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What Are My Odds of Winning on Appeal?

courtroomWhat are my odds of winning if I file an appeal, or losing if I am challenged? Unless you have a crystal ball, this is always a guess to some extent. But many times, whether the odds of reversal on appeal will be in your favor will turn on the standard of review governing the case. This post explains the various standards of review to help you figure out the odds of reversal on appeal.

De Novo

The standard of review that gives the appellate court the most freedom to disagree with how the case was handled below is de novo review. Under de novo review, the appellate court gives no deference to the trial court’s conclusions of law, but considers the issue anew. In other words, the court of appeals gives the issue a fresh look—a do-over of sorts. Questions of law are given de novo review. These include questions surrounding contract interpretation, constitutional or statutory interpretation, and questions about the court’s jurisdiction, such as mootness or subject matter jurisdiction.

When a question on appeal is reviewed de novo, the odds of success in getting a reversal are at their peak. This is because the appellate court has the flexibility to substitute its own legal judgment for that of the district court, which in turn may change the outcome.

Abuse of Discretion

Perhaps the most common standard of review on appeal is review for abuse of discretion. Much of what a trial court does is within a range of discretion, including ruling on discovery disputes and evidentiary matters. When a question on appeal is reviewed for abuse of discretion, the appellate court won’t substitute its judgment for that of the trial court. An appellate court reviewing under this standard will reverse only if it concludes that the trial court’s decision was not within the acceptable range of decisions. This is true even if the appellate court would have reached a different conclusion if it had decided the issue itself. The court will simply decide whether the court’s decision was so out of bounds as to be reversible error. A trial court abuses its discretion if its ruling is obviously arbitrary, unreasonable, or unfair. However, a trial court’s error of law is always an abuse of discretion (at least). If the argument is that the trial court made an error of law underlying its discretionary finding or ruling, it may be more likely that the appellate court will reverse.

Because of the deference that the appellate court shows under this standard, the odds of reversal are lower. But because this standard is still somewhat flexible, it allows the appellate court some leeway to disagree with the trial court, particularly if an error of law is involved.

Clear Error

The clear error standard of review does not provide the appellate court with much flexibility. Typically, appellate courts will reverse under a clear error standard only if the court is convinced without a doubt that a mistake has been made. The clear error standard is typically reserved for appeals involving the trial court’s findings of fact. If the issue involves things like witness credibility, sufficiency of the evidence, or inferences or conclusions to be drawn from them, the appellate court will reverse sparingly. If the trial court (or jury) has made a determination about a factual dispute, an appellate court will not disturb that decision unless clear error is show.

When a question on appeal is reviewed for clear error, the odds of success in reversal are relatively low. If the argument hinges on the appellate court agreeing that the fact finder made an obvious mistake, it is probably unlikely to succeed unless there are particularly egregious facts. Think seriously before basing your appeal on an argument of clear error.

Harmless Error

Even if there has been error, the appellate court will typically review for whether the error was harmless. Under harmless error review, even if an appellate court concludes that the trial court erred, it will not reverse unless the error makes a difference at the end of the day. The standard may be slightly different if the error happens to be one of constitutional magnitude. If the error implicates a constitutional right, then constitutional harmless error will be used and it is more likely that a reversal could occur.

Plain Error

If the error on which you want the appellate court to reverse was not presented to the court below, odds are you are out of luck. The odds of reversal on an unpreserved error are slim to none. However, for those egregious errors of the trial court, particularly in the criminal context, plain error review may be a last result. Essentially, in order to have any success on appeal under a plain error standard, the error must be obvious and substantial, essentially a last resort to allow correction of particularly egregious errors. In Colorado state court, except in a very narrow set of cases, plain error is typically not available in civil cases, and the appellate court is unlikely to even consider the issue at all if it was not preserved.

Conclusion

While it is nearly impossible to predict with certainty whether the appellate court will reverse in a given case, examining the standard of review can give some insight into whether the result you want is far-fetched. Especially at the Colorado Court of Appeals, and most intermediate appellate courts, the standard of review often carries the day and should not be ignored as merely a procedural afterthought.

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