Document Type



In 1997 the Illinois Supreme Court amended Rule 341 to require that appellants include in their legal briefs a statement of the applicable standard of review for each issue on appeal.In adopting this amendment, Illinois courts somewhat belatedly joined a national trend focusing heightened attention on a difficult yet critical aspect of appellate practice: the degree of deference an appellate court should give to various determinations of courts, juries, and administrative agencies when the propriety of those determinations is on appeal. In a 1992 article recommending that Rule 341 be amended, Professor Timothy O’Neill of The John Marshall Law School decried the general lack of adequate discussion and analysis of the appropriate level of appellate review in Illinois criminal cases and contrasted that lack of attention to the growing debate over the issue in the federal courts.In 1995, then-Associate Dean and Professor Susan L. Brody of John Marshall joined Professor O’Neill in advocating an amendment to Supreme Court Rule 341. The goal of this article is to chronicle and assess developments in Illinois standards of review since the publication of the O’Neill and Brody article in 1995, with particular emphasis on the standard of review for mixed questions of fact and law in civil cases. Because recent changes in the applicable standards of review in Illinois have been largely based on federal precedents, Part I contains an overview of federal standards of appellate review with respect to determinations by trial courts and administrative agencies. Turning to the underlying purposes and rationales for standards of review, Part II describes the limitations of the traditional “fact versus law” distinction as a method of choosing applicable standards of review and compares the so-called “functional approach” for determining the appropriate standard. Part II then discusses federal courts’ treatment of mixed questions of fact and law under both the traditional and functional approaches. Against this backdrop, Part III compares the traditional Illinois standards of review applicable to conclusions of law and findings of fact by various decision-making bodies, focusing principally on Illinois Supreme Court decisions. Part IV then chronicles and analyzes Illinois developments in the supreme court’s treatment of mixed questions since 1995. Included is an analysis of the process by which the court appears to be changing standards of review for mixed questions of fact and law. Part V analyzes the potential impact of the Illinois Supreme Court’s adoption of a new, intermediate standard of review. This article recommends that the supreme court take further steps toward articulating the functional or policy grounds that underlie the court’s designation of the level of deference to accord to determinations of mixed questions by trial courts and administrative agencies, taking into account the ways in which Illinois decisionmaking bodies do and do not share similar institutional concerns with their federal counterparts. The article also recommends that the court take further steps to clarify the source, scope, and applicability of the new intermediate standard of review. Part VI of the article concludes that Illinois law governing standards of review is no longer in quite such a “sorry state.” Nevertheless, treatment by Illinois courts of mixed questions of fact and law on appeal is indeed “mixed up” at present in that divergent approaches are prevalent and the reasons for the divergence are often unclear. Thus, further efforts by the courts to clarify the meaning and scope of the new standard would benefit decision-makers and practitioners alike.

Publication Date


Original Citation

Kathleen L. Coles, Mixed Up Questions of Fact and Law: Illinois Standards of Appellate Review in Civil Cases Following the 1997 Amendment to Supreme Court Rule 341, 28 S. Ill. U. L.J. 13 (2003).


College of Law

Legacy Department

College of Law





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