Appealability and review - Scope of review for judge and jur...

Learning Outcomes

This article explains federal appealability and the scope of appellate review for civil cases on the MBE, including:

• When a federal civil order is immediately appealable as of right, when parties must wait for final judgment, and how to identify jurisdictional pitfalls.
• How the final judgment rule operates in single-claim cases and in multi-claim or multi-party actions, including the role and limits of Rule 54(b) certification.
• The principal statutory and judge-made exceptions allowing interlocutory appeals, such as injunction orders, collateral orders, certified questions under § 1292(b), and partial final judgments.
• The distinct standards of review—de novo, clearly erroneous, substantial evidence, abuse of discretion, and plain error—and which types of issues each standard governs on appeal.
• How appellate review of judge-made determinations (bench trials and discretionary rulings) differs from review of jury verdicts, especially in evaluating factual findings and evidentiary decisions.
• How error preservation, harmless error, and plain-error review constrain appellate relief, and strategies for spotting preserved versus unpreserved issues in multiple-choice fact patterns.

MBE Syllabus

For the MBE, you are required to understand federal appealability and the scope of appellate review, with a focus on the following syllabus points:

• The final judgment rule and what constitutes a “final decision.”
• Interlocutory review, including orders regarding injunctions, collateral orders, and certified questions.
• Partial final judgments under Rule 54(b) in multi-claim or multi-party actions.
• Standards of review for:
  • Pure questions of law.
  • Findings of fact by a judge (bench trial).
  • Findings of fact by a jury.
  • Discretionary trial court decisions.
• The division of responsibility between judge and jury and how that affects appellate review.
• Preservation of error, plain error, and the harmless error doctrine.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is generally required for an order to be immediately appealable in federal court?
   1. The order must be a final judgment resolving all claims as to all parties.
   2. The order must be certified by the trial judge as important.
   3. The order must involve a constitutional issue.
   4. The order must be a denial of summary judgment.
2. When reviewing a trial judge’s findings of fact after a bench trial, the appellate court will:
   1. Substitute its own judgment for the trial judge’s.
   2. Review for clear error and give deference to the trial judge.
   3. Review de novo.
   4. Reverse unless the findings are unanimous.
3. Which standard of review applies to a trial court’s discretionary decision to admit or exclude evidence?
   1. De novo.
   2. Abuse of discretion.
   3. Clearly erroneous.
   4. Substantial evidence.
4. An interlocutory appeal is most likely to be available in which scenario?
   1. Denial of a motion to dismiss for failure to state a claim.
   2. Grant or denial of a preliminary injunction.
   3. Entry of a scheduling order.
   4. Ruling on a discovery dispute.

Introduction

Appealability and the scope of appellate review are central to federal civil procedure on the MBE. Two distinct questions arise:

• Is the order appealable now (appealability)?
• If so, how will the court of appeals review what the trial court or jury did (scope and standard of review)?

You must be comfortable identifying which orders are immediately appealable and matching each type of issue (law, fact, discretion) with the correct standard of review, keeping straight whether the decision below was made by a judge or a jury.

Key Term: Final Judgment Rule
The principle that federal courts of appeals generally have jurisdiction only over “final decisions” of the district courts—decisions that end the litigation on the merits and leave nothing for the trial court to do but execute the judgment.

Final Judgment Rule and Basic Appealability

Most federal appeals are taken from a final judgment under 28 U.S.C. § 1291.

Key Term: Final Judgment
A decision that resolves all claims as to all parties, leaving nothing for the trial court to do except enforce the judgment.

Common examples of final judgments:

• Entry of judgment following a jury verdict.
• Entry of judgment following a bench trial.
• An order granting a Rule 12(b)(6) motion or a motion for summary judgment that disposes of all claims against all parties.
• An order of dismissal with prejudice that ends the case.

Non-final decisions include:

• Denial of a motion to dismiss.
• Denial of summary judgment.
• Most discovery orders.
• Pretrial scheduling orders.

These usually cannot be appealed immediately. The losing party must wait until the district court enters final judgment and then challenge those rulings on appeal.

Multi-claim and Multi-party Cases: Rule 54(b)

Complications arise when a case involves multiple claims and/or multiple parties and the district court resolves fewer than all of them.

The default rule is:

• An order that adjudicates fewer than all claims or the rights and liabilities of fewer than all parties is not a final judgment, and is not immediately appealable.

Federal Rule of Civil Procedure 54(b) creates a narrow exception:

• The district court may direct entry of a final judgment as to one or more (but fewer than all) claims or parties and expressly determine that there is no just reason for delay.
• If it does both, that partial judgment is treated as final and can be appealed immediately.

Key Term: Rule 54(b) Certification
A district court’s express direction and finding that allows a judgment resolving fewer than all claims or all parties to be treated as final and immediately appealable.

Exceptions: Interlocutory Appeals

Some non-final orders can be appealed immediately under specific statutory or judge-made exceptions.

Key Term: Interlocutory Appeal
An appeal taken before final judgment, allowed only when a statute or doctrine specifically authorizes review of that type of non-final order.

Key categories you should know for the MBE:

1. Injunctions – 28 U.S.C. § 1292(a)(1)
   Orders granting, continuing, modifying, refusing, or dissolving injunctions (including most preliminary injunctions) are immediately appealable.

   • A temporary restraining order (TRO) is generally not appealable because of its short duration.
   • But if a TRO is extended beyond 14 days (so that it effectively functions as a preliminary injunction), appellate review may be available.

2. Certain “Collateral Orders” – Collateral Order Doctrine
   Some orders, though not labeled final, conclusively resolve important issues separate from the merits and would be effectively unreviewable after final judgment.

   Key Term: Collateral Order Doctrine
   A narrow doctrine allowing immediate appeal of an order that (1) conclusively determines an important issue, (2) is completely separate from the merits, and (3) would be effectively unreviewable if parties had to wait for final judgment.

   Classic examples:

   • Denial of absolute or qualified immunity in a way that forces an official to stand trial.
   • Orders compelling disclosure of privileged material (rarely tested, but conceptually important).

3. Certified Interlocutory Appeals – 28 U.S.C. § 1292(b)
   The district judge can certify that an order:

   • Involves a controlling question of law,
   • On which there is substantial ground for difference of opinion, and
   • That an immediate appeal may materially advance the ultimate termination of the litigation.

   If the court of appeals agrees to accept the appeal, that interlocutory order may be reviewed. On the MBE, this mechanism is relatively rare compared to injunctions and collateral orders.

4. Class Certification Orders (Rule 23(f))
   Orders granting or denying class certification may be subject to discretionary interlocutory appeal, but this is rarely emphasized on the MBE compared with the categories above.

Scope of Review and Standards of Review

Once a case is properly before the court of appeals, the key exam issue becomes: What standard of review applies to the particular issue?

Key Term: Standard of Review
The level of deference an appellate court gives to the decision below—ranging from no deference (de novo) to substantial deference (clear error or abuse of discretion).

At a high level:

• Questions of law → de novo review.
• Findings of fact by a judge (bench trials) → clearly erroneous review.
• Findings of fact by a jury → substantial evidence / “reasonable jury” standard.
• Discretionary rulings (e.g., evidentiary rulings, discovery management, new-trial motions) → abuse of discretion.
• Unpreserved errors → plain error (if reviewable at all).

Legal Rulings – De Novo Review

Issues such as interpretation of statutes, rules, or contracts, and application of legal standards to undisputed facts, are legal questions.

Key Term: De Novo Review
Review in which the appellate court gives no deference to the trial court’s legal conclusions and decides the issue as if it were the first court to consider it.

Examples reviewed de novo:

• Whether a complaint states a claim under Rule 12(b)(6).
• Whether summary judgment was properly granted or denied.
• Interpretation of a federal statute or rule of civil procedure.
• Whether a party has a right to a jury trial under the Seventh Amendment.

On the MBE, if the question clearly describes a pure question of law, de novo is almost always the correct standard.

Factual Findings: Judge vs Jury

The standard used for fact-finding depends critically on who found the facts.

Key Term: Clearly Erroneous Standard
The standard for reviewing a trial judge’s factual findings after a bench trial; the appellate court will reverse only if left with the definite and firm conviction that a mistake has been made.

• Bench Trials (Judge as factfinder):
  • Federal Rule of Civil Procedure 52(a) provides that a court of appeals must not set aside a district judge’s findings of fact unless clearly erroneous.
  • The appellate court defers heavily to the trial judge’s superior position to evaluate live testimony and witness credibility.

Key Term: Substantial Evidence Standard
The standard for reviewing factual findings supporting a jury verdict; the verdict will be upheld if a reasonable jury could have reached that conclusion based on the evidence.

• Jury Trials:
  • The court of appeals does not weigh the evidence or judge credibility.
  • Instead, it asks whether, viewing the evidence in the light most favorable to the verdict winner, a reasonable jury could have reached that verdict.
  • If so, the verdict stands, even if the appellate judges would have decided the facts differently.

On the MBE, many questions test the trap of confusing clearly erroneous (judge-factfinding) with substantial evidence (jury-factfinding).

Discretionary Decisions – Abuse of Discretion

Many trial-level rulings are entrusted to the trial judge’s discretion, including:

• Evidentiary rulings (admitting or excluding evidence).
• Deciding whether to grant a continuance.
• Discovery management and sanctions.
• Granting or denying a new trial.

Key Term: Abuse of Discretion
A deferential standard of review for discretionary trial court decisions; the appellate court reverses only if the ruling was arbitrary, unreasonable, or based on an erroneous view of the law.

If the call of an MBE question focuses on:

• Whether a particular piece of evidence should have been admitted or excluded, or
• Whether the judge should have granted a new trial because the verdict was against the weight of the evidence,

the correct standard is almost always abuse of discretion.

Mixed Questions

Many real-world issues mix law and fact (e.g., whether conduct was “reasonable” under the circumstances).

• Often treated as legal questions, reviewed de novo, though the supporting subsidiary factual findings are reviewed under clear error or substantial evidence, depending on whether the factfinder was a judge or jury.

Judge vs Jury: Who Decides What

Understanding the division of labor between judge and jury helps explain why different standards of review apply.

• Jury: Decides questions of fact and determines the weight and credibility of admitted evidence.
• Judge: Decides questions of law and admissibility of evidence, including preliminary factual questions necessary to determine admissibility.

Evidence rules emphasize this division:

• The judge decides whether an item of evidence is admissible and whether foundational facts exist to support admissibility (e.g., whether a statement is hearsay, whether a witness is qualified).
• The jury, once evidence is admitted, decides what weight to give it.

Because the trial judge is close to the evidence and witnesses, appellate courts review these determinations under abuse of discretion or clear error, not de novo.

Preservation of Error, Harmless Error, and Plain Error

Even if the trial court made a mistake, the appellant does not automatically win.

Key Term: Harmless Error
An error that does not affect a party’s substantial rights or the outcome of the case; such an error does not justify reversal on appeal.

Two additional concepts are essential:

1. Preservation of Error

   • To challenge an evidentiary ruling admitting evidence, the party must object at trial and state the specific ground.
   • To challenge exclusion of evidence, the party must make an offer of proof—explaining on the record what the evidence would have been and why it should have been admitted.
   • To challenge jury instructions, a party must object on the record before the instructions are given (or as the rules specify), stating the grounds.

   Failure to object generally forfeits the issue, leading to a much more demanding standard on appeal.

2. Plain Error

   Key Term: Plain Error
   An obvious and clear error that affects substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings, allowing appellate review even without a timely objection.

   • Courts of appeals rarely reverse on plain error review in civil cases.
   • The error must be both clear and outcome-affecting in a serious way.

   If an error was preserved, the harmless-error standard applies: the appellant must show the error likely affected the outcome or a substantial right; otherwise, no reversal.

Worked Example 1.1

A federal district court, after a bench trial, finds for the plaintiff and enters judgment. The defendant appeals, arguing that the trial judge’s factual findings were wrong because certain witnesses were not credible. What standard will the appellate court apply?

Answer:
The appellate court will review the trial judge’s factual findings for clear error, giving substantial deference to the judge’s opportunity to assess witness credibility. It will not reweigh the evidence or substitute its own view of the facts unless left with a definite and firm conviction that a mistake was made.

Worked Example 1.2

A party loses a motion for summary judgment on its contract claim and wants to appeal immediately. Is this order appealable?

Answer:
No. Denial of summary judgment is a non-final, interlocutory order and is not immediately appealable as of right. The party must generally wait for final judgment. Only if the order is certified under § 1292(b) and accepted by the court of appeals (or falls into some other recognized exception) could it be reviewed before final judgment—and such certifications are relatively rare.

Worked Example 1.3

At trial, a judge excludes certain evidence over the plaintiff’s objection. The plaintiff loses and appeals, claiming the exclusion was error. What standard applies, and what else must the plaintiff show?

Answer:
The appellate court will review the evidentiary ruling for abuse of discretion. To obtain reversal, the plaintiff must also show that the exclusion affected a substantial right—that is, that the error was not harmless because it likely influenced the outcome. If the plaintiff did not make an offer of proof at trial explaining what the excluded evidence would have shown, the issue may not be preserved for review.

Worked Example 1.4

In a multi-defendant federal case, the court grants summary judgment for Defendant A, disposing of all claims against A, but claims against Defendant B remain pending. The court simply grants A’s motion and enters judgment in favor of A, saying nothing about certification. Defendant A immediately files a notice of appeal. Is the appeal proper?

Answer:
No. Because claims against Defendant B remain, the order in favor of A is not a final judgment as to all parties. Without a Rule 54(b) certification expressly directing entry of final judgment for A and expressly finding no just reason for delay, the order is not appealable yet. The court of appeals lacks jurisdiction and must dismiss the appeal.

Worked Example 1.5

A public official moves to dismiss a damages suit on the ground of qualified immunity. The district court denies the motion, holding that the official is not entitled to qualified immunity. The official files an immediate appeal. Is this an interlocutory appeal the court of appeals may hear?

Answer:
Yes. A properly framed denial of qualified immunity can fall within the collateral order doctrine: it conclusively determines an important issue separate from the merits (immunity from suit) and would be effectively unreviewable after final judgment because the immunity includes a right not to stand trial. Therefore, immediate appeal is generally permitted.

Exam Warning

The most common MBE trap is confusing the standard of review for legal questions (de novo) with that for factual findings (clearly erroneous for a judge and substantial evidence for a jury). Always (a) identify whether the decision-maker was a judge or a jury and (b) classify the issue as one of law, fact, or discretion before choosing the standard.

Revision Tip

Remember: only final judgments are appealable as of right. Interlocutory appeals are limited to specific categories (especially injunctions and collateral orders). On scope of review, tie each issue to (1) who decided it and (2) whether it is law, fact, or discretion.

Key Point Checklist

This article has covered the following key knowledge points:

• Federal courts of appeals ordinarily have jurisdiction only over final decisions under the final judgment rule.
• In multi-claim or multi-party cases, orders disposing of fewer than all claims or parties are not final absent a Rule 54(b) certification.
• Interlocutory appeals are allowed in narrow situations, especially:
  • Orders relating to injunctions under § 1292(a)(1).
  • Orders fitting the collateral order doctrine.
  • Certified interlocutory orders under § 1292(b).
• Legal questions (e.g., statutory interpretation, summary judgment) are reviewed de novo.
• Factual findings by a judge in a bench trial are reviewed for clear error.
• Factual findings supporting a jury verdict are reviewed under the substantial evidence or reasonable jury standard.
• Discretionary rulings (e.g., evidentiary rulings, discovery management, new trial) are reviewed for abuse of discretion.
• Error must be preserved by timely objection or offer of proof; otherwise, review is at most for plain error.
• The harmless error doctrine denies relief when an error did not affect substantial rights or the outcome.

Key Terms and Concepts

• Final Judgment Rule
• Final Judgment
• Rule 54(b) Certification
• Interlocutory Appeal
• Collateral Order Doctrine
• Standard of Review
• De Novo Review
• Clearly Erroneous Standard
• Substantial Evidence Standard
• Abuse of Discretion
• Harmless Error
• Plain Error