Standards of review distribute power within the judicial branch by defining the relationship between trial and appellate courts. These standards “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.” Standards of review are the cornerstones of appeals. These standards must be woven into the discussion of the facts and substantive law in a manner which persuades the appellate court that the trial court erred. Litigants must measure their factual and legal arguments against the appropriate rubric to write an effective and persuasive brief. Appellate judges agree that mechanical recitation of relevant standards of review, without more, is no more helpful than completely ignoring the standard altogether. This means a formal statement of the standard of review will not advance the process of persuading appellate courts. Standards of review must be carefully distinguished from scope of review. Because the appropriate standard of review and scope of review generally determine the outcome of appeals, litigants must shape arguments in a manner which will satisfy the relevant standard as applied. While standards of review are imprecise, they identify the fundamental questions for the reviewing court and narrow the focus of those questions to the court. Without identifying and applying the standard, an appellate brief will not present a coherent or persuasive argument. An appellate advocate will be most effective when he or she focuses on the applicable standard of review and demonstrates to the appellate court how that standard mandates the result the party advocates. Equally important to success on appeal is a forceful and persuasive brief which demonstrates the harmfulness or harmlessness of the error—without demonstrating harm or lack of it. Advocates do not advance the client’s position by simply showing a trial court error.
St. Mary's University School of Law
W. Wendell Hall, O. Rey Rodriguez, Rosemarie Kanusky & Mark Emery,
Hall's Standards of Review in Texas.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol42/iss1/2
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