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Appeals 101: What is an Appeal?

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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 Do I Do if the Other Side Files a Writ of Certiorari, Prohibition, or Mandamus in Florida Cases?

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Writs of Certiorari, Writs of Mandamus, and Writs of Prohibition are three different ways a party in Florida state court litigation can seek appellate court intervention even though the judge has not made a final decision. If the other side seeks one of these writs from the appellate court, what do you need to do to protect yourself?

No Response Required — at First

The party who files a petition for a writ is referred to in the appellate court as the Petitioner, and the party who won the trial court victory is referred to in the appellate court is called the Respondent. But in most cases, a Respondent is neither required nor allowed to respond to the Petition. A response is only allowed if ordered by the appellate court. The appellate court will first review the petition and decide whether it needs or wants a response. Florida Rule of Appellate Procedure Rule 9.100(h) states that if the Court believes the petition “demonstrates a preliminary basis for relief,” the Court will issue an “order to show cause” asking the Respondent to explain why relief should not be granted. The Court could also instead direct the Respondent to file a response. Either order will state a deadline for the Respondent to respond.

Do I Need Appellate Counsel?

It is a good idea to consult with appellate counsel if the other side files a writ. Appellate counsel can help in several ways. First, appellate counsel can provide an initial assessment of how likely the appellate court is to request a response. Second, appellate counsel can be at the ready in case the appellate court does order a response. The Court will set a deadline, and depending on how urgent the issues in the petition are, the deadline might be quite fast. Bringing appellate counsel on board as soon as the writ is filed can help ensure that you are ready to respond quickly if ordered. Third, if a response is ordered, appellate counsel is generally much more familiar with the procedural and jurisdictional quirks of these rare writs, and will often be in a better position to show the appellate court why the writ should not be granted based on appellate counsel’s wider experience in appellate standards of review. And finally, separate appellate counsel can allow your trial counsel to stay focused on the main litigation, which is most likely moving forward even though the writ is pending.

If you are on the receiving end of an extraordinary writ — whether it is a writ of certiorari, a writ of mandamus, or a writ of prohibition, consider engaging appellate counsel for a substantive consultation and/or to appear on your behalf in the appellate court. If we can help, feel free to contact us at 813-778-5161 or fill out our intake form here to initiate scheduling a consultation.

Briefing Deadlines Fixed

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A vintage image of a girl in a boat adorning a calendar from January 1920

The Appellate Rules Committee was not caught without a paddle and fixed a deadline glitch before January 1, 2019.

The Florida Supreme Court fixed briefing deadlines for cross-appeals and dependency and parental rights termination cases, effective January 1, 2019 at 12:03 am.

One of the biggest changes to the Appellate Rules this year is the counterbalancing of the deletion of 5 extra days for mailing with the lengthening of most appellate deadlines. Generally speaking, most deadlines that were formerly 5 days are now 10, for example, and the brief deadlines that used to be 20 days are now 30, and deadlines that used to be 10 days are now 15. You read that right — even though we’ve lost mailing days, we generally now have five or more additional days to serve most items. (Why or more? Because when the Court took away mailing days, it also gave a little extra boon of allowing you to start counting “on the next day that isn’t a “Saturday, Sunday, or Legal Holiday” rather than the next day, so you are no longer starting 3 days into your response time when you walk into your office on Monday morning to find something was filed after hours on Friday. We break down the new math in a prior blog post).

With all of those rule changes (three different orders!) something was bound to fall through the cracks. Under the October 25, 2018 orders, two appellate rules — Rules 9.146 and 9.210 — inadvertently kept the old, shorter deadlines. Luckly, the Appellate Rules Committee was on it, and moved the Florida Supreme Court for rehearing to fix the oversight. Rather than grant rehearing, the Court treated the motion as an “out of cycle report” from the committee, adopting the changes and making them in effect as 12:03am on January 1, 2019. See In re Amendments to Florida Rules of Appellate Procedure 9.146 & 9.210, No. SC18-1917, 43 Fla. L. Weekly S602 (Fla. Dec. 6, 2018)[.pdf]. Now cross appeal briefs have the same amount of time as initial and answer briefs, 30 days from service of the last brief. See Rule 9.210. And in dependency and termination of parental rights proceedings, practitioners also have the benefit of additional time (30 days for an answer and 15 days for a reply). See Rule 9.146.

The fully integrated .pdf rule set is now available on the Florida Bar’s website. Moreover, the fully integrated revised rules are also available at http://rules.floridaappellate.com.