Standards of Review

If lawyers give standards of review any thought at all, it’s a passing thought. But wise lawyers know that standards of review are important—they mean the difference between an “any evidence” review (unlikely to be overturned) and a de novo review (a much less deferential standard). So, you must determine the standard of review for your case early and frame your arguments in terms of the standard.

But you don’t need to give a rote recitation of the standard of review. Remember that every part of a brief presents an opportunity to persuade. Take the summary judgment standard, for example. Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

If you represent the party seeking summary judgment, you could frame the standard as follows: “When the moving party shows there are no genuine issues of material fact and he is entitled to judgment as a matter of law, the court is obligated to grant a motion for summary judgment”

And if you represent the party opposing summary judgment, you might say: “The standard for granting summary judgment is high.  Summary judgment may only be granted where the moving party shows there are absolutely no issues of material fact and the movant is entitled to judgment as a matter of law.”

Both sentences give the summary judgment standard accurately, but each is drafted to advance the writer’s goal. Judges generally know the summary judgment standard, but it doesn’t hurt to remind them of it in a way that favors your client’s position.