Contact: J. Bradford McCullough; Lerch Early & Brewer (Maryland, USA)
Throughout the fall, many of us are glued to our televisions or sitting in stadiums, watching the latest NCAA or NFL football game. Invariably, there will be some close calls on the field that will cause controversy among the fans. Was that a fumble or was the ball carrier already down when he lost control of the ball? Did the receiver catch the ball or did the ball hit the ground first? Did the ball cross the goal line for a touchdown or did the defense stop the runner before he could score? In those situations, whatever the officials called on the field will be questioned. There will be further review – this time by looking at instant replay. While we fans wait for the outcome of that further review, announcers will tell us that – unless there is “incontrovertible visual evidence” that the call was wrong – the call on the field will not be reversed. If replay shows that the call was correct, that call is “confirmed.” If the replay clearly and indisputably shows that the call was wrong, the call is reversed. But if the replay does not provide indisputable evidence one way or the other, the call “stands,” i.e., it will not be reversed. This often frustrates fans who think that the call was probably wrong. Their frustration arises from a failure to understand the applicable standard of review.
Standards of review are crucial. Just as a football fan or coach must appreciate the standard by which an official’s decision will be reviewed, a lawyer must understand the standard that an appellate court will employ to review a trial judge’s decision. Knowing the trial court record and the applicable substantive law is not enough. Counsel must know the standards that will control the appellate court’s review of the trial court’s decision. Different types of ruling are reviewed under different standards. Some standards are deferential to the trial court. Those standards include an abuse of discretion standard and a review for clear error. For other decisions, no deference is given and the decision will be reviewed de novo.
