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Appellate Litigation

What is the Standard of Review on Appeal?

February 3, 2020

One of the most important factors an appellate attorney considers in assessing the likelihood of success on appeal is the applicable standard of review. Standard of review is so important, in fact, that most appellate courts require a separate section in an appellate brief on the standard of review that applies to the issues being briefed.

Standards of review reflect the law's perspective on an appellate court’s ability to make the right decision on a given issue. An appellate court will, for example, give added weight to the decisions of trial courts on issues where it is concerned about making those determinations on nothing but a written record of what happened at trial. Just as officials in the box during an NFL game don’t want to second guess the referee who was standing ten feet away from the action when he called a foul—unless in the playback the call was clearly incorrect—appellate judges don’t want to second-guess a trial court judge who sat ten feet away and experienced the witness testimony.

There are three basic categories of decisions reviewable on appeal, each with its own standard of review: decisions on “questions of law” are “reviewable de novo,” decisions on “questions of fact” are “reviewable for clear error,” and decisions on “matters of discretion” are “reviewable for ‘abuse of discretion.’” Pierce v. Underwood, 487 U.S. 552, 558 (1988). Though at least one of these standards is likely to apply in any given appeal, many other standards exist for particular issues.

Findings of Fact

Findings of fact and other “essentially factual” issues are reviewed for clear errorSee Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002). This standard is derived from the Federal Rules of Civil Procedure, which state that a court of appeals “must not... set aside” a trial court’s “findings of fact, whether based on oral or other evidence... unless clearly erroneous... [and] must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). The appellate court cannot reverse the district court's findings at all if the findings are “plausible in light of the record viewed in its entirety,” even if the appellate court would have found differently itself. Husain, 316 F.3d at 835.

This standard recognizes that an appellate court reviewing only a transcribed record of what occurred in the trial court does not have the benefit of adjudicating factual issues or making determinations on the weight and credibility of evidence.

Example: a trial court’s finding that a defendant engaged in the act of market allocation after hearing testimony from the defendant’s employees is subject to clear error review.

Conclusions of Law

Conclusions of law are subject to de novo review by the appellate court. See Husain, 316 F.3d at 835. De novo means “from the beginning” or “anew” in Latin. When a court reviews an issue de novo, it gives no weight to the trial court’s conclusions. This is because the appellate courts are charged with correcting legal errors and developing the law; any other standard would subordinate the appellate courts to those of the district courts.

Example: a trial court’s legal conclusion that the defendant is entitled to judgment as a matter of law is subject to de novo review.

Mixed Questions of Fact and Law

Sometimes it isn’t so clear whether the court made findings of fact or conclusions of law. In fact, the Supreme Court itself “has long noted the difficulty of distinguishing between legal and factual issues.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401 (1990). Sometimes decisions “mix” together questions of law and fact.

For these “mixed” questions of law and fact, the standard of review may depend on the difficulty of the question—that is, “it may be subject either to clear error or de novo review, depending upon ‘the concerns of judicial administration.’ ” Koirala v. Thai Airways Int'l, Ltd., 126 F.3d 1205, 1210 (9th Cir. 1997) (citing United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.1984) (en banc)).

Courts will usually look to whether the decision is more factual or more legal. Where the law is applied to facts, and the inquiry made is an “essentially factual” one, then clear error applies the same as it does for findings of fact. Koirala v. Thai Airways Int'l, Ltd., 126 F.3d 1205, 1210 (9th Cir.1997). In any case, either de novo or clear error review will apply.

Abuse of Discretion

An issue on which the trial court has discretion will be reviewed for an abuse of discretion. See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). This standard is often used when the issue concerns the district court’s ability to administrate cases and manage its docket.

Example: a district court’s decision denying the plaintiff’s motion for leave to amend her antitrust complaint is reviewed for abuse of discretion. Id.


Standards of review are important to consider in assessing the likelihood of success on appeal, but many other factors can affect the decision to appeal. Bona Law has appellate litigators with both substantial experience and judicial clerkships with appellate courts, including United States Courts of Appeal and the US Supreme Court and we may be able to help you.

Bona Law also advises litigators and trial attorneys when an appeal is anticipated to ensure that all issues are preserved and the record is sufficiently developed.

You might also enjoy our other articles on appellate issues:

1. Three reasons to hire an appellate attorney.

2. What is great legal writing?

3. Three components of every effective appellate argument.

4. Why you should consider filing an amicus brief in an appellate case.

5. How to write a significant antitrust or appellate brief.

If you want to discuss your appeal, please contact us. You can call us at 858-964-4589.