Standard-of-Review Drafting #20
Definition
Strategy technique · Tier Expert
Writing the memorandum so that the court's key determination, if appealed, receives the most deferential standard of review. The expert drafter characterizes the decision as discretionary/factual (reviewed for "abuse of discretion" — nearly unreviewable) rather than legal (reviewed "de novo" — fully reviewable).
Example
"The choice of a discovery sanction is committed to the sound discretion of the trial court. [Controlling authority]." This frames the determination as discretionary, earning abuse-of-discretion review on appeal.
Anti-pattern
"The statute requires a finding that..." — framing the determination as a legal requirement invites de novo review.
Why it's expert
Associates don't think about appellate review when drafting trial court motions. Sixth-year practitioners do. A discovery sanction characterized as "within the court's discretion to manage disclosure" is reviewed for abuse of discretion. The same sanction characterized as requiring specific legal findings might be reviewed de novo. The characterization in the trial court brief shapes the appellate standard.