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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.

You Used Daubert at Trial but Now it’s Frye? Here’s What the Appellate Court Might Do. (UPDATED–IT’S DAUBERT AGAIN!)

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***AUTHOR’S NOTE:  We published this article on May 20, 2019.  On May 23, 2019, the Florida Supreme Court did a completely unexpected about-face and adopted Daubert, receding from its prior opinions rejecting Daubert and rejecting the legislature’s amendment of section 90.702.  You can read the full opinion here: https://www.floridasupremecourt.org/content/download/525509/5838164/file/sc19-107.pdf

We’ll follow up with an updated post once we see how the districts change their response to pending appeals on this issue.  In the meantime, the below information will still be helpful for understanding where this all came from, and to make an educated guess as to where your case will end up.  For now, if you’re in the trial court, use Daubert again (sheesh)!

Jared

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So you and your trial court relied on the current version of section 90.702, Florida Statutes, and applied the Daubert test to determine the admissibility of a new or novel expert opinion. But now that your case is on appeal, the Florida Supreme Court has said that Daubert never applied and the Frye test applies in Florida. What will happen to your case on appeal? Two decisions from two Florida districts give us some hints.

The Florida Supreme Court building

The supeme court’s recent reaffirmance of Frye is requiring districts to develop methods for handling cases founded on Daubert.

A brief history of the Daubert/Frye issue in Florida

First, some brief background (which you probably already know). Frye v. United States, 298 F. 1013 (D.C. Cir. 1923) has long provided the test for admissibility of expert opinion in Florida and federal courts. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the United States Supreme Court held that a new test would apply for federal courts. But Florida courts stuck with Frye.

In 2013, the Florida Legislature amended section 90.702, Florida Statutes, to incorporate Daubert. But the Florida Supreme Court remained silent on the amendment for years and, in Florida, only the judiciary can formally adopt procedural rules. So Florida trial and appellate practitioners alike were left uncertain–should we use Daubert or Frye?

The intermediate appellate courts too were left without much guidance. The Fourth District held that it would apply the new statute–Daubert–because “statutes are presumed to be constitutional and are to be given effect until declared otherwise.” Crane Co. v. DeLisle, 206 So. 3d 94, 100 n. 7 (Fla. 4th DCA 2016)[.pdf]. Most of the Fourth DCA’s sister districts also applied Daubert. See id. (listing cases from the First, Second, and Third Districts).

Well, in 2018, the Florida Supreme Court reviewed the Fourth District’s opinion and declared the statutory revision to section 90.702 unconstitutional, thereby reaffirming that Frye is the test to apply in Florida. Delisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018)[.pdf].

What happens to all the pipeline cases on appeal? It depends.

What happens to all the appeals from judgments pre-dating DeLisle, where the trial courts appropriately relied on the statute and the intermediate appellate decisions and applied Daubert?

Shortly after the supreme court issued its Delisle decision, the First District confronted this situation in D.R. Horton, Inc. – Jacksonville v. Heron’s Landing Condo. Ass’n of Jacksonville, Inc., 44 Fla. L. Weekly D109, 2018 WL 6803698 (Fla. 1st DCA Dec. 27, 2018)[.pdf]. Importantly, in Delisle, the supreme court had also reaffirmed that a Frye analysis is only required “when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” Id. at *4. By contrast, in D.R. Horton, “the trial court, albeit in the context of its Daubert analysis, found that Appellee’s experts used a scientifically reliable and peer-reviewed methodology that was the industry standard.” Id. at *4. In other words, there were no new or novel scientific techniques at play. Consequently, the First District held there was no need to remand for a Frye analysis–there was no legal basis for the appellate court to hold that admitting that expert’s opinion was invalid.

More recently, in Kemp v. State, 4D15-3472, 2019 WL 2083045 (Fla. 4th DCA May 8, 2019)[.pdf], on rehearing, the Fourth District held that use of the Daubert standard required remand for a Frye hearing. There, the State sought to introduce an expert that asserted he could determine whether a car was braking at the time of an accident based on the location and “arc[ing]” character of damage on the cars involved.

The trial court never considered whether this was “new or novel” under the Frye test because Daubert applied at that time. However, because the appeal was in “the pipeline” when DeLisle issued, the Fourth District was to apply Frye–if Frye applied at all to the facts of the case before it.

The Fourth District recognized that Frye would only apply if the scientific principles were new or novel, but unlike in D.R. Horton, the appellate court could not tell from the record. Hence, it remanded for the trial court to determine the matter. The court also ruled that, even if the trial court found the matter was “pure opinion” testimony and Frye did not apply, the trial court should still determine “whether the expert had training and experience in the specific method he used to reach his conclusions.” The court ruled that if the State failed its burden to prove the admissibility of the expert’s opinions, the court should grant a new trial for the defendant. If the State prevailed on proving the opinions admissible, the court should reinstate the defendant’s convictions and sentences.

The legal battleground for appeal will be whether or not the type of expert opinion provided is subject to Frye.

What we can gather from these opinions is that a case impacted by an expert opinion admitted under the Daubert standard will probably be reversed for further proceedings to determine admissibility under Frye, unless the opinion is of a type not subject to a Frye standard or the record already reveals the answer under Frye.

Thus, the argument for an appellee seeking to uphold a judgment based in part on testimony admitted under Daubert is that either the scientific principles upon which the expert’s opinion was based were not new or novel, or that the trial court made sufficient findings to demonstrate the Frye test was satisfied (even if not explicitly referenced). Both of these arguments are effectively identical to a harmless error analysis–even though the trial court applied Daubert, the application of that test had no impact on the outcome of the case.

Meanwhile, an appellant seeking reversal should argue that the expert’s opinion is based on new or novel scientific principles–so Frye applies–and the record does not demonstrate that the expert’s opinion satisfies the Frye test. And, as in most appeals of both civil and criminal appeals, the appellant should argue that it is the appellee’s burden to prove the error did not have an effect on the verdict (read more about this here).

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Now You Can Appeal Two More Types of Nonfinal Orders

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Old cartoon of man with bike quarreling with another man over a stone in the roadway.

Are these two gentlemen arguing over
whether they have a settlement?
Now they can let the appellate courts figure it out.

Today is the day that a myriad of changes to the Florida Rules of Appellate Procedure go into effect. We’ve previously outlined all of the changes, but in our first post of 2019 we’ll focus in on the changes to Rule 9.130, which governs what kind of nonfinal orders you can immediately appeal to Florida District Courts.

Orders that decline to enforce a settlement agreement.

Rule 9.130 contains the exclusive list of non-final orders that are reviewable by appeal in the district courts.  As of January 1, parties will be able to obtain an immediate appeal from an order that determines “that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed.”

This change appears to have been inspired by a law review article I co-authored with Anthony Russo and Ezequiel Lugo in 2013.  In the midst of investigating a proposed “functional restatement” to certiorari review, we looked into review of orders denying a motion to enforce settlement (see pages 417-424 of the linked article).  No avenue for review existed at the time, but as we discussed the matter we reasoned that immediate review of such an order would further the interests in judicial economy and support the long-established public policy favoring settlements.  The Appellate Court Rules Committee considered our article and also thought that immediate review of such an order would be worthwhile.  They made the recommendation to the Florida Supreme Court, and in this recent wave of amendments, the supreme court adopted this provision into the rules.

This rule will be useful when one party thinks that a settlement has been reached, but the other party either denies the same or refuses to comply with the settlement.  The party seeking to enforce the settlement may file a “motion to enforce settlement” in the trial court, attempting to either confirm the settlement or force the other party to comply.  Should the trial court deny the motion for whatever reason, that order would now be immediately appealable.

Orders that grant or deny a motion to disqualify counsel.

Similarly, parties may now also receive immediate review of orders that “grant or deny a motion to disqualify counsel.”  This type of motion has always been reviewable by certiorari, but given that higher standard of review, was not likely to provide any immediate relief.  Now, parties may seek immediate review regarding disqualification, and avoid the likelihood that the trial would have to proceed all the way through conclusion and then ultimately be invalidated on appeal just to send the parties back to the beginning.

Another consideration–a stay.

An appeal of either of these orders will not automatically delay the trial court proceedings while the appellate court considers the appeal.  Consequently, either party may want to move the trial court to stay the proceedings pending the appellate court’s ruling on the matter.  Doing so would avoid the risk of wasted effort and resources should the appellate court ultimately determine that there was an enforceable settlement agreement, or that the trial court erred in either disqualifying or refusing to disqualify counsel.

Motions for stay are governed by rule 9.310 and initially filed in the trial court in most cases.  Review of an order granting or denying a stay is by motion in the appellate court.  Both involve an in-depth analysis of the likelihood of prevailing on appeal and the risk of irreparable harm should a stay not be granted.

Can you use these new rules to your advantage?  Call us!

Non-final review jurisdictional issues and stays pending appeal are sometimes simple, but in our experience will often become complex issues that can determine the course of all future litigation.  We often handle these situations on behalf of clients or in cooperation with trial attorneys as part of our regular practice.  Feel free to contact us if you have any questions involving these or any other issues regarding non-final appeals, certiorari review, or stays pending appeal.