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The Florida Bar Journal
January, 1998 Volume LXXII, No. 1
Top 10 Appellate Mistakes (Or Why You Need an Appellate Specialist)

by Raymond T. Elligett, Jr.

Page 41

While some may resist admitting it, all lawyers realize the practice of law
becomes more complicated and specialized each year. Appellate practice is no exception, as appellate judges have observed.

Judge Silberman of the United States Court of Appeals for the District of Columbia warns: “Effective presentation to a federal court of appeals, or to any appellate court, requires a blend of talents not necessarily found in the typical trial attorney.”1

Justice Anstead, speaking on ethics at the “Appellate Practice for the General Practitioner” Florida Bar seminar last spring, questioned if the competency provision in the Rules of Professional Conduct required trial lawyers to associate with appellate counsel, at least in significant cases.2

In the spirit of “top 10” lists, this article explores 10 mistakes lawyers should be careful to avoid when they tread into appellate waters.

1) Rendition—
Unauthorized Motions

Everyone knows you have 30 days to appeal. But not everyone appreciates the nuances of the 30 days running from the “rendition” of the order in question.

Fla. R. App. P. 9.020(h) defines rendition of an order: “An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” However, certain motions toll the rendition of certain orders as to certain parties.

The most common motions authorized to toll rendition in civil cases are motions for new trial and motions for judgment in accordance with prior motion for directed verdict (f/k/a as a motion for JNOV). Rule 9.020(h) lists all the “authorized” motions that toll rendition.

Filing a motion that is not authorized will not toll rendition of the final order. If the party who wants to appeal waits longer than 30 days from the filing of the final order to appeal because of an unauthorized motion (one that does not toll rendition), the appeal will be untimely (and will be dismissed).3

Motions that toll rendition are authorized to toll only final orders. Thus, counsel who files a motion directed to a nonfinal order may lose the opportunity to seek review of the nonfinal order (assuming it can be reviewed at that time, for example, pursuant to Rule 9.130).4

One’s initial reaction on losing the ability to seek review of a nonfinal order may be that the party always can seek review at the end of the case. Not necessarily. For example, in Irwin v. Walker, 468 So. 2d 241 (Fla. 2d DCA 1984), a party sought relief under Fla. R. Civ. P. 1.540. The trial court denied her motion and she moved for rehearing. She prevailed on her motion for rehearing and it looked like she had won. The opposing party sought and obtained a writ of prohibition because the court lacked jurisdiction to entertain the unauthorized rehearing. Of course, by then it was too late for the movant to seek appellate review of the initial denial.

An order granting a new trial is not a final order, so a motion for rehearing does not toll rendition for the purposes of filing an appeal.5

2) Rendition—
Untimely Motions

Rule 9.020(h) provides only authorized and timely motions toll rendition. Rule 9.020(h) does not reveal the timing requirements. For those one must turn to the applicable trial procedure rules.

For example, Fla. R. Civ. P. 1.530 requires that motions for new trial and rehearing be served within 10 days. A sometimes-overlooked distinction is how to count the 10 days. In nonjury trials, the 10 days runs from the date of filing of the order. In jury trials, it runs from the return of the verdict (even though judgment is sometimes not entered until later).6

Cases illustrate additional timing mistakes lawyers have made. The trial court may not enlarge the time for serving such post-trial motions.7 The 10-day period for rehearing begins to run upon filing, even if the final judgment is mailed. Thus, a party does not get any additional “mailing” time in which to serve the motion.8

3) Multi-Party Case Mistakes

Any case with more than one plaintiff and one defendant presents additional risks of appellate mistakes. A 1992 change in the rendition rule provides new opportunities.

Formerly, a timely post-trial motion by one defendant tolled the time for a co-defendant to file a notice of appeal from the same judgment.9 The 1992 amendment to Rule 9.020(h)(1) limits the effect of such motions to the movant and the party against whom relief is sought.

Thus, if two defendants suffer an adverse judgment and only one files a timely motion for a new trial, the other defendant’s appeal time runs 30 days from the filing of the judgment with the clerk. If the plaintiff wanted to appeal as to the second defendant, waiting could be fatal to its appeal.10

Multi-party cases also present the opportunity for counsel to miss their only chance to appeal. In Holton v. H.J. Wilson Co., Inc., 482 So. 2d 341 (Fla. 1986), the plaintiff sued three defendants. One of the defendants, Wilson, obtained a summary judgment. Another defendant, Holton, later moved to file a third-party complaint against Wilson. The Supreme Court held Holton was too late, and should have appealed the summary judgment Wilson obtained against the plaintiff.11

In another case, the Supreme Court held a defendant/third-party plaintiff who has appealed the judgment for the plaintiff must file a new notice of appeal for the separate judgment in favor of a third-party defendant.12

4) Filing Means Filing

The requirement of Fla. R. App. P. 9.110 and 9.130 that the appellant must file the notice of appeal within 30 days means what it says.

The notice must be physically filed within 30 days. Mailing is not sufficient, and there is no additional time for filing if the order was mailed to the party.13 In 1996, the Supreme Court affirmed the dismissal of an appeal where counsel’s office had relied on an appellate clerk’s statement that the notice of appeal only had to be postmarked by the 30th day.14

Even being five minutes late can be fatal. Consider an appellant whose courier arrives at the lower tribunal at 5:05 p.m. on the 30th day, finds it closed and the guard refuses to accept the notice, so that the courier files it the next day. In a case involving this precise factual scenario, the appellate court held the notice was untimely and dismissed the appeal.15

5) Getting the Facts Right

Most appellate judges will tell you that after scanning the statement of the issues, they read the briefs in order. The facts come first, thus creating your initial impression with the judges. Because our common law system is fact-driven, the facts set the stage for your argument. They are often the key for distinguishing what may seem to be an adverse precedent.

Trial counsel may know too many facts. They remember what their clients and witnesses told them in interviews. They remember deposition testimony. They remember things that occurred off the record. Most of these facts are not part of the appellate record.16

Counsel violate the rules and lose credibility when they recite facts in their briefs that are not in the record. Rule 9.210(b)(3) requires that counsel cite every factual assertion to the record. Failure to do so can result in the court’s striking the brief.17

Counsel also need to present the facts fairly. Courts have sanctioned counsel for misstating facts.18 The appellant should bear in mind that disputes in the facts and inferences drawn from the facts are generally construed in favor of the prevailing party in an appeal from a judge or jury trial.19 Failure to abide by this rule, or omitting unfavorable facts, will elicit a response in the brief of experienced appellate counsel.

Counsel also need to ensure they include the relevant facts, and avoid the more frequent mistake of filling their briefs with facts that are not pertinent to the points on appeal. The error-correction function of appellate review is much narrower than the search for truth at trial. Failure to appreciate these differences clutters a brief and obscures the issues.

6) Missing the
Point: Issue Mistakes

Issues on appeal represent another fertile ground for mistakes. More is not better. Too often trial counsel feel that abandoning issues on appeal is like drowning their children. A key appellate talent is recognizing the issues that have a realistic chance of securing appellate relief.

Often what may have made counsel the most upset at trial is not error, much less harmful error. Brief writers should consider following the “Benatar” rule of issue selection: “Hit Me With Your Best Shot.”20

Counsel who plan to argue 10 issues, starting with small errors and working up to a crescendo, may find the judges never reach the “big error” point. They have looked at the first couple of points and concluded they are the best the party has to offer.

The Benatar rule does not necessarily mean to put the issue with clearest error first. For example, that may be a minor cost item. Counsel must balance the strength of the issue with its importance to the client’s case. In evaluating the merits of issues, counsel should consider the standards of review.21

7) Long Briefs; Bad Briefs

Not every long brief is a bad brief. But most are. There are times when a complex case may require a brief approaching the page limits. They are the exception.

Any seminar at which an appellate judge speaks on brief writing will contain the caveat that most briefs are much too long. As Judge Silberman’s comment suggests, brief writing is a far different skill than typical trial lawyer skills.

Complementing short briefs are short, clear sentences. Appellate counsel also should be familiar with case-generated rules of appellate practice. This includes, for example, how to advance and respond to error preservation arguments.

8) Trial Lawyer
Oral Arguments

Many trial lawyers are gifted at delivering stirring closing arguments to the jury. Unfortunately, some attempt to translate that skill into the appellate oral argument arena, where it is out of place.

Appellate advocates need to be prepared for a dialogue with the court, rather than a speech. Trial counsel ask witnesses questions. Appellate counsel must be able to anticipate and respond to questions.

Even making legal arguments to a panel of three or more judges is different than arguing to a trial judge. The appellate judges have had time to study the briefs and do additional research, a luxury trial judges often do not have.

9) Fees and Costs

There are many specialized appellate rule requirements this article has not touched on. By way of illustration, counsel can forfeit the right to an attorney’s fee, even one that is “mandatory,” if he or she does not make a timely and adequate motion for fees.22

Rule 9.400(b) requires the motion for fees to be served no later than the time for service of the reply brief, and to state the grounds on which recovery is sought.23

The prevailing party must file its motion to assess appellate costs in the lower tribunal within 30 days after the mandate issues.24

10) Rehearings

No one likes to lose. Some lawyers find the urge to file a rehearing irresistible. In the vast majority of rehearing petitions, they should have resisted.

Numerous decisions echo Rule 9.330(a)’s prohibition against rearguing the merits of the appeal.25 The Fourth District has fined a party and its counsel for filing a motion for rehearing that reargued the merits of a case the court had per curiam affirmed.26

Case law precludes a party from raising a new point, position, fact, or supporting authority in a petition for rehearing that it omitted from the brief.27

If a party cannot reargue what it argued before, and cannot raise a point it did not argue, not much is left for a proper petition for rehearing.28 Experienced counsel should be able to evaluate when a rehearing might be appropriate under these parameters, and know how to formulate one.

Conclusion

The above may not be the worst 10 areas of mistakes for nonappellate specialists. There are many other potential traps for those unaccustomed to appellate practice. The pitfalls exist for appellees as well as appellants.29

What’s a trial lawyer to do? Those with an appellate lawyer in their firm should go down the hall to his or her office (as several of the above mistakes demonstrate, this should be before the trial court enters final judgment).

Attorneys without that capability should consider calling one of the over 100 board certified appellate lawyers, or the 1000 members of the Appellate Practice and Advocacy Section. Even in a case in which a party might otherwise appear not to be able to afford additional counsel, there may be a contract or statute that could provide a fee for the appeal (including for a party who has prevailed on an offer of judgment).

After all, committing one or more of the above mistakes may cost a lawyer the fee and the client the case. The next step could be a call to the professional liability carrier.q



1 L. Silberman, Plain Talk on Appellate Advocacy, 20 Litigation 3 (1994).
2 Rules Regulating The Florida Bar 4-1.1.
3 See, e.g., Culpepper v. Britt, 434 So. 2d 31 (Fla. 2d D.C.A. 1983)(motion to tax costs did not toll rendition), rev. denied, 444 So. 2d 416 (Fla. 1984).
4 For a discussion of the appealability of certain orders, see Raymond T. Elligett, Jr. & Charles B. Schropp, What Do You Mean, I Can’t Appeal Now?, 64 Fla. B.J. 44 (Apr. 1990).
5 Frazier v. Seaboard Sys. R.R., Inc., 508 So. 2d 345 (Fla. 1987). State Farm Mut. Auto. Ins. Co. v. Miller, 688 So. 2d 935 (Fla. 4th D.C.A. 1997)(as amended on grant of clarification), holds the trial court lacks authority to consider a motion for rehearing directed to an order denying a motion for new trial, even though it has not yet entered the final judgment.
6 Fla. R. Civ. P. 1.530(b). Fla. R. Civ. P. 1.480(b) requires the party to move for judgment in accordance with the motion for directed verdict within 10 days of the reception of the verdict or, if a verdict was not returned, within 10 days after the jury has been discharged.
7 Fla. R. Civ. P. 1.090(b); Clara P. Diamond, Inc. v. Tam-Bay Realty, Inc., 462 So. 2d 1168 (Fla. 2d D.C.A. 1984).
8 See Grabarnick v. Florida Homeowners Ass’n of North Broward, Inc., 419 So. 2d 1065 (Fla. 1982).
9 E.g., In the Interest of M.L.M., 564 So. 2d 1222 (Fla. 1st D.C.A. 1990).
10 By contrast, a motion tolling rendition of a district court of appeal order by one party tolls the time for invoking Florida Supreme Court jurisdiction for all parties. St. Paul Fire & Marine Ins. Co. v. Indemnity Ins. Co. of North America, 675 So. 2d 590 (Fla. 1996).
11 It also held Holton was too late because he had not appealed the initial denial of his motion to file the third-party complaint, but had moved for reconsideration.
12 Norm Burg Constr. Corp. v. Jupiter Inlet Corp., 514 So. 2d 1102 (Fla. 1987).
13 See Bouchard v. State Dep’t of Business Regulation, 448 So. 2d 1126 (Fla. 2d D.C.A. 1984).
14 Millinger v. Broward County Mental Health Div. & Risk Management, 672 So. 2d 24 (Fla. 1996).
15 Metropolitan Dade County v. Vasquez, 659 So. 2d 355 (Fla. 1st D.C.A. 1995). Sunshine Dodge, Inc. v. Ketchem, 427 So. 2d 819 (Fla. 5th D.C.A. 1983), held the appellant timely filed its appeal when it filed the notice on the 30th day, albeit after 5:00 p.m.
16 Even if something is part of the record, it may be inappropriate to rely on it. For example, a deposition filed in the case that was not read at trial or placed in evidence is not evidence in the trial.
17 See, e.g., Dowell v. Sunmark Indus., 521 So. 2d 377 (Fla. 2d D.C.A. 1988).
18 E.g., Hutchins v. Hutchins, 501 So. 2d 722 (Fla. 5th D.C.A. 1987).
19 See, e.g., Seaside Community Dev. Corp. v. Edwards, 573 So. 2d 142 (Fla. 1st D.C.A. 1991).
20 From singer Pat Benatar’s 1980 hit song.
21 See Raymond T. Elligett, Jr. & John M. Scheb, Appellate Standards of Review — How Important Are They?, 70 Fla. B.J. 33 (Feb. 1996).
22 Salley v. City of St. Petersburg, 511 So. 2d 975 (Fla. 1987).
23 For example, citing the applicable statute or contract provision granting a fee.
24 Fla. R. App. P. 9.400(a).
25 E.g., School Bd. of Pinellas County v. District Court of Appeal, 467 So. 2d 985 (Fla. 1985); Lowe Inv. Corp. v. Clemente, 685 So. 2d 84 (Fla. 2d D.C.A. 1996), rev. denied, 694 So. 2d 738 (Fla. 1997).
26 Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100 (Fla. 4th D.C.A. 1993); Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1101 (Fla. 4th D.C.A. 1994).
27 Polyglycoat Corp. v. Hirsch Distrib., Inc., 442 So. 2d 958 (Fla. 4th D.C.A. 1983), rev. dismissed, 451 So. 2d 848 (Fla. 1984).
28 A new decision on the issues in the appeal, issued since the briefing or oral argument, would be one possibility.
29 This article has focussed on Florida law. Federal appellate rules differ in some material respects. Consult your specialist.

Raymond T. (Tom) Elligett, Jr., is a member of the law firm of Schropp, Buell & Elligett, Tampa. He graduated with high honors from the University of Florida in 1975 and received his J.D., cum laude, from Harvard University in 1978. He is board certified in appellate practice and is the immmediate past chair of the Appellate Practice and Advocacy Section.

This column is submitted on behalf of the Appellate Practice and Advocacy Section, Christopher L. Kurzner, chair, and Jacqueline E. Shapiro, editor.

[Revised: 02-10-2012]