Why Review Is Limited

Scope of Appellate Review

Why Review Is Limited

A party who loses at trial and appeals does not get a second trial. The court of appeals examines the record and gives judgment "without regard to errors or defects which do not affect the substantial rights of the parties."¹ An appeal, in other words, is a device for correcting errors, particularly errors that affected the outcome. The court reviews each issue under one of three standards, chosen by the nature of the issue and by how much deference the appeals court owes the district court's decision.²

The errors that qualify are those that disturbed how the case was processed. Suppose the trial judge wrongly denied access to important information in discovery, so that the plaintiff could not prove an element of her claim. She never had a full opportunity to prove her case, and the appellate court can remand with orders to allow the discovery and retry the case. Or suppose the judge gave the jury an inaccurate instruction on the effect of an affirmative defense. The jury evaluated the evidence under the wrong legal rules, so the error may have affected the verdict, and the appellate court can remand for a retrial with the proper instruction.³ In each example the complaint attacks how the case was handled, and the remedy repairs the handling. A complaint that the factfinder weighed the evidence badly attacks something else.

The line falls there because deference follows comparative advantage. A trial judge and a jury usually hear every witness and see each one, including demeanor that no written transcript preserves, and a jury also brings its collective experience to the task.⁴ Those advantages counsel substantial deference on questions of fact. The Federal Rules write the point into review of a judge's findings: the findings may not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility.⁵

On questions of law the advantage reverses. Appellate judges usually sit in panels of three or more, benefit from collegial decision making, often have more law clerks, and conduct no trials and manage no pretrial litigation. They only opine on the law. They therefore decide legal questions de novo, roughly anew or from scratch, although the trial judge's reasoning may still influence them.⁶

Comparative advantage is only part of the explanation, because every judicial system also aims for finality and efficiency, and too much second-guessing threatens both. Those aims add to the push toward deferential review: on close calls, the appellate court will often let the decision below stand.⁷

Scope of review therefore has two sides. One asks how closely the court looks once an error is properly before it, and the three standards answer that question. The other asks whether the error can be reviewed at all, which turns on preservation, on who is appealing, and on whether the error affected substantial rights. The sections ahead take the standards first, beginning with de novo review of law, clear error for a judge's findings, and abuse of discretion, and then turn to the prerequisites to review and harmless error.