Andrew M. Mead


It is not unusual for an appellate court to simply announce: “In the circumstances of this case, the trial justice did not abuse his discretion ....” No further clarification or elaboration is offered by the learned justices of the court. The parties are left with a final judgment, but little understanding of the appellate court's review process. Although the objective of finality is satisfied, the objective of clarity is ignored. When litigants and counsel are faced with similar factual or legal circumstances in the future, they remain without guidance or insight into the factors that the appellate court deemed to be of importance in deciding the issue. An appellate court's bald statement that a trial court did—or did not—abuse its discretion accomplishes nothing beyond the conclusion of a pending appeal. There is no unique legal process that is invoked by the unadorned reference to the appellate standard of review known as “abuse of discretion.” It is a highly flexible and malleable term that is applied to widely differing circumstances with equally differing results. Scholars, lawyers, and judges have struggled mightily with the concept over the years. Some have suggested that the appellate courts have failed to create a cohesive line of reasoning in cases citing abuse of discretion and have simply invoked the concept as a sort of blunt instrument to be used in dispatching the decisions of trial judges and substituting those of the appellate court. Trial judges often feel quite severely chastised or rebuked by a finding that they have “abused their discretion.” After all, the term “abuse” tends to connote some dark act of malfeasance. It suggests that the trial judge has done something that is terribly out of line. This unfortunate choice of language has been noted by legal scholars. In response to this, the New Hampshire Supreme Court has abandoned the language altogether in favor of the term “sustainable exercise of discretion.” As of this writing, the Maine Law Court has utilized this language on several occasions.

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