The Florida Bar

Florida Bar Journal

You Should Have Called Me Sooner

Trial Lawyers

The great Marlon Brando line from The Godfather comes in handy about every month or two. A trial lawyer calls to say he or she took an appeal and just received an affirmance, or a per curiam affirmance. Either way, I tell them: “You should have called me sooner.”1

Appellate counsel may be able to assist in a rehearing motion or a petition for discretionary review of a written opinion, but by then the case may not be retrievable. Trial counsel and the party might have been better served by associating an appellate expert earlier in the case.

The growth of appellate practice as a specialty is well documented.2 This article will not dwell on the obvious advantages of having an appellate practitioner work on the appeal. It addresses how trial counsel might consider using an appellate specialist during the trial and pretrial litigation phases.

Pretrial Proceedings

When a potential case appears novel or complicated, trial counsel may want to retain appellate counsel to help develop viable theories and assist in drafting the pleadings. This can apply to defenses as well. Working through tough legal issues up front also may save time and money in the long run.

In a case in which the plaintiff faces a potential legal bar, such as a statute of limitations problem that depends on which statute applies, counsel may want to draft a complaint that details the facts so the court can evaluate the legal issue. If the defendant is going to prevail on the limitations defense as a legal matter, better for it to happen early, before investing substantial litigation time and expense. If the trial court does dismiss the complaint, the plaintiff may ultimately prevail on the legal issue on appeal.3

Failing to properly plead a claim or defense can lead to the plaintiff or defendant receiving an adverse directed verdict at trial or losing on appeal.4 Trial counsel may want their law team to help brief and argue summary judgment motions. Today’s litigators also realize how important motions in limine can be.

Multiparty cases present additional opportunities to make mistakes. Trial counsel may want to consult with their appellate lawyer when it appears one party may exit a case through a dismissal or summary judgment. This could signal the need not only for the plaintiff to appeal, but also for a codefendant to appeal as well.5

During Trial

Appellate counsel can assist with the myriad evidentiary and other legal questions that come up during trial. This allows trial counsel to concentrate on his or her trial plan and on developing the client’s factual story. A second set of ears can listen for when a party might need to object or move for a mistrial, in order to preserve the point for appeal. Failing to move for a directed verdict at the appropriate time can be fatal to obtaining one during or after the trial.6

Most trials conclude in a crescendo of activity. Even when submitted in advance, the parties may be arguing the jury instructions and verdict form shortly before closing argument. Trial lawyers who have their appellate lawyer there to argue these issues can focus on reviewing the evidence, honing their closing, and maybe even reflecting on the case without the stress of arguing these legal issues.

Counsel who fail to properly request jury instructions can waive any error in refusing to give them.7 Lawyers should bring the requested instruction to the court’s attention, not merely file it.8 Similarly, counsel must make a timely and specific objection to instructions they may wish to later appeal.9

Appellate counsel can assist in presenting the party’s desired verdict form, another area fraught with waiver opportunities.10 Some attorneys overlook the implications of combining inquiries on the verdict form. Florida’s two-issue rule makes this a potential concern for both plaintiffs and defendants. For example, a defendant who loses a verdict that does not distinguish between the plaintiff’s grounds for recovery may not be entitled to a new trial, even if the defendant can show clear error in one ground.11 A plaintiff can face appellate problems under the same circumstances if it loses, or if it loses and the verdict combined two or more affirmative defenses into the same verdict question.12 As with some other issues, the federal approach to the two-issue rule differs significantly.13

Closing arguments are another place in which a second set of ears can assist in preserving issues for appeal. The appellate lawyer may be able to assist in preserving appellate points if the jury returns an inconsistent verdict.14

In other than the simplest trials, a second lawyer is helpful, if not essential. Why not make it someone who can help the client plan for the appeal, no matter which side ends up taking it? Trial lawyers who associate appellate attorneys for trials may find themselves adopting a variation of another popular slogan: Appellate counsel—Don’t go to trial without it.

Post-Trial Matters

An appellate specialist can assist in preparing or responding to post-trial motions. Some points are not preserved if not raised in authorized motions.15 Even for points a party does not have to raise to seek a new trial on appeal, the party should present them in their best light to the trial court. There is the chance the trial judge may grant the motion for new trial. Most lawyers consider it an advantage to be the appellee.

Along with making sure the right motions are filed, appellate counsel can ensure they are timely filed. Failing to appreciate the differences for timely serving and filing post-trial motions in state jury and nonjury trials can be fatal. And, as with the two-issue rule, the federal rules differ.

Trial counsel may want their appellate counterpart to take charge of properly preparing and timely filing the notice of appeal. Filing too early can be almost as bad as filing too late, in that it can waive certain potential points on appeal.16

Appellate Counsel

Trial lawyers who have appellate lawyers in their firm should be able to arrange a symbiotic relationship. This article will not endeavor to explore how firm fee credit issues should be handled.

Trial and appellate attorneys who do not practice together have several options. When the client is paying on an hourly basis, retaining appellate counsel should be straightforward. Contingent cases may lend themselves to different arrangements.

Some trial counsel prefer to pay an agreed hourly rate or flat fee for discreet projects during pretrial and even trial proceedings. In other cases, counsel might agree on appellate counsel receiving a share of the trial contingent fee. When an attorney from another firm comes on board and will be sharing the contingent fee, counsel should have the client execute an addendum to the fee contract reflecting this arrangement (just as they do when a new lawyer will be handling the appeal). Particularly as the case moves to the appellate level, cases in which the prevailing party on appeal will be entitled to an attorneys’ fee award may facilitate retaining appellate counsel when a straight percentage would not be attractive.17


Florida has over 100 board-certified appellate lawyers and approximately 1,000 members of the Appellate Practice and Advocacy Section. Don’t wait until you and your client realize you should have called one sooner.

1 If it’s a PCA, one might also think of the expression about putting a fork in the appeal because it’s done. There is no further review to the Florida Supreme Court from a PCA, and slim to no chance of a successful rehearing on one before the DCA, with no a strong favorite. See Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) (no review of pca); Lawyers Title Insurance Corporation v. Reitzes, 631 So. 2d 1101 (Fla. 4th D.C.A. 1994) (sanctioning lawyer for filing rehearing on a PCA); but see Teca, Inc. v. Mena, 24 Fla. L.Weekly D349 (Fla 4th D.C.A. Feb. 3, 1999) (granting motion for rehearing filed after per curiam affirmance).

2 See, e.g., L. Silberman, Plain Talk on Appellate Advocacy , 20 Litig. 3 (1994).
3 See, e.g., Silva v. Southwest Florida Blood Bank , 601 So. 2d 1184 (Fla. 1992).
4 See, e.g., Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corporation, 537 So. 2d 561 (Fla. 1988).
5 See, e.g., Holton v. H. J. Wilson Co., Inc. , 482 So. 2d 341 (Fla. 1986).
6 See Prime Motors Inns, Inc. v. Waltman , 480 So. 2d 88 (Fla. 1985).
7 Fla. R. Civ. P. 1.470(b).
8 See Luthi v. Owens-Corning Fiberglass Corp., 672 So. 2d 650 (Fla. 4th D.C.A. 1996).
9 See, e.g., Middelveen v. Sibson Realty, Inc. , 417 So. 2d 275 (Fla. 5th D.C.A. 1982), review denied , 424 So. 2d 764 (Fla. 1982).
10 See, e.g., Hill v. Department of Corrections , 513 So. 2d 129 (Fla. 1987).
11 See, e.g., First Interstate Development Corporation v. Ablanedo , 511 So. 2d 536 (Fla. 1987).
12 Barth v. Khubani, 705 So. 2d 72 (Fla. 3d D.C.A. 1997).
13 See R. Elligett & J. Scheb, Florida Appellate Practice and Advocacy §3.13 (1998).
14 See, e.g., Grossman v. Sea Air Towers, Limited. , 513 So. 2d 686 (Fla. 3d D.C.A. 1987).
15 For example, a party should renew its motion for judgment in accordance with motion for directed verdict, and should move for a new trial based on the manifest weight of the evidence.
16 An appellant who files a notice of appeal while the appellant’s Fla. R. App. P. 9.020(h) motions are pending abandons those motions. Rule 9.020(h)(3).
17 For example, where an insured is entitled to a fee under Fla. Stat. §627.428, or a plaintiff’s recovery has triggered an offer of judgment

. Raymond T. (Tom) Elligett, Jr., is a member of Schropp, Buell & Elligett. He graduated with high honors from the University of Florida in 1975 and received his J.D., cum laude, from Harvard University in 1978. Mr. Elligett is board certified in appellate practice and a past chair of the Appellate Practice and Advocacy Section of The Florida Bar. He is coauthor with Judge John M. Scheb, retired, of Florida Appellate Practice and Advocacy.

This column is submitted on behalf of the Trial Lawyers Section, Michael G. Tanner, chair, and D. Keith Wickenden, editor.

Trial Lawyers