It has often been said the lawyers speak a different language. It is true that there are many words and phrases used only in a legal context, or mean something different in a legal context than in casual conversation. In fact many legal terms are derived from the Latin language. Here are some terms you may run across during the appeal process, discussions with your attorney, and / or in briefs and motions.
1.Standard of Review1
a. Standard of review refers to the amount of deference (respect) given to the low court’s order. It is the filter by which the reviewing court (Court of Appeals or Supreme Court) should view the trial court’s order in light of.
b. If the standard is low, meaning the Court of Appeals (or Supreme Court) can look at a decision without any deference or consideration, it is more likely the lower court’s order will be overturned by the higher court. On the other hand, if the standard is high, meaning the trial court is afforded a lot of deference, it is less likely a reviewing court will overturn that order.
c. There are several different standards which are applied to different types of questions presented for review on appeal.
- Did the trial court order primary custody to one parent or another
- Did the trial court deviate from the sentencing guidelines in a criminal matter?
- Did the trial court allow a matter to proceed and a judgment issued against someone who was not served with notice that he or she was being sued?
2. De Novo2 vs. Abuse of Discretion3
a. De Novo is a type of standard of review (and is a Latin term). De Novo literally means “of new”.
- De Novo review generally applies to questions of law, not a determination of which facts were credible.
- When a reviewing court looks at an Order from the trial court under this standard, they will review any question from the beginning or afresh.
- This is the lowest deference provided to the trial court’s order, because the reviewing court owes no respect to the trial court’s decision when making a ruling on the appeal.
- De Novo is often only used when the question presented on appeal has to do with a purely legal question (not the facts of the case).
1. For example, a pure question of law is whether a defend got legal notice that he or she was being sued such that they knew (a court can only issue orders against someone who has been informed they are being sued).
b. Abuse of Discretion is another type of standard of review, and can also be referred to as an arbitrary and capricious standard of review. It means that the trial court had some discretion to determine the facts of the case (the fact finder) and abused its discretion.
- An Abuse of Discretion standard is generally applied to questions of fact (which witness was more credible / believable). This is because the trial court had the benefit of seeing a witness’ demeanor first hand.
- For example, decisions regarding child custody. The trial court has a lot of discretion to hear all the evidence and determine which witness or evidence is more credible (there are always 2 sides to every story).
- A reviewing court is less likely to overturn a decision by a trial court under this standard because a lot of respect is afforded because the trial court could see and judge first hand the demeanor of the witnesses and judge their credibility in telling the truth.
- However, if the trial court ignores substantial evidence, or makes a ruling inconsistent with the evidence (i.e. everyone testifies a marital home is worth $100,000, but the court finds that it is worth $1,000,000) the reviewing may overturn the lower court because the lower court “abused” the deference and respect that is normally afforded to it.
3.General Judgment vs. Special Findings4
a. A General Judgment is an Order that merely states what the court is ordering someone to do (or not do) but does not give its reasons for doing so.
- For example, a trial court orders that the Mother should have custody of the child, but does not provide the reasons why.
- When a court issues a general judgment, a reviewing court does not have the benefit of knowing the legal theory the trial court used to make its decision, therefore, if any legal theory will support the order, the reviewing court must uphold the order.
b. An Order issued with Special Findings not only states what the court is ordering, it says the reasons why.
- For example, the court orders that the Mother should have custody of a child, and says why the trial court thinks this should be the outcome.
- When an order by a trial court that includes special findings a reviewing court has more to work with as they have the theory under which the trial court decided the case in front of them and can determine if the findings are supported by the evidence.
We hope that this blog post has been helpful in understanding some legal terms used in appeal cases. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.
