Second District Publishes Practice Preferences

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The Second District Court of Appeals in October published on its website a brief but mighty Practice Preferences guide [.pdf] to assist parties in guiding their practice before that Court. The document includes three main sections: (1) Notices, Motions, and Records, (2) Briefs and Brief Writing, and (3) Oral Argument. The document is a mix of general appellate advocacy best practices and the specific preferences of this Court and its judges. Some of the most important practice tips:

Make jurisdiction easy to discern (See page 1, #1).

When filing a notice of appeal, include a copy of any tolling motion and the order granting or denying that motion, so the date of rendition is clear without having to look outside of the filing to determine jurisdiction.

No footnotes! (See page 4, #8).

The Second District will just take your footnotes out of the margin and pull it into the body of the brief to make it more readable for the judges. And whatever you do, don’t cite Bryan Garner style (sorry, Bryan). This Court hates that, and I have personally witnessed a Court sending a so-cited brief back to the party to re-file with inline citation.

Maximize Oral Argument (See pages 5-6).

Probably the most useful section of the Practice Preferences goes into detail about Oral Argument best practices: how to introduce yourself, answer the Court’s questions, don’t interrupt the judge, be conscious of your remaining time, know your record and briefs and law, and practice!

Whether you are in the Second District or any other Florida intermediate appellate court, the guide is a concise and helpful summary of some of the most common questions of appellate procedure and practice.

Motions Postponing Rendition

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Now that we no longer have to worry about abandoning an authorized motion for rehearing by filing a notice of appeal, the appellate courts understandably want to know if there is such a motion pending. The Fifth District recently issued a notice [.pdf] expressly asking parties to inform the court if an appeal should be held in abeyance. Specifically, the court asks that, along with the notice of appeal, the parties “immediately” inform the court of pending motions by filing a notice with the Court. Similarly, parties are requested to file a notice with the court again when the trial court rules on the pending motion, and include a copy of the lower tribunal’s signed, written order disposing of the motion.

To further facilitate this, the Court this week amended Administrative Order AO5D12-2 [.pdf] to require the clerk of the lower tribunal to indicate on its transmittal that a motion postponing rendition is pending.

This just makes sense, and would be good practice in all of the DCAs, even in the absence if a formal request from the Clerk. The easier parties make it for the Court to get to the merits, the better the system works for everyone. The full text of the notice reads:

Informing the Appellate Court of Pending Motions Postponing Rendition at time of Filing the Notice of Appeal

April 10, 2015

Effective January 1, 2015, Florida Rule of Appellate Procedure 9.020(i)(3) has been amended to eliminate the abandonment of motions authorized pursuant to rule 9.020(l) by the filing of a notice of appeal. Rendition of a final order will be delayed by the filing or service of a timely and authorized motion and the filing of a notice of appeal will not result in the abandonment of such a motion but rather the appeal shall be held in abeyance until the filing of a signed, written order disposing of the motion.

Attorneys and parties filing a notice of appeal should immediately inform the court by the filing of a proper notice if a motion postponing rendition is pending so that the case may properly be held in abeyance. Likewise, the attorneys or parties in the case should inform the court by notice upon the lower tribunal disposition of such motions by filing a copy of the lower tribunal’s signed, written order disposing of the motion.

Lower court clerks, lower tribunal clerks, and agency clerks are now required to complete a new section of the electronic transmittal form submitted when efiling notices of appeal to this court which must indicate whether or not a motion postponing rendition is pending in the case below. Clerks must mark this section of the form or the notice of appeal may be rejected until such time as the transmittal form is properly completed.

/s/
____________________________
Joanne P. Simmons, Clerk of Court

Crisis Averted in Eleventh Circuit

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The Eleventh Circuit is no longer in a state of emergency. At the end of last year, the Chief Judge had issued General Order 41 [.pdf], which allowed appeals to be heard by panels that did not include at least 2 11th Circuit judges. On Friday, the Court rescinded that emergency via General Order 42 [.pdf]. Panels that have already heard argument or had non-argument cases submitted prior to the issuance of Order 42 will consider the appeals as submitted, but all future panels will go back to having at least 2 11th Circuit Judges on them.