Appealing to the Appellate Division: Standards of Review- Part 2: Questions of Fact or Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Appeals & Appellate Law Attorney

In our last blog, I discussed what happens when an issue is appealed that was never made an issue at the trial stage.  It is critical that this is done because a successful appeal is hard to come by.  In the 2014-15 court term, only 17 percent of the appeals either reversed the case in its entirety, or partially reversed and partially remanded.  You have a better chance being a part of the 17 percent when you have clearly identifiable errors.  My last blog discussed two different questions a litigator must ask when determining if the litigator has an appeal that will get the ruling or judgment reversed.  After determining if the appeal was on the record or needs to be argued as plain error, the second question to ask is whether a question of law was made by the trial court.  The standard as to appealing errors in the findings of facts or procedural rulings made by the trial court is a lot tougher to overcome than the standard to overcome an error in the interpretation of the law.

Procedural rulings and findings of fact made by either the judge or the jury are given great deference by the appellate court.  The reason?  Consider what I said in the first part of this series.  The appellate judge has not had the benefit of seeing the parties in trial court.  He or she cannot look at the physical evidence besides any documents submitted in the appendix of the brief, and is attempting to re-create what was done in the trial court to see if an error was made.  Without the benefit of seeing the trial in action, and just reviewing it from the transcript and the oral argument from both sides, the appellate court is in a tough position to determine if the credibility of one person should be favored over another.  If the evidence that led to the findings or ruling is sufficient and seems credible, then the appellate court is not going to overturn.

The standard to overturn in this situation is whether the trial court committed an abuse of its discretion that is clearly capable to produce an unjust result.  Often times, reversals of fact findings and procedural rulings occur if the trial court failed to make findings of fact or law required to determine that a certain claim has occurred, or improperly used factors that a trial court is required to consider in order to determine if a certain claim has occurred.  When a jury makes findings of facts, the appellate court won’t even consider the appeal until a motion is made after the trial that a new trial should be granted on the ground that the verdict is against the great weight of the evidence.  In this case, the motion is granted or denied only if the jury’s verdict constitutes “a miscarriage of justice under the law,” a tough standard to overcome at the trial and appellate levels.

If the error is regarding an interpretation of law, the appellate court will give no deference to the trial court’s ruling.  This is referred to as a de novo standard of review.  Unlike findings of fact or procedural rulings, where you need to be in the heat of the moment to make those calls, the trial judge uses the facts before him and then interprets the law as he or she knows it to come to a decision.  Because the appellate court can review the transcript to see what law and facts were used to come to this decision (remember the lack of this is also reversible error as an abuse of discretion), the court can look at the findings and say the law was misinterpreted and should have been reviewed a different way.  Thus, there is no need to defer to the trial court.

Ultimately, when it comes to appealing, look for errors, make sure it is clear from the record the objection to the error, and determine if the error is worth pursuing an appeal over.  If the appeal is based on a ruling the court made as to whether a piece of evidence comes into the case that ultimately has no bearing on the verdict of the jury, it is a waste of time to appeal.  If the appeal is how the court determined that a contract exists, and how certain findings would lead to a different legal conclusion, then there is a good basis to appeal.

To discuss your NJ Appeal & Appellate Court matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.