sitting in diversity jurisdiction
Appellants and Petitioners
This post was written from the perspective of a defending party on appeal. Appealing or petitioning parties, however, should also be aware of these standards. To win on appeal, you not only have to show that the judge was wrong, but also that your client was right. Appellate courts will affirm a ruling that reaches the right result for the wrong reason. See, e.g., Dynamic Transit v. Trans Pac. Ventures, 128 Nev., Adv. Op. 69, 291 P.3d 114, 117 n.3 (2012).
Whenever you are on appeal, remember these simple rules: Have some standards (of review). Protect your judge. Use spell check.
You’ll do fine.