The Standard of Review on Appeal – Explained Through Football!

Most football fans are familiar with the red “challenge flag.” The head coach of a football team keeps a special red flag with him throughout the game. If the head coach disagrees with a call, he will throw the red challenge flag onto the field. The referees then use instant replay to determine whether the ruling on the field will stand as called, or be reversed.

But it is not as simple as getting a “second bite” at making the correct call. A decision was made by an official with a unique view of the field, and that call is entitled to deference. The call will be reversed only if the instant replay shows “incontrovertible visual evidence” that a mistake was made. It is not enough for the reviewing official to say “I think I would have called it differently.” Second-guessing is not allowed.

We saw this play out in Super Bowl 50:

Jerricho Cotchery makes an amazing catch, right!? Not so fast. The ruling on the field was an incomplete pass. In real-time action, it certainly looked that a no-catch, but this instant replay sure looks like a catch. Even the commentators and the officiating expert thought it was a catch.

So what gives? Why did the no-catch ruling on the field stand? The answer to that question can be summed up in three words: Standard of Review.

We already learned that the standard of review used in NFL replays is the “incontrovertible visual evidence” test. So let’s apply that test to the video evidence. As Cotchery goes to the ground, his hand is clearly under the football. But then as he hits the ground the ball appears to touch the ground slightly as Cotchery loses control before regaining possession. Maybe. It is not certain whether the ball hits the ground, but it might. And THAT right there is why the standard of review is so important. Because the ball might have touched the ground, the visual evidence is not “incontrovertible.” The play stands as called.

Judicial appeals operate much the same way. The trial judge is the NFL official on the field, making calls in real-time as he or she sees them, with a unique perspective of the case no one else has. Sometimes the calls are tough ones. For example, take a case where A and B are disputing ownership of a particular family heirloom. The court hears the evidence and decides A should get the heirloom. B may wish to challenge that ruling. Instead of throwing a red flag, though, a formal appeal is made to the Court of Appeals.

Just like the NFL, the Court of Appeals will not “re-decide” the issue with fresh eyes, even if those judges may have given the heirloom to B. Remember – there is no second-guessing. Instead, the appellate court will reverse the trial judge (the ruling on the field) only if it is left with the definite and firm conviction that a mistake has been made (very similar to the “incontrovertible visual evidence” test). If there is any evidence whatsoever that might support the trial judge’s decision to give the heirloom to A, the ruling below will stand as called.

The standard of review changes based on the issue, and some are more favorable than others. The “de novo” standard allows the appellate court to decide the issue as if the trial court never ruled – this is typically reserved for issues of pure law. For example, if an NFL referee called a foul for having an illegal formation, that call could be overturned if, in fact, the formation was legal. Similarly, if the trial judge makes a mistake in what a particular statute means, the appellate court can correct that error.

These examples show why it is critical to hire a lawyer skilled in appellate practice, with a firm knowledge of the particular standard of review applicable in your case. Many people stick with trial counsel simply because he or she knows the case. Think twice about that! Knowing the case is one thing, but knowing how the issues change on appeal is quite another.

If your case is important enough to appeal, it is important enough to hire the right expertise. Don’t fumble your case – hire an appellate lawyer. It may just give you the game-winning touchdown you need.

Contact Joseph Gangi via email or give him a call at 507-625-2525.