Standard of Review in an Appeal

Standard of Review: differing levels of deference to something that has come before.
  • 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.
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