What’s the STANDARD OF REVIEW Got To Do With It?

Timothy J. Storm, The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court, 34 Southern Illinois University Law Journal 73 (2009)

► Role of the Standard of Review ► Illinois Standards of Review ► Need for Consistent Application ► Empirical Study ► Concerns

The Role of the Standard of Review Dictates the reviewing court’s level of deference to the lower court’s decision.

The Role of the Standard of Review Maintains the relationship between courts at various levels of the appellate review process.

Maintaining the Relationship Between Courts Trial Courts Fact-finding Applying established law to facts Reviewing Courts Error correction Maintaining stable body of precedent

Why the Relationship Between Courts Matters CERTAINTY

Why the Relationship Between Courts Matters Certainty in Dispute Resolution (Fairness) Predictive Certainty (Precedent/ Stare Decisis)

Certainty Providing Certainty By Resolving Individual Disputes: TRIAL COURTS

Certainty Providing Certainty By Consistent And Coherent Legal Rules: REVIEWING COURTS

Maintaining the Courts’ Different Roles Appellate Jurisdiction ▬ Standard of Review

Appellate Jurisdiction The Court’s Power To Hear A Case

Standard of Review Scope of the Court’s Role in the Case

The Role of the Standard of Review Enhance Certainty By Defining the Proper Role of Various Levels of Courts

QUESTIONS?

Illinois Standards of Review Legal Rulings Fact Findings Discretionary Rulings

Illinois Standards of Review Legal Rulings De Novo

The Standard for Legal Rulings De Novo No deference to the trial court’s decision.

Illinois Standards of Review Fact Findings Manifest Weight of the Evidence

The Standard for Fact Findings Manifest Weight of the Evidence “[A]ll reasonable people would find that the opposite conclusion is clearly apparent.”

Illinois Standards of Review Mixed Questions of Law and Fact Clearly Erroneous

The Standard for Mixed Questions Clearly Erroneous “[L]eft with the definite and firm conviction that a mistake has been committed”

Illinois Standards of Review Discretionary Rulings Abuse of Discretion

The Standard for Discretionary Rulings Abuse of Discretion Very deferential to the trial court’s ruling... “[N]ext to no review at all.”

Illinois Standards of Review ► De Novo ► Clearly Erroneous ► Manifest Weight of the Evidence ► Abuse of Discretion

QUESTIONS?

Consistent Application of the Standards ► The importance of consistent application. ► Checking consistent application through further review. ► Other means to check for consistency.

Consistent Application of the Standards Defining “Consistency”

The Need for Consistent Application The standards regulate the role of the courts as a means to maximize: CERTAINTY

The Need for Consistent Application Review must assure application of proper legal doctrine.

The Need for Consistent Application An appeal cannot be a mere “do over” of the trial.

The Need for Consistent Application Without proper legal doctrine, there is no predictive certainty.

The Need for Consistent Application Without finality of the trial court’s decision, there is no decisional certainty.

How can we know whether the standards are being applied consistently?

Regulating Consistency Through Objective Observation Outcomes at various levels are not self-evident.

Regulating Consistency Through Further Review Essentially unreviewable in practice.

Regulating Consistency Through Further Review Uncovering the wrong standard of review is easy, but...

Regulating Consistency Through Further Review Uncovering the wrong standard of review is easy, but... Uncovering the erroneous application of the correct standard is far more difficult.

If an appellate court’s application of the Standards of Review are insulated from further review, the system must rely upon judicial self-restraint...

... but how can we know whether the appellate courts are exercising self-restraint?

Consistent Application of the Standards Clearly important, but how can we be sure that the courts consistently apply the standards?

QUESTIONS?

Are the Standards of Review Consistently Applied? ► Basic Outcome Expectations ► Study Design ► Study Results

Basic Outcome Expectations Greatest deference = More affirmances Lower deference = Fewer affirmances

Basic Outcome Expectations Lowest affirmance rate: De novo Highest affirmance rate: Abuse of discretion

Study Design Review of all opinions in civil cases issued by all appellate court districts during the years 2005 through 2007 and reported in the Westlaw database. 1,204 decisions.

Study Design Data Universe: 1,204 decisions including 1,539 separate issues.

Study Design Data Coding: ► Standard of review that the court applied to each issue. ► Disposition of the issue.

Study Results Affirmance Rates

Study Results Affirmance Rates De Novo63%

Study Results Affirmance Rates De Novo63% Clearly Erroneous62%

Study Results Affirmance Rates De Novo63% Clearly Erroneous62% Manifest Weight73%

Study Results Affirmance Rates De Novo63% Clearly Erroneous62% Manifest Weight73% Abuse of Discretion77%

Study Results Anomalies.

Study Results Affirmance Rates De Novo63% Clearly Erroneous62% Manifest Weight73% Abuse of Discretion77%

Study Results Affirmance and reversal rates for each standard are reasonably consistent.

Study Results Affirmance and reversal rates for each standard are reasonably consistent from district to district.

Study Results Affirmance and reversal rates for each standard are reasonably consistent from district to district and from year to year.

Are the Standards of Review Consistently Applied? In short...

Are the Standards of Review Consistently Applied? In short... Yes!

QUESTIONS?

Notable Concerns Timothy P. O’Neill & Susan L. Brody, Taking Standards of Appellate Review Seriously: A Proposal to Amend Rule 341, 83 Illinois Bar Journal 512 (1995)

Notable Concerns ► Failure to State the Standard ► Administrative Review Standards ► Abuse of Discretion Overinclusive ► Wrong Level of Deference

Failure to State the Standard Most courts are now stating the standard.

Administrative Review Standards Administrative Review standards are still applied without sufficient explanation.

Abuse of Discretion Overinclusive Includes discretionary rulings but also includes other types of rulings.

Wrong Level of Deference The study suggests that appellate justices are consistently applying the standards and exercising judicial self-restraint.

Conclusion Standards of Review generally operating as intended to maximize

Conclusion Standards of Review generally operating as intended to maximize CERTAINTY

QUESTIONS?

Timothy J. Storm Adjunct Professor, The John Marshall Law School Storm Law Office 227 North Main Street Wauconda, Illinois