Duhaime's Law Dictionary


Standard of Review Definition:

The applicable threshold of an appeallable error; often distinguishable as between questions of law, of fact, or mixed questions of fact and law.

Related Terms: Question of Fact, Question of Law, Question of Mixed Law and Fact, Question of Discretion, Palpable Error, Overriding Error, Judicial Review, Appeal

More properly, standard of appellate review but standard of review, like many legal terms, now has a life of its own and is firmly entrenched in the vocabulary of the law.

The standard of review is the threshold for a reviewing court, usually sitting in appeal, to assess the alleged error in the order being appealed. 

Standard of review should be distinguished from judicial review as the latter is usually in reference to the more limited appeal grounds for which a decision of an administrative tribunal may be appealed.

An appeal is rarely a new-start-from-scratch trial (i.e. trial de novo). It is an assessment of an alleged error by the lower or trial court. Not all errors are the same. They are catalogued by the type of question they raise: question of law, question of fact, question of mixed fact and law and question of discretion. To each, and subject to considerable difference from jurisdiction, is a separate and distinct threshold of appellate or review, aka standard of review.

witch's brewFor questions of law, the standard is usually as it should be: correctness.

For questions of fact or questions of mixed fact and law, a moving target. As of 2011, one jurisdiction has set the standard of review at palpable and overriding error:

"The standard of review on questions of fact is palpable and overriding error. Palpable error is one that is readily or plainly seen. Overriding error is one that must have altered the result or may well have altered the result.

"A trial judge’s findings of fact are to be accorded great deference. An appellate court may only overturn findings of fact if it is established that the trial judge made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence, or drew erroneous conclusions from the evidence. Absent palpable and overriding error, an appellate court may not substitute its views of the evidence for those of the trial judge and may not interfere with the trial judge’s decision provided there was some evidence upon which the trial judge could have reached his or her decision."1

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