The difference between the standard of review and the scope of review continues to elude many lawyers.
Here in Pennsylvania, the distinction must be understood. Pennsylvania Rule of Appellate Procedure 2111 requires an appellant’s brief to contain a statement of both the standard of review and the scope of review.
The standard of review is how an appellate court should conduct its examination. It refers to the amount of deference that should be given to the lower court. An appellant wants the appellate court to have de novo (plenary) review, which gives no deference to the lower court. On the other hand, an appellee wants the appellate court to give great deference to the lower court.
The scope of review, however, is simply what part of the record an appellate court may consider in making its decision.
The success of an appellate brief can often depend on a good understanding of the standard of review, a specifically tailored statement, and its use and application throughout the argument section. I will be addressing the standard of review in more detail in upcoming posts.