Abuse of Discretion—Flying Pigs And Reversible Deference
Error
There is nothing more fundamental to appellate litigation and
decision making than the applicable standards of review. Informed
decisions as to appeal, appellate briefing as well as an
understanding of any holding of an appellate decision cannot be
made without understanding the deference regime controlled by the
review standards.
One of the most pervasive yet elusive is the long-standing
"abuse of discretion" standard. The abuse of discretion
standard is rooted in the belief that the trial court is better
situated to examine the issue and associated considerations or
factors and as to the overall impact upon the proceeding in
general. Admission of evidence, witness competency, jury
questioning and disqualification are just a few of the myriad of
issues and procedures subject to the abuse of discretion standard
of review. More generically, an abuse of discretion standard will
apply when the issue or
