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Ten Kinds of Legal Issues that Receive De Novo Review on Appeal

C. Vodzak Standards of Review 0

Do you know if an appellate court will review your issue de novo?

The de novo (plenary) standard of review permits an appellate court to answer legal questions without giving any deference to the lower court–the goal of an appellant. The following list provides ten examples of matters that are reviewed de novo on appeal:

Failure to State a Claim. Huertas v. Galaxy Asset Management, No. 10-2532, 2011 U.S. App. LEXIS 7397 (3d Cir. April 11, 2011).

Subject-Matter Jurisdiction. In re Caterbone, No. 07-2151, 2011 U.S. App. LEXIS 6782 (3d Cir. April 4, 2011).

Standing. In re Global Industrial Technologies, No. 08-3650, 2011 U.S. App. LEXIS 9109 (3d Cir. May 4, 2011).

Qualified Immunity. Burns v. Pennsylvania Department of Corrections, No. 09-2872, 2011 U.S. App. LEXIS 7999 (3d Cir. April 20, 2011).

Summary Judgment. Burns v. Pennsylvania Department of Corrections, No. 09-2872, 2011 U.S. App. LEXIS 7999 (3d Cir. April 20, 2011).

Choice of Law. Travelers Casualty and Surety Company v. Insurance Company of North America, 609 F.3d 143 (3d Cir. 2010).

International Agreement Interpretation. Gross v. German Foundation Industrial Initiative, 549 F.3d 605 (3d Cir. 2008).

United States Sentencing Guidelines Interpretation. United States v. West, No. 09-2860, 2011 U.S. App. LEXIS 8694 (3d Cir. April 29, 2011).

Order Compelling Arbitration. Century Indemnity Company v. Certain Underwriters at Lloyd’s, 584 F.3d 513 (3d Cir. 2009).

Directed Verdict/Judgment as a Matter of Law. Galena v. Leone, No. 10-1914, 2011 U.S. App. LEXIS 7562 (3d Cir. April 13, 2011).

*This is not a complete list of matters subject to plenary review. For helpful tips on writing a statement of the standard of review, see my earlier post: How to Write a Statement of the Standard of Review in Five Simple Steps.

How to Write a Statement of the Standard of Review in Five Simple Steps

C. Vodzak Legal Writing, Standards of Review 2

In an earlier post entitled Scope v. Standard (of Review) in a Nutshell, I mentioned the difficulty many lawyers have with these critical elements of appellate practice. This is a short guide for writing a statement of the standard of review in as few as five steps.

1. First Sentence

Because a statement of the standard of review often appears early in an appellate brief, put the issue in context first.

The district court interpreted 28 U.S.C. § 1961 to mean that post-judgment interest on prejudgment interest does not begin to run until the district court issues an order quantifying the amount of prejudgment interest due.

2. Second Sentence

In the second sentence, identify the type of underlying issue resolved by the lower court and the applicable standard of review in a simple, concise statement.

Statutory interpretation presents a question of law over which this Court exercises de novo review.

3. Citation

Provide a citation to mandatory authority. Generally, one citation is sufficient for a well-established standard of review. If no mandatory decision addressing the precise issue exists, then consider including a second citation from outside the jurisdiction. This is not required, but it can be helpful and demonstrate your understanding of the standard of review.

Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 305 (3d Cir. 2008).

See also American Telephone and Telegraph Company v. United Computer Systems, 98 F.3d 1206, 1209 (9th Cir. 1996) (treating the interpretation of 28 U.S.C. § 1961 as a pure issue of law subject to de novo review on appeal).

4. Last Sentence

In the last sentence, define the standard of review.

Under a de novo standard of review, this Court owes no deference to the district court’s statutory interpretation analysis.

5. Citation

Again, cite to a mandatory decision supporting your proposition.

See Pell, 539 F.3d at 305.

Final Result:

The district court interpreted 28 U.S.C. § 1961 to mean that post-judgment interest on prejudgment interest does not begin to run until the district court issues an order quantifying the amount of prejudgment interest due. Statutory interpretation presents a question of law over which this Court exercises de novo review. Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 305 (3d Cir. 2008). See also American Telephone and Telegraph Company v. United Computer Systems, 98 F.3d 1206, 1209 (9th Cir. 1996) (treating the interpretation of 28 U.S.C. § 1961 as a pure issue of law subject to de novo review on appeal). Under a de novo standard of review, this Court owes no deference to the district court’s statutory interpretation analysis. See Pell, 539 F.3d at 305.

Adding boilerplate language or copying and pasting from other appellate briefs does nothing to aid the court and can damage your credibility. The best practice is researching and specifically tailoring the statement of the standard of review to your case.

*Information in this post was based on a 2009 Continuing Legal Education presentation by Julia Glencer at Duquesne University School of Law.

Scope v. Standard (of Review) in a Nutshell

C. Vodzak Rules of Procedure, Standards of Review 0

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.