Most of my career has been spent in Tennessee’s appellate courts. Depending on the case, these courts can be either a port in the storm or a ring of fire. As a lawyer, I have experienced both, and I greatly prefer the former.
While it is often said that appellate courts “grade the papers” of the trial courts, they also grade the performance of the lawyers both during the trial and on appeal. Appellate judges analyze trial judges’ decisions using “standards of review,” and they evaluate the effectiveness of lawyers on appeal by their choice of the correct standard or standards of review.
A standard of review defines how closely an appellate court will examine a trial court’s decision. It defines the degree of deference that should be given to the trial court’s decision being reviewed. Just as trial judges are called upon to make many different decisions during a trial, there are many different standards of review. Some standards are more rigorous than others. For example, errors of law receive less deference than discretionary decisions.
Standards of review are the gatekeepers of appellate review. They as so important that the Tennessee Rules of Appellate Procedure require the appellant to provide a standard of review of each issue raised on appeal and similarly require the appellee to provide correct a standard of review should any of the appellant’s standards be deemed “unsatisfactory.
For decades, I have wondered why someone has not undertaken to collect all of Tennessee’s standards of review. I toyed with the idea of taking on the task myself, but it has remained on my “to do” list. No longer. John Day has done the bench and bar a great service by compiling the recent decisions articulating many of the standards of review currently used by Tennessee’s appellate courts. The free “Grading Papers – Civil” and “Grading Papers – Criminal” e-books found on John’s website [www.birddoglaw.com] provide an excellent starting point for lawyers – and judges – who are searching for the current articulation of correct standard of review for many of the issues commonly raised on appeal. I enthusiastically recommend that you bookmark these resources.
Justice William C. Koch, Jr. (Ret.)
President & Dean, Nashville School of Law