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Ten Signs That You Need an Appellate Lawyer

Appellate Practice

This article presents 10 signs to recognize that you need an appellate lawyer. It could also be titled “Lessons I (Should) Have Learned the Hard Way.” Although occasional mention of federal court appellate procedure is made, the scope of this article is generally limited to state civil court appeals.

1) You do not know that state court appeals in Florida are governed by the Florida Rules of Appellate Procedure.

They are further back in the rule book, not as long as the rules of civil procedure, and may have escaped your notice. It is essential, however, to have a good working knowledge of the Florida Rules of Appellate Procedure. These rules govern the procedure for handling appeals, and strict adherence to the rules is a must.

The rules, for example, present the jurisdiction of the appellate courts, including the circuit courts. Of critical importance, the rules contain the jurisdictional deadlines to file notices of appeal, writs, and notices to invoke the discretionary jurisdiction of the Supreme Court of Florida. These deadlines may not be extended by consent of the parties or order of the court.1

The appellate rules cover civil and criminal appeals. The rules also apply to administrative appeals2 and workers’ compensation appeals.3 Among other things, the rules govern the due dates for filing notices of appeal and writs, for preparation of any transcripts as well as the record on appeal, and most important, for filing the brief or petition. The rules additionally dictate the procedure for accomplishing these matters. For example, there are different page limitations depending on the type of brief filed. Briefs are also required to be in a specific font, and all briefs must contain a certification by counsel at the conclusion stating that the brief is in compliance with these font requirements. Some of the district courts of appeal routinely strike briefs for failing to strictly comply with the rules.4

As has been noted, an effective product in the appellate court requires a combination of skills which may be lacking in the trial lawyer.5 This product requires command of the appellate rules, ability to recognize an appealable order, knowledge of how to present the trial court record to the appellate court, ability to identify the issues on appeal, and patience to distill a large record into a coherent, concise, and persuasive brief, as well as oration and debating skills.

2) You’ve grown to detest your opposing counsel and have the urge to disparage him or her in the brief and engage in motion practice in the appellate court.

There is no place for disparagement of your opposing counsel in appellate practice, especially in the brief. As Judge Morris Silberman of the Second District Court of Appeal points out, “These tactics suggest that the author must be resorting to name calling because his or her argument on the merits is weak.”6 Avoid attacking your opposing counsel. Simply state your disagreement.

Likewise, the filing of motions should be as limited as possible.7 Judge Philip J. Padovano of the First District Court of Appeal notes that “[m]otion practice is more limited in appellate courts than it is in trial courts.”8 There are, of course, times when it is necessary to file a motion. Motions to dismiss on meritorious jurisdictional grounds and motions for extension of time to file the brief, for the clerk to prepare the index or record on appeal or for the court reporter to prepare the transcript of testimony are quite acceptable.

Florida appellate courts, however, do not tolerate frivolous motions or those filed in bad faith.9 For example, Florida appellate courts have repeatedly expressed their displeasure over motions for rehearing which are without any merit.10 These courts are increasingly likely to sanction lawyers for filing such motions.11 Restraint should be used to avoid filing any unnecessary motions.

3) You do not know, understand, or care if your appellate case has an applicable standard of review.12

Since 2000, the Florida Rules of Appellate Procedure have required briefs to include the applicable standard of review.13 The Federal Rules of Appellate Procedure also require that the argument section of every appellant’s brief contain “for each issue, a concise statement of the applicable standard of review.. . . ”14 Although there have always been those who believe opinions are driven by result,15 most agree that “understanding and applying the proper standard of review will lead to the result that you want.”16 Evaluation of the prospects for success of an appeal very often can depend on the applicable standard of review for each issue in your case. Statistically, a party to an appeal does better when the appellate court is addressing a pure question of law, which is subject to de novo review, than when the court has to “overturn a judge’s decision or a jury’s verdict based on factual arguments.”17

The standard of review should be the cornerstone for both the statement of the facts and the argument. The facts and the argument must be written with nonwaivering attention to the applicable standard of review. In this regard, attorney Hala Sandridge18 has pointed out that the necessity of applying the standard of appellate review usually renders a trial memorandum useless for purposes of the brief because it fails to address the standard of review and fails to place the argument in the context of the standard. (As an aside, appellate specialist Sandridge wryly notes: “If the memo was unsuccessful at the trial court level, what would make you believe it would be persuasive on appeal?”)

4) You (erroneously) believe an appeal (supersedeas) bond must be filed to preserve your right to take an appeal.

Let’s put this misconception to rest! The purpose of an appeal bond is to stay execution of a money judgment. The filing of one in a case involving a money judgment is not a condition precedent to taking an appeal.

5) You do not know when a money judgment can be executed on or how to protect a money judgment debtor from execution on the judgment.

Under Fla. R. Civ. P. 1.550(a), “No execution or other final process shall issue until the judgment on which it is based has been recorded nor within the time for serving a motion for new trial or rehearing, and if a motion for new trial or rehearing is timely served, until it is determined. . . . ” Thus, under most circumstances, execution cannot issue until at least 10 days after the rendition of the judgment. Of course, once the money judgment is entered, the losing party should move quickly to obtain the appeal bond to avoid execution on the judgment. The most prudent course is for the losing party to call counsel for the plaintiff and request a reasonable time to post the bond. Many attorneys will agree to allow you at least a short amount of time to post the bond before beginning execution proceedings. If your opposing counsel will not agree to postpone execution proceedings briefly, Rule 1.550(b) gives the trial court discretion to stay execution for “good cause” and often the court will enter an order staying execution on the judgment for a period to allow the losing party time to post a bond.

The author would be remiss if she did not note the increasing trend of trial lawyers appearing at a solvent defendant’s place of business with the sheriff to execute on a judgment without calling opposing counsel to see if an appeal bond is in the works. If you pursue this course, your opposing counsel will be more than unhappy and will pull out all stops to win the appeal.

Also, a major error often made is failure to file a motion to stay the mandate in the district court of appeal when further review is being sought in the Supreme Court of Florida. The mandate “is the appellate court’s official communication of its judgment to the lower tribunal, directing the action the lower tribunal is to take or the disposition it is to make of the cause of action.”19 The mandate transfers jurisdiction of the appellate court back to the trial court.20 The mandate automatically issues within 15 days of the date of the decision, but if a timely motion for rehearing, clarification, or certification is made, this time is extended until 15 days after the rendition of the order on the post-decision motion.21 The losing party must file a motion to stay the mandate; if this is not done, the district court will issue the mandate to the trial court,22 and your client’s judgment may be subject to execution even though the Supreme Court may accept the case for review.

6) You do not file a motion for extension of time to file the brief.23

The seasoned appellate lawyer requests at least one 30-day extension of time to file the brief. Of course, the real dead-giveaway that you need an appellate lawyer is that you are even thinking about opposing a request for an extension from the other side. A first extension should be given in the best of humor; opposition should be given thereafter only if the circumstances of the case warrant it and you have given advance notice to your opposing counsel that you cannot agree to any further request.24

7) You believe that longer is better and big words are essential.

Do as much work as possible for the court. Make the brief as easy as possible to read and understand. The trick is to make the brief “reader friendly.”25 You should make the court work as little as possible to understand your brief. The court will not be able to reverse your case if it doesn’t understand your position. The use of subheadings in the statement of the case and facts can add interest, help organize it, and make reading a little easier. Be as concise as possible. Short sentences generally work the best; don’t let the sentences get unwieldy or complex. If a shorter word will work as well as an impressive, but little known word, use the simpler one.

Leave out any irrelevant facts. For example, any number of briefs contain many unnecessary dates. Including unnecessary facts will result in a greater possibility that your strongest points will be overlooked. Most important, a tough editing of the brief—which whittles away unnecessary facts—will help your cause immensely. As Judge Silberman of the Second District Court of Appeal advises: “If you don’t like writing or editing, don’t do appellate work.”

8) You get too personal about your cause and want to express your personal beliefs in the cause in your brief and at oral argument.

It is important to remember that you are not arguing your cause to a jury. It goes without saying that an expression of personal belief in your cause is as inappropriate in the appellate court as it is in the trial court. An appellate court is likely to conclude that you do not have any belief in your position; it will not be persuaded by jury arguments.

9) You do not know the deadline for filing a motion for appellate attorneys’ fees and costs and what needs to be included in a motion.

Even established appellate lawyers have inadvertently handled a “pro bono” appeal as a result of failing to file a timely motion for attorney’s fees.26 Under Fla. R. App. P. 9.400(b), “A motion for attorneys’ fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought.”27 The Supreme Court of Florida has interpreted this rule to “require that a party seeking attorneys’ fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal.”28 The motion must also be placed in a separate document, i.e., one other than the brief, and failure to do so will result in a denial of the requested fees.29

You may be out of luck if you file an untimely motion or one which does not contain specific grounds for entitlement.30 Because of the time limitation and substantive requirement, it is important to know early in the appellate process whether you have a ground for filing a motion for attorneys’ fees.

Any opposition to a motion for appellate fees must be filed by motion within 10 days of service of the motion.31 A party cannot raise opposition to a motion for attorneys’ fees in a motion for rehearing.32 Therefore, a party’s failure to timely oppose a motion for attorneys’ fees may be treated by the appellate court as a concession that the motion has merit.

The motion to tax costs is also a little tricky in that it requires the prevailing party to move to tax costs “on motion served within 30 days after issuance of the mandate.”33 The “prevailing” party under this rule is the one who prevails in the appeal and not the party who ultimately prevails once all of the litigation is over.34

10) You have a tendency to exaggerate, not listen, and talk too much.

Poor judgment in these areas will cost you your case. You lose all credibility by exaggerating and not sticking to the facts. It is necessary to state all relevant facts with correct cites to the record. Adverse facts must be included.35 Also, as bad as it is not to know the complete record at oral argument, it is far better to tell the court you do not know what is in the record than to make up an answer. The court will discover your duplicity, and your credibility before the court will be bankrupt.

Likewise, there is no need to take all of your time at oral argument as appellee. If you sense the court has no interest, sit down. You can talk yourself into losing what should have been a winnable case. In this regard, the First District cautions:

The purpose of oral argument is to clarify those questions that the judges may have that they were unable to answer themselves with the help of the briefs.. . [C]ounsel should note when the panel asks few or no questions. This is often a sign that the panel sees little merit in the arguments raised and may be an early indication that a per curiam affirmance is imminent. Appellees are well advised to not “rock the boat.” If the panel sits silently through the appellant’s argument, it is often sufficient, if not prudent, for the appellee’s counsel to merely refer to the briefs and, after offering an opportunity to answer any questions the panel might have, to sit down. More than one appellee has snatched defeat from the jaws of victory by responding to the natural impulse to stand up and argue.36

• One More for Good Measure:

Appellate practitioner Rosemary Wilder37 has suggested the following sign: “You know you need an appellate lawyer when you represented the defendant and won the case!”
An informal survey reveals that defense lawyers are not confident in holding on to their trial victories on appeal.Perhaps a formal study is warranted. Enough said.

Do not presume that the author invokes this 10-point checklist for every appeal that she handles. Sometimes her best intentions go awry. A checklist might be a good idea, but many situations have unique facts and need unique approaches. This list is born of long experience, happenstance, and mild panic. q

1 See Lovett v. City of Jacksonville Beach, 187 So. 2d 96 (Fla. 1st D.C.A. 1966).
2 Fla. R. App. P. 9.190.
3 Fla. R. App. P. 9.180.
4 The practices of the First District Court of Appeal especially come to mind.
5 Raymond T. Elligett, Jr., and John M. Scheb, Florida Appellate Practice and Advocacy 8 (1998) (discussing observations of Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit). See Laurence Silberman, Plain Talk on Appellate Advocacy, 20 Litigation 3 (1994).
6 Morris Silberman, A View from the Bench, Mar. 2003 Paraclete 4 (St. Petersburg Bar Ass’n).
7 For an excellent article on motion practice, see Philip J. Padovano, Motion Practice in Florida Appellate Courts, 32 Stetson L. Rev. 309 (2003).
8 Id.
9 Id. See also Fla. R. App. P. 9.410 (allows the court to award sanctions for briefs or motions which are frivolous or filed in bad faith).
10 See Amador v. Walker, 862 So. 2d 729, 773 (Fla. 4th D.C.A. 2003), and cases cited therein.
11 See, e.g., Banderas v. Advance Petroleum, Inc., 718 So. 2d 376 (Fla. 3d D.C.A. 1998) (ordering appellant’s counsel to pay $2,500 as a sanction for a motion for rehearing which the court found “both frivolous and insulting to this court”).
12 For good discussion of applicable standards of review, see Paul A. Avron, Federal Standards of Review for Appeals in the Eleventh Circuit, The Record, J. App. Prac. Section 9 (Spring 2003); Richard H. W. Maloy, ‘Standards of Review’ – Just a Tip of the Icicle, 77 U. Det. Mercy L. Rev. 603 (2000); Harvey J. Sepler, Appellate Standards of Review, 73 Fla. B.J. 48 (Dec. 1999); Elligett & Scheb, supra note 6.
13 Amendments to Florida Rules of Appellate Procedure, 780 So. 2d 834, 838 (Fla. 2000); Fla. R. App. P. 9.210(b)(5).
14 Fed. R. App. P. 28(a)(9). Some of the U.S. circuit courts of appeals have local rules with the same requirement.
15 There are also those who consider the concept of standard of review a fiction. See, e.g., Metropolitan Dade County v. Fuller, 515 So. 2d 1312, 1314 n.4 (Fla. 3d D.C.A. 1987) (written by Chief Judge Alan R. Schwartz).
16 Silberman, supra note 7, at 4.
17 Elligett & Scheb, supra note 6, at 288.
18 Ms. Sandridge is a shareholder and “group leader” of the appellate division at the firm of Fowler White Boggs Banker.
19 Barbara Green, Cracking the Code: Interpreting and Enforcing the Appellate Court’s Decision and Mandate, 32 Stetson L. Rev. 393, 394 (2003). This article addresses the mandate as well as interpretation and enforcement of decisions.
20 Id.
21 Fla. R. App. P. 9.340.
22 See Doyle-Vallery, M.D. v. Aranibar, 838 So. 2d 1200 (Fla. 2d D.C.A. 2003).
23 This “sign” has no application to appeals pending before the U.S. Court of Appeals for the 11th Circuit.
24 Neophytes, please see Betsy E. Gallagher, Confessions of an Abuser of Motions for Extension of Time and Other Stories, The Record, J. Fla. Bar App. Prac. Section (Fall 2003).
25 Silberman, supra note 6, at 4.
26 This, of course, includes this author.
27 See Tracy Raffles Gunn, Attorneys’ Fees on Appeal: Basic Rules and New Requirements, 76 Fla. B.J. 31 (Apr. 2002), for a comprehensive article on appellate attorneys’ fees.
28 United Servs. Auto. Ass’n v. Phillips, 775 So. 2d 921, 922 (Fla. 2000) (holding that a bare bones motion referring only to rule 9.400 or another court’s order is insufficient).
29 See, e.g., Florida Dep’t of Commerce, Div. of Risk Mgmt. v. Davies, 379 So. 2d 1313 (Fla. 1st D.C.A. 1980).
30 Id.; Northern Chamber Dev. Co. v. Weaver, 508 So. 2d 390 (Fla. 4th D.C.A. 1987); Lobel v. Southgate Condo. Ass’n, Inc., 436 So. 2d 170 (Fla. 4th D.C.A. 1983).
31 Rule 9.300 of the Florida Rules of Appellate Procedure governs the procedure for motions filed in appellate proceedings. Under this rule, “[a] party may serve 1 response to a motion within 10 days of service of the motion.” The rule notes that the time for serving the motion can be shortened or extended by the court.
32 Green Co., Inc. v. Kendall Racquetball Inv., Ltd., 658 So. 2d 1119, 1121 (Fla. 3d D.C.A. 1995); Homestead Ins. Co. v. Poole, Masters & Goldstein, C.P.A., P.A. 604 So. 2d 825, 826 (Fla. 4th D.C.A. 1991) (on rehearing), review denied, 604 So. 2d 487 (Fla. 1992).
33 Fla. R. App. P. 9.400(a).
34 Centennial Mortgage, Inc. v. SG/SC, Ltd., 864 So. 2d 1258, 1260-61 (Fla. 1st D.C.A. 2004).
35 See Camacho v. Kendall Healthcare Group, Ltd., No. 3D03-2930, 2003 WL 22799507 (Fla. 3d D.C.A. 2003) (noting the absence of adverse facts in the petition for writ of certiorari and issuing a separate order imposing sanctions on the offending attorney).
36 Inside the District Court of Appeal, The First District, 2002/2003 Florida Appellate Practice Guide 96 (Appellate Practice Section, The Fla. Bar).
37 Ms. Wilder is a partner and head of the appellate division at Marlow, Connell, Valerius, Agrams, Adler, Newman & Lewis in Coral Gables and Ft. Lauderdale.

Betsy Ellwanger Gallagher is a partner at Cole, Scott & Kissane and resides in the firm’s Tampa office. She maintains a statewide appellate practice and also litigates in state and federal courts in the area of insurance contracts. Ms. Gallagher received a B.S. from Cornell University and a J.D. with honors from the University of Florida, where she was an executive editor of the University of Florida Law Review.

This column is submitted on behalf of the Appellate Practice and Advocacy Section, Jack J. Aiello, chair, and Jacqueline E. Shapiro, editor.

Appellate Practice