Posts

Appeals 101: What is an Appeal?

/0 Comments/in , , , , /by

What exactly is an appeal, and how is it different from a trial court action? The most important answer I can give you is what an appeal is not: it is not simply a “do over” where the appellate court gets to re-weigh the evidence and substitute its judgment for that of the trial judge.

Instead, an appeals court is a reviewing court, and it can only review for “preserved error.” There are two components to “preserved error.”

What is Preserved Error?

First, there has to be error of some kind. This is generally either a misinterpretation of the law, or a misapplication of the law to the facts, or rarely an “abuse of discretion” in interpreting the facts (like finding the facts sufficient when they clearly are not, and no reasonable judge should have found them to be sufficient). In addition, some “calls” that a trial court makes, even if we think it was the wrong call, are reviewed for discretion, and the appellate court can’t overturn it even if the appellate judges think “I would have done it differently if I were the trial judge.”

Second, it needs to be preserved. That is, there needs to be a proper objection made and ruled on, or the argument that you want to make on appeal has to have been made to the trial court, and that has to be reflected on the docket so that the appeals court can see exactly what was put in front of the trial court. In civil cases in Florida state courts, the parties need to hire a court reporter for hearings themselves and then pay for a transcript of the hearing in order to show the appellate court what happened at a hearing. Without a transcript, it is often impossible to make the required showings to win on appeal because you can’t show that your arguments and objections were preserved. (In Federal Court and in Florida criminal cases, proceedings are recorded and transcripts can be ordered at a later date without the parties’ needing to order a reporter).

Why you need a court reporter

Because of this preservation requirement, it often impossible to appeal if you have not taken all of the steps necessary to ensure that there is a complete record for the appellate court. It breaks my heart when I see cases that have real issues that simply were not preserved, and therefore make an appeal impossible to win. The most important thing you can do is make sure there is a court reporter at any hearing where important issues will come up — especially for summary judgment or for trial, but also for any other issue you think can affect the outcome of the case. Yes, there is a cost to this: Most court reporters charge an “appearance fee” for attending a hearing or trial. You do not need to order the actual transcript unless you need it for an appeal to assist with an argument before the trial court, but there is no transcript to be ordered if there is not a court reporter there. Zoom hearings are generally not recorded and you cannot assume there will be court reporter or recording just because the hearing was conducted by Zoom. This is why one of the first questions we ask when we assess an appeal is “was there a court reporter at the hearing”?

Standards of Review Matter

When we assess a case for possible appeal, we always start with very important question: What is the standard of review? I already talked about them above, though not in these terms. A standard of review is the lens through which the appellate court will review the trial court’s work. There are three main standards of review: Abuse of Discretion, De Novo, and sufficiency of the evidence.

Abuse of Discretion. If the trial court made what the law considers a discretionary call, then the appellate court will apply the “abuse of discretion” standard. And this means that the appeals court is looking for big problems, not just areas where the appellate judges might have made a different judgment call. This standard of review applies to most factual issues, as well as many rulings where the rules of procedure give the trial judge discretion to manage its docket. The abuse of discretion standard means that the trial court’s ruling has to be so wrong that no reasonable person would have come to the conclusion that the trial judge did. Appeals courts are very clear that it is not their job to second guess the trial court’s judgment calls, and that the trial court judge is the one who is “in it,” viewing live testimony and making split second judgment calls. Those judgments will not be disturbed on appeal unless they rise to the level of error, even if the appeals judges might have done things differently. If reasonable minds can differ, then the appellate court will defer to the trial court’s judgment.

De Novo. “De novo” is Latin for over again, or anew. As a standard of review, it means that the appeals court will look at the issue anew, and not give any deference to the trial court. This kind of review applies mostly to interpretation of statutes or contracts or the meaning of the law.

Sufficiency of the Evidence. When an appellate court is reviewing how the trial court applied the facts, is sometimes looking just to see if there is sufficient evidence in the record to support the trial court’s application of the law to the facts. The appellate court may be looking to see, for example, whether there is evidence to support every prong of a legal test.

Sometimes, more than one standard of review can apply in the same case — there may be several issues, with different standards of review, in the same case.

Assessing Your Appeal

We hope this article has been helpful to you as part of our continuing Appeals 101 series [link]. But remember, this article is for information only, and cannot really replace legal advice specific to your situation.
If you plan to handle your appeal by yourself, we recommend you consult the Florida Bar Appellate Practice Section’s Pro Se Handbook [link] for additional information. If you would like our professional analysis of your possible appeal, please contact us quickly, as there are significant deadlines in appeals that must be met or your appeal may be waived. You can request a review of your appeal by filling out our intake form here [link]. Based on the intake form, we will be able to quote you a fee for conducting an appeal assessment. Our appeal assessments look at these preservation issues as well as the underlying legal and factual issues to determine whether we believe we can make a winnable argument on appeal.

What is a Writ of Certiorari in Florida State Courts?

/0 Comments/in , , , , , /by

The term writ of certiorari is used in many different contexts, depending on the courts involved. The Latin word certiorari (often abbreviated as “Cert.”) means “to be made certain,” and in Old English courts such writs actually began with the Latin words “Certiorari volumus…” (“We wish to be made certain…”). In Florida state courts, the writ of certiorari most often refers to a proceeding in which a party asks an intermediate appellate court, here known as a District Court of Appeal, to review a decision of a trial court. But importantly, it can’t be just any trial court decision, because otherwise litigants would file a writ every time they disagreed with the trial court. For the District Court of Appeal to have jurisdiction to hear a Writ of Certiorari, the order must be otherwise unappealable, and the party seeking certiorari relief must demonstrate that harm caused by the order is irreparable and cannot be remedied on plenary appeal, and that the ruling was “a departure from the essential requirements of law.” Let’s drill down on what each of these requirements mean.

Not an Otherwise Appealable Nonfinal Order

There are some kinds of nonfinal orders that Florida has decided are automatically appealable — essentially, Florida has made a policy decision that certain kinds of cases do not need to make the showing that is normally required by certioari, because there is clearly a lack of remedy by the time the case is over. Before you consider filing a writ of certiorari, be sure to check out the list of directly appealable nonfinal orders found in Rule 9.140. But if the order you want reviewed is not on the list of appealable non final orders, you should determine if a writ of certiorari is available to you.

Harm Not Remedied by Plenary Appeal

Assuming the ruling is not covered by Rule 9.140, the threshold issue the appellate court will consider is whether the harm caused by the order is of a character that it needs to be resolved now, rather than at the end of the case. The term “plenary appeal” refers to an appeal of a final order, which comes at the end of the case. Most rulings, no matter how wrong, can be fixed at the end of the case, or more importantly, don’t need to be fixed — usually because it did not affect the ultimate outcome of the case. This prong of the test is also sometimes referred to as “irreparable harm.” And not all types of harm are considered irreparable. For example, a ruling costing a party a lot of money is not sufficient to cause irreparable harm. W. Florida Reg’l Med. Ctr., Inc. v. See, 18 So. 3d 676, 682 (Fla. 1st DCA 2009), approved, 79 So. 3d 1 (Fla. 2012). Even disclosure of information in which the party has a “valid privacy interest in avoiding unnecessary disclosure of matters of a personal nature” does not generally meet this standard. Id.

What does constitute irreparable harm? The most common example is described as “’cat out of the bag’ material that could be used to injure another person or party outside the context of the litigation, and material protected by privilege, trade secrets, work product, or involving a confidential informant may cause such injury if disclosed.” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). A litigant must carefully consider, by reviewing existing cases, whether the harm of the order would be considered irreparable by the appellate court.

Departure From the Essential Requirements of Law

Once you prove the harm is irreparable, you still cannot get relief on a writ of certiorari unless you also demonstrate to the court that the trial court’s ruling is a “departure from the essential requirements of law.’ This phrase means, for example, that the law is very clear, and the violation of that clearly established principle of law results in a miscarriage of justice. It has to be more than just the appellate judges simply disagreed with the circuit court’s determination and interpretation of the applicable law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1094 (Fla. 2010).

Successful Writs of Certioari Are and Should Be Rare

The Florida Supreme Court does not want litigants to run to the appellate courts for every little disagreement with the trial judge. That is why it says that “common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 349 (Fla. 2012) (citation omitted).

There Are Other Writ of Certiorari Standards In Florida

This post talks about the most common type of writ of certiorari, but there may be other times the term writ of certiorari is used in Florida Courts to apply to different situations. Those other situations also have different standards of review. If you have a question about whether you should file a writ of certiorari, or if the other side of your litigation has filed a writ of certiorari and you need help, feel free to contact us at 813-778-5161 or fill out our intake form here to initiate scheduling a consultation.

Fifth District Changes Procedures for Extensions of Time

/0 Comments/in , , , , , , /by

The Fifth District Court of Appeal has twice modified its rules regarding extensions of time in less than a month, reducing the availability of stipulated extensions and placing additional burdens on all attorneys seeking an extension for their clients.

Agreed Extensions of Time for Filing Briefs

Since 2013, the Fifth District has allowed parties to file a “notice” in lieu of a “motion” to obtain limited extensions of time for briefs in criminal and civil appeals, with certain exceptions.  The original administrative order authorized as much as 90 days for initial or answer briefs, and 60 days for reply briefs.

But in an amended order effective March 2, 2018, the amount of time available is now limited to 60 days for initial or answer briefs, and 30 days for reply briefs.

New Notice Requirements for Extensions

The Fifth District did not stop there.  In its March 27, 2018 Administrative Order A05D18-02, the Fifth District mandated that every extension request filed by an attorney must be accompanied by a certification that the attorney has provided a copy of the motion or notice to his/her clients.  This applies to all cases before the Court, and not just those that allow for the “notice” procedure discussed above.

The administrative order notes that it does not “require the client’s signature or consent,” nor does the certification have to include the client’s name, address, or signature.  According to the order, the attorney will comply with the order by certifying “by a statement included in the signed certificate of service on the motion or notice filed with this Court, that counsel has that day provided a copy of the motion or agreed notice to his/her client(s) via U.S. Mail, e-mail, or by hand delivery.”

The order does warn, however, that noncompliance with this requirement may result in the denial of any request for extension of time, whether by notice or motion.

What it Means to You

Given these added restrictions, we deduce that the Fifth District must perceive there has been some abuse of its extension procedures that require stricter regulation.  The new rules appear designed to increase attorney oversight by both the Court and clients.  Unfortunately, for those attorneys who do not abuse the process, these new rules will make seeking an extension slightly more difficult, and it will reduce the number of limited extensions available.  It remains to be seen whether other districts will adopt similar rules.

There is a strong likelihood that many who do not specialize in appellate practice will be caught off-guard by this new rule, and thus will have a motion or notice for extension denied or stricken.  We watch for rule changes like this because appeals are what we do.  Let us help you navigate the intricacies of the specific rules for each of the appellate courts in Florida to avoid getting caught in any procedural traps such as the ones created by these new rule changes in the Fifth District.

A final note — if you want a blast from the past, check out the article Jared wrote back in 2014 for the HCBA Lawyer on the issue of stipulated extensions of time when the concept was still brand new!

UPDATE: We’ve created a handy guide to help you keep the different courts’ rules straight. Click here to sign up for our newsletter and get a link to download the guide!