In my last column, I discussed when you can appeal from a trial court ruling against you and how to appeal if you decide to. I left for this second column on appeals the large question: Should I appeal? In other words, will it do me any good to appeal?

As always I assume that you have filed a civil rights action in federal court against a condition or practice in the prison that you claim is unconstitutional. In this column, I use the term "Civil Rule" to refer to court rules in the Federal Rules of Civil Procedure and "Appellate Rule" to refer to rules in the Federal Rules of Appellate Procedure.

Standards of Review
To decide whether you should appeal, you must think about two things: What kind of ruling the trial court made, and what you plan to complain about on appeal. You must think about these things because of what is called the "standard of review" on appeal. The "standard of review" refers to the law that controls how the appellate court will look at each issue you raise. Some standards of review require the appellate court to give the trial court "deference," meaning that the trial court's decisions will stand unless they are clearly wrong. Other standards of review require the appellate court to decide an issue for itself without having to give deference to the trial court. The kind of ruling the trial court made plus what you are complaining about will determine what standard of review will be applied.

For every issue you raise on appeal, there will be a standard of review. If the standard of review is relatively favorable to those who appeal, you may well have a good chance to win on appeal. If the standard of review is not as favorable if the appellate court must give more deference to what the trial court did your chances are probably not as good. But whether the standard on your issue is favorable or unfavorable, you cannot get away from talking about the standard of review on appeal: Appellate Rule 28(a)(9)(B) requires that you say in your brief on appeal what is the standard of review for every issue you raise.

I will very briefly discuss standards of review relating to some typical kinds of rulings on which you may be appealing: A decision on the merits (verdict) after trial, and rulings ending the case without a trial, such as dismissal of your complaint under Rule 12(b)(6), or a summary judgment ruling against you and in favor of the defendant.

Appeals After Trial
There are many different things that can go against you at trial and which you can complain about on appeal. There is, however, not just one standard of review for claims on appeal that something went wrong at trial. Instead, appellate courts apply different standards of review depending upon what kind of issue is raised on appeal. I will discuss only three of the most common examples.

First, if your case was tried to a judge sitting without a jury, and your claim on appeal is that the judge got the facts wrong, you will face what is called the "clearly erroneous" standard of review. This standard is set by Civil Rule 52(a), which states that a judge must making written fact findings after trial, which "shall not be set aside [i.e., not overturned on appeal] unless clearly erroneous and, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." A good discussion of what this means is in Anderson v. City of Bessemer, 470 U.S. 564, 573-576, 105 S.Ct. 1504, 1511-12 (1985). As set out in Anderson, appellate courts are not in the position of the trial court in making factual findings, and so findings of fact by the trial judge may be overturned on appeal only if the appeals court can say definitely that the trial judge was wrong. Even if the appeals judges might have made different findings if they had been the trial judge, they cannot overturn "if the district court's account of the evidence is plausible in light of the record viewed in its entirety." In addition, if the trial judge's findings are based on deciding whether witnesses told the truth or not, the appellate court must give "even greater deference to the trail court's findings."

Second, if you claim that rather than finding the facts incorrectly, the trial judge made an incorrect ruling on important law that applies to the case, the appellate court will review this claim "de novo," which means doing it all over again as if the first time had never happened. This is very different from review of the trial court's factual findings, because it means that the appellate court will decide for itself what the correct law is without deferring to the trial court. For a discussion of why this is the standard of review on questions of law, and how this differs from the "clearly erroneous" standard of review applied to district court findings of fact, see United States v. McConney, 728 F.2d 1195, 1201 (9th Cir. 1984)(En banc).

One example of an important ruling of law at trial is the court's decision about what to put in jury instructions. In the instructions, the trial court tells the jury what the law is that they must apply to the case. Suppose the judge incorrectly tells the jury that the defendant cannot be liable for failing to protect you from another prisoner unless the defendant told the other prisoner to assault you, when the correct law is that the defendant is liable if he shows "deliberate indifference" to a serious, known risk that the other prisoner would assault you. Farmer v. Brennan, 511 U.S. 825 (1994). The appellate court will review this issue of law "de novo," without deferring to what the trial court decided. See, e.g., Coleman v. B-G Maintenance, 108 F.3d 1199, 1202 (10th Cir. 1997).

Note that just because the appellate court decides that a technically incorrect jury instruction was given, this does not necessarily mean you will get a new trial. You must also convince the appellate court that the legal error was not "harmless." The law of harmless error cannot be covered in this short column, but in essence the question the appellate court looks at is "not whether the instruction was completely faultless, but whether the jury was misled" on important legal issues that could have affected the outcome of the case. Coleman, 108 F.3d at 1202.

A similar type of "de novo" review applies after a trial to a judge without a jury. In the judge's written ruling after trial that is required by Civil Rule 52, the judge should state the legal standard that was applied to the facts. If you claim that, for example, the judge used the wrong standard to decide your "failure to protect" case, then the appellate court will decide this legal question without deferring to the trial court's view of the law. The appellate court is likely to give you a new trial if the trial judge was mistaken about a crucial part of the law and that mistake could have affected the outcome of the case.

Third, if you simply argue on appeal that a jury made the wrong decision, you will face a very unfavorable standard of review. This is because appellate courts, if the law has been correctly stated by the trial judge, will normally leave it to the jury to decide what happened. In deciding what happened, the jury gets to decide for itself whether witnesses are telling the truth or lying, what the significance of any piece of evidence is, etc. Because these issues are left to the jury , an appellate court will not change a verdict just because it may have been wrong, or even if the appellate judges would have themselves decided the case differently if the appellate judges had been on the jury. They will only overturn a verdict if there is not enough evidence for a reasonable jury to have ruled the way it did. Moore v. Local Union 569, 989 F.2d 1534, 1546 (9th Cir. 1993); Darnell v. Nance's Creek Farms, 903 F. 2d 1404, 1406 (11th Cir. 1990).

Appeals From Rulings Ending The Case Without Trial
If the trial court dismisses your case under Civil Rule 12(b)(6) "failure to state a claim upon which relief can be granted" it dismisses just by looking at the complaint itself, without any evidence being presented. Appellate courts do not usually favor this kind of dismissal because it comes so early in the case, before the trial court really knows anything about what happened. The Supreme Court has long made clear that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court has also emphasized that "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims." Scheur v. Rhodes, 416 U.S. 232, 236 (1974).

Appellate courts look at 12(b)(6) dismissal as a legal question, and therefore they review "de novo" without having to give deference to the trial court's decision on this question. Springdale Education Association v. Springdale School District, 133 F.3d 649, 651 (8th Cir. 1998). This means that the appellate court will assume the facts in the complaint to be true, and determine whether there is any set of facts consistent with the complaint that would entitle the plaintiff to relief. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). This is a very favorable standard of review, but it does not mean that every 12(b)(6) dismissal will be reversed on appeal. If you make factual allegations in your complaint that, even if true, would not make out the constitutional violation you claim, you should not expect to win on appeal.

The trial court is supposed to grant a defendant's motion against you for summary judgment only if "there are no disputed issues of material fact and [the defendant] is entitled to judgment as a matter of law." Civil Rule 56. In deciding whether to grant summary judgment, the trial court looks at affidavits and other pieces of "paper" evidence, such as documents, transcripts of depositions, etc., but the court does not hear live witnesses. The court then decides whether under the law the defendant should win because you cannot produce enough evidence to support a verdict in your favor if the case were to go to trial. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505 (1986).

On appeal from summary judgment, the appellate court views the material that was presented to the trial court in the light most favorable to the party against whom summary judgment was granted, and applies "de novo" review. Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). The appellate court reviews "de novo" because it is deciding legal questions, not factual issues. Even the question whether "there are no disputed issues of material fact" is a legal question: Is there enough evidence in the record that would allow the jury (or trial judge) to find this important fact in your favor? The appellate court is not deciding that the jury should rule in your favor, but whether the jury could rule in your favor, and that is a question of law. Valandingham is a good example of how these principles are applied in a real case.

Tips And Tactics
As you can now see, whether you should bother to appeal depends upon what happened to you in the trial court, what the record shows, and what you would be complaining about on appeal. If after a trial all you can say is that you disagree with the final result at trial, but you cannot show that an important ruling of law that was both wrong and harmful to your case, your chances on appeal are not good. If, on the other hand, you can show that an important part of the law was misstated to the jury or misunderstood by the judge, you have a much better chance to win on appeal.

Thus, when you are thinking about whether to appeal from a ruling or verdict after trial, include in your thinking whether the error about which you complain can be characterized as a legal error, or as based on a legal error. For example, in some cases you can argue that a trial court made a finding of fact against you because the court misunderstood the law; or you may be able to argue that something that was labeled a "finding of fact" is instead what is called a "mixed question of law and fact" that is subject to "do novo" review in the appellate court. You can find an introduction to these complicated questions in Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781 (1982) and United States v. McConney, 728 F.2d 1195 (9th Cir. 1984)(En banc).

In deciding whether to appeal from a pretrial ruling that ended the case such as summary judgment or 12(b)(6) dismissal, your thought process should be somewhat different. You know you will get the favorable "de novo" review of the legal question whether the trial court should have ended the case. But you still must assess whether the complaint (on a 12(b)(6) dismissal) or the written materials on file (on summary judgment) are strong enough to support your case moving forward in the district court. The "de novo" standard of review cannot make up for a complaint that really does not state a constitutional claim, or for a lack of evidence on summary judgment sufficient to truly create an issue of material fact.

When you are assessing whether you have a strong appeal, make sure that you consider only evidence that was presented to the trial court, and don't count things that you wish had been presented, but were not. Except in very rare circumstances, a court of appeals will only look at evidence and papers that were presented to the district court. You usually cannot ask the appellate court to look at new material that the trial court did not see.

The subject of standards of review is large and complicated; this column is only a brief introduction to the kinds of questions you will need to ask to figure out the correct standard of review for your case. As always, you should do your own legal research in the jurisdiction in which you case is filed before you decide what to do in your case.

[John Midgley is a staff attorney with Columbia Legal Services in Seattle.]

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