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Pay careful attention to the applicable standard of decision


The separate issues involved in your case may be subject to varying presumptions and burdens of proof. In a criminal trial, the prosecution must establish guilt beyond a reasonable doubt. An adversary who seeks to overturn the judgment you obtained below on the basis of an erroneous jury instruction to which there was no objection must establish not just error but plain error. An appellant who attempts to set aside federal-agency action as contrary to statutory authority must often show not merely that the best reading of the statute favours reversal, but that the agency’s reading is not even within the bounds of reason. And so forth.

When the standard of decision favours your side of the case, emphasize that point at the outset of your discussion of the issue – and keep it before the court throughout. Don’t let the discussion slide into the assumption that you and your adversary are on a level playing field when in fact the standard of review favours you. Say, for example, that you are asked, in a case involving review of federal-agency action favouring your client, whether you don’t think an interpretation of the statute different from the agency makes more sense. You should respond somewhat as follows: “I don’t think so, Your Honor, but it really makes no difference. The question here is whether the agency’s interpretation is a reasonable one, not whether it is the very best. And on that point there is little room for doubt.” Remind the court of the favourable standard of review in your summation.

Appellees’ briefs commonly treat the standard of review in boilerplate fashion. If your opponent is fighting against a clearly-erroneous or arbitray-and-capricious standard, make a big deal of it. Point out that the appellant is attempting to retry the case, or to have the court of appeals substitute its judgment for that of the district court or the agency. Say this explicitly, not only in your standard-of-review section but in your introduction and summary of argument.

When the standard of decision is against you, acknowledge the difficulty but demonstrate concretely why the standard is met. Go beyond mere repetition of stock phrases. For example, if you’re arguing that the judgment below was clearly erroneous, it does little good to say, “Here one does indeed have a definite and firm conviction that a mistake has been made.” Cite a case in which an appellant met that standard and compare it to your own.

The standard of decision is particularly important when you’re selecting the issues to pursue on appeal. Appealing a minor error that will be reviewed under an abuse-of-discretion standard will probably do nothing but divert time and attention from your stronger points. Sometimes, too, you can escape or neutralize the more lenient standard of review by framing your claim differently – as by arguing not that the lower court abused its discretion, but that it made an error of law in considering certain factors.

Inputs from Antonin Scalia and Bryan A. Garner

 

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