Which standard of review applies, and was the issue preserved? Both can decide the appeal
I am Mitchell Bisson, a Grand Rapids appeals lawyer. I have litigated for over 15 years. This page explains how Michigan appellate courts review trial court rulings and what it takes to preserve an issue so the court will review it at all. I work with either side of an appeal, and in criminal appeals on the defense side. I do not promise outcomes.
The short answer. The standard of review tells the appeals court how much deference to give the trial court. Legal questions and summary disposition rulings are reviewed without deference, findings of fact are not set aside unless clearly erroneous, and discretionary rulings are reviewed for abuse of discretion. MCR 2.613(C); Maiden v Rozwood, 461 Mich 109 (1999); People v Solloway, 316 Mich App 174, 188 (2016); People v Babcock, 469 Mich 247 (2003). Preservation comes first: an issue that was not raised in the trial court may not be reviewed at all, or may get only plain error review in a criminal case. Walters v Nadell, 481 Mich 377 (2008); People v Carines, 460 Mich 750 (1999). Nothing here predicts how your appeal will end.
An appeal is not a second trial. The court decides whether the trial court made a legal error on the record it had, and how closely the court looks depends on the type of ruling and on whether the issue was raised in the right way. A strong argument framed under the wrong standard, or never raised below, can lose to a weaker one that was preserved. That is why I work out both questions for every issue before I decide what goes in the brief.
Standards of review at a glance
| Type of ruling | How closely the court looks | Authority |
|---|---|---|
| Questions of law, and the grant or denial of summary disposition | De novo, meaning without deference to the trial court | Maiden v Rozwood, 461 Mich 109 (1999) |
| Findings of fact by the trial court | Not set aside unless clearly erroneous, with regard to the trial court’s chance to judge credibility | MCR 2.613(C) |
| Discretionary rulings | Abuse of discretion: the decision must fall outside the range of reasonable and principled outcomes | People v Babcock, 469 Mich 247 (2003) |
| Harmless error in a civil case | An error in a ruling is not grounds for a new trial or for disturbing a judgment unless refusing to act is inconsistent with substantial justice | MCR 2.613(A) |
| Forfeited error in a criminal case | Plain error: error, plain, affecting substantial rights, with a further showing before reversal | People v Carines, 460 Mich 750 (1999) |
| Waived error | Intentional relinquishment of a known right, which leaves nothing to review | People v Kowalski, 489 Mich 488 (2011) |
| Guidelines scoring challenge to a within-guidelines sentence | Cannot be raised on appeal unless raised at sentencing, by motion for resentencing, or by motion to remand | MCR 6.429(C) |
De novo review, clear error and abuse of discretion
De novo. Legal questions get no deference. The Michigan Supreme Court reviews the grant or denial of summary disposition de novo. Maiden v Rozwood, 461 Mich 109 (1999). That is why an appeal from a summary disposition order can be a better candidate than an appeal from a jury verdict: the court looks at the same record the trial judge did, and the question is whether the law was applied correctly.
Clear error. In a civil case, findings of fact by the trial court may not be set aside unless clearly erroneous, and regard must be given to the trial court’s special opportunity to judge the credibility of the witnesses who appeared before it. MCR 2.613(C). After a bench trial, the findings are where the fight is. An appeal that depends on re-weighing witnesses is hard, and I tell clients that before the claim of appeal is filed.
Abuse of discretion. A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes, and when it picks one of those outcomes the reviewing court defers. People v Babcock, 469 Mich 247 (2003). The question is not whether the appellate judges would have ruled the same way. To succeed on a discretionary ruling, the argument has to explain why the decision was outside the range, not only that it was wrong. What the judge said on the record about the reasoning matters, because a ruling made without explanation is harder to defend and harder to attack.
The error has to matter. In civil cases an error in a ruling is not a ground for a new trial, for setting aside a verdict or for disturbing a judgment unless refusing to act appears inconsistent with substantial justice. MCR 2.613(A). A brief that proves error and says nothing about its effect is incomplete.
What preservation means and how it is lost
Preserving an issue generally means raising it in the trial court, by objection or motion, so the judge can rule on it. Michigan generally follows a raise-or-waive rule: a failure to timely raise an issue waives review of it on appeal, although a court has inherent power to review an unraised issue to prevent a miscarriage of justice. Walters v Nadell, 481 Mich 377 (2008). In practice that means stating the objection and its grounds on the record and getting a ruling.
In criminal cases the cases distinguish waiver from forfeiture. Forfeiture is the failure to make the timely assertion of a right. Waiver is the intentional relinquishment or abandonment of a known right, and a lawyer’s clear expression of satisfaction with a trial court decision, such as approving jury instructions, can be a waiver that leaves nothing to review. People v Kowalski, 489 Mich 488 (2011). A forfeited claim can still get plain error review: the defendant must show that an error occurred, that it was plain, and that it affected substantial rights, and reversal is warranted only when the plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity or public reputation of the judicial proceedings. People v Carines, 460 Mich 750 (1999). Plain error review is a fallback, not a plan.
Some preservation rules are written into the court rules. A guidelines scoring challenge to a sentence within the guidelines range, or a challenge to the accuracy of information relied on at sentencing, cannot be raised on appeal unless the party raised it at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the Court of Appeals. MCR 6.429(C). That one rule is a reason to bring an appeals lawyer in before sentencing and not after.
A plea has its own preservation rule. A defendant convicted on a plea may not raise on appeal a claim that the plea rules were not followed, or that the plea was not understanding, voluntary or accurate, unless the defendant moved to withdraw the plea in the trial court and raised that claim as the basis. MCR 6.310(D). A client who pleaded guilty and wants to challenge the plea needs that motion before the appeal, and the timing is tight.
Getting an issue back in front of the court
When an issue was not preserved, the first question is whether the trial court can still rule on it. In a civil case, a motion for a new trial or to alter or amend the judgment is due 21 days after entry of the judgment. MCR 2.611(B). In a criminal case, a motion for a new trial or to correct an invalid sentence may be filed before a timely claim of appeal, or after one only through the MCR 7.208(B) procedure or a remand. MCR 6.431(A); MCR 6.429(B). Each of these has a deadline, and the deadline is the reason I want to see the file early.
If the facts needed are not in the record, a motion to remand is the appellate route. MCR 7.211(C)(1)(a). None of these is a promise that the court will reach the issue. They are the ways the rules leave open, and I check each one before telling a client the issue is gone.
How the brief has to deal with standards and preservation
Each argument in the appellant’s brief must include a statement of the applicable standard or standards of review and supporting authorities, and facts must be supported by specific page references to the transcript, pleadings or other filed papers. MCR 7.212(C)(7). The appellee must say whether the appellant’s statement of the standards is complete and correct, and if it is not, must provide a counterstatement with supporting authorities. MCR 7.212(D)(2). A brief that gets the standard wrong invites the other side to correct it.
Where an appendix is required, it has to include the relevant transcript pages cited in support of the argument, and where a jury instruction is challenged, the language of the instruction and the discussion of it. Briefs filed in the trial court are not required in the appendix unless they pertain to a contested preservation issue. MCR 7.212(J)(3)(c)-(e). If preservation is in dispute, I make sure the record that proves it is the first thing the court sees.
The record, and what you cannot add on appeal
Appeals to the Court of Appeals are heard on the original record. MCR 7.210(A). If the transcript does not show it, the court generally cannot consider it. That is why I treat the trial itself as the first stage of the appeal: the objection, the offer of proof and the request for a ruling all become part of what the appellate court can review.
When the issue requires facts that are not in the record, the appellant may move to remand to the trial court. The motion must identify an issue to be reviewed and show either that the issue is of record and must be initially decided by the trial court, or that development of a factual record is required for appellate consideration. MCR 7.211(C)(1)(a). A remand motion is a request, and granting it is up to the court. I decide early whether one is needed, because it changes the schedule.
Why this matters differently in civil and criminal appeals
In a civil appeal the starting point is the raise-or-waive rule, so a point not argued below is probably lost. In a criminal appeal the forfeiture and plain error framework gives an unpreserved claim a narrow path. A criminal defendant whose lawyer did not object may also have an ineffective assistance claim, which usually needs a factual record built in a separate hearing. People v Ginther, 390 Mich 436 (1973). I sort each issue into preserved, forfeited or waived before I decide how to present it, and I raise only the issues that can carry weight.
Choosing issues is part of this. A brief with fewer, better issues that fit the right standard is usually stronger than one that raises everything. I tell clients which of their complaints I would not raise and why.
How I handle a standard of review or preservation question
- Read the record. I go through the transcripts, the motions and the orders to see what was actually raised and what the judge ruled.
- List the issues. For each possible issue I note the ruling, the objection and the page where it happened.
- Sort by standard. De novo, clear error, abuse of discretion or plain error, since the standard changes what has to be shown.
- Check waiver. I look for places where a lawyer approved the ruling on the record, because waived error is not reviewed.
- Look for the way back in. If an issue was not preserved, I check for a motion for new trial, a motion to remand or another route before the deadline passes.
- Pick the issues. I recommend which issues to brief and which to leave out, and tell you why.
- Write to the standard. Each argument states its standard and answers the question the court will ask about it.
What I need from you
Bring the judgment or order, the transcripts if you have them, and the motions and responses. Tell me who your trial lawyer was and what was said about the issues you want to raise. If something happened in the case that you think was unfair but nobody objected, tell me anyway, and tell me the date. Do not assume an issue is preserved because it was discussed in the hallway or in an email. It has to be in the record.
Where these appeals are decided around Kent County
I handle appeals for clients in Grand Rapids, Kentwood, Grandville, Wyoming and across Kent County. The preservation questions begin in the court where your case was tried, whether that is a district court, the Kent County Circuit Court or the probate court, and the appeal is heard on the record made there. MCR 7.210(A). The Kent County district courts are set by statute: the 61st serves the city of Grand Rapids, the 59th serves Grandville and Walker, the 62A serves Wyoming, the 62B serves Kentwood, and the 63rd serves the rest of the county. MCL 600.8128a; MCL 600.8130. The circuit court for Kent County is the seventeenth judicial circuit. MCL 600.518. I confirm the court and the record at the consultation.
Why people hire me for a standards of review or preservation problem
You work directly with me, the lawyer handling your appeal. I give you the strengths and weaknesses straight, including when an issue was lost in the trial court and what, if anything, can still be done about it. I read the record and the rules before I advise you, and then we decide together how to proceed.
Fees depend on the matter, its complexity and the work required. I explain my fee arrangement at the consultation, before you decide whether to hire me.
Questions I hear from people deciding which issues an appeal can raise
What are the standards of review on appeal in Michigan, and why do they matter?
The standard of review tells the appeals court how much deference to give the trial court. Legal questions and summary disposition rulings are reviewed de novo, meaning without deference. Findings of fact are not set aside unless clearly erroneous under MCR 2.613(C). Discretionary rulings are reviewed for abuse of discretion. MCR 7.212(C)(7) requires each argument in a brief to state the applicable standard.
What does abuse of discretion mean when a Michigan trial court ruling is appealed?
Michigan appellate courts say a trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. In People v Babcock, the Michigan Supreme Court explained that when the trial court selects one of those principled outcomes, the reviewing court defers to the trial court’s judgment.
What does it mean to preserve an issue for appeal in Michigan?
Preserving an issue generally means raising it in the trial court, by objection or motion, so the judge can rule on it. Michigan generally follows a raise-or-waive rule: Walters v Nadell says a failure to timely raise an issue waives review of that issue on appeal, though a court has inherent power to review an unraised issue to prevent a miscarriage of justice. In criminal cases an unpreserved claim is treated as forfeited rather than waived, so it may still get plain error review.
Can I still appeal an error my lawyer did not object to at trial in Michigan?
Sometimes, in a criminal case, under the plain error rule. In People v Carines, the Michigan Supreme Court held that to avoid forfeiture you must show that an error occurred, that it was plain (clear or obvious), and that it affected substantial rights, which generally means it affected the outcome. Even then, reversal is warranted only in limited circumstances.
What is the record on appeal in Michigan, and who orders the transcripts?
Michigan appeals are heard on the original record, which includes the documents filed in the lower court, the transcripts, and the exhibits introduced. The appellant is responsible for securing the full transcript of testimony and other proceedings unless the court orders otherwise; appointed-counsel criminal appeals and child protective appeals follow separate transcript procedures in MCR 6.425(G) and MCR 3.993(E). The court reporter must file a certificate within 7 days after a transcript is ordered and file the transcript within the time MCR 7.210(B)(3) sets.
Can I give the Michigan Court of Appeals new evidence the trial court never saw?
Generally no. Under MCR 7.210(A), the Court of Appeals hears an appeal on the original record: the documents filed below, the transcripts, and the exhibits. If an issue must first be decided by the trial court or a factual record has to be developed, you can move to remand under MCR 7.211(C)(1), supported by an affidavit or offer of proof about the facts to be shown at a hearing. Granting that motion is up to the court.
What do I have to do to preserve a sentencing guidelines scoring error for appeal in Michigan?
Under MCR 6.429(C), you cannot raise on appeal a challenge to guidelines scoring, or to the accuracy of information relied on in sentencing, for a sentence within the guidelines range unless you raised it at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the Court of Appeals. A motion to correct an invalid sentence under MCR 6.429 is one way to raise it.
Related Michigan pages
- Michigan appeals lawyer
- Criminal appeals
- Civil appeals
- Motions for reconsideration and relief from judgment
- Trial, sentencing and habitual offender
I handle appeals in Michigan for either side, with attention to the standard of review and to what was preserved below. Contact me 24/7 by phone or email. Your Rights, My Fight! Call for a free initial consultation.
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Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan.
This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.