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Bar News - August 10, 2007

Abusing the Abuse of Discretion Standard


One court has explained that “[a]n attorney who prosecutes an appeal from an order addressed to the trial court’s sound discretion is confronted with more than a daunting task.”  It’s an uphill battle which, absent unusual circumstances, may be equated with confederate General John Bell Hood’s attempt to capture ‘Little Round Top’ at the battle of Gettysburg in the Civil War.”  Estate of Gilkison v. King, 77 Cal. Rptr.2d 463, 466 (Cal. App. 1998).  General Hood failed.  

I’m not much of a Civil War buff, so I like to compare the task to challenging a call in professional football.  Absent “indisputable visual evidence,” that the call on the field was wrong, it will not be disturbed.  It doesn’t matter how much you scream at the television, or the coach rants and raves; “indisputable” means exactly that.


Judicial discretion implies the absence of arbitrary decision-making.  To exercise the power of judicial discretion, all the material facts in evidence must be known and considered, together with the legal principles essential to an informed, intelligent and just decision.  The appropriate appellate test for an abuse of this discretion is whether the trial court exceeded the bounds of reason.  In New Hampshire—to avoid any misunderstanding of the term “abuse”—the Supreme Court refers to abuse of discretion as the “unsustainable exercise of discretion standard.”  State v. Lambert, 147 N.H. 295, 295 (2001). 


Whether this unique twist on the time-honored standard makes it more user-friendly, or simply adds unnecessary verbiage and distinction where none was necessary, is a conversation truly left to the cognoscenti.  At any rate, “[t]o show that the trial court’s decision is not sustainable, ‘the defendant must demonstrate that the court’s ruling was clearly untenable or unreasonable to the prejudice of his case.”  Id.  Sounds like football’s “indisputable visual evidence” rule to me.


Screaming at the Television


The standard seems simple enough.  So, where do practitioners go astray on appeal?  Let’s start with the screaming-at-the-television syndrome.  In our football analogy, once the whistle blows, the play is over.  The live action ceases, and the only record left of the play is whatever was captured on video.  Thus, when the coach challenges the call on the field, the referee reviewing the play is confined to examining what is on film.  It doesn’t matter that the coach saw something different.  If it wasn’t captured on film, it doesn’t exist.  It also doesn’t matter how passionately the fan screams at the television, or pleads his case to anyone who will listen.  This often includes negative comments about the other team and its players, and the obligatory reference to Football Karma (i.e., “We lost the championship game in 1986 on a suspect call, its only right that this one go our way”). 


With much the same emotion, some practitioners suffer from this syndrome.  They fail to remember that once the trial ends, the record becomes cold.  Think of an empty box.  During the proceeding below, the box is filled up with pleadings, trial testimony, etc.  When the proceeding is over, the box is closed, wrapped up like a birthday present, and shipped off to the reviewing court.  Much like video replay, if something is not put in the record during the proceeding below (i.e., before the play is completed) it doesn’t end up in the box.  In the eyes of the reviewing court, it doesn’t exist—no matter how much the trial attorney insists that he made the argument during, for example, the motion hearing (a different syndrome altogether, which may be addressed at another time). 


The reviewing court concerns itself only with what is in the record.  It presumes the call below was sound, and will only reverse that call if it is “clearly untenable or unreasonable to the prejudice of [the litigant’s] case.”  Lambert, 147 N.H. at 295.  Rehashing what transpired below offers nothing of substance.  Arguing facts outside the record, offering a difference of opinion, making negative comments about the other litigants and tossing in a reference to fairness will ensure that you suffer the same fate as General Hood.  Remember, he failed to become the king of the hill.


The Call Stands


For example, in In re Choy, __ N.H. __, 919 A.2d 801 (2007), the appellant appealed an order granting a motion to modify custody and child support.  One of the contentions raised in the appeal was that the trial court “unsustainably exercised its discretion by placing too much reliance upon the [guardian ad litem’s] report and disregarding the evidence that [appellant] presented.”  Id. at 804.  He argued that the trial court erred by “(1) failing to take into account any evidence supporting his assertions; (2) ignoring evidence casting doubt upon the credibility of the mother; and (3) relying almost entirely upon the GAL’s report, which he characterize[d] as incomplete and biased.”  Id.  Sounds like screaming at the television to me—citing unfairness and getting off a few shots at the other litigant(s) for good measure. 


Chief Justice Broderick, writing for a unanimous court, summed it up nicely:  “[appellant’s] real contention is that the trial court was erroneously persuaded by evidence unfavorable to his position and that it was unpersuaded by other evidence favorable to his position.”  Id.  In layman’s terms, the Court said that the appellant simply didn’t like the call.  But “[c]hoosing between contradictory testimony and evidence is the essence of judicial discretion, and there [was] nothing in this record constituting an unsustainable exercise of discretion.”  Tough luck, the call stands. 


I note that the appellant also attempted to argue that the GAL report was incomplete because it did not consider his references, or other information available from another agency.  But this information was not in the record, it was not in the box shipped to the Supreme Court.  This was not lost on the Court, as it noted that the appellant could have called his references as witnesses at the hearing below, but didn’t.  As for the other agency’s information, the Court’s decision turned on an evaluation of what was in the record—the GAL’s investigation.


Appellate litigation is a fickle beast.  And everyone has been saddled with a difficult record at some point.  Presumably, counsel in In re Choy faced such a record and had little chance of getting up Little Round Top—like General Hood.  But the idea here is to encourage practitioners to make the most of their appellate presentation, which starts at being true to the standard of review. One court may have explained the cause of a practitioners drift away from the standard of review when presenting a case on appeal.  It observed that “trial attorneys who prosecute their own appeals . . . may have ‘tunnel vision.’  Having tried the case themselves, they become convinced of the merits of their cause.”  Estate of Gilkison, 77 Cal. Rptr.2d at 466-67.  This results in a loss of objectivity—simply crying foul takes the place of objectivity.  The cure, perhaps?  “[C]onsulting and taking the advice of disinterested members of the bar, schooled in appellate practice.”  Id.


Playing the Wrong Game


Aside from screaming at the television, another misstep practitioners make is “trying to run for a touchdown when basketball rules are in effect.”  John C. Godbold, Twenty Pages and Twenty Minutes:  Effective Advocacy on Appeal, 30 S.W. L. J. 801, 810 (1976).  In other words, they either apply the wrong standard of review entirely, or simply don’t apply one at all.  Any lawyer would be embarrassed to tell his or her client that the appeal was decided based upon an issue never addressed in the brief.  But it happens, and often the standard of review is the issue the lawyer failed to address.  Even if the reviewing court is forgiving, failing to recognize or apply the right standard of review will result in a poorly reasoned appellate brief.


In the end, be careful not to abuse the abuse (unsustainable exercise) of discretion standard.  Be mindful of it, and make sure your arguments are more than the rehashing of impassioned pleas already made below.  As for my football analogies, I think I’m in good company, although some may disagree.  For example, in Estes v. Texas, 381 U.S. 532, 573 (1965), the United States Supreme Court foresaw the advent of courtroom television commentators.  The court compared experts who might offer “commentary on the proceedings,” and “anticipate possible trial strategy,” to “the football expert [who] anticipates plays for his audience.”  Interesting.  But not quite as interesting as watching Tom Brady throw touchdown passes to Randy Moss.


Eric Cioffi has been a member of the New Hampshire Bar since 1998, and is a  former law clerk for the New Hampshire Supreme Court  and the U.S. Federal District Court, District of New Hampshire.  Currently, he is a deputy city attorney at the City Attorney’s Office, Criminal Appellate Division, City of Los Angeles.


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