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Weird, Wild Stuff: Nine Proposed Appellate Rule Changes You May Want to Weigh In On

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The Appellate Court Rules Committee published its Notice of its proposed rule amendments in this month’s The Florida Bar News.  They are proposing a number of changes to no less than 32 different appellate rules.  You can read all of them here.

Here’s what we think about some of these proposals…

We had gut reactions to a few of these, and thought we’d share some of the more interesting ones with you.

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If you have any comments on these proposed rule amendments, get them in before August 1, 2019!

  • Amending rule 9.045 to require all appellate documents to be filed in “Arial 14-point or Bookman Old Style 14-point font.”
    • Bookman?  Where did Bookman come from?  Our stuck-in-our-ways reaction is “what’s wrong with Times New Roman?”  Well, a quick Google search shows that many consider Bookman a superior font.  But those same searches name a number of fonts that are an improvement upon Times New Roman (like Garamond, this author’s personal fave outside of the courts).  And also, other studies suggest there’s a difference in readability between serif and non-serif fonts.  So why keep both a serif and a non-serif font rather than just mandate the use of the single best font?
    • We’re curious to see what the ACRC was looking at when they settled on Bookman–and that will be a super-nerdy conversation that we won’t bore you with here, but feel free to give us a call if you’re curious!
  • Amending rule 9.145 to eliminate the requirement that transcripts in juvenile delinquency cases use only a child’s initials, to avoid confusion.
    • Will transcripts in the record be filed under seal, or redacted in some way, to maintain protection for the child?  Is there a corresponding amendment to Florida Rule of Judicial Administration 2.420 (minimizing the filing of sensitive information) to ensure this privacy?
  • Amending rule 9.170 to clarify that orders denying entitlement to attorneys’ fees and costs are appealable in probate and guardianship cases.
    • Before, the rule suggested only orders awarding fees were appealable.  This is obviously an important clarification if you practice these types of appeals.
  • Amending rule 9.225 to allow argument in a notice of supplemental authority.
    • Whoa.  We see this being used as a tool for parties to effectively file supplemental briefs.  We can also see this being abused for that purpose unless the rule is also amended to limit what can be filed as supplemental authority.  Many judges have personally indicated they do not like notices of supplemental authority that identify old cases, but the rule does not say that explicitly.  A party could potentially go find any relevant case and use it to rectify errors or omissions in its briefs.  Perhaps the new amendment should be accompanied by an amendment limiting notices of supplemental authority to authorities that are created after the date of the last brief of the party that files it.
  • Amending rule 9.300 to do away with the required separate request to toll time in the Florida Supreme Court.
    • Good riddance.  This requirement had no useful purpose.  It only served to increase attorney labor (and thus client costs), reduce judicial economy, and serve as a procedural trap for the unwary.
  • Creates Rule 9.332, providing a procedure for en banc proceedings in circuit court.
    • I’ve not ever had a matter that required such proceedings, but this amendment having been brought to our attention, it seems a really good idea.  We cannot see how the current rule 9.331 could ever be properly applied in a circuit court.  Our thoughts are with the unfortunate souls that have had to figure out how to use rule 9.331 in the circuit court to-date.
  • Amending rule 9.370 to create word limitations (instead of page limitations) on briefs.
    • This follows the federal practice.  We will take word limits over page limits in a heartbeat.
  • Amending rule 9.440 to create limited appearances for appellate proceedings.
    • This may be in response to the Fifth District’s Administrative Order AO5D15-01, Re: Continuances of Oral Argument.  Therein, the Fifth District effectively states that every attorney that appears on a brief, and every attorney in the firm of an attorney that appears on a brief, can be held responsible to appear for oral argument.  If you haven’t read that order and you ever appear on cases in the Fifth District, well, just go read the order.
  • Amending Rule 9.800 to further permit citation to online resources and to eliminate required citation to Florida Law Weekly.
    • Honestly, most Florida appellate courts have been more than forgiving about missing FLW citations for many years now–a logical shift and perhaps tacit recognition that there’s no longer a reason for an FLW cite.  Judicial opinions can be accessed online from any number of free sources, and FLW is (a) a cost-based service (b) not available to everyone, and (c) not the most elegant of interfaces to use (online or in print).  This is a worthwhile amendment that reflects the changing times.

More amendments?  YES!

These proposed amendments follow the extensive amendments that went into effect on January 1, 2019, which we’ve covered extensively.  See, e.g., Almost Every Florida Appellate Rule Changes on New Years’ Day 2019; Now You Can Appeal Two More Types of Nonfinal Orders.  If you haven’t checked those amendments out, make sure you do!

What do you think?  Let us know, and let the ACRC know!

So what do you think of these proposed amendments?  Agree/Disagree?  Are there any others you would want us to address?  Let us know.  And even more importantly, send any comments to Thomas D. Hall, Incoming Chair of the Appellate Court Rules Committee, at thall@bishopmills.com, and to Bar attorney liaison, Hether Telfer, at htelfer@floridabar.org.

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Almost Every Florida Appellate Rule Changes on New Years’ Day 2019

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Get your pencils ready–your filings and your calendar will need some adjustment!

The Florida Supreme Court has substantially amended the Florida Rules of Appellate Procedure, changing language in nearly every rule in the book along with related rules from the Florida Rules of Judicial Administration.  It accomplished this through issuing three separate opinions: SC17-152 [.pdf]; SC17-882[.pdf], and SC17-999 [.pdf].  The amendments change, well, almost everything!

The amendments become effective on January 1, 2019.

All the amendments become effective on January 1, 2019, but at two different times: SC17-152 and SC17-999 go into effect at 12:01 a.m., while SC17-882 goes into effect as of 12:02 a.m.

The biggest trap for everyone?  The time periods and mailing issues.

We’ll talk about this again in-depth in the near future, but the elimination of mailing days for every electronically-served document in Florida courts, and then the lengthening of many appellate deadlines to compensate, will require everyone’s calendaring procedures to change significantly. Spoiler alert — in most instances you will actually have more time under the new rules than you did under the old rules.

This post, Part I of a multi-part series, provides a brief summary of every substantive amendment organized by rule.  Following posts will investigate and elaborate on different aspects of the numerous changes.

Summary of appellate-related rule changes (with links)

Before we dive into the analysis though, let’s just get the big picture. Here’s our summary of the changes, with links for your review.
*All links to Supreme Court opinions are to the .pdfs of those opinions.

Rule

Change

Source

Fla. R. Jud. Admin 2.514 [.pdf, entire rule set]
  • When a period is stated in days or a longer unit of time, “begin counting from the next day that is not a Saturday, Sunday, or legal holiday.”
  • 5 days added for only traditional mailing.  No more days for
    electronic service.

SC17-882, p. 9

Fla. R. Jud. Admin 2.516 [.pdf, entire rule set]
  • E-Mail service no longer treated as mail service for computation of time.

SC17-882, p. 10

Fla. R. App. P. 9.010
  • Added applicability of Fla. R. Jud. Admin (formerly in 9.020(h)).

SC17-152, p. 22

Fla. R. App. P. 9.020
  • Removes section regarding Fla. R. Jud. Admin.
  • Reorganizes subsection on motions tolling rendition (without substantive change).
  • Defines “conformed copy.”
  • Other format changes, renumbering of subsections.

SC17-152, pp. 22-24

Fla. R. App. P. 9.030
  • Non-substantive changes only.

SC17-152, pp. 25-27

Fla. R. App. P. 9.040
  • Non-substantive changes only.

SC17-152, pp. 27-28

Fla. R. App. P. 9.100
  • Non-substantive changes only.
  • A reply is due within 30 days of the response.

SC17-152 pp. 29-30

SC17-882, p. 16

Fla. R. App. P. 9.110
  • Clarifies that scope of review in partial final judgments limited to any matter or ruling prior to filing of notice that is directly related to the aspect of the
    judgment under review.
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 30-32

SC17-882, pp. 16-17

Fla. R. App. P. 9.120
  • Omits requirement of appendix for initial brief on the merits in discretionary review over district court decisions.
  • Respondent’s brief on jurisdiction must be served within 30 days of service of petitioner’s brief.

SC17-152, pp. 32-33

SC17-882, p. 17

Fla. R. App. P. 9.125
  • Omits specific format for signature block on certification in form for pass-through appeals to supreme court.

SC17-152, pp. 33-34

Fla. R. App. P. 9.130
  • Adds two new categories to the list of nonfinal appealable orders: “that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed;” and “grant or deny a motion to disqualify counsel.”
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 35-36

SC17-882, p. 18

Fla. R. App. P. 9.140
  • Attorney of record for appellant must serve designations to be served on the court reporter, and service must occur before attorney of record will be allowed to withdraw from representation on appeal.
  • Modifies the return of the record rule to require return of only non-electronically filed parts of the record after final disposition of the appeal.
  • When a 3.800(b)(2) motion is filed, the clerk must supplement the appellate record with the motion, any response, any resulting order, and any motion for rehearing, response, and order on the motion. The supplement must be filed within 20 days after filing of the order disposing of the motion.  If no order is filed within 60 days, the 20 days runs from the end of the 60-day period and requires a statement in the supplement that no order was timely filed.  If a motion for rehearing is filed, the clerk must transmit the supplement within 5 days of the order disposing of the rehearing. If no order issues within 40 days, the 5-day period runs from the end of the 40-day period, and the supplement must include a statement that no order was timely filed.
  • “A defendant may cross-appeal by serving a notice within 15 days of service of the state’s notice or service of an order on a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).”
  • “[I]n an appeal by the state under rule 9.140(c)(1)(K), the state’s notice of cross-appeal shall be filed within 15 days of service of defendant’s notice or service
    of an order on a motion pursuant to Florida Rule of Criminal Procedure
    3.800(b)(2).”

SC17-152, pp. 38-39

SC17-882, p. 19

Fla. R. App. P. 9.141
  • Requires the clerk to index, paginate, and send to parties the record on collateral and postconviction cases.
  • Allows for directions to clerk within 10 days of notice of appeal.
  • A reply may be served within 30 days after service of the response.

SC17-152, pp. 42-43

SC17-882, p. 20

Fla. R. App. P. 9.142
  • Non-substantive changes.
  • The briefing schedule allows that the state has 50 days from the date the defendant’s brief is served, and the defendant has 40 days from the date the state’s brief is served.
  • In petitions seeking review of nonfinal orders in death penalty postconviction proceedings, the petitioner may serve a reply within 30 days of the State’s response.

SC17-152, pp. 44-46

SC17-882, pp. 20-21

Fla. R. App. P. 9.145
  • Non-substantive changes
    only.

SC17-152, pp. 47-48

Fla. R. App. P. 9.146
  • In juvenile dependency, TPR, and cases involving families and children in need of services, mandates that review of trial court orders on motions seeking a stay pending appeal shall be by motion.
  • Adds detail for briefing schedule in cases in which more than 1 initial or answer brief is authorized.
  • When an order issues allowing counsel to withdraw, counsel must within 5 days certify that counsel has forwarded the record and transcripts to the parent or is
    unable to do so after making diligent efforts to find the parent.
  • In Dependency and TPR appeals, the initial brief shall be served within 30 days of service of the record or index.  The answer brief shall be served within 30 days of the initial brief. The reply brief shall be served within 15 days of the answer brief.

SC17-152, pp. 48-50

SC17-882, p. 22

Fla. R. App. P. 9.150
  • Non-substantive changes only.

SC17-152, p. 50

Fla. R. App. P. 9.160
  • Non-substantive changes only.

SC17-152, pp. 50-51

Fla. R. App. P. 9.170
  • A party choosing the “alternative appendix” method must serve a copy of the direction to the appellate court as well as the lower tribunal.
  • If another party directs the preparation of record, that direction must be served on the appellate court when served on the lower tribunal.

SC17-152, pp. 51-52

Fla. R. App. P. 9.180
  • Requires a judge of compensation claims to select an approved court reporter and transcriptionist.
  • Deposit of estimated costs due within 20 days of service of notice of estimated costs.
  • Written objections to selected court reporter or transcript due within 20 days of service of notice of selection.
  • Verified petition to be relieved of costs must be filed within 20 days after service of the notice of estimated costs.
  • Lower tribunal may enter an order on the merits of a petition to be relieved of costs without an objection filed after 30 days following the service of the petition.

SC17-152, pp. 53-57

SC17-882, pp. 23-24

Fla. R. App. P. 9.190
  • Removes reference to section 120.56 (rule challenges) in procedures for proceedings involving disputed issue of fact.
  • Creates new subsection for procedures for appeal from rule challenge proceedings under section 120.56.

SC17-152, pp. 57-61

Fla. R. App. P. 9.200
  • Requires service of designations to court reporter upon the court reporter or
    transcriptionist.
  • Reorganizes requirements of court reporter upon receipt of designation, moves to different subsection.
  • Moves requirements for organization of transcripts in the record to its own subsection.
  • Objections or amendments to proposed statement of evidence or proceedings must be served within 15 days of service of the proposed statement.
  • The cross-appellee has 15 days to direct the clerk to include additional documents, exhibits, or transcripts from the service of the cross-directions.

SC17-152, pp. 61-63

SC17-882, p. 25

Fla. R. App. P. 9.210
  • Clarifies that briefs filed in electronic version need not be also filed in paper.
  • Cover sheet of brief now requires email address of attorney filing the brief.
  • Formalizes the “one attorney, one brief” rule.
  • If more than one initial or answer brief is filed, the responsive brief is due to be served within 20 days after the last prior brief.  If the last brief is never served, the time runs from the date on which it was due to be served.
  • “Unless otherwise required shall be served within 30 days after service of the initial brief; the reply brief, if any shall be served within 30 days after service of the answer brief; and the cross-reply brief, if any, shall be served within 30 days thereafter.”

SC17-152, pp. 64-65

SC17-882, pp. 25-26

Fla. R. App. P. 9.225
  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.310
  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.320
  • Request for oral argument due 15 days after the last brief (or the reply in a petition proceeding) is due to be served.

SC17-882, pp. 26-27

Fla. R. App. P. 9.330
  • Adds “written opinion” to the title of the rehearing and clarification rule.
  • Details requirements for a motion for certification.
  • Details and outlines requirements for a motion for written opinion.
  • Eliminates the requirement for a certification for a motion for a written opinion.
  • “All motions filed under this rule with respect to a particular order or decision must be combined in a single document.”
  • Clarifies that rule only applies to orders that resolve appeals, original proceedings, or motions for appellate proceedings.  Does not limit inherent authority to reconsider nonfinal appellate orders.
  • “A response may be served within 15 days of service of the motion.”
  • In bond validation proceedings, a “reply may be served within 10 days of service of the motion.”

SC17-152, pp. 66-69

SC17-882, p. 27

Fla. R. App. P. 9.331
  • Court will now notify parties once it decides to determine a proceeding en
    banc.
  • Signature block under required statement for rehearing en banc omitted.
  • “A response may be served within 15 days of service of the motion.”

SC17-152, pp. 69-70

SC17-882, p. 28

Fla. R. App. P. 9.350
  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 10 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b)
  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 15 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b).

SC17-152, pp. 71-72

SC17-882, p. 28

Fla. R. App. P. 9.360
  • Clarifies that joinder is only realignment of existing parties to appeal; it does not allow addition of new parties parties.  Rephrases procedures for joinder as seeking realignment from appellee or respondent to appellant or petitioner.
  • The body of the notice shall reflect a new proposed caption.  Clerk will change the caption upon receipt of notice and payment of fee.

SC17-152, pp. 72-73

Fla. R. App. P. 9.370
  • Leave of court is required to serve an amicus brief in regards to rehearing, rehearing en banc, or certification to the supreme court.
  • Notice of joinder must be served within 15 days of the notice of appeal or petition.

SC17-152, pp. 72-73

SC17-882, p. 290

Fla. R. App. P. 9.380
  • NEW RULE – Notices of related case or issue are now required to be filed.  No argument allowed.

SC17-152, p. 74

Fla. R. App. P. 9.400
  • Adds time limits for filing a motion for fees in discretionary proceedings under rules 9.030(a)(2)(A) and 9.030(a)(2)(A)(v).
    • 9.030(a)(2)(A) – no later than time for serving the respondent’s brief on jurisdiction, or if jurisdiction is accepted, the time for serving the reply brief.
    • 9.030(a)(2)(A)(v) – no later than 5 days after filing of the notice, or if jurisdiction is accepted, the time for serving the reply brief.

SC17-152, pp. 74-75

Fla. R. App. P. 9.410
  • Omits signature requirement following the certification of service.
  • Initial service of the motion must be no later than the time for serving a permitted response to the challenged document or, if no response is permitted, within 20 days after the service of the challenged document or the presentation of argument at oral argument.
  • Respondent has 15 days from final service of a motion to serve response.

SC17-152, pp. 74-76

SC17-882, p. 30

Fla. R. App. P. 9.420
  • Clarifies that service of petitions invoking original jurisdiction shall be by both e-mail and paper format.

SC17-152, pp. 77-78

Fla. R. App. P. 9.430
  • Non-substantive changes only.

SC17-152, pp. 78-79

Fla. R. App. P. 9.500
  • Clarifies governing provision of Florida Constitution, requires court to allow interested persons to be heard once request is determined to be within the purview of the applicable provision.
  • The justices must file their opinions not less than 10 days from date of request unless delay would cause public injury.
  • The governor shall be advised in writing.

SC17-152, pp. 79-80

Fla. R. App. P. 9.510
  • Procedures for advisory opinions to attorney general modified.
  • Requires justices to render their opinions no later than April 1 of the year in which an initiative is to be submitted to the voters pursuant to article XI, section 5 of the Florida Constitution.

SC17-152, pp. 80-81

Fla. R. App. P. 9.700
  • Non-substantive changes only.

SC17-152, p. 81

Fla. R. App. P. 9.710
  • Non-substantive changes only.

SC17-152, pp. 81-82

Fla. R. App. P. 9.720
  • Non-substantive changes only.

SC17-152, pp. 82-83

Fla. R. App. P. 9.800
  • Numerous amendments to the citation rule.

SC17-999

These rule changes follow on the heels of last year’s amendments to the appendix rules and some other substantive amendments.  At this point, almost every appellate rule has been changed in the last year, so best practice would require looking up every rule and not relying on memory.

Stay tuned for more analysis.

We’ll go further in-depth into the time changes, the newly-appealable non-final orders, and other facets of these rule changes in future blog posts.  Enter your e-mail address in the box to the right to get up-to-date news and analysis on these topics and other news and events as they relate to appellate practice in Florida.

 

 

Typography for Lawyers: The Book

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I’ve mentioned in the past that I am a fan of the Typography for Lawyers website. So I was downright giddy when its proprietor, Matthew Butterick, e-mailed me and offered me a review copy of his new book of the same name. It’s on my nightstand now, and I am looking forward to doing a full review over the holidays.

But in the meantime, let me say this much: It’s Puuuurty. And eminently practical as well — stay tuned for a more thorough review!