Oral Argument: Know Your Standards of Review

“There is no darkness but ignorance.”

-          Twelfth Night  IV,2; Feste baiting Malvolio

I have used considerable blog space talking about standards of review. I will probably use considerably more. We need to go over this again. Standards of review simply cannot be over-discussed in a blog devoted to appellate practice. So, let’s apply them now to your oral argument preparation.

Standards of review are critical in oral argument. The applicable standard of review will tell you which issues are most likely to be the focus of your conversation with the judges. The issues on appeal can be very different than those hardest fought at trial; and, the reason could be the standard of review. Suppose you appeal a jury trial involving a hotly contested factual issue (e.g., who ran the red light). In that case, the material evidence standard of review makes this issue an unlikely focus on appeal. Very few courts overturn jury verdicts for lack of material evidence. (Capparella, Donald, Bard of the Bar, Dodson Parker Behm & Capparella – Nashville Law Firm | Standards to Review, Part 1 (April 2, 2025)).

On the other hand, if one of your issues is a legal one, the standard of review is de novo, a far more favorable standard of review on appeal. Knowing this, you can lean into that issue in oral argument.

I have won cases as the appellant where the court applied the very difficult abuse of discretion standard. (Capparella, Donald, Bard of the Bar, Dodson Parker Behm & Capparella – Nashville Law Firm | Standards to Review, Part 3: Abuse of Discretion). Awareness of this difficulty strengthened my approach in addressing the standard of review during oral argument.

Knowing the standard of review for each issue helps you focus on the court’s decision-making process and better prepare for their areas of inquiry. This makes for a much smoother conversation with the judges.