United States: MA Appellate Practice And Procedure Monthly Bulletin

Last Updated: May 23 2018
Article by Tory A. Weigand

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).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions