- How much are we going to defer to someone/something that has come before?
- Precedent for example, has a high level of deference.
- Res judicata = "super precedent"
- Total, absolute deference
- What has the trial court done? Impacts level of review.
- de novo
- N0 deference, as if done for the first time
- Not quite "I don't care what they did" because appeals court may be persuaded by trial court's arguments.
- "clearly erroneous"
- Very deferential standard of review.
- Did trial court judge act outside the bounds of propriety/reasonableness?
- Example: Plaintiff sued city because didn't get job as recreation director.
- Brought suit claiming decision not to hire based on her gender.
- Tried before a judge (bench trial).
- Title VII is new.
- No analogue to antidiscrimination law in 1791.
- So look to nature of remedy.
- Congress says "injunctive relief" and back pay:
- could be thought of as damages (legal) OR
- restitution (equitable).
- Congress characterized back pay as equitable originally.
- So lots of Title VII cases (especially pre-90s amendment) involve bench trials not jury trials.
- Trial court decided that reasons for choosing man were pretextual
- Not necessarily due to gender discrimination though.
- But still trial court concludes gender was a factor in decision not to hire.
- 4th Circuit reverses, saying findings "clearly erroneous."
- SCOTUS says 4th Circuit didn't have the right frame of mind.
- 4th Circuit wasn't deferential enough to trial court judge.
- Reminiscent of standard for granting new trials (Linds v. Shelley).
- Like trial court reviewing jury verdict.
- People have more confidence in abilities of self (or judge/jury in trial court) to determine inconsistencies than is warranted.
- In reality, "cold written record" often puts one in a better position to determine credibility!
- Besides, deference required under Rule 52 (Findings by the Court; Judgment on Partial Findings) applies whether or not there was live testimony.
- "Harmless error"
- Even when a mistake has been made, don' want to undo it unless if impacted the "bottom line."
- Embodied in "the harmless error statute": 28 U.S.C. §2111 (Yeazell, p.653)
- Who has burden of proof on this?
- Tends to be on side defending trial court judgment must show harmlessness (certainly true in criminal context!)
- Then what is the standard by which burden must be met?
- Probable?
- More likely than not?
- Clear and convincing?
- Usually done by this standard.
Standard of Review in an Appeal
Standard of Review: differing levels of deference to something that has come before.
