In a recent oral argument before the Idaho Supreme Court, the first question asked was, “Tell me about the discretion available to the magistrate.” This question guided the entire oral argument from that point forward, even though the primary issue before the Court was the interpretation of a statute.

Similarly, a recent pre-trial conference in front of a district court judge resulted in an explanation that he had two trials set at the same time, and that due to limitations on courtrooms and the number of available court reporters, he was required to select one of the trials to go forward. The district judge explained that he had no specific guidelines as to how he made the decision, and that he believed it was likely a discretionary decision. He chose the criminal case because he believed it was the more pressing matter and reset the civil case.

As practitioners, when we submit an issue to a judge, we often think that the only decision available to the trial court is either the correct decision (i.e., the outcome we advocate for) or the incorrect decision (i.e., the outcome the other side advocates for). However, this is too narrow of a view.

Many decisions made by trial courts are discretionary decisions, and the judge may have substantial authority to choose the option she/he thinks is correct, even if that decision is outside what the parties advocated for. In the situations mentioned previously, a discretionary issue may involve statutory interpretation, which is ultimately a legal issue. And the district judge was probably right that he had discretion to choose which case would go forward.

For us, all of this dredges up questions on how much discretion trial courts have and whether there are situations where trial courts have more discretion than others. This article will discuss the abuse of discretion standard, and then address several applications to show that, in practice, the abuse of discretion standard is situationally dependent.

What Does It Mean That Trial Courts Have Discretion?

In the law, different standards apply based on the issues before the court. Sometimes, the issue is a question of fact, meaning that two or more possible factual scenarios occurred, and someone needs to decide which one is more likely to be true.[i] A common example is whether the light was red or green when the car entered the intersection.[ii] In other situations, the issue is a question of law, meaning that the issue concerns the application of a legal principle. An example of this would be the interpretation of a statute.[iii]

It is tempting to say that discretionary decisions fall somewhere between the two poles of factual and legal issues. However, discretionary decisions are a completely different beast altogether. Questions of fact are for the fact finder, who, again, determines whatever they believe to be most likely to be true.[iv] Questions of law are decided by the court,[v] and there is typically one correct answer under the circumstances. But for discretionary issues, the question is one for the trial judge, who typically has a broad range of available options.

Discretionary decisions usually, but not exclusively, apply to procedural issues. A judge has discretion to grant or deny a request to amend a pleading,[vi] for punitive damages,[vii] to sanction a party for discovery abuses,[viii] or to set or move a trial date.[ix] Discretion also usually applies to evidentiary decisions.[x] However, unlike factual findings, these decisions are not made because one result is more probable than another, and unlike legal conclusions, there is not one correct answer.

So that begs the question: how much discretion is available to the trial court?

General Guidelines on Applying Discretion

Though it may sound jaded, a trial court has as much discretion as the Idaho Supreme Court allows. Thus, at times, it appears a discretionary decision is only wrong if an appellate court determines that the trial court abused its discretion.

The legal standard of review for determining whether an abuse of discretion has occurred was recently set forth in detail in the Lunneborg case: a trial court acts within its discretion if it “(1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.”[xi]

These four factors set the boundaries of discretion and make it clear that there is no such thing as unlimited discretion. It follows that every discretionary decision has limits, including the legal standards applicable to the discretionary decision. However, on their own, the four Lunneborg factors are not very descriptive.

The first factor requires the trial court to know whether an issue is discretionary. It is rare that a trial judge fails to recognize when a discretionary decision is discretionary, so there is little discussion in Idaho caselaw regarding the first Lunneborg factor. The only time the factor is likely to be an issue is when the trial judge views the decision as mandatory rather than discretionary.

The second Lunneborg factor simply requires the trial court to act within the boundaries of the discretion allowed. For example, consider a motion in limine. Though motions in limine are discretionary with the trial court,[xii] a trial court likely could not grant dispositive relief through a motion in limine.[xiii] Instead, rulings on motions in limine typically are limited to granting, denying, or waiting until trial to rule on evidentiary issues.[xiv] Thus, there are boundaries on what options are available to the trial court.

The third Lunneborg factor requires the trial court to act consistently with the legal standards applicable to the choices available. In other words, there is a legal aspect (i.e., a question of law) to discretionary decisions. As discussed in more detail in the following, there are legal limits on discretionary decisions, and this appears to be where most discretion is abused.

Finally, under the fourth Lunneborg factor, the trial court must apply some sort of reasoning to its decision, and the decision cannot be based on whim, caprice, or chance. This is a relatively low bar to meet.

Discretion Can Be Extremely Broad

While there are always limits on discretion, these limits can be very broad. For example, Idaho case law on the review of evidentiary rulings suggests very little in the way of guidelines as to admissibility. “We give our trial courts broad discretion in the admission of evidence at trial and will reverse their decisions on these evidentiary questions only when there has been a clear abuse of discretion.”[xv]

What sort of broad limits could apply? Well, for starters, one limit is the Idaho Rules of Evidence. But even the rules of evidence should be construed broadly “so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”[xvi]

Not only are the rules to be construed broadly, but the Idaho Supreme Court has dictated that, “[e]ven where a trial court has erred in admitting evidence, […] error is disregarded unless the ruling affected a substantial right of the party.”[xvii] This suggests that it is difficult to convince an appellate court to overturn an evidentiary decision of a trial court. And it is.

Similarly, the trial court’s discretion regarding scheduling is very broad. A trial court has “inherent power to regulate its calendar, to efficiently manage the cases before it.”[xviii] The limits on this inherent power are based on the specific situation. For example, if a scheduling order is being modified, under Idaho Rule of Civil Procedure 16 “the court may expedite justice, but it must always do substantial justice.”[xix]

Amendments to pre-trial orders under Rule 16 are “to be freely granted, absent bad faith or prejudice to the opposing party.”[xx] Rule 16 itself states that modification of a scheduling order “must not be modified except by leave of the court on a showing of good cause or by stipulation of all the parties and approval of the court.”[xxi]

These rules suggest a number of limitations before a scheduling order can be modified. That being said, it is difficult to find an Idaho case indicating that a trial court’s scheduling decisions were an abuse of discretion.

In another example, courts have discretion to allow or deny untimely filings.[xxii] The civil rules, such as Idaho Rules of Civil Procedure 7(b)(3)(H) and 56(b)(3), suggest that variations in timing rules may only be allowed for “good cause shown.” The Idaho Supreme Court has explained that “[t]he purpose [of timing rules] is to give the opposing party an adequate and fair opportunity to support its case.”[xxiii]

The Idaho Court of Appeals has further explained, “[w]e do not condone a litigant’s disregard of these time restrictions. However, the purpose of such rules is to provide sufficient notice of issues to be addressed, and relief sought so that the opposing party may adequately prepare to present its position.”[xxiv] This language suggests that the limitations on changing deadlines are fairly strict. However, it is difficult to find a case suggesting that a trial court abused its discretion by allowing or disregarding untimely filings.[xxv]

These are just a few examples of issues that may arise when a trial court uses its very broad discretion to make decisions. However, even in the broadest of situations, there are still inherent limits on what a court may or may not do.

Discretion Can Be Extremely Narrow

Just as there are situations where discretion can be broad, there are discretionary determinations that can be made where the discretion available is extremely limited. Two examples of this arise in the area of attorney’s fees and costs.

First, an award of attorney’s fees includes both discretionary and legal issues. Whether a particular attorney fee statute applies is a question of law.[xxvi] Who the prevailing party is and whether the requested fees are reasonable are discretionary questions governed by the guidelines provided in Idaho Rule of Civil Procedure 54(d) and (e).[xxvii]

Despite this, the Idaho Court of Appeals has stated, “[u]nder some circumstances application of these standards requires a holding that one party is the prevailing party on a particular claim as a matter of law.”[xxviii] In other words, certain circumstances may actually compel a particular discretionary result.

For example, it may be an abuse of discretion for a judge to say that a plaintiff who pursued a single claim, prevailed on that claim, and no counterclaims were asserted by the defendant, was not the prevailing party.[xxix] Similarly, it may be an abuse of discretion for a judge to say that a plaintiff in a personal injury case is a prevailing party if the plaintiff was assigned 50% of the fault (and therefore takes nothing against a defendant per Idaho Code section 6-802).

A second example relates to discretionary costs. Pursuant to Rule 54(d)(1)(C), there are 11 types of costs that every prevailing party is entitled to as a matter of law. Any other costs must be requested as “discretionary costs” pursuant to Rule 54(d)(1)(D). Though Rule 54 suggests that the award is discretionary, there are severe limits placed on awards of this nature.

Specifically, the requested discretionary costs must be “necessary and exceptional costs, reasonably incurred, and should in the interest of justice be assessed against the adverse party.”[xxx] Idaho case law places further limits on any discretionary costs award. Costs are only exceptional if the case itself is exceptional.[xxxi] A cost that is ordinary or reasonably expected in a case is not exceptional.[xxxii] The trial court is required to consider the costs based on the nature of the case itself, and not from the perspective of cases generally.[xxxiii] Also, the trial court is required to consider “whether there was unnecessary duplication of work, whether there was an unnecessary waste of time, the frivolity of issues presented, and creation of unnecessary costs that could have been easily avoided.”[xxxiv] Further, discretionary costs cannot be awarded without explanation: “The trial court must also make express findings about why discretionary cost items should or should not be allowed.”[xxxv]

Thus, for something that is labelled “discretionary,” there are a significant number of hurdles that must be surmounted before the trial court can exercise its discretion. That being said, if all the precursors are met, then the trial court does have the ability and the discretion to award such costs.[xxxvi]

When Discretion Is a Matter of Law

The third Lunneborg factor requires the trial court to act “consistently with the legal standards applicable to the specific choices available to it.”[xxxvii] This suggests that discretionary decisions have a legal aspect to them. In some cases, this may be a minimal issue at best. For example, in determining when to set a trial (or whether to reset a trial) in civil cases, there may not be many legal issues involved. However, in criminal cases calendaring is a substantial issue, where speedy trial rights must be considered.

Another example is child support orders. “A magistrate court’s decision to modify child support will be set aside only for an abuse of discretion.”[xxxviii] If the decision hinges on the interpretation and application of a statute or the Child Support Guidelines,[xxxix] “[i]nterpretation of a statute is a question of law.”[xl]

Thus, it is possible for a discretionary issue to hinge completely on legal issues, and thus, a discretionary decision can be overturned because the trial court applied the law incorrectly. This may seem strange, as discretionary decisions typically appear to allow the trial court to select what they believe is the best option. The reality is, though, that discretion may be absolutely limited by application of the law.

What to Look for When There Is a Discretionary Decision

Whether discretion is broad or narrow, the reality is that there is always a limit on the trial court’s discretion. Thus, every time a discretionary decision is before a judge, practitioners should have in mind the Lunneborg standard.

Further, no discretionary issue is as simple as just trying to convince the trial court that a particular position is the most logical or most equitable. Instead, parties should be aware (and make the court aware) of any limitations that apply to the exercise of discretion. This means being aware of applicable case law, rules, and statutes that inherently limit discretion.

Understanding a court’s discretion and the limits of that discretion is essential because “[f]ailing to demonstrate that an abuse of discretion occurred under any part of the test is fatal to an argument that the trial court abused its discretion.”[xli] In other words, there must be a challenge to an element of the Lunneborg abuse of discretion test, and to challenge the elements, the parties and courts must be aware of the limitations placed on the court’s discretion.

In summary, discretionary decisions are not always discretionary, and every discretionary decision has some limit. These limits should be searched and understood by counsel before any discretionary issue is placed before a court.

Stephen Adams is a partner with Gjording Fouser Hall in Boise. He is the President-Elect of the Idaho Association of Defense Counsel and past president of the Idaho State Bar Appellate Practice Section. He is not currently running for anything else and will politely decline any request to do so. (This is a lie. He has issues and will sign up for anything you ask. Civil Rules Committee, I’m looking at you.)

Christopher Pooser is the Office Managing Partner at Stoel Rives’s Boise office, where he maintains an appellate practice. He is the co-founder and a past president of the Idaho State Bar Appellate Practice Section and a fellow of the American Academy of Appellate Lawyers.

[i] Picatti v. Miner, 165 Idaho 611, 621, 449 P.3d 403, 413 (2019).

[ii] Davis v. Blast Props. (In re Certification of Question of Law), 551 P.3d 706, 710 (Idaho 2024).

[iii] Watkins v. City of Ponderay, 172 Idaho 461, 463, 533 P.3d 1257, 1259 (2023).

[iv] State v. Perry, 139 Idaho 520, 525, 81 P.3d 1230, 1235 (2003).

[v] Doe v. BSA, 159 Idaho 103, 105, 356 P.3d 1049, 1051 (2015).

[vi] Black Canyon Racquetball Club v. Idaho First Nat’l Bank, N.A., 119 Idaho 171, 175, 804 P.2d 900, 904 (1991).

[vii] Manning v. Twin Falls Clinic & Hosp., 122 Idaho 47, 52, 830 P.2d 1185, 1190 (1992).

[viii] Gem State Roofing, Inc. v. United Components, Inc., 168 Idaho 820, 830, 488 P.3d 488, 498 (2021).

[ix] I.R.C.P. 16(a)(3).

[x] Christmann v. State Farm Mut. Auto. Ins. Co., 172 Idaho 714, 721, 535 P.3d 1087, 1094 (2023).

[xi] Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

[xii] Puckett v. Verska, 144 Idaho 161, 167, 158 P.3d 937, 943 (2007).

[xiii] Wash. Fed. v. Hulsey, 162 Idaho 742, 747, 405 P.3d 1, 6 (2017).

[xiv] See, e.g., Noel v. City of Rigby, 166 Idaho 575, 587–88, 462 P.3d 103, 115–16 (2020) (setting forth rules for preserving an issue for appeal if a motion in limine is granted or denied); Phillips v. Erhart, 151 Idaho 100, 106, 254 P.3d 1, 7 (2011) (setting forth the process for if the trial court reserves ruling on a motion in limine until trial).

[xv] Baker v. Shavers, Inc., 117 Idaho 696, 698, 791 P.2d 1275, 1277 (1990).

[xvi] I.R.E. 102.

[xvii] Orthman v. Idaho Power Co., 134 Idaho 598, 603, 7 P.3d 207, 212 (2000).

[xviii] Dep’t of Labor & Indus. Servs. ex rel. Hansen v. E. Idaho Mills, Inc., 111 Idaho 137, 139, 721 P.2d 736, 738 (Ct. App. 1986).

[xix] Stevenson v. Steele, 93 Idaho 4, 9, 453 P.2d 819, 824 (1969).

[xx] Dep’t of Labor & Indus. Servs. ex rel. Hansen, 111 Idaho at 139, 721 P.2d at 738.

[xxi] I.R.C.P. 16(b)(3).

[xxii] See, e.g., Arregui v. Gallegos-Main, 153 Idaho 801, 804–05, 291 P.3d 1000, 1003–04 (2012).

[xxiii] Sun Valley Potatoes, Inc. v. Rosholt, Robertson & Tucker, 133 Idaho 1, 5, 981 P.2d 236, 240 (1999).

[xxiv] Matter of Est. of Keeven, 126 Idaho 290, 296, 882 P.2d 457, 463 (Ct. App. 1994).

[xxv] There are myriad cases discussing the appropriate use of discretion to approve or reject untimely evidence. See, e.g., Ciccarello v. Davies, 166 Idaho 153, 456 P.3d 519 (2019); Summerfield v. St. Luke’s McCall, Ltd., 169 Idaho 221, 232, 494 P.3d 769, 780 (2021); Plasse v. Reid, 172 Idaho 53, 529 P.3d 718, 727 (2023), reh’g denied (June 8, 2023); Hickman v. Boomers, LLC, No. 50543, 2024 WL 3802812, at *9–10 (Idaho Aug. 14, 2024); Midtown Ventures, LLC v. Capone as Tr. to Thomas & Teresa Capone Living Tr., 173 Idaho 172, 539 P.3d 992, 1001–02 (2023).

[xxvi]  See, e.g., Merrill v. Gibson, 139 Idaho 840, 845, 87 P.3d 949, 954 (2004) (explaining that the language of Idaho Code section 12-120(3) is mandatory where the statute applies).

[xxvii] “The determination of who is a prevailing party is committed to the sound discretion of the trial court.” Lower Payette Ditch Co. v. Harvey, 152 Idaho 291, 295–96, 271 P.3d 689, 693–94 (2012) (cleaned up). “The calculation of reasonable attorney fees is within the discretion of the trial court.” City of McCall v. Seubert, 142 Idaho 580, 587, 130 P.3d 1118, 1125 (2006).

[xxviii] Daisy Mfg. Co. v. Paintball Sports, 134 Idaho 259, 262, 999 P.2d 914, 917 (Ct. App. 2000).

[xxix] Clarke v. Latimer, 165 Idaho 1, 6, 437 P.3d 1, 6 (2018).

[xxx] I.R.C.P. 54(d)(1)(D).

[xxxi] See Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 307, 314, 109 P.3d 161, 168 (2005); see also Easterling v. Kendall, 159 Idaho 902, 917, 367 P.3d 1214, 1229 (2016).

[xxxii] Easterling, 159 Idaho at 917, 367 P.3d at 1229 (“Because expert testimony is required in every medical malpractice case, expert witness fees in these cases are generally considered ordinary—not exceptional.”); Nightengale v. Timmel, 151 Idaho 347, 355, 256 P.3d 755, 763 (2011), abrogated on other grounds by State v. Cox, 169 Idaho 14, 490 P.3d 14 (2021) (“[C]ertain cases, such as personal injury . . . generally involve copy, travel and expert witness fees such that these costs are considered ordinary rather than ‘exceptional.’”); Seubert, 142 Idaho at 588–89, 130 P.3d at 1126–27 (“[R]outine costs associated with modern litigation overhead” are not exceptional).

[xxxiii] Hayden Lake Fire Prot. Dist., 141 Idaho at 314, 109 P.3d at 168.

[xxxiv] Hoagland v. Ada Cnty., 154 Idaho 900, 914, 303 P.3d 587, 601 (2013).

[xxxv] Valiant Idaho, LLC v. N. Idaho Resorts, LLC, 164 Idaho 222, 230, 428 P.3d 800, 808 (2018).

[xxxvi] See, e.g., Snap! Mobile, Inc. v. Vertical Raise, LLC, 544 P.3d 714, 734 (Idaho 2024), reh’g denied (Mar. 28, 2024).

[xxxvii] Lunneborg, 163 Idaho at 863, 421 P.3d at 194.

[xxxviii] Margairaz v. Siegel, 137 Idaho 556, 558, 50 P.3d 1051, 1053 (Ct. App. 2002).

[xxxix] I.R.F.L.P. 120.

[xl] Chester v. Wild Idaho Adventures RV Park, LLC, 171 Idaho 212, 222, 519 P.3d 1152, 1162 (2022).

[xli] McCreery v. King, 172 Idaho 598, 607, 535 P.3d 574, 583 (2023).