There are three different standards of appellate review. The easiest burden for an appellant is the independant or de novo review. That is when the Court of Appeal reviews the case in full as if it were being presented for the first time. This standard of review applies when the contract interpretation is the issue or whether the case in the trial court was decided on summary judgment.
The second level of standard of review is the abuse of discretion standard. Under this standard the Court of Appeals looks to see if the trial court acted in a manner that is capricious or arbitrary. Great latitude is given to the trial courts and it is difficult to overturn a verdict or judgment under the abuse of discretion standard of appellat review.
The final standard of review is the substantial evidence standard of review. This is the most difficult standard to overcome for an appellant. Under this standard the Court of Appeals merely looks if there was sufficient evidence to support the judgment or verdict.
The “substantial evidence” standard applies where the appealed ruling turns on the trial court’s determination of disputed fact issues.
Cases law holds that when a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.
The standard of appellate review if often a subject of disagreement between the appellant and the respondent. The standard of appellate review is instrumental in the outcome of cases on appeal.
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Robert G. Klein, Esq. is a Los Angeles trademark attorney, business litigation attorney lawyer and a Los Angeles business lawyer who specializes in trademark infringement, copyright infringement, business torts, breach of contract actions and unfair competition. He feels it is important to hire a Los Angeles trademark lawyer and a Los Angeles business lawyer if one is involved in litigation in that locale. Robert G. Klein is a prominent Los Angeles business attorney and is available for consultation on matters involving trademark infringement, copyright infringement, breach of contract cases, business torts, fraud, and business law matters. He has successfully obtained many multi-million dollar jury verdicts. Many of Mr. Klein’s court decisions have been published as case authority and he has appeared before the United States Supreme Court for oral argument. Mr. Klein has also published “Consumer List: Trade Secret or Fair Game?”, which is an article published in the Los Angeles Lawyer Magazine. Los Angeles trademark infringement attorney Robert G. Klein can be reached at (213) 996-8508 or visit our web site at http://www.kleinlitigation.com
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I recently tried a case before the American Arbitration Association that was submitted to binding arbitration based upon a contract between the parties. The contract was for construction services and contained an arbitration clause which essentially stated that any dispute arising out of the contract was to be subject to binding arbitration before the American Arbitration Association.
At the conclusion of the arbitration I felt that submitting disputes to binding arbitration can be less predicatable and riskier than having a jury decide the case. The reason I felt that way is because the arbitrator does not have to follow California law but can decide the case anyway he or she sees fit. I was defending a breach of contract action and felt certain I should prevail based upon the facts and law. However, I sensed the arbitrator was going to rule against us for equitable reasons. If he had done so, he would have essentially rewritten the contract between my client and the claimant.
To my surprise and delight the arbitrator ruled in our favor but it made me question whether I would advise clients to sign arbitration agreements and to waive the right to a trial by jury.
Here are some of the pros and cons. It is often thought arbitration is less expensive. That may not always be true. I have seen arbitrator fees ranging from $400 to $600 per hour. In the court system you do not have to pay the judge to hear your case.
Often times you have no right to conduct discovery in arbitrations. While discovery can be expensive, without discovery you are shooting in the dark and can be surprised or ambushed at the arbitration. You may be presented with documents you never knew existed and you will need to cross examine witnesses without the benefit of taking a deposition.
In jury trials you have a judge who will decide if certain evidence will be excluded in what is known as motions in limine. This allows the judge to exclude irrelevant or overly prejudicial evidence. This way the jury never hears evidence that could result in an unfair verdict because it is not directly relevant in deciding the dispute. The judge also reads detailed jury instructions on the law to the jurors and tells them it is their obligation to follow the law. In arbitrations you do not know if the arbitrator will follow the law which it makes the outcome less predictable.
Arbitrations are binding meaning there is no right to appeal. In a jury trial if the court made an error or if the jury verdict is not supported by the evidence at least you have the court of appeal to corrrect any mistakes. You do not have that in arbitration.
One should consider all these issues before agreeing to submitting disputes to binding arbitration.
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With the proposed economic recovery stimulus package, I was hopeful that this would open up opportunities for the construction industry. One concern I have is how long it would take to see these public contracts available for bidding. For example, if there is a proposed construction contract to retrofit a bridge, it could take years to complete the engineering and prepare plans and specifications. Only then can the project go out to bid.
However, there are many projects where the engineering is completed but the projects have been shelfed because a lack of funding. These projects can possibly go out to bid much earlier. The question will be whether the plans are still relevant or whether there will be a need for revisions.
Time will tell when we can see the benefits of the economic recovery package to the construction industry.
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