Appellate lawyers think about arguments in terms of the applicable standard of review, as that is the lens the court will use to evaluate an appeal.  There are four main standards of review:

  • Under “de novo” review, an appellate court decides an appeal without any deference to the lower court’s decision.
  • Review for “clear error” grants significant deference to the district court’s decision.  It requires the appellate court to have a “definite and firm conviction that a mistake has been committed.”
  • “Sufficient evidence” review asks whether a reasonable person could accept the available evidence as adequate to support the decision.
  • “Abuse of discretion” nearly defines itself.  The standard description is that it applies where “the district court has made a clear error of judgment, or has applied an incorrect legal standard.”

These standards often seem to run together – which is not helped by the use of “clear error” in the definition of abuse of discretion.  And well-reasoned district court opinions will receive substantial deference regardless of the standard.  Judge Posner has suggested that there are really just two standards of review:  plenary (de novo) and deferential (everything else).  But do standards of review actually influence the results in appeals?

Judges are certainly aware of the standard in every case, and usually cite the relevant standard at the beginning of opinions.  But if a judge believes that a case was wrongly decided, there will be a dozen ways to write an opinion that accommodates the right standard of review.   Opinions are, after all, usually written after the result has been decided.  Scholars are skeptical about whether standards of review have any meaning at all, and statistical studies in state courts in Texas and California have shown that significant changes in the standard of review often fail to have any effect on reversal rates.

We looked at this question in the Sixth Circuit, using a combination of broad searches through the last five years of cases on Lexis, and a case-by-case analysis of three months’ worth of decisions.   We found that appeals that were decided “de novo” were nearly 20% more likely to be reversed than those under the more deferential standards.   Case reviewed for abuse of discretion were the most likely to be affirmed, followed by clear error and sufficiency of the evidence.  Our results support the view that the standard of review matters, at least in the Sixth Circuit.