Preface: This book discusses civil trials, and not criminal trials (whose procedure is more complex, per the author).
Source: p 86, Thinking Like a Lawyer: An Introduction to Legal Reasoning (2010, 2 ed) by Kenneth J. Vandevelde

 The burden of proof governs fact-finding at trial.

[1.] As discussed in chapter 2, on appeal, the court will not reevaluate the evidence against the burden of proof.

[2.] Rather, the court will evaluate the evidence only against the standard of review.

For example, in a civil case, the appellate court will examine a jury verdict only to determine whether it is supported by substantial evidence. If so, the court of appeals will affirm the judgment of the trial court, even if the appellate court itself would not have found the burden of proof to have been met. In other words, a factual finding at trial is usually not disturbed on appeal.

  1. I do not understand the differences between the bolded terms (in 1 and 2).

  2. How and why can the standard of review differ from burden of proof? I know that appellate courts decide questions of law, and not of fact, unless an error of fact is exceptionally clear.
    (I know that the required gravity (of such errors of fact) is defined with specific Modifiers, but I do not use them because they differ across jurisdictions.)

  • As an additional clarifying point, the standard of review varies depending upon whether it is a question of law (which is reviewed de novo without deference to the trial court), or some other question (e.g. whether a rule of evidence was correctly applied to the facts or whether one remedy among many available to a judge in an equity case was appropriate) which are often reviewed for an abuse of discretion. (There are other standards of review too, but they are much less common.)
    – ohwilleke
    Commented Dec 5, 2021 at 23:17

1 Answer 1


In any court, there will be situations where a judge has discretion to make some decision. The judge might have to decide "did X meet the burden of proof", and due to the situation two reasonable and competent judges could come to different conclusions. You couldn't blame either for the decision, even though they would make opposite decisions.

On the other hand, a judge might make gross mistakes. The judge might decide "X met the burden of proof" when this is clearly a mistake. That's what the appellate court is interested in.

An appellate court checks whether the judge made mistakes that a judge shouldn't make. So in this situation, the appellate court doesn't decide whether X met the burden of proof. The appellate judge decides "did the trial judge make a decision that a trial judge shouldn't have made". An appellate judge might think to himself or herself: "well, I would have decided differently, but this trial judge’s decision was one that a reasonable judge could have made", and if that is what he or she thinks, the original decision will stay intact.

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