Upon Further Review

We are getting into the crunch-time of the NFL Season, and as the games get bigger and bigger, each play, and each official's call is magnified in importance. Even the most casual fan at this point has heard of "instant replay" where the officials review and sometimes overturn a call on the field. Coach's have a limited number of these challenges and you can't challenge the challenge. If you don't know what the officials need to see when they are reviewing a call, the announcer will eventually let you know that the referee must see "incontrovertible visual evidence" to overturn the call.

Essentially then, if you are a football fan, you have some understanding of how a legal appeal works,as both are review systems to catch errors made by the neutral arbitrators of the rules. The practice of only overturning a call on the field due to "incontrovertible visual evidence" is what a court would call a "heightened standard of review." A legal appeal uses a heightened standard of appeal when considering a ruling by a trial court judge on most of his trial rulings when he is applying his knowledge of the facts of that case to the law of the case. The appeals court will only overturn a trial judge in such judgment calls if it is an "abuse of discretion." In both systems, even if the reviewing official/appellate justice thinks the ruling "on the field" was incorrect, he won't overturn it unless it rises to that "heightened standard of review." Some of the reasoning is the same. The official or trial judge is in the heat and flow of the game or trial as a whole, and, while their decisions have to be made in a split second, they often have a better vantage point or understanding of the trial. Also, practically, a balance has to be made between getting every minor ruling correct, and efficiency. A justice system or a football game that constantly grinds to a halt due to reviews of the rulings becomes so lengthy that it becomes worthless.

Some legal issues are issues of law where the appeals court can rule de novo, where it rules as if it is first deciding the issue. In that case, the appeals court doesn't have a heightened review, but can overturn if it simply finds the court was incorrect. The NFL doesn't officially have this, but I've seen officials call a penalty incorrectly on one player, consult with the other officials, and then call it on the correct player. Essentially, the officials are using a regular standard of review to overturn their own call.  

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.