A series of amendments to the Federal Rules of Appellate Procedure designed to lighten the burdens on appellate judges by tightening page limits and clarify due process procedures for inmates go into effect today. (Download the .pdf of the rules and redline here. Transmitted to Congress back in April, the changes affect Appellate Rules 4, 5, 21, 25, 26, 27, 28, 28.1, 29, 32, 35, and 40, Forms 1, 5, and 6, and create a new Form 7 for inmate filers and new Appendix to assist in determining the new, shorter, word limits for various filings. Notably, the rules also take away the so-called “mail days” from items served electronically. The rules also separate out procedures for amicus curiae participation at the merits stage of a case and on rehearing (more on this in a later blog post).

The biggest change for appellate practitioners is the complete shift to word limits rather than page limits for all filings prepared by a computer in appellate matters, and the tightening of word limits for briefs and other items already governed by word counts. While the rules committee recognized that counting words would be burdensome to inmates preparing handwritten or typed matters, and therefore left in place page limits for documents prepared by those methods, for the rest of us our filings must now comply with word limits. As explained in the committee notes:

The word limits were derived from the current page limits using the
assumption that one page is equivalent to 260 words.

But notably, this 260 word count is lower than the one used in previous rule changes. As the Committee Notes to Rule 28.1 points out, in 2005 the Committee had used a 280 words per page conversion, but “responding to concern about the length of briefs” has shaved 20 words per page from the conversion ratio. The Committee then applied this new standard to existing word counts:

Principal Brief: 13,000 words (formerly 14,000)
Reply Brief: 6,500 words (formerly 7,000)

To ensure that everyone is counting the same words, the amendments createed a new 32(f) to clarify what is excluded from the word count, deleting the former Rule 32(a)(7)(B)(iii). Don’t worry about your words in the following sections of your brief:

  • cover page
  • corporate disclosure statement
  • table of contents
  • table of citations
  • statement regarding oral argument
  • any addendum containing statutes, rules, or regulations
  • certificates of counsel
  • signature block
  • proof of service
  • any other item excluded by these rules or local rules
  • A certificate of compliance with these type-volume standards is required on most filings under new Rule 32(g) — it’s not much different than the old certificate, but it is located in a different subdivision of the rule now, so be sure to update your form briefs to make sure you are citing the correct rule in your certification and follow the updated Form 6 as your guide. The new form is more generic than the old, as it now refers to “document” rather than “brief” and must be used on all documents with type volume limit, not just briefs.

    The rule change also makes clear that local courts have the ability by local rule to enlarge these lengths, though the regional circuits must accept briefs that meet these lengths and can’t require shorter briefs. See FRAP 32(c).

    Finally, the drafters kindly put together a handy Appendix [.pdf] that includes a chart showing all of the new type-volume limitations, so there is an easy reference to knowing all the new volume limits.

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    Matthew DPW Legal Appeals Court Deadlines

    Hurricane Matthew is looking pretty creepy
    in this NASA Earth Sciences image.
    Don’t let Matthew ruin your appeal!

    Three Florida Appellate Courts have announced closures so far due to Hurricane Matthew. The Third and Fourth Fourth District Courts of Appeal will be closed from 1 pm today through Friday October 7th, while the Fifth District will be closed Thursday and Friday. The Florida Supreme Court aggregates announcements about emergency closures for the entire state court system on its emergency page.

    What is the effect of a court closure on deadlines and argument? Certainly, argument is cancelled and will have to be rescheduled. But what about regular deadlines? It appears an emergency closure does not count as a “Court Holiday” under Florida Rules of Judicial Administration Rule 2.514(4)(B) — the Courts are not calling it a “holiday,” and doing so probably has personnel implications that Court administration doesn’t want to deal with. However, the Florida Supreme Court generally issues administrative orders extending deadlines in the affected counties, and likely will do so in the wake of Hurricane Matthew. The orders generally state that the Supreme Court is intending to “equitably relieve parties in all pending cases by extending legal time limits that they otherwise would have been unable to meet due to the emergency.” See, e.g., AOSC16-23, In re EMERGENCY REQUEST TO EXTEND TIME PERIODS UNDER ALL FLORIDA RULES OF PROCEDURE FOR HILLSBOROUGH COUNTY IN THE THIRTEENTH JUDICIAL CIRCUIT [.pdf]. And if the emergency further impedes the attorney or client, then the trial court is directed to resolve the claim “case-by-case basis when a party demonstrates that the lack of compliance with requisite time periods was directly attributable to this
    emergency and that equitable remedy is required.” Id. I wouldn’t worry about a deadline for filing a brief — the extension will either be automatically granted by an administrative order, or the Court will be receptive to a motion for leave to accept a late-filed brief.

    But what about deadlines that are not normally allowed to be extended? Rule 1.090 states that, even for good cause, a Court:

    may not extend the time for making a motion for new trial, for rehearing, or
    to alter or amend a judgment; making a motion for relief from a judgment under
    rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a
    motion for a directed verdict.

    There is some authority on this issue, but it is sparse and not directly on point. The Third District has held that the statute of limitations is not tolled by an administrative order closing the courts for weather-related issues. Ramirez v. McCravy, 4 So.3d 692 (Fla. 3d DCA 2009) [.pdf]. The Fourth District has held that hurricane-related closures and the resulting administrative order did toll a deadline, but it was a deadline to file for review of arbitration, which is not one of the types of deadlines excluded from enlargement by Rule 1.090. Rasabi v. Salomon, 51 So.3d 1284 (Fla. 4th DCA 2011) [.pdf]. And certainly, a court may by administrative order declare a date a Holiday, thus eliminating that day from being counted as the last day in any time calculation under Rule 2.514. See, e.g., R.J. Reynolds Tobacco Co. v. Kenyon, 826 So.2d 370 (Fla. 2d DCA 2002)[.pdf] (applying prior time calculation rule). Maybe since the Florida Supreme Court promulgated Rule 1.090, it’s administrative orders can supersede this issue. But I wouldn’t count on it, and I certainly wouldn’t want to be the guinea pig having to argue it to the Court in order to preserve my client’s right to appeal.

    Here’s what I recommend: When it comes to a notice of appeal or a motion for rehearing, best not to mess around. Get it filed by the deadline, or early, rather than rely on a yet-to-be issued AO. Jurisdictional and hard deadlines are not to be messed with. And if your issue is the timeliness of a Rule 1.530 motion for rehearing or new trial, don’t wait for the timeliness issue to play out: file your notice of appeal no later than the 30th day after the original order was filed with the clerk, rather than counting on tolling. Since the 2015 rules change eliminated the trap caused by the old rules, and filing a notice of appeal no longer abandons a properly filed motion for rehearing, there’s no reason not to just get the notice of appeal on file, even if the fight over the timing of the 1.530 motion is still pending. See Fla. R. App. P. 9.020(i)(3)(stating that appeal shall be held in abeyance while tolling motion is decided).

    What happens if you do get in a pinch? If you have to make the Hail Mary throw, perhaps a Rule 1.540(b) motion asking for the judgement to be re-issued due to excusable neglect could work. The appellate courts have very rarely ordered trial courts to grant such motions where the court found excusable neglect in determining the date final judgment was rendered, in order to allow for a timely appeal. See, e.g., Pompi v. City of Jacksonville, 872 So.2d 931 (Fla. 1st DCA 2004)[.pdf] (reversing denial of Rule 1.540(b) motion and ordering re-issuance of judgment). Those cases were all in the context of the date of rendition being unclear due to multiple filing stamps on the final judgment, not in the context of missed deadline due to weather. Loss of power might be considered excusable neglect, for example. But best not to go there. Get it filed! Even a one page, incomplete, or in-the-wrong-court Notice of Appeal will preserve the rights, even if you later have to amend it. See, e.g., Kaweblum v. Thornhill Estates Homeowners Association, Inc., 755 So.2d 85 (Fla. 2000) (notice of appeal filed in wrong court preserved right to appeal).

    To my fellow Florida attorneys, and anyone else in Hurricane Matthew’s path, be safe.

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    The Florida state court e-filing portal is increasing the convenience fees associated with filing documents through the portal, effective tomorrow, and with very little notice. The Portal is not really fully functional when it comes to initiating appeals — they haven’t quite figured out how to accept the portion of the filing fee that goes to the District Courts of Appeal, and only some Circuits accept the portion of the fee that goes to the Circuit Court Clerk. But clients and attorneys alike should be aware of these new charges, in addition to the statutory fee amounts.

    The announcement sent out Tuesday states:

    Today, the Florida Courts E-Filing Authority voted to increase the convenience fee associated with filings. Effective July 1, 2016, the rates will increase to $5.00 per filing when paying with echeck and 3.5% when paying with a credit card. The increased fees were deemed necessary to cover expenses associated with the operational costs of payments and transactions. To implement this change, the portal will be unavailable on 6/30/2016 from 9PM until midnight eastern time zone.
    For further information, please visit https://www.myflcourtaccess.com/ to review documents and other meeting information.

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