Strategic Approaches to the Legal Environment of Business. Michael O'Brien

in their brief. There are three primary standards of review that come up in this book: de novo, clear error, and abuse of discretion.

      De novo is Latin for new and means that the appellate court gives no deference to the legal conclusion of the trial court. Interpretation of a contract requires de novo review on appeal. It does not matter what the trial court concluded, the appellate court will reconsider the matter.

      In some cases, there is a mixed question of law and fact on review. This occurs when the facts and law are not disputed, but the application of facts to the law is disputed. Some of these cases are reviewed for clear error. For instance, issues of whether established facts constitute negligence or whether proximate cause is shown are reviewed for clear error. Under this standard, when the trial court’s account of the evidence is plausible in light of the entire record, the court of appeals may not reverse it. This happens even if the court of appeals would have weighed the evidence differently.

      Trial courts have discretion to make decisions. However, this discretion can be abused, for instance, when the trial court makes factual findings that have no basis in the record at all. This requires that the appellate court has a definite and firm conviction that the trial court made a clear error of judgment in reaching its decision. This standard is more deferential than clear error.

      Under federal law, decisions of the Courts of Appeals can be reviewed by the U.S. Supreme Court under a petition for certiorari. The U.S. Supreme Court has discretion over whether or not to take such cases.

Case Problems

Keith Forsyth alleges that Attorney General John Mitchell authorized warrantless wiretapping of Forsyth and other Vietnam War protestors causing damages to the protestors. Mitchell sought qualified immunity—a privilege that protects government officials from civil liability as long as their conduct does not violate established rights that a reasonable person would know. The trial court denied the request. Mitchell sought to appeal the issue of qualified immunity before final judgment issued this case because if the privilege existed, then there would be no trial as a matter of law. Can Mitchell appeal the decision of qualified immunity before a final judgment issues in his case?50

11 Corinthians 6:7.

2Fed. R. Civ. P. 1, 2.

3Fed. R. Civ. P. 3.

4Fed. R. Civ. P. 4.

5Fed. R. Civ. P. 8.

6Fed. R. Civ. P. 9.

728 U.S.C. § 1331 (2016).

828 U.S.C. § 1332 (2016).

928 U.S.C. § 1391 (2016).

10Fed. R. Civ. P. 5.

11Restatement (Second) of Judgments § 17(3) (1981).

12Id. at § 17(1)–(2)

13Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

14World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286 (1980).

15Sheehan v. Gustafson, 967 F. 2d 1214 (8th Cir. 1992).

16Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).

17Jonah B. Gelbach, Measuring the Effects of a Heightened Pleading Standard under Twombly and Iqbal, Searle Civil Justice Institute (October 2013) available at: http://bit.ly/17JbQWf.

18Fed. R. Civ. P. 56.

19Fed. R. Civ. P. 26.

20Fed. R. Civ. P. 27.

21Fed. R. Civ. P. 33.

22Fed. R. Civ. P. 34.

23Fed. R. Civ. P. 36.

24Fed. R. Civ. P. 56.

25Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

26Vais Arms, Inc. v. Vais, 383 F.3d 287 (5th Cir. 2004) but see Hill v. Tangherlini, 724 F. 3d 965 (7th Cir. 2013).

27Fed. R. Civ. P. 38, 39.

28Fed. R. Civ. P. 47.

2928 U.S.C. § 1870 (2016).

30Fed. R. Civ. P. 48.

31Fed. R. Civ. P. 43.

32Fed. R. Evid. 401.

33Fed. R. Evid. 602.

34Fed. R. Evid. 701.

35Fed. R. Evid. 702.

36Fed. R. Evid. 802.

37Fed. R. Evid. 803–804.

38Fed. R. Evid. 901.

39Fed. R. Evid. 902–903.