kansas appellate practice handbook - Kansas Judicial Branch

Standards and Scope of Appellate Review 8-
§ 8.5 Determining the Appropriate Standard of Review
“Traditionally, decisions by judges are divided into three categories:
questions of law (reviewable de novo), questions of fact (reviewable for
clear error), and discretionary matters (reviewable for abuse of discretion).”
Levy, How to Handle an Appeal, §6:5.2, p. 6-20 (4th ed. 2009). In practice,
the lines between these categories can blur, leading to the application of
several layers of review on a single issue or a case where it is unclear
whether the appellate court is reviewing a question of law or a question
of fact. This fluidity requires the practitioner to make strategic decisions
about how to frame the standard of review.
To assist in understanding the distinctions among various standards
of review, further explanation and examples are provided in §§ 8.7-8.22.
§ 8.6 Practical Considerations
The standard of review is the “single most important factor in the
decision to affirm or reverse in the face of a claim of error that has been
preserved.” Wisotsky, Professional Judgment on Appeal: Bringing and Opposing
Appeals, § 8.02 (2002). The structure of the court system allows the trial
court’s decision to come to the appellate court with a “strong presumption
of correctness” in all issues except for questions of law.
For that reason, determining the appropriate standard of review
can be helpful when considering whether to pursue an appeal. Counsel
for the appellant is in the best position when he or she can focus an
argument on a question of law, which affords de novo review. And both
counsel and client should know that the deference given the trial court on
discretionary matters means that an appeal based solely on those grounds
is unlikely to succeed. Bentele & Cary, Appellate Advocacy Principles and
Practice, pp. 119-120 (4th ed. 2004). Conversely, counsel for the appellee
should always frame an issue in a way that affords the greatest amount of
possible deference to the trial court.
When examining a record for potentially reversible errors, counsel
should take care not to base an appeal around harmless error. Appellate
courts will disregard merely “technical errors” that do not appear to have
prejudicially affected the substantial rights of the party complaining if
the record as a whole reflects that “substantial justice” has been done by
the judgment. State v. Gilliland, 294 Kan. 519, 541, 276 P.3d 165 (2012).
2013