Seeing the Appellate Horizon: Civil Trial Strategy and Standards of Review in the Eighth Circuit

I. INTRODUCTION Some practitioners view the standard of review on appeal as an issue that need not be addressed until after an appellate argument has been drafted. For them, the standard of review is a mere afterthought that results in a paragraph dropped into the beginning of the brief to comply with a rule. For the "farsighted practitioner," (1) however, the standard of review is just the opposite. It is the filter through which a litigator's best and worst moments at trial are judged. It is the "first question that cries out for [an] answer," (2) the blueprint for success on appeal, and the tool that shapes every winning argument. In sum, the standard of review can be either the lawyer's best friend or his worst enemy. This article does not seek to catalog the infinite number of issues that arise in the appellate context. Instead, its purpose is to identify certain common situations in which the standards of review in the Eighth Circuit shape not only appellate strategy, but civil trial strategy as well. To be sure, the standards of review do not conveniently "fit into a checklist format." (3) Nor are they susceptible of precise definition in every context. (4) They are discussed here within the framework of issues that commonly arise during the course of a trial. They reveal the answer to the "first question" of appellate practice: No trial lawyer can afford to overlook the importance of the standards of review, for they will one day be the lens through which his client's day in court will be examined. (5) II. STATING THE STANDARD Most lawyers cringe at the thought of discovering in an appellate opinion that a case has been decided on the basis of an issue never addressed in the brief. Unfortunately, it happens. And the standard of review can be the critical issue left unaddressed. (6) Lawyers must take care to insure that the standard of review is properly addressed and explained in their briefs. The Federal Rules of Appellate Procedure, as revised in 1993, require the appellant's brief to recite the applicable standard of review. Under Rule 28, a "concise statement of the applicable standard of review" must be included for each issue raised on appeal. (7) The statement may appear within the appellant's argument or under a separate heading before the discussion of an issue. This requirement reflects the sound principle that an accurate statement of the standard "generally results in arguments that are properly shaped in light of the standard." (8) III. PRE-TRIAL RULINGS In cases big and small, issues on appeal often arise from rulings made before trial. While pre-trial skirmishes do not lend themselves to quiet reflection about a post-trial appeal, a trial lawyer should not forget that the nature of the dispute dictates the eventual level of scrutiny by an appellate court. Often the dispute implicates the "discretion" of the trial judge. If so, the trial judge's ruling, no matter how critical to the scope and course of the trial, will not easily serve as reversible error. In the heat of battle, for example, a pre-trial ruling on the admissibility of evidence may be perceived as the pivotal issue at trial. Because the scope of the trial can hinge on the admissibility of the evidence, a motion in limine is filed. The parties must vigorously defend their positions at a pre-trial hearing. A trial lawyer is well-advised to remember that the outcome of this pre-trial battle is committed to the sound discretion of the trial court. Although the trial court's discretionary rulings are certainly not unassailable on appeal, (9) the hurdle for reversal is high. As one distinguished appellate judge has pointed out, the lawyer who "blindly challenges on appeal the exercise of discretion might do better to take a leisurely stroll through an uncharted minefield." (10) A. Abuse of Discretion The abuse of discretion standard is applied to situations where the "formulation of legal rules [is] difficult or impossible" and the trial court has "superior knowledge of the issues, the record, the proceedings and the personalities. …