Lisa C. McMinn
The appellate standard of review is the starting point of any legal analysis, as it defines the level of deference applied to the proceedings below. Neither trial court error nor sufficiency of the evidence can be addressed outside the parameters of the standard of review. The Federal Rules of Appellate Procedure require appellant's and cross-appellant's briefs to set out the applicable standard of review for each issue raised. F.R.A.P. 28(a)(9)(B); F.R.A.P. 28.1(c)(2). According to the 1993 Advisory Committee note, "requiring a statement of the standard of review generally results in arguments that are properly shaped in light of the standard."
Texas practitioners and courts sometimes fail to even mention the standard of review in their briefs or opinions. This omission can lead to an improper analysis of the issue, which may result in an incorrect disposition. This paper defines and discusses the applicable standards of review and provides examples of each.
