Thursday, April 28, 2011

A helpful formula for writing that pesky standard of review paragraph

Once you figure out the correct standard of review (e.g., de novo, abuse of discretion, clearly erroneous, etc.), which is not always easy, here's a handy formula for drafting your SOR paragraph courtesy of the blog Vodzaklegal:

1.  First Sentence

Because a statement of the standard of review often appears early in an appellate brief, put the issue in context first.

The district court interpreted 28 U.S.C. § 1961 to mean that post-judgment interest on prejudgment interest does not begin to run until the district court issues an order quantifying the amount of prejudgment interest due.

2.  Second Sentence

In the second sentence, identify the type of underlying issue resolved by the lower court and the applicable standard of review in a simple, concise statement.

Statutory interpretation presents a question of law over which this Court exercises de novo review.

3.  Citation

Provide a citation to mandatory authority.  Generally, one citation is sufficient for a well-established standard of review.  If no mandatory decision addressing the precise issue exists, then consider including a second citation from outside the jurisdiction.  This is not required, but it can be helpful and demonstrate your understanding of the standard of review.

Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 305 (3d Cir. 2008). 

See also American Telephone and Telegraph Company v. United Computer Systems, 98 F.3d 1206, 1209 (9th Cir. 1996) (treating the interpretation of 28 U.S.C. § 1961 as a pure issue of law subject to de novo review on appeal).

4.  Last Sentence

In the last sentence, define the standard of review.

Under a de novo standard of review, this Court owes no deference to the district court’s statutory interpretation analysis.

5.  Citation

Again, cite to a mandatory decision supporting your proposition.

See Pell, 539 F.3d at 305.

Click here, and scroll down, to see what it looks like all put together.

Hat tip to the (new) legal writer blog.

(jbl).

http://lawprofessors.typepad.com/legal_skills/2011/04/a-helpful-formula-for-writing-that-pesky-standard-of-review-paragraph.html

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