John Brown on the manifest-error standard of review

Appellate lawyers will appreciate this discourse on the manifest-error standard of review:

[A]s so often, the briefs on the part of the respondent–appellants cannot resist the natural temptation to reargue the facts from a point of view favorable to (each of them), although now adversely determined by the trial judge. Counsel, experienced and able as they are trying valiantly to formulate it in the mold of ‘clearly erroneous’ now incrusted on the hull of maritime jurisprudence, simply refuse to recognize, even at this late date, that in this kind of controversy (the) functions of the courts in the judicial hierarchy are distinct and different and we would undermine the vitality of the system by a too-quick meddling in the principal business of a trial court. * * * A trial of a hotly contested, sharply disputed case is the task of a trial court and reviewing courts even in admiralty * * * should be slow to overturn fact decisions made by the judge before whom the facts are annealed through the hammering, heating process of vigorous, running advocacy. Indeed, we must constantly remind ourselves of our distinctive roles. If we were to approach it as simply a question—how should this case be decided?—we would effectually bypass a trial court. The problem faced is more nearly that of determining whether the trial judge, faced with a choice—often hard choices between competing versions of simple or complex occurrences—has fairly weighed the matter and has reached a conclusion which seems substantial and reasonable even though another result might have been achieved either by him or others.

Grisby v. Coastal Marine Serv. of Tex., Inc., 412 F.2d 1011, 1020 (5th Cir. 1969) (Brown, J.) (internal citations and quotation marks omitted).

Comments

[Fire T. Rufusfly]

>Appellate lawyers will appreciate this discourse on the manifest-error standard of review<

Methinks your phrasing betrays a state-court bias. The standard of review for a federal appellate court, when reviewing a trial court's fact-findings, is the "clear-error" standard, i.e., findings of fact will be upheld unless the court of appeals finds that those findings are clearly erroneous.

Sorry----didn't have anything else to nit-pick about.

[Ray Ward]

I will plead guilty to more state practice than federal. I’m in the U.S. 5th Circuit a lot, but I’m in the Louisiana appellate courts more. That said, clear error and manifest error are the same thing, at least in the Louisiana. But I will agree that “clear-error standard” is a preferable term, just because it has fewer syllables and is easier for most people to understand. Why use a three-syllable word when a one-syllable, everyday word means the same thing?

What would be worse would be to call it (as many do) the “manifestly erroneous standard of review.” That makes it sound like there's something wrong with the standard. When I see that phrase, I want to ask, “If the standard is manifestly erroneous, why do we keep using it?”