Bonus Post: Dangerous Misconceptions Regarding Standards of Review
Happy New Year, everyone! In honor of which: a bonus post. Here is an article I recently published on common misconceptions regarding the standards of review. The gist: appellate counsel should never blindly rely on general rules as to the applicability of certain standards of review to certain situations. The standard of review is a mercurial creature, and knowledge of its fluid nature can be advantageous when understood, but detrimental when ignored. This article examines how knowledge of the principles behind standards of review can be used to argue for a more favorable standard, or ignored at the risk of arguing within the wrong standard. As always, we encourage anyone with questions about appellate practice to consult an appellate attorney.
Getting to De Novo: How Misunderstanding the Standards of Review Can Hurt Your Case on Appeal
Ask any appellate practitioner about the importance of the standard of review on appeal and you’ll get the same look that a meteorologist might give if asked about the importance of barometric pressure in predicting short-term changes in weather, then you’ll receive an answer along these lines: “It’s difficult to overstate.”
Difficult, yes—but impossible? It’s true that a lot rides on the standard of review, and when defending a favorable verdict, appellee’s counsel should feel entitled to a sigh of relief upon finding that the appellant’s brief is limited to issues supposedly reviewed for support by competent, substantial evidence. And, by that same token, it is not unreasonable to wedge a finger under the collar, to facilitate a healthier gulp, upon finding that the rulings are subject to de novo review. Of course, the obverse is also true, and appellant’s counsel should always be on the hunt for issues that fall under a more favorable standard.
But has the insistence on the importance of the almighty standard of review gone too far? To the contrary, it has not gone quite far enough, leaving some practitioners with just enough understanding of the importance of standards of review to make them dangerous to themselves and their clients on appeal.
While an appreciation of the importance of the standard of review is necessary, problems begin to arise when practitioners rely too heavily on generalized “rules” regarding the proper application of standards of review—without considering the full context of those “rules,” and without a knowledge of the guiding principles behind the various standards of review. Under these circumstances, a practitioner runs the risk of writing an entire brief that hinges on a mistaken belief about the appropriate standard of review.
The Competent, Substantial Evidence Standard of Review
Take, for example, what is considered the most difficult standard of review to overcome on appeal, the competent, substantial evidence standard. (While this particular example is in the area of family law, the principles can be applied generally, as will be discussed below.) What relief, when defending a trial court’s ruling on imputation of income for purposes of alimony, to find a case that states the following, without more: “In considering the imputation of income, our standard of review is whether the trial court’s determination is supported by competent, substantial evidence.” Gruber v. Gruber, 857 So. 2d 329, 331 (Fla. 2d DCA 2003).
This seems simple enough. In the seminal case on the issue, the Florida Supreme Court held that competent, substantial evidence is that which will “establish a substantial basis of fact from which” the finding can be inferred; “such relevant evidence as a reasonable mind would accept as adequate to support” the finding. De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). On appeal the standard is incredibly forgiving for an appellee—factual findings are reviewed for support by “legally sufficient evidence,” which a reviewing court should not reweigh. State v. Coney, 845 So. 2d 120, 133 (Fla. 2003). Then the attorney sees another case bolstering her position: it is a general principle of appellate law that a reviewing court should not “substitute its judgment for the trial court’s on factual matters supported by competent, substantial evidence.” Lahodik v. Lahodik, 969 So. 2d 533, 535 (Fla. 1st DCA 2007).
Diligently, appellee’s counsel puts all this in the “Standard of Review” section of her answer brief. Now all that need be done to support the trial court’s imputation of the opposing party’s income is to cite the competent, substantial evidence adduced at trial. For example, the trial court may have found that the opposing party was voluntarily underemployed and could have, through some additional training, made a certain salary. The record is replete with evidence in support of voluntary unemployment, the training that would be required, the fitness of the opposing party for the work, and salary that could be earned. Armed with the knowledge that the trial court’s decision to impute the salary will be reviewed under the highly deferential competent, substantial evidence standard, counsel feels practically certain of victory on appeal.
But things quickly get more complicated. Counsel takes another look at the initial brief and sees some case law that seems to contradict her understanding of how the case will be reviewed. For example, the initial brief cites a case holding that before imputing income for purposes of alimony, a trial court must consider some of the same factors found in the child support statute, so that any imputation must be supported by evidence establishing “the current job market,” the opposing party’s “recent work history,” the party’s “occupational qualifications,” and “the prevailing earnings level in the local community.” Schmachtenberg v. Schmachtenberg, 34 So. 3d 28, 36-37 (Fla. 3d DCA 2010).
Now the highly deferential standard of review seems to be mixing with some more concrete requirements about what specific type of evidence will support the imputation of income. Perhaps things are not as simple as they seemed. Nevertheless, appellee’s counsel, having been told that the competent, substantial evidence standard of review practically precludes reversal, is still not worried—after all, there was evidence at trial regarding these factors, and once those boxes have been checked, the deferential standard should come into play.
Much to counsel’s dismay, however, things get worse before they get better. The appellant has also cited some case law which seems to hold that, as a matter of law, certain considerations do not amount to competent, substantial evidence supporting the imputation of income. And that includes evidence pertaining to additional training—precisely the type of evidence the trial court relied on. See, e.g., Berger v. Berger, 201 So. 3d 819, 823 (Fla. 4th DCA 2016).
Where has the standard of review gone? What does it mean to say that when “considering” a trial court’s imputation of income, an appellate court’s standard of review is competent, substantial evidence, when there appears to be case law requiring the trial court to consider certain types of evidence and discard other types of evidence when imputing the income, under pain of reversal? See Gruber, 857 So. 2d at 331. Where has all the deference gone?
At this point, counsel has two options: either (1) rely on the seemingly unequivocal statement that a trial court’s imputation of income is reviewed for support by competent, substantial evidence, and focus on the extensive amount of hard evidence considered by the trial court, while declining to address the initial brief’s cases; or (2) gain a deeper understanding of standards of review, in order to best confront the case law that seems to support the other party’s position on appeal. I have seen attorneys attempt to take the first route all the way through oral argument, and it suffices to say that it did not go well for them.
The Abuse of Discretion Standard of Review
The “abuse of discretion” standard of review may be more familiar to FJA trial attorneys, as it is associated with jury challenges, evidentiary and procedural rulings, jury instructions, motions for new trial and mistrial, remittitur, and many other rulings that occur before, during, and after jury trials.
As with the competent, substantial evidence standard of review, the “abuse of discretion” standard has been called “highly deferential” to the trial court. Van v. Schmidt, 122 So. 3d 243, 250 (Fla. 2013). Often labeled a “reasonableness standard,” the general rule is that a decision reviewed for an abuse of discretion will not be overturned unless it is deemed “arbitrary, fanciful, or unreasonable.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). The most compelling framing from an appellee’s point of view, and the most discouraging from an appellant’s, is the following:
[D]iscretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
Id. For obvious reasons it is often said that the “abuse of discretion” standard is incredibly difficult for an appellant to overcome.
Thus appellant’s counsel, when seeking to reverse a trial court’s admission of certain business records over a hearsay objection, may begin to worry when he reads, without any elucidation on the matter, that the “[a]dmission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion.” Ray v. State, 755 So. 2d 604, 610 (Fla. 2000). After all, how hard could it be for the appellee to argue that reasonable people could disagree on the trial court’s ruling that the exception had been met?
In fact, counsel now recalls, at trial there was some case law brought up regarding a district court split over what exactly constitutes a proper foundation for the business records exception. See, e.g., Jackson v. Household Fin. Corp. III, 236 So. 3d 1170, 1174 (Fla. 2d DCA 2018) (certifying conflict with the Fourth District Court of Appeal over what is sufficient “to provide a proper foundation for the business records exception”). If there is a split between the district courts of appeal on the issue, then how can appellant’s counsel argue that the issue is not subject to disagreement by reasonable people? On the other hand, appellant’s counsel remembers that under the case law from the governing district court of appeal, the business records really should have been excluded. But upon further research appellant’s counsel is told in no uncertain terms by the court to which he is appealing: “This court reviews a ruling on the admissibility of evidence under the business records exception for an abuse of discretion.” Jackson, 236 So. 3d at 1172.
So which is it? Is a trial court’s ruling on the admissibility of evidence under the business records exception reviewed for an abuse of discretion, meaning subject to a reasonableness test in which differing minds are free to disagree? Or does a trial court’s failure to comply with governing precedent mean that the trial court’s decision, regardless of its arguable reasonableness (as exemplified by the very existence of the district court split on this precise issue) is still liable to be reversed?
Getting to De Novo
In both instances, counsel has been led astray by generalized statements regarding the standards of review. Reliance on these contextless statements, coupled with an awareness of the importance of the standard of review, creates a dangerous situation. Relying heavily on a certain standard of review in a brief, when the appellate court may analyze the issues under different or multiple standards of review, is a recipe for disaster.
What appellate counsel needs is a knowledge of why certain standards of review are applicable to certain situations, so that counsel can know when those standards of review actually apply, when they do not, and when multiple standards may be in play. With the help of the underlying principles, the standard of review for any given decision will often become apparent solely by understanding the nature of the decision under review.
The general principle behind standards of review is simple and functional: trial courts have certain roles and functions, which they perform better than appellate courts; and appellate courts have certain roles and functions, which they perform just as well as trial courts, or better. The better the trial court is at something, or the more a decision fits within a trial court’s designated role, the more sense it makes for the appellate court to defer to the trial court’s decision-making. But when trial courts and appellate courts are equally suited for the role or function, this deference should dissipate.
So what are trial courts better at? Most things, as it turns out. As the actual place where disputed facts are litigated, exhibits are shown, and testimony is taken, a trial court is the absolute best at determining issues of fact. The same goes for credibility—unlike an appellate judge viewing a transcript, the trial judge or jury can actually see the beads of sweat dripping from that witness’s forehead as he tells another hollow tale. Therefore, findings that rely on the trial court’s role as the finder of fact or determiner of credibility, whether through a judge or jury, should be granted an extraordinarily high level of deference. Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999) (“We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.”). Thus, as a matter of law, an appellate court should not “substitute its judgment for the trial court’s on factual matters supported by competent, substantial evidence.” Lahodik, 969 So. 2d at 535.
And what is a trial court’s role, beyond acting as the finder of fact? Managing the trial in a reasonable manner, often while making snap judgments in the absence of perfect information. Thus, a trial court is afforded broad discretion over most aspects of trial, as discussed above. And unless it acts unreasonably, an appellate court will generally not second-guess its truly discretionary decisions. However, while the deference granted a trial court over discretionary management of the trial is undisputed, appellate review of these decisions is arguably less deferential than appellate review of findings of fact—especially since discretionary decisions often require the trial court to first understand what the law requires, so it can exercise its discretion within the bounds of the law.
And now we have reached de novo review and the source of our hypothetical counsels’ problems. The major role of an appellate court, and the one thing that it does as well or better than a trial court, is to determine what the law says (or should say). Therefore, decisions that turn on purely legal issues are reviewed de novo, issues such as the interpretation of contracts, statutes, administrative rules, and—most importantly, for our hypothetical counsels’ cases—prior case law. Because an appellate court is in just as good of a position as a trial court, or better, when it comes to interpreting the law, trial court decisions that interpret or apply the law are afforded no deference. Van v. Schmidt, 122 So. 3d 243, 246 (Fla. 2013).
This is the most important realization: while most attorneys know that purely legal decisions are reviewed de novo, it is more difficult to see how discretionary decisions, or decisions based on factual findings, can be intertwined with legal requirements that are reviewed de novo. This is why courts often refer to “mixed questions.” For example, take a trial court’s decision to compel arbitration:
A trial court’s decision to grant a motion to compel arbitration is based in part on factual findings. Accordingly, the decision presents a mixed question of law and fact. The appellate review of the trial court’s factual findings is limited to determining whether they are supported by competent, substantial evidence. However, the standard of review applicable to the trial court’s construction of the arbitration provision and to its application of the law to the facts found is a de novo review.
Woebse v. Health, 977 So. 2d 630, 632 (Fla. 2d DCA 2008).
One way to think about mixed standards of review is that, more often than not, they are really just expressions of the principles behind standards of review in general—therefore, in some sense, every decision a trial court makes can be considered subject to review under a mixed standard until proven otherwise. The reason is that, regardless of what statements counsel may find regarding the general applicability of certain standards of review to certain situations, to the extent that any trial court decision is based on findings of fact, on the trial court’s discretionary power, or on an interpretation or application of the law, that decision should be reviewed, respectively, under an evidentiary standard, a reasonableness standard, or the de novo standard of review.
There is one last piece of the puzzle, however. Because case law (as we have seen) frequently limits a trial court’s discretionary and fact-finding powers (by determining as a matter of law, for example, what is reasonable in a given situation, or what counts as competent evidence), arguably almost any decision could be said to be subject to a mixed standard of review. As the Florida Supreme Court stated in a tragically underquoted portion of Canakaris:
The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.
Canakaris, 382 So. 2d at 1203.
Applying the Principles to Standards of Review
The key takeaway is this—on appeal, practitioners should not blindly rely on generalized statements regarding the applicable standard of review, especially when provided by opposing counsel. Instead, attorneys should determine for themselves which standard of review is appropriate and should be prepared to make their case for why a more favorable standard of review should apply.
We can now analyze the prior examples under this framework. So, for example, when appellee’s counsel finds a decision generally stating that the imputation of income is reviewed for support by competent, substantial evidence, she will now know that this is only be true to the extent that (a) the trial court’s decision rests solely on factual findings and (b) no statute or precedential case law imposes any legal requirements. As noted above, lots of case law applies to the imputation of income in our hypothetical counsel’s situation. Thus, rather than relying on contextless statement of the standard of review and resting her case on the high deference afforded trial courts under it, appellee’s counsel should be fully prepared for a de novo review of the trial court’s adherence to what opposing counsel will argue is binding precedent.
Next we can consider our hypothetical appellant’s run-in with a seemingly unfavorable standard. With an understanding of the guiding principles behind standards of review, he now sees that while trial court decisions admitting or excluding evidence under the business records exception are generally considered discretionary, a trial court’s discretion is limited by statute and precedent. See McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006) (“[A] court’s discretion is limited by the evidence code and applicable case law. A court’s erroneous interpretation of these authorities is subject to de novo review.”). Armed with a deeper understanding of the standards of review, appellant’s counsel can now effectively rebut the appellee’s attempts to rest its case on the highly deferential reasonableness standard of review, and reversal is looking increasingly likely.
(As originally published in the November/December 2019 edition of the FJA Journal.)