Those practitioners who do not routinely handle civil appeals may believe that an appeal gives them the opportunity to retry their case before the Wisconsin Court of Appeals. An appeal’s likelihood of success, however, depends in large part on the applicable standard of review — the extent the appellate court will defer to the trial court’s determination. That, in turn, depends on whether the appeal involves questions of fact, questions of law or discretionary determinations.

The more restrictive the standard of review, the less ability the court of appeals has to “redetermine” the issues on appeal, and the more constrained it is to affirm the trial court. Conversely, the broader the standard of review, the more power the court of appeals has to effectively disagree with and, depending on the issue, reverse the trial court.

The most restrictive standard of review is that involving questions of fact. For example, a jury verdict will not be reversed if any credible evidence supports it. Morden v. Continental AG, 2000 WI 51, Par. 38, 235 Wis.2d 325, 351, 611 N.W.2d 659; Sec. 805.14(1), Stats. In actions tried to the court, findings will be affirmed unless clearly erroneous. See Halverson v. River Falls Youth Hockey Association, 226 Wis.2d 105, 115, 593 N.W.2d 895 (Ct.App. 1999); Sec. 805.17(2), Stats. The appellate court searches for evidence to sustain a finding, not for evidence to support a factual conclusion that could have been but was not reached. Morden, 2000 WI 51, Par. 39, 235 Wis.2d at 352 (verdict).

A broader, but still restrictive, standard of review applies to discretionary determinations, which are reviewed for the erroneous exercise of discretion. Ness v. Digital Dial Communications, Inc., 227 Wis.2d 592, 599-600, 596 N.W.2d 365 (1999). A trial court will not be reversed for coming to a conclusion which another court might not reach, if the decision is one that a reasonable judge could reach after considering the law and facts through a reasoned process. Filppula-McArthur v. Halloin, 2000 WI App. 79, Par. 16, 234 Wis.2d 245, 257-258, 610 N.W.2d 201, aff’d 2001 WI 8, 241 Wis.2d 110, 622 N.W.2d 436.

In other words, the record must reflect that the trial court considered the relevant facts, properly interpreted and applied the law, and reached a reasoned determination. Ness, 227 Wis.2d at 600.

The court of appeals will find that discretion has been exercised erroneously where the trial court fails to exercise its discretion, the facts do not support the court’s decision, or the court applies the wrong legal standard. J.L. Phillips & Associates, Inc. v. E & H Plastic Corp., 217 Wis.2d 348, 364-365, 577 N.W.2d 13 (1998).

Discretionary determinations include decisions regarding jury instructions, Majorowicz v. Allied Mutual Insurance Company, 212 Wis.2d 513, 533, 569 N.W.2d 472 (Ct.App. 1997), and the admission/exclusion of evidence or testimony. Morden, 2000 WI 51, Par. 81, 235 Wis.2d at 369; Magyar v. Wisconsin Health Care Liability Ins. Plan, 211 Wis.2d 296, 302, 564 N.W.2d 766 (1977).

The broadest standard of review is for legal questions, which are reviewed de novo, as discussed in In re Disciplinary Proceedings against Jacobson, 2005 WI 76, Par. 16, 281 Wis.2d 619, 626, 697 N.W.2d 831. The court of appeals independently analyzes legal issues without deference to the trial court. Legal questions include the construction of a contract, the construction of a statute, the application of undisputed facts to a legal standard, and the determination whether an order or judgment is final.

Mixed questions of fact and law are subject to a two-step analysis. The clearly erroneous standard applies to the factual components, and the legal issues are independently reviewed. See State v. McMorris, 213 Wis.2d 156, 165, 570 N.W.2d 384 (1997).

In the midst of these standards is the harmless error rule, codified in Sec. 805.18(2), Stats. Where the claimed error involves the “selection or misdirection of the jury,” the “improper admission of evidence,” or “any matter of pleading or procedure,” the appellate court may not set aside a judgment or grant a new trial on that basis unless the error “has affected the substantial rights of the party” claiming the wrong.

The importance of knowing the applicable standards of review begins before, but no later than, receipt of the trial court’s decision or judgment. Once the decision comes down, a knowledgeable practitioner can accurately advise the client whether to file an appeal in the first place.

If, for example, the decision hinges on fact issues, the practitioner may recommend that his client not appeal because of the low chance of reversal. If, on the other hand, the challenge involves legal issues, the practitioner may be more inclined to recommend that the client appeal, so as to obtain independent review of the trial court’s determination.

Assuming the client appeals, the court of appeals does not look favorably on appellants who raise every possible perceived trial court error. A practitioner familiar with the appropriate standards of review can limit an appeal to the one or two issues containing the highest potential for success.

Familiarity with the applicable standards of review is equally important to a client who becomes a respondent on appeal. The practitioner, for example, can ease the client’s worries to a greater extent if the appellant’s issues are factual, and to a lesser extent if the issues are discretionary. If, however, legal issues exist, the practitioner can prepare the client for the possibility that the appellate court may reach and impose a different result than the trial court.

Diane Slomowitz is a partner at Fox, O’Neill & Shannon, S.C. in Milwaukee. Slomowitz can be reached at dslomowitz@ foslaw.com.

AWL disclaimer: This column is a contribution by members of the Association for Women Lawyers, but does not necessarily represent the opinions of that organization.