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  • September 27, 2019

    Appellate Standards of Review: Anatomy of an Appeal - Proceed with Caution (Part 4)

    In this six-part series, Jacques Condon takes a look at the concept and reality of standards of review in appeals. In this fourth part, he dissects a few thorny considerations and advises a cautionary approach to review. “Many issues require proceeding with caution in defining the applicable reviewing standard,” he writes.

    Jacques C. Condon

    Note: This is the fourth of six articles on the appellate standards of review. Start at part one.

    In prior blog posts, I discussed standards of review and policy considerations involved in appellate issues and cases. Because not every appeal is the same, I’m now going to dissect (delicately) a few thorny considerations.

    The first involves mixed questions of law and fact.

    Water and Oil

    As identified in prior posts, the general understanding is that questions of law are reviewed de novo, with questions of fact reviewed with deference to the fact-finder. While there are multiple standards and terminologies in play, the general theory of deference is commonplace in appellate review.

    But what happens in cases where there are questions of law mixed with those of fact? In Wisconsin, the clearly erroneous standard applies to the factual findings, with legal issues reviewed independently.1

    This seems tricky. On the one hand, when it comes to a jury’s finding, the appellate court is said to have the authority to search the record for credible evidence to sustain the jury’s finding2 while, on the other hand, not all evidentiary rulings are discretionary3, leaving room for argument as to which standard is in play.

    The Yellow Flashing Light

    The point is that many issues require proceeding with caution in defining the applicable reviewing standard.

    Jacques C. Condon Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases.

    For example, while summary judgment decisions are reviewed de novo, what happens when summary judgment is largely based on a decision to exclude evidence? If the parties argue that the court improperly barred a witness or excluded evidence, would that issue be reviewed with deference to the trial court (akin to “the judge was there, heard argument, knew the case, so do we really need to second guess that decision”)?

    And if you think some deference should be given to that decision, what happens when that decision leads to granting summary judgment? The courts have determined that a summary judgment finding is nondeferential – i.e., reviewed de novo – which, unfortunately, in this example, appears to double-down on the question of deference (akin to “yeah we aren’t really going to second guess the decision, even though it led to a decision that we are in a position to second guess”).

    Review Standard in Dispute

    A similar circumstance occurred in a case I litigated – appealing a court’s decision to grant a new trial (over my objection) based on disagreement with a jury verdict. The reviewing standard was in dispute on multiple fronts. Indeed, granting a new trial raised Seventh Amendment right to trial considerations and limitations on a judge's power to re-examine the jury's verdict.

    Hence, in my case, case authority notes that, while the appellate court applies deference to the lower court’s order granting a new trial when the order was granted “in the interest of justice,” the appellate court’s review is also stated to be “more exacting”.4 More exacting? Is this yet a different reviewing standard? To bring out a line from the move A Few Good Men: oh, so you strenuously object, now let me reconsider. Here, apparently, at least in this context, it’s not simply review but a more exacting – strenuous? – review.

    Moreover, at least in my case, there were other considerations in play (i.e., yet more reviewing standards?) when ordering a new trial based on the weight of the evidence (which seemed to be what the court did), as this type of order is proper only when the record shows that the jury's verdict resulted in a “miscarriage of justice,” or where the verdict, on the record, “cries out to be overturned” or “shocks our conscience.”5

    In other words, at least in that particular context, we now have a bunch more words that intertwine reviewing concepts that are along the spectrum of everything from exacting to justice to shock.

    In my particular case, the Seventh Circuit ultimately sided with my client’s position, noted the “miscarriage of justice” and “shock the conscience” standard, and concluded that the jury’s original verdict (in my client’s favor, albeit odd), was reasonable – and should be reinstated.6 If you look at my prior blog post no. 2, obtaining a reversal on appeal somewhat beat the odds, as it were, and this is true no matter the deference given the lower court’s decision.

    Reversal to the First

    Yet, the point here is that the appellate issue largely came down to one of review: only through a careful, thorough explanation of the reviewing standard could the facts and legal argument be articulated (and understood), with the appellate court’s analysis largely driven by the reviewing standard – ​which in this particular case pointed toward reversal in favor of the first verdict.

    And that, in essence, is why a carefully articulated (and understood) reviewing standard makes all the difference in an appeal.

    Taking this anatomy one step further, I harken back to where this blog series began: the Kentucky Derby and appeals involving the decision of racing stewards to disqualify the unofficial winner – an act never before seen in the 145 year history of the Derby.

    And as we head back toward the Derby-decision, we head back into the heart of standard of review, and the subject of my next post, Maximizing an Appeal for Maximum Security.

    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


    1 State v. Reinwand, 2019 WI 25, 385 Wis. 2d 700, 924, N.W.2d 184

    2 Morden v. Continental AG, 2000 WI 51, ¶ 39, 235 Wis. 2d 325, 352, 611 N.W.2d 659

    3 Palisades Collection, LLC v. Kalal, 2010 WI App 38, ¶ 14, 324 Wis. 2d 180, 781 N.W.2d 503

    4 Latino v. Kaizer, 58 F.3d 310, 314 (7th Cir. 1995)

    5 Id. at 315.

    6 Prime Choice Service, Inc. v. Schneider Logistics Transloading and Distribution, Inc., 861 F.3d 633 (7th Cir. 2017)


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    Sua Sponte is published by the Appellate Practice Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Jacques Condon and review Author Submission Guidelines. Learn more about the Appellate Practice Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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