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

1. What’s theSTANDARD OF REVIEWGot To Do With It?

2. 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)

3. www.illapp.com

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

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

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

7. Maintaining the RelationshipBetween Courts Trial Courts Fact-finding Applying established law to facts Reviewing Courts Error correction Maintaining stable body of precedent

8. Why the RelationshipBetween Courts Matters CERTAINTY

9. Why the RelationshipBetween Courts Matters Certainty in Dispute Resolution (Fairness) Predictive Certainty (Precedent/ Stare Decisis)

10. Certainty Providing Certainty By Resolving Individual Disputes: TRIAL COURTS

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

12. Maintaining theCourts’ Different Roles Appellate Jurisdiction ▬ Standard of Review

13. Appellate Jurisdiction The Court’s Power To Hear A Case

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

15. The Role of theStandard of Review Enhance Certainty By Defining the Proper Role of Various Levels of Courts

16. QUESTIONS?

17. Illinois Standards of Review Legal Rulings Fact Findings Discretionary Rulings

18. Illinois Standards of Review Legal Rulings De Novo

19. The Standard forLegal Rulings De Novo No deference to the trial court’s decision.

20. Illinois Standards of Review Fact Findings Manifest Weight of the Evidence

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

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

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

24. Illinois Standards of Review Discretionary Rulings Abuse of Discretion

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

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

27. QUESTIONS?

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

29. Consistent Applicationof the Standards Defining “Consistency”

30. The Need forConsistent Application The standards regulate the role of the courts as a means to maximize: CERTAINTY

31. The Need forConsistent Application Review must assure application of proper legal doctrine.

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

33. The Need forConsistent Application Without proper legal doctrine, there is no predictive certainty.

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

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

36. Regulating ConsistencyThrough Objective Observation Outcomes at various levels are not self-evident.

37. Regulating ConsistencyThrough Further Review Essentially unreviewable in practice.

38. Regulating ConsistencyThrough Further Review Uncovering the wrong standard of review is easy, but . . .

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

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

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

42. Consistent Applicationof the Standards Clearly important, but how can we be sure that the courts consistently apply the standards?

43. QUESTIONS?

44. Are the Standards of ReviewConsistently Applied? ► Basic Outcome Expectations ► Study Design ► Study Results

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

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

47. 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.

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

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

50. Study Results Affirmance Rates