Abuse of Discretion—Flying Pigs And Reversible Deference Error

There is nothing more fundamental to appellate litigation and decision making than the applicable standards of review. Informed decisions as to appeal, appellate briefing as well as an understanding of any holding of an appellate decision cannot be made without understanding the deference regime controlled by the review standards.

One of the most pervasive yet elusive is the long-standing “abuse of discretion” standard. The abuse of discretion standard is rooted in the belief that the trial court is better situated to examine the issue and associated considerations or factors and as to the overall impact upon the proceeding in general. Admission of evidence, witness competency, jury questioning and disqualification are just a few of the myriad of issues and procedures subject to the abuse of discretion standard of review. More generically, an abuse of discretion standard will apply when the issue or matter is imbued with judgment, choice, sensitivity and presence as opposed to being informed by somewhat broader concepts that are legal or rules of law. It is viewed by many as the death knell for any realistic chance of success on appeal absent compelling circumstances due to the degree of deference usually or perceived to be afforded. Indeed, discretionary decision making contemplates a range of equally “right” outcomes or rulings as opposed to a single right or wrong answer.

One need not look far for evidence of the formidable nature of the abuse of discretion standard of review. For instance, in the last three weeks (February 9-23, 2018) the Supreme Judicial Court and Appeals Court have collectively issued approximately 69 decisions. The abuse of discretion standard was identified to apply in approximately 34 cases or issues with only one reversal.

The definitions afforded “abuse of discretion” in both Massachusetts and the First Circuit demonstrate the inherent elusiveness and are far from self-actualizing. See Robert C. Post, “The Management of Speech: Discretion and Rights,” 1984 SUP. CT. REV. 169, 169 (1984)(“Discretion is pervasive in our legal system, and yet we scarcely know what it is.”). All told there are various nuances ranging from the need to show that the trial court lost its senses to more nuanced equating such abuse as the same as “legal error.” The First Circuit defines an abuse of discretion to be where the reviewing court forms “a definite and clear conviction that trial court made a clear error of judgment” and that errors of law are, by definition, an abuse of discretion. United States v. Baker, 852 F. 3d 97 (1st Cir. 2017); Koon v. United States, 518 U.S. 81, 94-102 (1996). As recently reaffirmed as to the discretion afforded rulings on motions to dismiss, the Court noted that dispositive deference will be given to “the district court for any adequate reason apparent from the record.” Hamilton v. Partners Healthcare Systems, Inc., 879 F. 3d 407, 414 (1st Cir. 2018) citing Universal Commc’n Sys., Inc., 478 F. 3d 413, 418 (1st Cir. 2007).

In 1920, the Supreme Judicial Court set out a definition of “abuse of discretion” which stood for more than 74 years.         

By such expression is implied the absence of arbitrary determination, capricious disposition, or whimsical thinking. An exhibition of ungoverned will, or a manifestation of unbridled power is not the use of discretion. The word imports the exercise of discriminating judgment within the bounds of reason. Discretion in this connection means a sound judicial discretion, enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy nor warped by prejudice nor moved by any kind of influence save alone the overwhelming passion to do that which is just.

Davis v. Boston Elev. Ry., 235 Mass. 482, 502 (1920). The Court in Davis summed up its conception by stating that a decision or ruling would constitute an abuse of discretion only where “no conscientious judge, acting intelligently, could honestly have taken the view expressed.” This articulation was appropriately “retired” in 2014 as it was found “so deferential that, if actually applied, an abuse of discretion would be as rare as flying pigs.” L.L. v. Commonwealth, 470 Mass. 169, 184 n. 27 (2014). The Appeals Court made a similar observation in a 2000 decision. Long v. Wickett, 50 Mass. App. Ct. 380, 386 n 8 (2000). In its place, the standard was defined, in general terms, where the lower court makes “a clear error of judgment in weighing” the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.” Id. In short, abuse of discretion does not require some “invidious connotation” or “egregious mistake” but rather “it signifies only that the decision-making process was not completely conducted within the established framework of relevant standards and did not take into account all the proper factors identified by relevant case law as necessary to inform the discretionary exercise.” Long, 50 Mass. App. Ct. at n.8.

To be sure, in assessing an appeal where the governing standard is an abuse of discretion as to a primary or a series of issues on appeal militates profound caution and careful consideration in evaluating the appeal and its chances. It remains a formidable obstacle and may well constitute a decisive factor in the decision whether to pursue an appeal. Nonetheless, all hope is not lost and a flying pig is not required. A functional check-list in the evaluation in assessing a discretionary deference issue for potential appeal would include the following:

  • Determine if the objection or challenge was properly preserved as challenging an unpreserved abuse of discretion ruling is likely not worth appellate effort;
  • If the applicable standard or review is abuse of discretion do not ignore it or pretend it does not apply or otherwise simply rehash impassioned pleas made below;
  • Identify the reasons for why the issue is one subject to deference and where on the spectrum of deference it lies and identify reasons why, if applicable, there are identifiable limits to the discretion in the context. The scope of review will or should be tied directly to the reason or reasons why the category or type of decision at issue is committed to the trial court’s discretion in the first place;
  • Identify the factors or considerations courts have identified in applying the discretion including any varying weight or importance given to each consideration;
  • Examine whether the identified factors and considerations were appropriately identified by the court including whether the varying weight was identified and appropriately considered;
  • Assess and identify all arguments as to misapplication or weight accorded to the factors or considerations;
  • The more the issue is over the manner the decision was made the greater the weight of the argument as to abuse of discretion. Similarly, the more the appellate issue is no longer an application of individual judgment as to accepted factors and considerations but a broader legal right of what factors should be considered, the more the issue can be framed in terms of a question of law as opposed to abuse of discretion; and
  • Identify arguments that the trial court’s discretionary decision will serve as poor and wrongful precedent for other trial courts in addressing the issue (i.e. that the result is harsh and unjust).


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