MA Appellate Practice And Procedure Monthly Bulletin

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 matter is imbued with judgment, choice, sensitivity and presence as opposed to being informed by somewhat broader concepts that are legal or rules of law. It is viewed by many as the death knell for any realistic chance of success on appeal absent compelling circumstances due to the degree of deference usually or perceived to be afforded. Indeed, discretionary decision making contemplates a range of equally "right" outcomes or rulings as opposed to a single right or wrong answer.

One need not look far for evidence of the formidable nature of the abuse of discretion standard of review. For instance, in the last three weeks (February 9-23, 2018) the Supreme Judicial Court and Appeals Court have collectively issued approximately 69 decisions. The abuse of discretion standard was identified to apply in approximately 34 cases or issues with only one reversal.

The definitions afforded "abuse of discretion" in both Massachusetts and the First Circuit demonstrate the inherent elusiveness and are far from self-actualizing. See Robert C. Post, "The Management of Speech: Discretion and Rights," 1984 SUP. CT. REV. 169, 169 (1984)("Discretion is pervasive in our legal system, and yet we scarcely know what it is."). All told there are various nuances ranging from the need to show that the trial court lost its senses to more nuanced equating such abuse as the same as "legal error." The First Circuit defines an abuse of discretion to be where the reviewing court forms "a definite and clear...