Civil Appeals

The following content is the procedure used to get results for clients needing to appeal to their legal matter. It is not to be construed as a template to get your desired results but for informational purposes only.

Please note that the following information does not address writ petitions or criminal appeals, only standard civil appeals.

1. PRESERVATION OF ERROR, STANDARDS OF REVIEW, AND INITIATING APPELLATE REVIEW

1. Preservation of Error:
   1. Objection must be:
      • timely,
      • specific,
      • decided by the trial judge (TJ) and
      • appear in the record.
   2. Get a definitive ruling from the TJ, even if you must insist.
   3. Ruling must be on the record so
   4. Have a court reporter present.

1. Standard of Review (SOR):
   1. Decisions of Fact – 2 forms:
      1. If evidence below is undisputed, whether the decision is clearly erroneous.
      2. If evidence below is disputed, whether the decision is supported by competent substantial evidence (CSE).
   2. Decisions of Law – De Novo – Appellate court may reach its own conclusions independent of the decisions of the TJ.
   3. Discretionary Decisions – Abuse of discretion.

1. Initiating Appellate Review:
   9. Standard appeal: file notice of appeal (NOA) within 30 days of rendition of final judgment R. App. P. 9.110(b).
      1. Ok to file early by mistake but malpractice to file late.
      2. Worst case scenario if you file early: appellate court kicks jurisdiction back to TJ and you lose the filing fee (and suffer a bit of embarrassment).
   10. Once a NOA has been filed, the TJ is w/o subject matter jurisdiction (SMJ) to amend/modify/clarify the Order/Judgment appealed.
       1. This prohibition does not apply to merely clerical errors.
       2. This can be lifted if the appellate court releases jurisdiction to allow the lower tribunal to address a pending matter (e.g., a Motion for Rehearing, Motion to Set Aside the Final Judgment, etc.).
   11. The appellate court is limited to reviewing the decisions of the lower tribunal and cannot resolve issues that might have been presented to the lower tribunal but were not.
   12. Initial Brief due from appellant within 70 Fla. R. App. P. 9.110(f).
   13. Answer Brief due from appellee within 30 days after service of the Initial Brief. Fla. R. App. P. 9.210(f).
   14. Record transmitted by lower tribunal’s Clerk of Court to appellate court within 110 days of filing of the NOA. Fla. R. App. P. 9.110(e).
   15. 2 choices re: Record:
       1. Prepare Initial Brief based upon entire record (or portions of record you have specified to the Court Clerk) identifying the Record by consecutively paginated numbers [use Bates Labels for convenience through Adobe Acrobat for ease of reference – e.g., R. at 19]; or
       2. Request extension of time from Appellee of additional 70 days and file an Unopposed Motion for Extension of Time to File Initial Brief.
          1. NB: This must be done well in advance of the 70 days’ expiring but
          2. Not so soon that you get an extension earlier than 60 days after filing the NOA.
          3. Benefit: You will have access to the Record before you finish drafting your Initial Brief.
       3. Reply Brief due from appellant within 30 days after service of the Answer Brief. Fla. R. App. P. 9.210(f). Limited to issues addressed in Answer Brief.
       4. BRIEF NOTE ON Cross-Appeals: If the Appellee finds erroneous rulings in the Order/Judgment appealed that my provide a basis for relief to him/her, the Appellee may cross-appeal by serving a notice w/in 10 days of service of the Appellant’s NOA or the usual deadline for filing the NOA, which is later. Fla. R. App. P. 9.110(g). Typical example: Plaintiff recovers on liability but recovers less than all of the requested damages.

                    EFFECTIVE BRIEF WRITING

1. Initial Brief Writing
   1. If you were trial counsel, resist the temptation to handle the appeal. Instead, refer it out to a neutral, appellate advocate who has not been involved to date in your case.

Reason 1: FINANCIAL

1. Let the client decide on appellate counsel. Do not interfere. If they ask you for a referral, politely offer them 3 options.
2. Furthermore, if the case is reversed, you are likely to be rehired by your former client to try the lawsuit again, a financial incentive to your firm.

Reason 2: FOREST FOR TREES

1. As trial counsel, you have lived/eat/breathed/consumed this case for, often in complex commercial litigation matters, 3-5 years.
2. You are too close to the case to be able to see the weaknesses in your own theory of the case now.
3. You are also too close to see the broader impact your decision will have upon public policy in the State of FL.
   1. If you must handle an appeal, make sure you buy and read FLORIDA APPELLATE PRACTICE by the Florida Bar, available on Lexis Nexus’ website.
   2. NB: You are limited to the record. You cannot add to the record by, e.g., filing a Request for Judicial Notice of a public record which has been created after the record was complete.
   3. Appellate judges often decide cases based on which public policy they want to promote in their own version of what constitutes an ideal society.
      1. 1st and 5th DCAs: Conservative in their view.
      2. 3rd and 4th DCSs: Liberal in their view.
      3. 2nd DCA: Moderate in their view.
   4. Identify your appellate issues.
   5. Frame the issues around the particular court with SMJ so as to appeal to them. Always be ethical but never forget that you are an advocate for your client. You can always ethically present the matter at hand in a manner which is not objectionable to your opposing counsel but frames the issue in a way that leads to a conclusion why your client must prevail.
   6. Always present your strongest issues first. Layer them in terms of strength from strongest to weakest in the outline and draft(s) of your brief.
   7. Argue to your strengths:
      1. If facts, argue the strength of the facts supporting your position.
      2. If law, argue why the law supports your position and, ultimately, leads to the only conclusion – your client must prevail.
   8. Clearly identify the SOR for each particular issue: clearly erroneous, CSE, de novo, or abuse of discretion.
   9. Vast majority of brief writing consists of:
      1. Researching case law and applicable statutes; and
      2. Reading them and then:
         1. Lay out the pertinent quotes from each case on a blank word document with perfect BlueBook citations for each case or statute.
         2. Categorize each pertinent quote under the applicably-named heading for that line of case law pertinent to your issue, thus creating a “case law outline.”
         3. Periodically readjust the arrangement of the headings of this case law outline until they exactly match your appellate brief’s outline.
      3. Structure of argument for each, individual appellate issue in brief:
         1. Assert why your position should prevail.
         2. Assert why your position furthers the public policy which appeals to that particular court.
         3. Assert your opposing party’s position.
         4. Argue factually, logically and public policy-wise why your opposing party’s position cannot work.
         5. Argue by contrast why your position works.
      4. Conclusion
         1. Do not rehash what you have already said.
         2. Appellate judges do not need to be told anything more than once.
         3. Do not add any further information or argument.
         4. Sum up perfectly the reasons why your client must prevail based on the arguments presented in your brief.
         5. If you cannot do so without repeating your entire argument, then conclude with standard language: “WHEREFORE, for all the foregoing reasons…”
         6. It is better to appear sloppy than to appear like you don’t value the appellate court’s time.

1. Answer Brief Writing
   1. Limit your issues to the issues raised by the Initial Brief.
   2. Argue that the SOR – clearly erroneous, CSE, de novo, or abuse of discretion – supports affirming the decision of the lower tribunal in your favor
   3. Two options:
      1. Restate exactly word-for-word the issues as framed by the Initial Brief
         1. CAVEAT: Most appellate issues are framed by your opponent in a way that favors a decision in his/her client’s favor.
         2. By restating the issues verbatim that way, it is as if you have conceded before you even began.
         3. BENEFIT: Most appellate judges (and their law clerks) don’t pay much attention to the heading after reading it once. By parroting your opponent’s headings, you are saving the appellate judges and assigned law clerk time they would otherwise have to spend, and they will appreciate you for it.
      2. Frame and/or restructure the appellate issues identified in an order that favors your client.
         1. Reword each issue in the way that best suits a decision in your client’s favor.
      3. Structure of argument for each, individual appellate issue in brief:
         1. Embrace the position your opponent has taken as to what your argument will be.
         2. Argue that they completely misunderstand the issue, unlike the TJ below.
         3. Reframe your issue in a way that:
            1. Makes your position look like the better one.
            2. Makes your position appeal to their public policy.
            3. Makes your opponent’s original hypothesis look untenable and, if possible, absurd.
         4. Argue why your position works and must prevail.
      4. Conclusion
         1. Same as previously stated
      5. Remember: You, as Appellee, only get one chance at this. But, the odds of prevailing are in your favor, substantially so. That is the trade-off.

1. Reply Brief Writing
   1. Frame Issues as stated in Answer Brief
   2. Structure of argument for each, individual appellate issue in brief
      1. Embrace the position your opponent has taken in the Answer Brief.
      2. Argue that they completely misunderstand the issue, not you.
   3. Argue (if applicable) that your opponent has misled the TJ into rendering this erroneous decision.
   4. Argue why your position does work and must prevail.
2. Conclusion
   1. Same as above.

1. Oral Argument (OA)
   1. To Request v. Not to Request OA
      1. Do a thorough analysis of yourself.
         1. Be as critical as you can be.
         2. Are you quiet and withdrawn? Are you an introvert?
         3. Conversely, are you brash and arrogant?
         4. These qualities will not work for OA.
         5. During OA, you must appear at all times to be
            1. humble,
            2. respectful, and
            3.  
         6. If you can stomach OA, request it every time.
            1. BENEFIT: You will know what the appellate court’s decision will be most of the time after OA has concluded.
            2. DETRIMENT: You can, if unprepared, sabotage your briefs and ultimately lose the case by submitting a poor OA which dissuades the appellate judges from your client’s position.
         7. Preparation for OA: Visit the DCA, e.g., when all/majority of your panel is scheduled to hold OA:
            1. Observe their demeanor – lenient v. strict; paying attention to OA or looking at computer monitor?; etc.
            2. Observe the issues which draw their attention.
            3. Observe the questions they ask.
         8. On day of OA, dress well, humbly, not fashionably.
         9. INTRODUCTION: “May it please the Court, my name is “John Doe” and I represent “DEF Corporation” in this lawsuit about [insert important, crisp, clean, winning summary of your entire position].
         10. HOT BENCH v. COLD BENCH:
             1. HOT BENCH: Questions start and never stop. You never really have time to present what you have prepared but only answer the appellate judges’ questions.
                1. Whenever you are presenting your OA and an appellate judge asks you a question, you must immediately stop speaking, look directly at that judge, answer the question and (once it appears the judge is satisfied with your answer and has no follow-up questions) turn immediately back to your OA.
                2. Never lean your hands on the podium. It is disrespectful to the Court. When speaking, keep your hands together, one overlapping the other, at your mid-section, using gestures appropriately.
                3. Hypotheticals/theoretical questions posed by appellate judges are the most difficult aspect of OA.
                   1. The appellate judge has already walked carefully through this hypothetical and reached a conclusion, most likely one which does not reconcile with your theory of the case and arguments presented in support thereof.
                   2. So, take a few seconds (and while time may appear to be going faster due to adrenaline from nerves, use it to your advantage to think quickly on your feet) and walk through the scenario until you reach the answer.
                   3. Then, think carefully of how this scenario can be utilized to advance your client’s position.
                4. COLD BENCH: You give your entire OA and receive minimal/no questions.
                   1. Possible Meaning: One party or the other has already won this case and OA was unnecessary.
                   2. Alternative: If the bench is cold with you but hot with opposing counsel, determine from the questions being asked of your opposing counsel if they are antagonistic or supportive of their position.
                5. Presentation:
                   1. Pre-set a timer to 20 minutes.
                   2. When called, get up slowly.
                   3. Breathe deeply and take a drink of water (if necessary).
                   4. Bring the water and a timer with you to the Podium and drink as necessary at appropriate breaks.
                   5. Present your OA.
                   6. Stop your presentation each time you receive a question.
                   7. Fully answer the question and any follow-up questions and return to your presentation.
                      1. Never ask the judge if you have finished answering his/her question and can now move on.
                   8. If Appellant, ask the Court in advance of your OA to “reserve 5 minutes for rebuttal.”
                   9. Pay attention to the clock on the podium.
                   10. Before beginning rebuttal, ask yourself if, based upon how the OA is going, whether the Court will appreciate or not appreciate a rebuttal.
                   11. If rebuttal is merited, limit it to 1-2 major issues raised by the Appellee’s OA you would like to address.
                6. Thank the Court and sit down.

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