Appellate Insights

Winning on appeal under the abuse of discretion standard is a tough climb, with reversal rates in the single digits.  To improve your odds, consider whether and how you can reframe the trial court’s decision as a legal error:

• Failing to exercise discretion is a per se abuse of discretion.

• Applying the wrong legal standard or considering improper criteria is an abuse of discretion.

• A discretionary ruling based on a factual finding is an abuse of discretion if no substantial evidence supports the fact.

▶ The practical message:  The Court of Appeal typically upholds trial court rulings that fall within the bounds of reason—an easy threshold to meet.  To avoid a deferential affirmance, demonstrate a legal misstep in how the court exercised its discretion.