standard of review
A standard of review is the level of scrutiny an appellate court applies to prior decisions made by lower courts or agencies. The levels of review are as follows:
De novo is typically used for questions of law. Appellate courts are expected to review determinations of law on their own with the least deference given to the lower court’s determination.
Clearly erroneous is typically used for questions of fact. The appellate court will typically give deference to the lower court's determinations of fact because the lower court was the one to hear all of the facts and context of the case. Questions of fact are extremely difficult to overturn on appeal due to the level of deference that appellate courts give to factual determinations. A decision must be clearly wrong to be overturned, not just subject to dispute. If a jury serves as the fact-finder then the decision is instead subject to a reasonableness review.
Reasonableness is typically used for jury trials. Courts are constitutionally required to give substantial deference to jury decisions. As a result, courts are obligated to leave a jury verdict in place unless there was no substantial evidence to support the verdict.
Arbitrary and capricious is typically used for informal agency determinations. The appellate court will typically leave these decisions in place unless there is no reasonable basis for the finding.
Abuse of discretion is typically used for discretionary determinations of the judge. Many issues throughout a trial fall on the judge to make a subjective assessment. Appellate courts generally believe that the trial court judge is in the best position to make those decisions, and as such will leave their determinations in place unless it is clear that the trial judge abused their discretion. This is very rare.
Issues on appeal often face challenges in categorization. Mixed questions of law and fact can become significant obstacles for the appellate court, so the court must look to whether the question is predominately legal or factual. Whether an issue is a question of fact, law, or a discretionary decision can often be deterministic on appellate review so properly categorizing an issue can be strategically vital to a case.
[Last reviewed in March of 2026 by the Wex Definitions Team]
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