March 19, 2014 – The appellate standard of review, advises attorney Michael S. Heffernan in PINNACLE’s Appellate Practice and Procedure, is “[p]erhaps the most significant guideline in determining which issues to present on appeal.” In fact, as the Hon. Richard S. Brown, chief judge of the Wisconsin Court of Appeals, notes in his outline of standards of appellate review (included as an appendix to the book), “the standard of review often determines the outcome on appeal.”
You’ll Argue Better When You Argue to the Applicable Standards of Review
Given the prominence of standards of review in the analysis of almost any matter that is appealed, Heffernan offers the following advice to a lawyer preparing an appeal: “To determine which issues are most likely to achieve a favorable result, categorize them under their appropriate standards of review.” Identify those issues subject to the least deferential standard of appellate review: “They have the best chance of being successfully challenged on appeal.”
Think You Know the Appellate Standards of Review?
Try to rearrange the following issues, from the least deferential to the most deferential standard of review: (1) a jury’s findings of fact in a civil case; (2) construction of a contract; (3) a jury’s findings of fact in a criminal case; and (4) applicability of a statute of limitation.
Think you’ve got them? Check your answers against the following reordered list:
The applicability of a statute of limitation is a question of law, which the appellate court determines independently of the circuit court. A legal question is entitled to the least deference on appeal.
Deference to a circuit court’s construction of a contract varies, depending on whether the contract is deemed ambiguous. If a contract is unambiguous, the appellate court will interpret it as a question of law: “An appellate court is not bound by a trial court’s conclusions of law and decides the matter de novo.” But if the contract is ambiguous, the appellate court will consider the parties’ intent as a question of fact; findings of fact in a noncriminal case will be affirmed unless they are clearly erroneous and against the great weight and clear preponderance of the evidence.
Findings of fact in a criminal case will be affirmed if the “evidence adduced, believed, and rationally considered by the jury was sufficient to prove [the defendant’s] guilt beyond a reasonable doubt.” But a conviction cannot be sustained on the sole basis that there is “some evidence” supporting a guilty verdict. Heffernan explains that this standard is “slightly less deferential” than the standard for reviewing findings of fact in a civil case.
Finally, findings of fact of a jury in a civil case are entitled to the greatest deference: An appellate court “will not upset a jury verdict if there is any credible evidence to support it.”
Build Your Appeal on a Firm Foundation with Appellate Practice and Procedure
“The first task of an appellate court when considering an issue is to decide which standard of review it will apply,” observes Judge Brown. The first task of an attorney in preparing an appeal should be to consult the 2013-14 revised edition of Appellate Practice and Procedure in Wisconsin. This edition includes the latest developments relating to standards of review, as well as those in other areas of appellate practice.
Finally, the forms in this latest edition have been reviewed by Diane Fremgen, clerk of the Wisconsin Supreme Court and Court of Appeals, and updated as appropriate. All forms are included on an updated CD-ROM that accompanies the print book (subscribers to Books UnBound®, PINNACLE’s subscription-based online library, can access the forms online).
Order Your Copy Today
Appellate Practice and Procedure is available in both print and online (via Books UnBound®, the State Bar’s interactive online library). For pricing, more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838. Subscribers to the Bar’s automatic supplementation service will receive future updates at a discount off the regular price. Annual subscriptions to Books UnBound start at $149 per title (single-user price; call for full-library and law-firm pricing).