Standards to Review, Part 2: De Novo

“Facts are a heap of brick and tinder. It is only a successful theory that can convert the heap into a stately mansion.”

-      Isaac Asimov; Epigraph in Isaac Asimov’s Book of Science and Nature Quotations (1988)

        Explaining standards of review to clients is hard. The de novo standard is an example. You can explain to your client on appeal that a trial court’s conclusions of law are subject to a de novo review with no presumption of correctness. In contrast, there is a presumption of correctness regarding a trial court’s findings of fact which will be upheld unless the preponderance of the evidence is otherwise.

        Your client might say, “What?”

        Then you might say, maybe a little louder this time, that the appellate court presumes a trial court’s findings of fact are correct, but it does not presume a trial court’s conclusions of law are correct.

        Now your client is often none the wiser, but starting to get annoyed with you. You might say it like this: “We are more likely to succeed on appeal challenging a trial court’s application of the law than we are challenging their decisions based on the facts.”

        Okay, getting there.  But sometimes I find it best to just use a sports analogy.  I know, that is cliché, but it often seems to work

      If they like football, the following analogy comes in handy: in college football, one foot in the endzone means a touchdown. In pro ball, you must have two feet in when you catch the ball.

        Imagine a pro game. A referee gets sick and can’t make the game. The league hires a college referee to sub. During the game, a player catches the ball with one foot inside the endzone. The substitute ref calls a touchdown.

        He applied the wrong rule. The coach challenges the call. The officials don’t have to watch the replay to determine where the player’s feet were presuming the ref saw it correctly. They simply must decide if the ref applied the right rule. In this case, he didn’t. Touchdown reversed. 

        That is de novo review, because the referee did not follow the correct rule of the game.  If the trial court does not follow the correct rule of law, the trial court has erred.  (It may still be harmless error, but that is a discussion for another day.)

         If they don’t like football, I find another sport or game they do understand, e.g., it’s not “two strikes you’re out, its three strikes.”