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Understanding the Art of Appellate Advocacy: Why Trial Counsel Should Engage Experienced Appellate Counsel as a Matter of Professional Responsibility and Legal Strategy

Appellate Practice

W hether trial counsel should handle an appeal or turn it over to an appellate attorney is often debated. Clients may expect trial counsel to argue the appeal. This may not be the best idea. The qualities of a good trial lawyer are not always those of a good appellate lawyer.1 Special talent or training is often needed to write a good appellate brief. What might have worked before a jury or trial judge may not be adequate for an appellate court. Unfortunately, trial lawyers sometimes fail to appreciate that appellate court review is much different than litigation in the trial court.

Judge Gary Farmer of Florida’s Fourth District Court of Appeal aptly stated:

My own experience in both roles suggests that most of the time the trial lawyer is well-advised to bring in another lawyer to handle the appeal. This is not because appellate law is so arcane that only the cognoscenti can handle it. It is really because the lawyer who handled the trial is often unable to discern the appellate forest from the trial trees. Issues that consumed the trial lawyer are often of marginal significance at best on appeal; issues that seemed trivial during trial may become critical on review.2

Appellate judges view brief writing as the most important aspect of the appellate process, not a task to be relegated to the unskilled.3 Writing an effective appellate brief takes a great deal of time. There should be few distractions in order to provide the best opportunity for continued focus on the appellate issues. Trial counsel may lack the uninterrupted time necessary to write a clear, persuasive appellate brief. Even if trial counsel has the time, it is the appellate lawyer who is more likely to ponder the best placement and choice of each word in the brief in order to ensure success. An experienced appellate attorney will be able not only to write a compelling brief, but also will provide an unbiased assessment to trial counsel regarding whether appealable issues exist and whether they were properly preserved.
Each time a case moves to the appellate arena, counsel must consider whether he or she has the requisite knowledge and skills to represent the client in the appeal. Rule 4-1.1 of the Rules Regulating The Florida Bar provides: “A lawyer shall provide competent representation to a client.” Appellate advocacy is recognized as a distinct form of litigation and can take a tremendous amount of time. It requires doing research into areas of the law that trial practitioners infrequently encounter. Appellate litigation is full of pitfalls for the inexperienced.

It is essential that any practitioner considering filing an appeal become knowledgeable of the rules of appellate procedure. Those rules can only be effectively followed or employed when an attorney understands their foundation, their context, and their text. Appellate malpractice arises when a lawyer fails to exercise a reasonable degree of skill and care in the appeal of a client’s case, causing injury to the client.

During Trial
A savvy trial attorney will engage appellate counsel to assist in the trial arena. This is especially important when a case involves complicated matters or issues of first impression. Appellate counsel can provide advice on the rules of evidence and procedure during the trial, advising trial counsel when to object and move for mistrial. Appellate counsel can also prepare and argue motions for summary judgment and motions for new trial, preserving and addressing the legal issues that may become critical on appeal. An appellate attorney is well aware that, in general, only issues that have been properly preserved are eligible for appellate review.

Determining “Final Judgment” and When It Is “Rendered”
An appellate practitioner may be able to more accurately assess and advise trial counsel on when an order or judgment is ripe for review. Art. V, §4(b)(1), of the Florida Constitution provides a party with the right to appeal a final judgment. The body of law interpreting the finality and appealability of orders is full of obstacles. Generally, only “final” orders are subject to appellate review. Whether an order constitutes a final judgment for appellate purposes is extremely important because the jurisdictional time begins to run immediately on the “rendition” of a final order.

Florida Rule of Appellate Procedure 9.020(f) defines the term “order” as “[a] decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries.” Court minute books are, therefore, not appealable. Oral pronouncements by the trial courts are also not appealable. In short, without a written, signed order, there is nothing to appeal.4

The law governing the appealability of final and nonfinal orders is a virtual minefield, and the failure to take the time to understand the rules and applicable case law can result in malpractice. Basically, an order is deemed “final” if it terminates judicial labor.5 Merely labeling an order “final” does not make the order final.6 Partial final judgments may or may not be appealable, depending upon whether they terminate judicial labor.7 Florida Rule of Appellate Procedure 9.110(k) provides: “If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.” Prematurely appealing an order may result in unnecessary cost and delay for a client. Worse yet, failing to timely appeal an order that was final may result in a serious malpractice claim.

Although all “final” orders are appealable, nonfinal orders are appealable only if they come within the orders enumerated in Florida Rule of Appellate Procedure 9.130(a). Nonfinal orders that are not enumerated in the rule are reviewable only if they meet the standards for the issuance of an extraordinary writ. Experienced appellate counsel will be able to distinguish what nonfinal orders may permit appellate review before the trial proceedings are complete and to determine the proper method of invoking that review.

An order must be “rendered” before it is ripe for appeal. For appellate purposes, the rendition date is critical because it begins the jurisdictional period for filing an appeal. The rules on rendition, however, are confusing. Rule 9.020(h) provides that an order is not rendered until the clerk has actually filed the order signed by a judge. Thus, contrary to popular opinion, an order is not rendered when the court first announces its ruling or even when the order is signed by the judge.

Rule 9.020(h) also provides that the rendition of a final order is delayed when certain authorized post-judgment motions are filed. It is imperative that counsel carefully consult Rule 9.020(h) and case law to understand what post-judgment motions are authorized, because rendition of a final order is not delayed by an unauthorized motion. In addition, a motion that would otherwise postpone rendition will not do so if it is filed or served in an untimely manner. Thus, an appeal filed more than 30 days from the final order or judgment will be dismissed.8

If a timely and authorized motion staying rendition has been filed, an appeal must be taken when a signed, written order disposing of the motion between the movant and one other party has been filed, regardless of whether other authorized motions are pending between the movant and any other party.9 Again, failure to timely appeal under these circumstances will mean the end of the appellate process before it has begun.

The rules pertaining to post-trial motions contain a variety of filing and service deadlines. In short, there is no uniformity. As a result, an appellate practitioner familiar with these rules may be an invaluable asset to trial counsel in ensuring that the merits of the appeal are heard.

Preliminary Consideration: Whether to Appeal
Few trials are devoid of any legal error. That does not mean that every result provides the basis for a meritorious appeal. Rule 4-3.1 of the Rules Regulating The Florida Bar precludes an attorney from taking a frivolous appeal or advancing a frivolous issue. Pursuant to F.S. §57.105(1) (2005), counsel in Florida may be personally subject to attorneys’ fees sanctions for filing frivolous appeals. Experienced appellate counsel are aware that not all errors at trial constitute reversible error.

If an appeal is to be taken, the trial record must be reviewed for error. The skill that is perhaps the most important and unique to the appellate litigator is that of working with the record on appeal and isolating what issues are appropriate and likely to obtain appellate relief.10 While trial counsel may be tempted to raise a multitude of issues on appeal, an experienced appellate attorney will select only the strongest arguments. The “kitchen sink” approach only serves to clutter a brief and obscure meritorious issues. Less is more in the appellate context.

In some circumstances, trial counsel may be too personally involved with a case and unable to distance himself or herself when confronting and recognizing errors committed at trial. Trial counsel’s recollections about the trial often do not comport with the information contained in the record on appeal. Appellate counsel may not have personal knowledge of the trial proceedings, but they know their way around the appellate courts. They have developed skills and expertise unique to the appellate arena. Not only does an appeal move to a completely different courthouse, but it will also be heard by different judges and will be governed by different rules. An appeal is a completely fresh and new stage of the litigation. The appellate attorney’s fresh perspective at this stage may be a key component to prevailing on appeal.

Commencing the Appeal
Rule 9.110(b) provides that a party seeking to appeal a final judgment must file two copies of a written notice of appeal with the clerk of the lower court and pay the required filing fees within 30 days after the judgment is rendered. Practitioners should remember to calendar the appeal deadline because it is jurisdictional. A party to whom a notice of appeal is served may also seek appellate review of the judgment by filing a notice of cross-appeal with the clerk of the lower court within 10 days after the notice of appeal is filed, or within 30 days after rendition of the judgment, whichever is later.

The value of appellate experience cannot be overstated, even when it comes to filing an apparently simple document like a notice of appeal. Appeals have been dismissed based on seemingly minor procedural errors, such as the way an appellant is identified on the notice of appeal.

Appellate judges across the country maintain that an ability to write clearly has become the most important prerequisite for an appellate lawyer. According to former Chief Justice William Rehnquist, “[R]arely is good oral advocacy sufficient to overcome the impression made by a poorly written brief.”11 Judge Joel Dubina of the 11th Circuit emphasizes that the appellate brief is the single most important factor in the appellate process.12 Regardless of whether oral argument is granted, it is the brief that makes the first and last impression on the appellate court. Former Justice Thurgood Marshall aptly made the point as follows:

[I]t is the brief that does the final job, if for no other reason than that the opinions are often written several weeks and sometimes months after the argument. The arguments, great as they may have been, are forgotten. In the seclusion of his chambers, the judge has only his briefs and his law books. At that time your brief is your only spokesman.13

There are very strict guidelines for what must be included and what cannot be included in an appellate brief. Florida Rule of Appellate Procedure 9.210(b) provides specific sections that the initial brief must contain, and Rule 9.210(c) provides that the answer brief is prepared in the same manner as the initial brief, provided that the statement of the case and the facts may be omitted. The rule also notes that if a cross-appeal has been filed, the answer brief shall include the issues in the cross-appeal that are presented for review and argument in support of those issues. A reply brief should contain only argument in response and rebuttal to the argument presented in the answer brief, as provided by Rule 9.210(d), and the cross-reply brief is limited to rebuttal of the argument of the cross-appellee, as required by Rule 9.210(e).

There are also guidelines regarding the timing of the briefs. Rule 9.110(f) requires the appellant serve the initial brief within 70 days of filing the notice of appeal. Pursuant to Rule 9.210(f), the answer brief must be served within 20 days after service of the initial brief; the reply brief, if any, must be served within 20 days after service of the answer brief; and the cross-reply brief, if any, shall be served within 20 days thereafter.

The appellate courts strictly enforce the rules concerning the briefing and presentation of the issues on appeal. Even minor deviations from the rules regarding font size, margins, verifications, binding, and service can derail an otherwise meritorious appeal. Generally, Rule 9.210(a)(5) provides that initial and answer briefs may not exceed 50 pages in length and reply briefs cannot exceed 15 pages in length. The table of contents and the citation of authorities are excluded from the computation. However, the experienced appellate attorney recognizes that just because one is entitled to the space does not mean one must use it: Brevity and clarity are always preferable.

Issue framing is among the most important aspects of legal writing. The goal of the appellate practitioner is to persuade the court that his or her view of the case is the right one. Appellate judges keenly recognize that the filing of a weighty appellate brief might be lucrative for the attorney or may be intended to impress the client. This is not, however, a way to win points with the appellate court.

The art of writing an appellate brief is demonstrated most clearly through the statement of the facts, the most important part of an appellate brief. In order to be effective, the statement of the facts should provide the appellate court with only that information necessary to the case. Appellate attorneys know not to cite law or make legal arguments in the statement of the facts. Accuracy is critical. It is best to deal with bad facts openly and honestly. It is also never a good idea to attack opposing counsel, the parties, or the trial judge in the appellate briefs or at oral argument. Such conduct only serves to demean the appellate process. It is best to let the facts speak for themselves and to point out inconsistencies in the testimony.

The statement of facts should be structured in such a manner that the legal arguments follow logically. Although an attorney should structure the statement of facts in a light favorable to his or her client when appropriate, the statement of facts must be even-handed and straightforward. Writing a statement of facts that is neutral in form but simultaneously persuasive takes considerable skill. If the statement of facts is one-sided, the attorney faces the possibility of losing credibility with the appellate court. An appellate counsel’s reputation for candor and honesty goes a long way toward rendering his or her oral advocacy effective.

The summary of the argument is another important section of the appellate brief that should not be overlooked, because it offers the appellate court the first glimpse of the arguments on appeal — the heart of the appellate brief.

Two tasks must be accomplished through the brief: 1) informing the appellate court about the case; and 2) persuading the appellate court that the attorney’s position is correct.14 Appellate lawyers who have worked to develop their written advocacy tend to be good writers. The ability to write clearly and concisely is a valuable skill that yields significant advantage.

Standard of Review
Standards of review, once called the appellate court’s “measuring stick” by Judge John Godbold of the 11th Circuit, are essential on appeal to frame the issues and define the depth of the appellate court’s review.15 “Unless counsel is familiar with the standards of review for each issue, he may find himself trying to run for a touchdown when basketball rules are in effect.”16 While the trial court focuses directly on the parties and the merits of their dispute, an appellate court’s focus is the trial court. The appellate court must determine under the applicable standard of review whether the trial court committed an error that warrants reversal. Appellate lawyers are often better equipped to appreciate the different standards of review because the standard of review does not play a role in the trial court proceedings. An attorney who fails to recognize the appropriate standard of review will not properly structure the argument on appeal.

Oral Argument
Appellate oral argument differs from argument at the trial level. Often an argument that may work before a jury will serve to antagonize the appellate court. Appellate counsel generally have 10 to 20 minutes to reduce their argument to its bare essentials. When the appellate litigator learns the names of the members of the appellate panel that will hear the appeal, it is advantageous for the appellate advocate to go through the cases cited in the briefs and identify the cases decided by each appellate judge. Knowing the appellate judge’s perspective on the issue may provide the appellate litigator with the unique opportunity to formulate an argument customized to address the appellate judge’s concerns. Similarly, if the appellate judge has written an opinion that supports appellate counsel’s argument on appeal, appellate counsel can point to that fact and ask the appellate court to reaffirm its prior decision.

One of the advantages of hiring experienced appellate counsel is that he or she will have argued before the same appellate judges numerous times. Some appellate attorneys have had so much experience in the appellate arena that oral argument to the outside observer looks as though counsel is merely having a conversation with the court.

Representing the appellee is sometimes more difficult than representing the appellant. This is especially true for attorneys who have not routinely argued in the appellate arena. Counsel for the appellee must adapt an argument at the last minute in response to what counsel for the appellant has just argued. Appellate counsel is generally practiced in anticipating an appellant’s argument and questions from the bench and may be able to recognize important signals while observing the interaction of the judges and opposing counsel. If the appellant has not sufficiently answered a question from the bench, appellate counsel might open his or her argument with a better answer to the court’s question. If it appears that the judges are especially concerned over one of the appellant’s arguments, counsel for the appellee should be able to address the court’s concern.

The most common error in oral argument is not to sit down when done. Inexperienced counsel, realizing that there is time remaining, feels compelled to continue. This leads to repetition and serves to detract from the argument previously made to the court. Another common error is not to ask for any specific relief at the conclusion of oral argument. Appellate counsel recognizes the importance of informing the court of the specific relief requested.

Appellate litigation is a discrete and complicated area of litigation. Appellate advocacy requires knowledge and skills far different from those required in trial litigation. Appellate lawyers are familiar with the appellate process which enables them to avoid common pitfalls and to take advantage of opportunities on appeal. As a result, attorneys representing clients at trial should seriously consider seeking the aid of an experienced appellate attorney if an appeal is anticipated or intended.

1 David G. Knibb, Federal Court of Appeals Manual §1.7 (4th ed. 2000).
2 See Arabia v. Siedlecki, 789 So. 2d 380, 392 (Fla. 4th D.C.A. 2001) (Farmer, J., concurring in part and dissenting in part).
3 For observations by appellate judges regarding appellate practice, see Raymond T. Elligett, Jr., Top 10 Appellate Mistakes (or Why You Need an Appellate Specialist), 72 Fla. B. J. 41 (Jan. 1998).
4 Owens v. State, 579 So. 2d 311, 312 (Fla. 1st D.C.A. 1991).
5 State v. Gaines, 770 So. 2d 1221, 1223-24 (Fla. 2000).
6 See, e.g., Molina v. Watkins, 824 So. 2d 959, 964 (Fla. 3d D.C.A. 2002).
7 See, e.g., Shepardson v. Shepardson, 820 So. 2d 360 (Fla. 1st D.C.A. 2002).
8 See Migliore v. Migliore, 717 So. 2d 1077 (Fla. 4th D.C.A. 1998).
9 Fla. R. App. P. 9.020(h)(1).
10 Laurence H. Silberman, From the Bench: Plain Talk on Appellate Advocacy, 20 Litig. 3 (Spring 1994).
11 William H. Rehnquist, From Webster to Word Processing: The Ascendance of the Appellate Brief, 1 J. App. Prac. & Process 1, 4 (Winter 1999).
12 Joel F. Dubina, How to Litigate Successfully in the United States Court of Appeals for the Eleventh Circuit, 29 Cumb. L. Rev. 1, 2 (1998-1999).
13 Thurgood Marshall, The Federal Appeal, Counsel on Appeal, 139, 146 (Arthur A. Charpentier, ed., 1968).
14 John C. Godbold, Twenty Pages and Twenty Minutes: Effective Advocacy on Appeal, 30 Sw. L.J. 801, 802 (1976).
15 Id. at 810.
16 Id.

Roberta G. Mandel is a partner of the Miami Office of Stephens, Lynn, Klein, LaCava, Hoffman & Puya, P.A. Ms. Mandel is principally involved in civil and criminal appellate litigation. She previously served as an assistant attorney general for the State of Florida for over 15 years and has successfully argued more than 500 appeals in the state and federal court systems. Ms. Mandel is a member of the executive council of the Appellate Practice Section and the Appellate Court Rules Committee.

This column is submitted on behalf of the Appellate Practice Section, Susan W. Fox, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.

Appellate Practice