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Civil Procedure Fall 2014

Cheat Sheet on Standard of Review and Timing on Appeal




At several points in the course we have asked under what standard an appellate court reviews an element of a district court ruling. As you will see in the Ames competition next semester and in real life, the standard of review can be very important as to whether you will win the issue on appeal.


From a system design point of view, there is a trade-off between the appellate court’s desire to “Get the issue right” by looking at it with its own fresh eyes versus its belief that the district court, that has spent a lot longer with the case, and was sitting in the courtroom in the case of trial, deserves deference for his or her expertise. How that balance is resolved varies by the kind of the issue we are talking about.




Pure questions of law:


-       E.g., did you give an improper instruction as to the elements of a claim or defense to the jury? Did you apply the wrong standard for SJ or JMOL? Did you give an improper instruction as to the elements of a claim or defense to the jury?


-       Review is de novo.


-       There is no reason to think the trial judge has more expertise on this issue, appellate judges answer pure questions of law all the time and facts do not matter.




Pure questions of fact (aka “historical fact”)


-       E.g., Was the light red? Did the defendant drink alcohol before the accident? Did the Def sign the contract? Is the witness lying?


-       When judge is sitting as factfinder (bench trial): Review is for clear error. FRCP 52(a). Very deferential. Do not set aside findings of fact “clearly erroneous,” that is only if “on the entire evidence [the appellate court] is left with the definite and firm conviction that a mistake has been committed.” (Pullman-Standard v. Swift, 456 U.S. 273, 289 n.12 (1982)). We give deference here because the trial judge is sitting closer to the evidence, the witness testimony.


-       When it is a jury trial there is event more deference because of the 7th Amendment: “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” In this instance the matter is reviewed under a similar standard to the way the court decides to grant a JMOL, you should ask if a reasonable fact-finder could have reached that conclusion, with all evidence, including all credibility determinations and inferences, resolved in light most favorable to the verdict. If so, you don’t upset the decision below




Mixed Questions of fact and law:


-       What is it? S. Ct. has said “questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.” Pullman-Standard, 456 U.S. at 289 n.12.


-       E.g.,the words said and actions taken by Def are facts, whether they constitute intentional discrimination is a mixed questions. The representation made by Def is fact, whether it was “material” for stock fraud is a mixed question. Other examples s: Interpretation of a contract; Whether use of copyrighted material is “fair use” ; whether parties agreed to arbitrate a dispute all have been treated as mixed questions.


-       Mixed questions are reviewed de novo, though some courts, like 1st cir will actually say it is a continuum, the more fact intensive the more deference.




Decisions committed to the sound discretion of the district court:


-       Abuse of discretion review.


-       E.g., whether to allow pleading amendments that are within your discretion, consolidate cases, order separate trials, discovery orders, etc.


-       These are the kinds of things that it is harder to say the district judge is wrong about, because there is not a clear cut right and wrong because is discretionary to begin with.


-       In general when something is reviewed for abuse of discretion review, the appellate court is very unlikely to overturn the district court’s decision on the point.






You appeal by filing a “notice of appeal” with the district court.


In a civil case, you normally have to file the notice “with the district clerk within 30 days after the judgment or order appealed from is entered.” FRAP 4(a)(1)(A).


This rule is jurisdictional and cannot be altered by consent of the parties.


The time limit begins to run when judgment is entered as described in FRCP 58. But if a post-trial motion (such as renewed JMOL, New Trial, 60(b) relief from judgment, etc) is pending and is itself timely filed, the time for filing the notice of appeal does not run until there is an order disposing of that motion. FRAP 4(a)(4).


Only the district court, not the appellate court, can extend the time to file it a notice by a maximum of 30 days for “Excusable neglect,” but only if the extension motion comes before the end of the 30 day period to file. FRAP 4(a)(5).


When I was hired at the Justice Department I was told the only thing I could do that would get me fired in the first week I was there was to fail to file the notice of appeal in a timely fashion (actually the feds get a slightly longer window to file of 60 days, FRAP 4(a)(1)(B)). If you think you might want to appeal but cannot make your mind up within the window before the notice of appeal is due, it is a common practice to file the notice of appeal no matter what and just withdraw the appeal if you change your mind. Except for losing the filing fee there is no penalty for doing so, though judges will get pissed off if you wait too long to withdraw your appeal. Because we needed the Solicitor General’s permission to actually take an appeal, and because the SG’s office was always very slow, in my DOJ days we would do this quite frequently.