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A Thought On Standard of Review

By James M. Beck and Mark Herrmann

Many moons ago, one of us clerked in the Ninth Circuit.

We learned two lessons from that experience.

Actually, we learned many, many lessons from that experience, but we're sharing only two today.

First, during the first week of the clerkship, one of our predecessor-clerks asked, "Do you think the standard of review on appeal makes any difference?"

We were about to pop off: "Of course not. The key is to build some emotional appeal into your statement of facts. That will make the court want to rule in your favor. No matter what the standard of review is, the court will find a way to rule in favor of the side that it likes."

Fortunately, the predecessor-clerk answered his own question before we had a chance to speak: "Standard of review decides cases. As in: Decides cases."

That proved startlingly true during the course of the clerkship year. We quickly came to learn that the "abuse of discretion" standard of review meant that we should get out the "affirmed in a heartbeat" stamp, while a "de novo" standard of review meant that there would be a serious shooting match.

We've carried that lesson with us in the years since. We've always done what's possible to find an issue subject to de novo review when we represent an appellant, and we've always tried to explain why review was only for clear error or abuse of discretion if we were representing an appellee.

The second thing we learned that year was that the Ninth Circuit had a comprehensive outline discussing standards of review, created over the years by a permanent staff attorney on the court with an encyclopedic knowledge of Ninth Circuit law. That outline was invariably the starting point for research when we were writing the standard of review portion of a bench memo or draft opinion. And we saved that outline -- even though it was dated 1983 -- for years afterwards, because we never saw any better research aide on that subject.

We tossed our old hard copy only when that standard of review outline became available on-line.

The outline has been publicly available for a while now, but we were recently startled to hear from someone who didn't know that it existed.

Now our readers, at least, know about, and have quick access to, that outline. And remember: If your appeal is in a circuit other than the Ninth, you can still use the Ninth Circuit case cites to find a West key number that will lead you to authority from other circuits.

The Ninth Circuit standard of review outline is an awfully important research tool. Don't overlook it.

Full post as published by Drug and Device Law on April 23, 2008 (boomark / email).