Appeals: Standards of Review
The standard of review is the lenses through which each issue on appeal is examined. It determines the degree of scrutiny the appellate court will apply when reviewing the lower court decision. The three most common standards of appellate review as as follows.
1. Plenary Review (De Novo Review)
This is the highest degree of scrutiny, most commonly applied to questions of law (i.e., interpretation, construction, and application of constitutional, statutory, case law, and substantive rights). Plenary review permits the appellate court to substitute its judgment for that of the lower court because it is in as good a position to decide the issue. As a rule of thumb, the question is whether the lower court committed a mistake of law of sufficient magnitude to require that the judgment be reversed or vacated.
2. Clearly Erroneous
This is the intermediate degree of scrutiny, most commonly applied to issues of fact. The appellate court is not permitted to substitute its judgment merely because if it could arrive at a different conclusion. The findings of fact must be plainly wrong, mutually inconsistent, unwarranted by the evidence or otherwise tainted. There must be a definite and firm conviction that a mistake has been committed. As a rule of thumb, where there are two permissible views of the evidence the choice between them is not clearly erroneous.
3. Abuse of Discretion (Arbitrary and Capricious)
This is the lowest degree of scrutiny, most commonly applied to procedural, evidentiary, and equity decisions. To prevail requires more than simple disagreement; the result should shock the sense of justice so as to result in plain injustice. As a rule of thumb, if an issue can be decided in different, but equally plausible ways, then the abuse of discretion standard likely applies on appeal.