Have You Seen the Second DCA’s New Procedures on Oral Argument?

Jared and Judges of Second D C A at Practicing Before the Second D C A C L E.

Jared Krukar introduces the judges of the court at the 2017 Practicing Before the Second DCA CLE presented by the Florida Bar Appellate Practice Section. Photo by Kristin Norse.

The Second District Court of Appeal has long been known for its liberality in granting oral argument, but also had a discrete list of types of cases in which it would almost never do so.  However, the Court recently updated its Internal Operating Procedures[.pdf] (“IOPs”) to reduce the list of exceptions and leave the judges with more express discretion.

The prior Internal Operating Procedures expressly listed six types of cases where oral argument was “not generally permitted.”

The IOPs were last amended on October 15, 2015.  In that version, the Court stated it would generally not permit oral argument in appeals in which a pro se party is incarcerated, reemployment assistance appeals, original proceedings, postconviction appeals, 9.130 final and nonfinal appeals, and motions.

The Court always had discretion to grant oral argument in any of these cases, but rarely deviated from the list.

The new Internal Operating Procedures reduce the exceptions, but expand apparent discretion.

The revised IOPs, effective as of April 12, 2018, no longer expressly exclude from oral argument original proceedings, final and nonfinal 9.130 appeals, nonsummary postconviction appeals where the parties are represented, reemployment assistance appeals, or motions.

However, the IOPs added new language that elucidates the Court will likely apply discretion on a case-by-case basis more than it has in the past:

Requests for oral argument in expedited proceedings, including termination of parental rights and dependency cases, are presented first to the merits panel.  Upon the panel’s decision to grant oral argument, the clerk will set the case on an expedited basis.

Other than expedited proceedings, cases are set for oral argument prior to the assigned panel’s review.  As such, the cases are provisionally set for oral argument.  Should the panel of assigned judges decide unanimously that the court will not benefit from oral argument, the clerk will be directed to notify the attorneys or parties by order that the argument is cancelled.  An order cancelling argument for this reason will generally issue no later than two weeks before the date of the scheduled argument.

While the current IOPs still say that “the court permits oral argument as a matter of course in most proceedings,” this new language makes clear that the Court is aware of its discretion and will inevitably use it to reject oral argument when it deems fit to do so.

Does this mean more or less oral arguments in the Second District?

Well, according to the IOPs, it now appears that one can seek oral argument in nonfinal appeals, original proceedings, and certain other cases whereas before extraordinary measures would need to be taken.

But don’t jump the gun just yet.  The Second District’s “Notice to Attorneys and Parties[.pdf]” still contains a list of types of cases excluded from oral argument, and it still matches what the old IOPs said.  Presumably the Second District will be updating the notice to match the new IOPs, but for now, it governs what parties can file.  Also, check out our post on the Second District’s Practice Preferences as well to be sure you’re complying with all current requirements.

If you have a case on appeal and aren’t sure whether oral argument is available, or whether it is the best option for you, contact us and ask.  There are pros and cons to every decision like this, and we can help you make the right choice for you and your case.

4th District Shortens Allowable Extensions for Reply Briefs and Criminal Appeals

The Fourth District Court of Appeal has shortened the allowable time period for agreed extensions of time: Effective May 1, 2018, parties will only be allowed to agree to 90 days for an initial or answer brief, and 15 days for a reply brief. The Court has also shortened the agreed extension period for criminal appeals significantly, once again applying the same standards to criminal and state appeals.

The new order, AO 2018-1 [.pdf], keeps the amount of time of an agreed extension for the initial brief at 90 days (which in 2016 came down from the original 120 days), but shortens the reply brief stipulation time from 30 days to 15. See AO 2016-1 [.pdf]. When the Fourth District first allowed agreed enlargements in 2011, the time periods were much larger: 120 days for initial or answer, and 60 days for reply. In 2016, the Court changed the rules to keep the 120/60 for criminal, but shorten it to 90/30 for civil. The new Order applies to both civil and criminal cases, and once again aligns the timing for both. Now, however, the time for a reply brief is even shorter, and the rule is 90/15 for all.

Be on the lookout, as we will soon be offering our readers a handy download to keep all of the different rules straight! The download is ready! Click here to sign up for our email newsletter and receive a link to download our guide.

Fifth District Changes Procedures for Extensions of Time

The Fifth District Court of Appeal has twice modified its rules regarding extensions of time in less than a month, reducing the availability of stipulated extensions and placing additional burdens on all attorneys seeking an extension for their clients.

Agreed Extensions of Time for Filing Briefs

Since 2013, the Fifth District has allowed parties to file a “notice” in lieu of a “motion” to obtain limited extensions of time for briefs in criminal and civil appeals, with certain exceptions.  The original administrative order authorized as much as 90 days for initial or answer briefs, and 60 days for reply briefs.

But in an amended order effective March 2, 2018, the amount of time available is now limited to 60 days for initial or answer briefs, and 30 days for reply briefs.

New Notice Requirements for Extensions

The Fifth District did not stop there.  In its March 27, 2018 Administrative Order A05D18-02, the Fifth District mandated that every extension request filed by an attorney must be accompanied by a certification that the attorney has provided a copy of the motion or notice to his/her clients.  This applies to all cases before the Court, and not just those that allow for the “notice” procedure discussed above.

The administrative order notes that it does not “require the client’s signature or consent,” nor does the certification have to include the client’s name, address, or signature.  According to the order, the attorney will comply with the order by certifying “by a statement included in the signed certificate of service on the motion or notice filed with this Court, that counsel has that day provided a copy of the motion or agreed notice to his/her client(s) via U.S. Mail, e-mail, or by hand delivery.”

The order does warn, however, that noncompliance with this requirement may result in the denial of any request for extension of time, whether by notice or motion.

What it Means to You

Given these added restrictions, we deduce that the Fifth District must perceive there has been some abuse of its extension procedures that require stricter regulation.  The new rules appear designed to increase attorney oversight by both the Court and clients.  Unfortunately, for those attorneys who do not abuse the process, these new rules will make seeking an extension slightly more difficult, and it will reduce the number of limited extensions available.  It remains to be seen whether other districts will adopt similar rules.

There is a strong likelihood that many who do not specialize in appellate practice will be caught off-guard by this new rule, and thus will have a motion or notice for extension denied or stricken.  We watch for rule changes like this because appeals are what we do.  Let us help you navigate the intricacies of the specific rules for each of the appellate courts in Florida to avoid getting caught in any procedural traps such as the ones created by these new rule changes in the Fifth District.

A final note — if you want a blast from the past, check out the article Jared wrote back in 2014 for the HCBA Lawyer on the issue of stipulated extensions of time when the concept was still brand new!

UPDATE: We’ve created a handy guide to help you keep the different courts’ rules straight. Click here to sign up for our newsletter and get a link to download the guide!