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.

5th District Court of Appeal

Fifth District to Allow Parties to Appear Remotely at Oral Argument

The Fifth District Court of Appeal has put in place a pilot program allowing attorneys and parties to appear at Oral Argument remotely.  The limited program is the first of its kind in Florida.

5th District Court of Appeal Oral Argument

You will be able to avoid a visit to Florida’s 5th District Court of Appeal under the pilot program launching June 5, 2018.

The details of the new program

Starting on June 5, 2018, the Fifth District will allow parties set for Oral Argument to appear either in person at its Daytona Beach courthouse, or remotely from the Marion County Courthouse in Ocala.  The details are set forth in Administrative Order No. AO5D18-01 [.pdf].  In brief,

  • Participation is completely voluntary, and either one or both sides may participate.
  • Any technological problem on the day of argument will result in switching to standard teleconference.
  • Remote oral arguments will be placed first on the daily docket.
  • Courtroom decorum rules apply at the remote location, so no flip flops!

How to sign up

To participate, a party must file a “Notice of Remote Argument,” copied to the opposing party, and send an email to the Fifth District’s clerk.  These must be filed and sent no later than seven days before the scheduled oral argument.  No order will issue – the remote argument is deemed granted upon the Marshal replying with a confirmation email.

Is this the future?

Probably, but it’s not all positive.

There are many benefits to the application of technology to the judiciary–see some of our past articles on e-filingelectronic access, and other technology changes for some examples.  Travel for oral argument is not an insignificant burden on parties and attorneys, both in time and money.  Removing that barrier will allow parties freedom and a more academic determination as to whether to pursue oral argument.

But there is certainly something to be said about appearing before the courts in person.  The parties only have a few precious minutes of face time with the court, and anyone who has used videoconferencing on their own knows that it is possible for something to be lost in translation.  The question will be whether remote appearances can adequately provide the same level of familiarity and experience.  Only time will tell, and the answer will probably not be determined until long after June 5.

 

Plaintiffs Must Overcome Defenses to Win Summary Judgment

Another appellate victory for  Dineen Wasylik and DPW Legal, overturning an improper grant of summary judgement in a foreclosure appeal.

Another appellate victory for
Dineen Wasylik and DPW Legal,
overturning an improper
grant of summary judgement
in a foreclosure appeal.

We are proud to report our firm racked up another appellate win yesterday — DPW Legal secured the reversal of summary judgment against our clients in a mortgage foreclosure action. In this case, the Bank before the trial court won summary judgement, even though its summary judgment motion made no mention of the defendants’ numerous affirmative defenses set out in their answer.

On appeal, we correctly pointed out that Rule 1.510 Requires that a motion for summary judgment “shall state with particularity the grounds upon which it is based and substantial matters of law to be argued,” as well as the myriad of cases that require plaintiffs to affirmatively overcome each and every defense before they can earn summary judgment. The appellate court ultimately agreed, and reversed the summary judgment, explaining:

It is true that the Bank did submit a response to an affidavit regarding the Paragraph 22 notice, disputing the Amstones’ affidavits that the notice had not been received or was deficient. But the Bank did not address the affirmative defenses in its motion for summary judgment. And at the hearing, the Bank’s counsel simply asserted that “the Affirmative Defenses were dealt with.” The Amstones’ counsel responded that the Bank had failed to refute all of the affirmative defenses…The Amstones’ counsel also emphasized that the affidavits regarding the Paragraph 22 notice crated a factual dispute that needed to be resolved. The court made no findings regarding any of these defenses. Accordingly, genuine issues of material fact remained, and summary judgment should not have been granted.

In our view, this was a case where strong advocacy at oral argument made a huge difference. What is not clear from the opinion is that the Bank argued that the defendants had waived this issue by failing to argue it on the record below, and the court seemed to want to buy that waiver argument. At oral argument, we were able to refute the waiver argument with citation directly to the proper part of the record showing why it was not waived. We’ve ordered the oral argument video, and will further expound on the important preservation issues in a later post, when we can share the video. But in the meantime, the lesson to be learned is that at the trial level, preservation is key, and at the appellate level, knowing your record cold is key (see my prior post on preparing for oral argument).

Attorney Ralph Fisher acted as able trial counsel, and ensured the issues were preserved on appeal.

The case is Amstone v. The Bank of New York Melon, No. 2D14-5480 (Jan. 6, 2016) [.pdf].