By Phillip T. KellySuccess on appeal in civil cases often hinges on the relevant standard of review that an appellate court applies to analyze the underlying issue. The standard of review sets forth the amount of deference an appellate court will give to a trial court’s ruling and establishes the threshold for whether a trial court’s error is grounds for reversal. Not all errors committed by the trial court are necessarily reversible.
Determining which standard applies depends on the underlying issue being reviewed on appeal. There are three types of standards of review that an appellate court may employ: de novo, abuse of discretion, and plain error.
De Novo Review
The de novo standard of review is considered the most favorable for an appellate court to find reversible error. It is used when the underlying issue is a question of law; this is because trial courts do not have discretion to apply the law incorrectly or make errors of law. Johnson v. Abdullah, 2021-Ohio-3304, ¶ 39. Common examples where appellate courts will apply the de novo standard is when reviewing the trial court’s grant of motions for summary judgment and motions to dismiss. The appellate court will generally review the record and legal arguments with a fresh set of eyes and analyze the underlying issue with no deference to the trial court.
Abuse of Discretion Review
The abuse of discretion standard provides more deference to a trial court’s decision than the de novo standard. As the name suggests, this standard is generally used where the trial court has the right to exercise sound discretion. Johnson v. Abdullah, 2021-Ohio-3304, ¶ 37, citing Rohde v. Farmer, 23 Ohio St.2d 82 (1970). This often occurs where the question on appeal involves some finding of fact by the trial court. An appellate court will generally grant deference to a trial court’s factual findings and not overrule its decision absent a showing that the decision was “‘unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980).
Plain Error Review
The plain error standard is the most challenging standard for an appellate court to find reversible error. This is often used when the appealing party fails to properly preserve an error on appeal, such as by failing to object to an evidentiary issue. When this occurs, the appellate court will generally uphold the trial court’s decision unless doing so would result in a miscarriage of justice, i.e., in circumstances where that the trial court’s error “seriously affects the basic fairness, integrity, or public reputation of the judicial process[.]” Goldfuss v. Davidson, 79 Ohio St. 3d 116, 123 (1997). Reversal where plain error applies only occurs in extremely rare circumstances.
Mixed Standards of Review
Sometimes appellate court will adopt a mixed review where it uses multiple standards to analyze an issue. This occurs in certain instances where the analysis may involve a mixed question of law and fact, such as whether the trial court gave improper jury instructions. See, e.g., R.T. v. Knobeloch, 2018-Ohio-1596, ¶ 13 (10th Dist.).
Strategic Implications
When appealing, it is very important to understand the applicable standard of review before making any substantive arguments. Where the abuse of discretion or plain error standard of review applies, counsel cannot simply argue that the trial court erred. Doing so would likely result in a half-baked and unpersuasive argument on appeal.
Questions? Contact Phil Kelly.