Rules Governing Electronic Appendices and Records Amended to Ease Readability

THE NEWS

Effective Sunday, October 1, 2017, the Florida Supreme Court’s amendments to the appellate rules go into effect.  The amendments are largely designed to update the rules to comport with the realities of producing and easily reading electronic appendices and records.

THE TRAP FOR THE UNWARY PRACTITIONER

Rule 9.220 is amended, adding new requirements for an appendix.  Now, an appendix must:

  • contain a coversheet that meets specific requirements for content;
  • contain a certificate of service;
  • generally be filed as a separate, single PDF file;
  • be properly indexed and consecutively paginated, with the cover sheet being page 1 and the page numbers matching the PDF reader display;
  • “be bookmarked, consistently with the index, such that each bookmark states the date, name of the document which it references, and directs to the first page of that document;”
  • have bookmarks “viewable in a separate window.”

Further, no condensed transcripts are permitted in an appendix without leave of court.  The rule also changes the format for paper appendices, when so authorized.

The Fourth District has warned that it will strike any appendix that does not comply with the amended rules when they go into effect on October 1, 2017.

The Fourth District has already issued an email to all 4th DCA eDCA Filers, stating “Effective October 1, 2017, electronic appendices which do not comply with the amended Rule 9.220 will be stricken.”  So be ready and be compliant!

THE SUBSTANTIVE AMENDMENTS SUMMARIZED

9.020 – Adds a definition for “E-Filing System Docket.”

9.120 – Details the format and contents of the documents to be transmitted from the district courts to the supreme court in situations where a party is seeking discretionary review

9.141 – Removes the clerk’s exception that allowed it to avoid having to repaginate or reindex a record from a previously prepared record into a record for a collateral or postconviction criminal case.

9.200 – The record shall now be submitted as a PDF document, uploaded to the e-filing system docket, and available for download to attorneys and parties who have registered for access to the system.  The appellate court may direct the lower clerk to submit a replacement record when an original record is found to be noncompliant with the technical requirements of rule 9.200(d).

9.220 – See above.

Rules 9.160 and  9.180 contain only minor changes in terms to reflect that their respective documents are “transmitted” rather than “sent” or “filed.”

BONUS TIP FOR TRIAL LAWYERS


The fact that the new rules forbid condensed transcripts in an Appendix should send a strong signal to trial lawyers not to file them with trial courts in general. Appellate judges do a lot of reading, and citing to a condensed transcript makes it that much harder for them to find what you are talking about. They just don’t track well or lend themselves to good notetaking on an iPad or other electronic screen. And since it is all being e-filed, there is much less of an issue with killing trees. If you are filing a transcript with the trial court, file the full transcript. The appellate judges will be a lot happier when reviewing your record. And that just makes it easier for everyone to focus on the merits rather than searching for the right record cite.

THE LONG AND SHORT OF IT

Florida State Courts have come a long way since the supreme court started this e-filing journey in 2013.  There have been a few hiccups, especially with the appellate courts, but the appellate rules are really starting to come into their own.

That said, with any new rule amendment comes new opportunities for errors to be made.  If you have a case pending or about to be pending before a Florida appellate court, give DPW Legal a call so we can help you avoid any of the pitfalls.

 

Second DCA to Switch to eDCA System

At this Morning’s State of the Second DCA CLE, Clerk Mary Beth Kuenzel announced a big and imminent change in the way that Court will be processing changes: as soon as March 1st, the Court will have transitioned to the eDCA filing system, and away from the Florida Court’s Portal. What does this mean for practitioners? If you are used to practicing in other DCAs, this transition won’t be too difficult, but for folks who only know the Portal, there will be some adjustment needed.

Sign Up Early. Watch the Clerk’s Website for the chance to sign up for eDCA in the next week. You’ll want to get your registration processed before it goes live and you need to file. You need a separate login for each District’s eDCA system.

Be Ready to Effectuate Separate Service. While eDCA provides “Case Mail” as soon as something is filed, that does not count as Service under Florida Rule of Judicial Administration Rule 2.516. You have to go back to sending a separate email for service.

Instant Orders. What we give up with service, we’ll get back tenfold by getting Court orders and opinions by email instead of U.S. Mail. This will save the Clerk more than $50,000 a year in postage, and save attorneys a lot of hassle, too.

Record on Demand. With eDCA, attorneys of record can download from the docket any DCA filing, including the Record on Appeal once transmitted. No more need for the FTP work around, which worked, but was time intensive for Court staff.

Briefs on Demand. Registrants to the system will also be able to pull briefs in cases where they are NOT counsel of record. Pretty handy if you are briefing the same issue!

Portal for Payment. The Second District will still be on the portal for one reason — to accept payment of filing fees. If you pay through the portal, plan to upload a simple payment transmittal letter, and ONLY a payment transmittal letter. Any other document or pleading will be kicked.

The hope is that the portal will be ready to work with the DCA internal docketing systems by Spring of 2018, and at that point, all of them will switch to the portal. But for now, all DCAs will require separate eDCA login.

Editor’s Note: We were in such a rush to get out this news, we forgot to mention the payment issue. This article is updated to reflect that information!

The Proof is in the Record, not the Pudding

The Fourth District Court of Appeal today gives us a humorous reminder of the importance of making a proper record before the trial court, and ensuring that record is before the appellate court. In this mortgage foreclosure action, the trial court granted involuntary dismissal because the Bank moved a copy of the Original Note, rather than the note itself, into evidence. On appeal, the Bank argued that the trial court erred because the original note was eventually surrendered, but the Court of Appeal correctly dismissed this argument, because it relied on evidence outside of the record:

Appellant maintains that it surrendered the note in a “package” to the clerk following the trial and requests this court to make the “logical and equitable” presumption that the original note was in the “package” surrendered to the court. However, this court does not make “logical and equitable” leaps of faith, as it cannot (and should not) make any such determination unsupported by the record before it. Appellant further contends that the trial court’s decision should be reversed because “the proof was in the pudding.” This may be true as, for all we know, the original promissory note was in that pudding. Nonetheless, it was not admitted into evidence at trial (although a copy of the note was moved into the record) and there is no indication that the original note has been previously filed with the court or the court clerk.

If you are ever tempted to make arguments based on items outside the record, don’t do it. I will henceforth call this the “pudding rule.”

The case is Deutsche Bank v. Huber, No. 4D12-3696 (April 23, 2014) [.pdf].