Apr 26 2018

MA Appellate Practice and Procedure Monthly Bulletin April 2018

Clearly Erroneous Review: Firm Convictions and Unrefrigerated Dead Fish

Since 1937, the clearly erroneous standard has been the governing standard of review for factual findings of the trial court. Under both federal and Massachusetts practice, Rule 52 requires the trial court to separate and spell out its factual findings and conclusions of law with findings of fact not to be set aside “unless clearly erroneous.” The rule otherwise commands that “due regard” be given to the opportunity of the trial court to judge the credibility of the witnesses.

The “clearly erroneous” standard has been deemed to serve a vital institutional role in allocating the responsibility and power of decision between trial and appellate courts. It certainly holds a powerful if not regal position as to appellate review and applies to virtually all factual findings of the trial court. Indeed, its broad reach was recently reiterated by Justice Thomas of the Supreme Court where he reminded that the deference required to trial court findings is not limited to credibility determinations; applies to findings based on physical or documentary evidence; applies in constitutional cases as well as where the factual findings are outcome determinative; and otherwise generally where “the issue requires familiarity with principles not usually contained in the general storehouse of knowledge and experience.” Silvester v. Becerra, 138 S. Ct. 945 (2018)(dissenting from denial of certiorari). If that was not enough, the Supreme Court has held that the clearly erroneous standard applies even where the trial court adopts verbatim the proposed findings of fact of the prevailing party. See Anderson v. Bessemer City, 470 U.S. 564, 572 (1985).

Yet despite its stature, “clearly erroneous” remains a phrase whose meaning is not readily apparent. It is has been observed that “because it means nothing, it can mean anything and everything that it ought to mean.” One difficulty is that it suggests if not requires that error alone is not enough; the error must also be clear.

Since 1948, the predominate definition is the firm conviction of mistake definition provided by the Supreme Court and followed and adopted by most states including Massachusetts: “A finding is ‘clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Whether this helps put meaningful flesh on the clearly erroneous bones or is a slight recasting from Rule 52’s text can be debated: “judges who firmly think something is wrong do not necessarily equal judges who believe something is clearly wrong.”

One of the more artful and rhetorical formulations emerged from the Seventh Circuit which equated the standard to a “dead fish:”

To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five week-old unrefrigerated dead fish….the decision must be dead wrong.

Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F. 2d 228, 233 (7th Cir. 1988). The dead fish reference has percolated in a school of subsequent cases including use by the First Circuit and other courts. United States v. Dixon, 449 F. 3d 194, 201 (1st Cir. 2006).

Given its formidable stature, pursuit of appeal where factual findings are the centerpiece to the assertion of error is difficult. As to appellate assessment there are certain considerations to evaluate including some “limiting” principles. Some observations are as follows:

  • Under “clearly erroneous” review a trial court’s findings are accorded less deference then that for a jury and care should be taken to ensure the appellate presentation does not blur this distinction. Similarly, the firm conviction test while requiring substantial deference remains not one of blind deference.
  • The standard of review for legal questions is de novo with there, many times, a difficult demarcation, if any, between whether the issue for appeal is one of law or fact. As noted by one observer, fact, law and application of law and fact are not “static, polar opposites. Rather, law and fact have a nodal quality; they are points of rest and relative stability on a continuum of experience.” Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 233 (1985). It is imperative for the appellate practitioner to appreciate this distinction and to understand appellate courts are fully aware that characterization of an issue of law application as fact or law for purposes of identifying the standard of review depends on the perceived need for review as opposed to the actual status of the issue. Similarly, a trial court’s articulation of findings of fact many times entail making subtle distinctions between facts and law giving appellate courts broad discretion to reclassify the trial court’s findings. As such, care needs to be taken to assess the appellate issues and whether the asserted error, albeit rife with factual findings, remains one of law beyond the confines of the clearly erroneous review. The assessment must include the determination of either the presence or absence of the characteristics that justify more searching appellate review as opposed to those that warrant greater reliance and deference to the trial court.
  • In is worth noting as well that there is some room under the existing case law, including Massachusetts and the First Circuit, to argue that even under the clearly erroneous standard of review, there should be a sliding scale of scrutiny by how independent the trial court’s findings are. See e.g., In re Las Colinas, Inc., 426 F. 2d 1005, 1110 (1st Cir. 1970); Cormier v. Carty, 381 Mass. 234, 236-37 (1980)(“the greater the extent to which the court’s eventual decision reflects no independent work on its part, the more careful we are obliged to be in our review”). While clearly erroneous review would apply where the judge has adopted a party’s proposed findings verbatim, the findings are subject to “stricter scrutiny.” Adoption of Hank, 52 Mass. App. Ct. 689, 693 (2001).
  • Massachusetts has yet to resolve the issue of whether clearly erroneous review applies to findings based solely on documentary evidence. Indeed, there is significant support that no deference need be given to any such findings as the appellate court is in as good a position as the trial court as to such matters. See e.g., Erickson v. Clancy Real Estate Trust, 88 Mass. App. Ct. 809 (2016); Zaskey v. Town of Whately, 61 Mass. App. Ct. 609 (2004); Strand v. Herrick & Smith, 396 Mass. 383 n. 6 (1986).
  • Credibility determinations while the most difficult under the already formidable standard are not per se conclusive as Rule 52 dictates only “due regard.” For instance, where factors other than demeanor and inflection go into the decision whether or not to believe the witness, contradictory evidence could well be the basis of reversible error. The presence of contradictory documents, objective evidence and fundamental inconsistency provide valid fodder for appellate attack and consumption. Nonetheless, it remains that dispositive deference to true credibility assessments is the general rule.
  • Finally, the firm conviction test—whether that of a dead fish or not—puts the entire record to the test. Indeed, findings can be clearly erroneous even if supported by substantial evidence. Similarly, the practitioner should always remember that built into Rule 52 is the discretion to do justice.

In the end, all hope is not lost if clearly erroneous is the potential standard of review for an appeal. The pliancy of Rule 52 leaves room for appropriate appellate presentation in appropriate cases. The standard remains formidable, however, with critical consequences rendering it imperative that the appellate practitioner fully understand its contours and limits.

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For more information on our Appellate Practice or the firm, please feel free to contact:
Tory A. Weigand, Partner
Direct Dial: 617-737-8827
E-mail: tweigand@morrisonmahoney.com

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