Note: This is the second of six articles on the appellate standards of review. Start at part one.
In legal parlance, many Latin terms have become so commonplace they are neither hyphenated nor highlighted: the terms are part of everyday nomenclature.
One example is “sua sponte,” the name by which this blog is known.
Another, at issue in this blog, is the term “de novo.” Black’s Law Dictionary defines “de novo” as meaning “anew; afresh; a second time,” with its most common use as a standard of review for purposes of an appeal – and that’s where we’ll go in this blog.
De Novo: The Concept
At the risk of over-generalizing the concept, the common understanding is that, for certain types of cases and issues, “de novo review” means the reviewing body will act as if it were considering the question for the first time (or again, for the second time), affording no deference to the decision below.
To understand this concept, however, requires at least some back-tracking. In many jurisdictions, including the Wisconsin state and federal courts, practitioners are required to include with their appeal a short, plain statement as to the applicable standard of review. Doing so should, in theory, alert the court that a particular issue is entitled to some deference, or not.
At the same time, I found one article noting that no U.S. Supreme Court opinion before 1951 includes the phrase “standard of review,” nor does Black’s dictionary (at least my decades-old copy from law school) define the term.
Instead, the common understanding of a standard of review is that it is divided between issues of fact and law (and mixed in between). For instance, when it comes to fact issues, because a fact-finder (judge, jury, agency, etc.) considers witnesses, other evidence, and is (supposedly) best-positioned to decide whether something did or did not happen as a “fact,” deference is given those decisions.
But the same would not hold, as the theory goes, for questions of law on such things as legal interpretations or in cases where facts are undisputed. In that sense, a reviewing body can disagree without having to defer to the prior finding.
De novo review is, therefore, the later review, the least deferential, that (supposedly) provides more freedom to overturn the decision on appeal.
Is First Review an Advantage?
Yet, theory may be more difficult in actual practice. After all, simply because the reviewing court need not defer doesn’t mean it is immune to the outcome. So said the Wisconsin Supreme Court in Cohn v. Town of Randall1: “Despite our de novo standard of review, we nonetheless value the trial court’s decision.”
So does the de novo standard really matter?
On this question there is debate. Several online sources have reported statistical studies that suggest changes in the standard of review often fail to impact reversal rates. The reviewing standard may matter, but often does not.
Similarly, the appellant’s odds of reversal are already low – at least by an intermediate level reviewing court (i.e., the Court of Appeals). Studies have shown that, at least in the federal courts, some of the highest reversal rates are coming out of the Seventh Circuit (which includes Wisconsin), yet the reversal rate is still less than 20 percent. Thus, while appellants may not be facing lottery-type odds, the odds of reversal are decidedly not in their favor.
And if the de novo standard may not matter, why then would an appellant seek out “de novo” issues?
It comes down to two things.
First, de novo review eliminates – or at least should diminish – any advantage to the responding party. Perhaps the more apt understanding is that de novo review places both sides in the same position – there is no advantage to either when issues are reviewed anew, as if for the first time (or again, for the second time).
Second, as we move away from de novo review, the terminology changes, and other review questions arise that can impact the appeal (often negatively for the appellant). Some of these questions are understood as applicable legal standards and others policy-positions of the court.
This is discussed in the next post, The Lingo of Deference.
The Appellate Standards of Review: Concept and Reality
In this six-part series, Jacques Condon explores the concept and reality of standards of review in appeals. Find the other parts in the Appellate Practice Blog or click these links:
To find out more about State Bar of Wisconsin section blogs, visit the blog page on WisBar.org.