With some nuances, there are two basic standards of appellate review: de novo (literally, “from the beginning”) and deferential. The de novo standard empowers and requires an appellate court to make an independent “first impression” judgment about an appellant’s claim of error without giving any deference to adverse findings or conclusions of the lower court. Examples of issues that are reviewable de novo on appeal include statutory and contract interpretation, failure to state a cause of action, summary judgment and judgment as a matter of law, and jury instruction issues. In reviewing the record, appellate counsel should search for legal errors subject to de novo review since such errors, if outcome determinative, generally are the best candidates for a reversal.

The deferential standard is employed when reviewing discretionary decisions of the lower court. Under this standard, the question is not whether an appellate court would have decided an issue differently than the lower court. Rather, the appellate court will reverse only if it is firmly convinced that the lower court “abused” or “improvidently exercised” its discretion. Examples of issues that are reviewed on appeal under a deferential standard include pre-trial discovery issues and post-verdict weight of the evidence determinations. An appellate court is not free to substitute its judgment for that of the lower court on such issues. Consequently, an appellant will face an uphill battle, and the respondent will have a big advantage, if the only issues raised on an appeal are ones subject to deferential review.

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