Florida Bar Journal

Issues When Considering New Counsel on Appeal

Two attorneys with a collective 43 years in appellate law and perspectives as both outside counsel and corporate general counsel establish guidance that appellate (or trial) counsel could provide clients faced with the decision of whether (and when) to retain specialist appellate counsel. Mr. Scharf is a former federal appellate law clerk and board-certified appellate attorney who taught appellate law at the University of Miami and specializes in appeals. Mr. Atkins formerly practiced with Mr. Scharf and at another Miami area firm, handling multiple state and federal appeals, but is now the general counsel of a St. Louis-based registered investment advisor.

Clients — particularly those who have just lost — face a decision: whether to retain trial counsel or switch to an appellate specialist. Part I shows that the foremost consideration is whether and to what extent switching will increase the chances of success. Although not subject to precision, the authors show that the question is somewhat dependent on appellate success (reversal/affirmance) rates. An effort is made to show/calculate those rates for discussion purposes and to permit educated analysis of the amount by which appellate counsel can improve them. In Part II, the authors summarize the types of specialized skills/knowledge that appellate specialists bring to bear and that drive enhancements to success rates. Part III discusses timing issues — involving appellate specialists after a verdict but before a final judgment can be critical both to preserve arguments for appeal and to assess appellate merits. In each instance, the statistics and assessments need to be taken with a grain of salt — nobody knows the exact chances of any given appeal succeeding or the exact amount of benefit conferred by appellate experts. But to avoid the topic simply because of imprecision in the numbers is to let the perfect be the enemy of the good.

Part I: Rough Baselines of State and Federal Appellate Success and How Much Appellate Counsel Might Improve Them

Facing the decision to retain new appellate counsel, an individual plaintiff or corporate counsel is always going to ask, “Will it improve my odds of winning, and, if so, by how much?” There is no precise answer, and every case has different merits. Evaluating whether and how much an appellate specialist can improve your chances of success, however, begins with understanding the statistical outcomes of appeals.

Federal statistics are maintained through the Administrative Office of the U.S. Courts. In 2023, across all federal appellate courts, 60% of appeals were resolved on their merits. Among those, only 7.6% were reversed. Because criminal appeals constitute a significant portion of the caseload, slightly more accurate numbers for most civil litigants can be obtained by limiting consideration to private civil appeals, where only 51.8% of cases were resolved on the merits,^[1] with 12.4% resulting in reversals. Chart I contains a detailed breakdown (see next page).

In the 11th Circuit, 54.3% of appeals were resolved on the merits, with a reversal rate of 7.3%. For private civil appeals specifically, 49.3% were resolved on the merits with a reversal rate of 10.6%.^[2] These numbers remain close to 2013 numbers.^[3]

Although the Florida Office of the State Courts Administrator maintains some statistics, the appellate court statistics it publishes are not quite as detailed as its federal counterpart. Their “Appellate Dashboard” focuses on efficiency by publishing caseloads and number of dispositions by court, without revealing dispositions.^[4]

Each of the DCAs includes a link in the “Opinion” page of its website allowing for the exporting of all those courts’ decisions into a. csv file. That feature, however, does not appear to be functioning properly. A cursory review of the export data reveals it contains less than all the decisions. Also, the data for all the DCAs does not appear to include post-2020 cases.

This left us with a more manual process. We looked at every opinion on the “Opinions” page of the courts’ websites issued in the year 2023 and calculated the percentage of those decisions in which some relief was granted (e.g., reversal, reversal in part, grant of a petition). For brevity, we performed that calculation only for the Third and Fourth DCAs. For the Third DCA, we calculated relief being granted in 193 out of 969 decisions — or a “reversal rate” of 19.9%. In the Fourth DCA, it was 331 out of 1,677 decisions — or a reversal rate of 19.7%.

This approach carries several limitations. First, it includes only opinions that are released on the courts’ website, which excludes certain procedural dismissals such as voluntary dismissals. This prevents a direct comparison to the federal statistics. Second, related cases were likely double counted, although this would affect both the numerator and denominator of the reversal fraction. Third, there was no efficient method to compile statistics by the type of case to allow for an apples-to-apples comparison to the federal statistics.

Nevertheless, despite all the caveats, some conclusions can be drawn. At the broadest level: 1) the odds favor the appellee; and 2) procedural dispositions of appeals are common. More specifically, the baseline likelihood of getting some form of relief probably falls somewhere between 10-20%.

Having determined that, the question remains how retaining appellate counsel might affect one’s chances. Ideally, an effective appellate attorney will raise the chances of relief, but minimizing downside risk is another consideration. According to Robert Bronston, a Michigan-based attorney with a nationwide appellate practice, “Appellate law and procedure uniquely present a variety of traps for the unwary. It is very easy for an unskilled practitioner to take your chances of success down to zero by failing to perform a crucial step.”^[5] No one has a monopoly on wisdom on this subject, but Mr. Bronston’s perspective, coming from someone who has both practiced at one of the nation’s most elite appellate specialist firms and in the in-house counsel office of one the nation’s largest and longest-established industrial powerhouses, is informed by years of experience.

Beyond preventing disasters, skilled practitioners can certainly increase the likelihood of relief somewhat. Although every case is unique on its merits, one could probably estimate in the aggregate that skilled appellate counsel might increase the likelihood of obtaining some sort of appellate relief by as much as 50% (i.e., raising a 20% chance of relief to as high as 30%). Importantly, as those numbers show, the appellate process is stacked against appellants.

Part II: Why Appellate Specialists May Secure Higher Chances of Success — Specialized Knowledge and Skills

The question naturally arises, why would appellate specialists necessarily garner higher success rates? After all, trial lawyers routinely write motions and motion responses, such as summary judgments and motions to dismiss. Those filings resemble appellate briefs, and it is, therefore, natural to question why anyone needs to specialize in appellate practice. The answer is threefold. First, specialists are better at issue selection and its three components: standard-of-review analysis, preservation analysis, and considerations of the state of the law. Second, specialists are more familiar with a host of specialized appellate rules and doctrines, the “appellate bag of tricks,” any one of which may make or break a particular appeal. Third, and finally, specialists tend to be drawn from a more academically elite pool of practitioners.

First, issue selection may be the most critical appellate strategy decision. By this, we mean evaluating the many potential trial errors and deciding which issue or issues to present. Appellants have a choice of what they argue, and choosing wisely matters.

The typical brief prepared by a specialist will focus on only one or two issues. This is not because few mistakes are made during trial, but rather because including more than three or four issues may negatively affect the panel’s view of the case.^[6] Indeed, briefs prepared by practitioners only occasionally in front of appellate courts often include too many issues. There is frequently a sense that an attorney should just list as many objections as he or she can muster and hope one resonates with the appellate judges. That is typically not well received, however. So, experts almost always pick one or two (usually purely legal) grounds for reversal. Picking these grounds is an art, not a science, and is driven by the next set of considerations.

Central to issue selection is the standard of review, which can make or break an appellate issue.^[7] This is the level of deference the appellate court will give to a trial court decision. Put simply, it is the height of the hurdle one must clear to win — de novo (no-deference review) being the lowest hurdle, and abuse-of-discretion or clear-error (for facts) being the highest hurdle (i.e., least likely to yield a victory). Generally speaking, an appellate court will give no deference to a trial court’s legal decisions while recognizing that “its findings of facts and determinations of credibility are still entitled to deference because of the trial court’s superior vantage point of having been present during the entire trial.”^[8] From a practical perspective, and what clients and general practitioners need to realize, is that legal issues are vastly more likely to yield appellate relief than factual or discretionary rulings.

Further, a trap many clients and trial counsel fall into is wanting to argue perceived factual or discretionary injustices. This is understandable. Trial court litigation is intensely waged, and the firm belief that a court or jury misunderstood a critical fact can be immensely frustrating. But appellate expertise is often necessary to avoid this trap — both by recognizing the prohibitive odds created by the unfavorable standards of review and by having the distance/perspective from the trial proceedings to dispassionately avoid raising such issues. Put another way, courts of appeal simply do not view themselves as being in the business of correcting factual or discretionary judgment calls. Knowing this and having the discipline to avoid seeking such tempting relief is a key attribute of appellate specialists — one that likely drives superior results.

Examples of appeals that were rejected on the standard of review abound. One such case is Girtman v. Girtman, 693 So. 2d 631 (Fla. 2d DCA 1997).^[9] There, a former husband raised four challenges to a final divorce: 1) splitting a lake house; 2) periodic alimony; 3) attorneys’ fees; and 4) primary residential custody.^[10] After noting that each issue was reviewed only for abuse of discretion, the court affirmed across the board.^[11] In words familiar to all appellate specialists, the court explained:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.^[12]

That reasoning is the stock-in-trade of appellate judges and practitioners. Avoiding losses by raising legal instead of discretionary issues is one way specialists deliver value.

Equally critical to the issue selection process is the topic of preservation of error. Note how counterintuitive the entire concept must be to many trial lawyers, let alone in-house counsel and non-lawyer clients. After all, “preservation” in the rest of the world is limited to good things — artworks, historic houses, jams, and jellies. Preserving an error seems as insipid as canning rotten fruit. But it is a critical term of art in the appellate world, the appreciation of which often makes or breaks appeals. Simply put, “preservation” means taking adequate steps to raise an issue (bring it to the judge’s attention and get a ruling, even though it is adverse), such that it can be assessed on appeal. An unpreserved issue will generally not be reviewed by a court of appeal.^[13] Preservation typically requires: 1) A “timely, contemporaneous objection at the time of the alleged error”; 2) “the party must state a legal ground for that objection”; and 3) the argument on appeal “must be the specific contention asserted as legal ground for the objection” in the trial court.^[14]

An example of just how seriously preservation is taken is State Farm Mutual Automobile Insurance Co. v. Gordon, 712 So. 2d 1138 (Fla. 3d DCA 1998).^[15] There, State Farm appealed a judgment arguing that the trial court abused its discretion in excluding evidence that the plaintiff received considerable disability payments.^[16] The Third DCA indicated that Florida did not require the exclusion of such evidence “if the issue is properly preserved for appellate review.”^[17] But the court explained that “because our careful review of the trial record in this case does not show that State Farm properly preserved the issue in this case, we reluctantly affirm.”^[18] In other words, a mistake was made, but the court would do nothing about it because it was an unpreserved error.

Much as a chef might inspect a jar of jam for spoilage before serving it, a specialist will check all the boxes mentioned above to ensure an issue has been properly preserved. Just as the chef wishes to avoid sickened/unhappy diners on his or her hands, a specialist knows that raising an improperly preserved issue in a brief risks a spoiled appeal — i.e., a loss.

Finally, skilled experts know how to pick issues with legal cachet. That is, they keep abreast of legal developments, and where necessary, undertake legal research to determine whether an issue will be looked on favorably. Even a preserved issue with a favorable standard of review will fail if it has already been decided against the client. Experts know to avoid these issues. While the authors cannot readily cite an example of this type of rejection, it is because it is routinely undertaken by brief, per curiam decisions in the federal system, and Per Curiam Affirmances (PCAs) in Florida’s DCAs. These decisions typically offer little or no explanation for affirmance because the argument is already foreclosed by settled law. Due to high caseloads, this is one of the most common dispositions.^[19] True experts do everything they can to avoid that fate.

Beyond the three components of issue selection, appellate practitioners are likely to be familiar with an “appellate bag of tricks,” which is comprised of principles/doctrines unique to the appellate setting. One such trick is navigation of the different standards of review. Navigating those standards — and characterizing an issue to fit within the most favorable standard — can be a most valuable skill.

Another trick is the “tipsy coachman” doctrine. This doctrine leverages the “presumption of correctness,” which appellate courts apply to trial court decisions^[20] to affirm the decision on alternate grounds from what the trial court determined — i.e., conclude the trial court was right for the wrong reason.^[21] The doctrine is named after an 18th-century poem about a “tipsy coachman” whose chariot ultimately found its way home, presumably because the horses knew the familiar route.^[22] When used properly, the “tipsy coachman” doctrine can provide a significant edge to appellees. There are limits to this doctrine, however, and familiarity with them is a stock-in-trade of experts.^[23]

Another extension of the presumption of correctness is a requirement that appellants furnish transcripts as part of meeting their burden to overcome the presumption of correctness. A failure by an appellant to provide certain transcripts may be sufficient reason to affirm without addressing the merits.^[24]

Yet another example as counterintuitive as “tipsy-coachmen” and preserving error is the concept of “invited error.” In-house counsel and non-lawyer clients no doubt get many invitations but cannot fathom being invited to error. Specialists will recognize it as an arcane, but important, doctrine that can cause a court of appeals to reject an otherwise valid appeal because the complaining party somehow bears some responsibility for bringing about the error.^[25] Unlike engraved wedding invitations, the party inviting error often does not even realize they have done so, and recognizing the invitation is a subtle art.

Finally, attorneys who focus on appellate work have a different skill set. Trial court work typically involves investigating and developing the facts through the discovery process and then presenting them in the best light — often to a jury. Many issues are decided through oral advocacy with little attention given to written arguments. Additionally, juries are often drawn toward decisions that seem fair based on the evidence presented with little regard for setting precedent.

In appellate courts, the facts are established by the trial court record with almost no ability to add new facts.^[26] There is little room for oral advocacy; oral arguments are far from guaranteed. Appellate courts have modest tolerance for trial-court-style motion practice.^[27] Further, appellate judges are typically generalists. As Florida’s preeminent appellate scholar, Judge Philip J. Padovano, noted:

The nature of the judicial system forces appellate judges to become generalists in the law. Many attorneys are so specialized that they handle only one type of case, but appellate judges are much more diversified. On a typical day an appellate judge may read a brief in a workers’ compensation case, a criminal case, and a family law case.^[28]

This means that the written submissions will need to ensure the judges are thoroughly educated in the relevant areas of law.^[29] It also means that the judges will recognize the impact their cases may have as precedent elsewhere.

Part III: When To Involve an Appellate Specialist

It is not always as simple as involving specialists when the notice of appeal has been filed. There can be significant benefits to involving an appellate specialist earlier. Although the analytical and writing abilities of a good appellate practitioner can often benefit many litigation teams, there are also two more tangible benefits: identifying when to appeal and assisting with issue preservation.

Generally, appeals can be taken only from a final order that “puts an end to judicial labor.”^[30] But certain judicial labor may be allowed without destroying finality.^[31] Some orders that may appear to be final are not.^[32] The murkiness on the issue of finality, however, provides no excuse for missing the jurisdictional deadline to notice an appeal.^[33]

That said, there are myriad ways to appeal prior to a final order. The Florida Rules of Appellate Procedure identify approximately 22 categories of immediately appealable orders.^[34] Additionally, special writs are unique procedural mechanisms — again, the province of appellate specialists — expanding these categories.^[35] In the federal courts, 28 U.S.C. §1292 provides appeals from certain interlocutory (i.e., non-final) decisions, such as injunctions. The possibility of obtaining relief earlier can dramatically alter a case.

There are three main junctures to retain an appellate specialist. First, a specialist can be included on the trial team. This is obviously the most expensive option, but it provides maximum benefit on appellate issues during the trial of an important case — especially with preservation of error. The general standard for preservation will likely be manageable for most trial counsel in most instances. Sometimes, preservation is more complicated. For example, a motion in limine may need to be renewed at trial if the ruling on the motion was not definitive,^[36] and such a motion may need to be supplemented with a proffer of what the evidence would show.^[37] Although exceptions to the preservation of error requirements exist, such as for fundamental error, this is an extremely high burden to meet and a poor substitute for proper preservation.^[38]

Another example concerns dispositive motions. Under Federal Rule of Civil Procedure 50(a)(2), a motion for judgment as a matter of law must be made “before the case is submitted to the jury.” Appellate courts will not review an issue that was not properly preserved in a Rule 50(a) motion,^[39] and appellate practitioners can ensure those motions contain the necessary specificity.

The second point for retention is immediately after an adverse verdict, assisting with post-trial motions. That phase is critical because such motions establish a definitive and exclusive menu of options for appellate issues. Again, in the federal system, under FRCP 50(b) litigants may renew motions previously made before the case was submitted to the jury. Because appellate courts will typically not entertain arguments that weren’t first presented in a Rule 50(b) motion,^[40] that is another crucial stage.

The third and final stage is for the appeal itself. Retaining appellate counsel ensures appellate briefs written by a specialist, but because error preservation and issue selection are largely concluded during the post-trial briefing, an appellate attorney’s hands may already be tied.

Conclusion

Every case is different, and statistics and doctrines are only generalizations. Still, this discussion has served to organize the arguments for and against new appellate counsel. For those less familiar, it introduces basic statistical concepts together with easily understood explanations of the doctrinal drivers of appellate success.

This column is submitted on behalf of the Appellate Practice Section, Courtney Brewer, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, Dimitri Peteves, Sydney Feldman-D’Angelo, and Eleanor Sills, editors.