Standards of Review: De Novo, Clear Error and Abuse of Discretion

Three standards

Traditionally, decisions on “questions of law” are “reviewable de novo,” decisions on “questions of fact” are “reviewable for clear error,” and decisions on “matters of discretion” are “reviewable for ‘abuse of discretion.'”

Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014) (quoting Pierce v. Underwood, 487 U.S. 552, 558 (1988))

De novo means the appeals court decides the legal question fresh, giving no deference to the trial court. Abuse of discretion is deferential: the appellate court reverses only if the ruling was outside the range of reasonable choices or rested on a legal error.

Clear error for findings of fact

Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.

Fed. R. Civ. P. 52(a)(6)

In Anderson v. City of Bessemer City, 470 U.S. 564, 573–574 (1985), the Court explained that a finding is clearly erroneous when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed,” and that “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”

Preserving the issue

In general, an appeals court considers only issues raised in the trial court. A party therefore needs to object on the record and state the grounds. Errors that did not affect substantial rights are treated as harmless.

Researching standards of review in your state

First, find the statute or rule that governs standards of review where you live. State law controls most of these questions, so the answer can change from one state to the next. Next, read recent decisions from the appellate courts in your state. They show how judges apply the law today. Also, check the local rules of the court that would hear your case. Our state procedures guide links to each state’s official rules. In addition, the Research Center explains how to confirm a source is still good law.

Sources and further reading

Official sources used on this page:

• law.cornell.edu
• static.case.law
• static.case.law

Related reading on Lawtopolis:

• The Notice of Appeal and Appeal Deadlines
• The Final Judgment Rule and Interlocutory Appeals
• Supreme Court Review: Certiorari and the 90-Day Deadline