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

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

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.

New Rule 9.380 Allows Notification of Related Cases

A public domain image of sketches of various courtroom scenes

Are these cases related?
If they are, now you can tell the appellate court.
Source: The Miriam and Ira D. Wallach Division of Art, Prints and Photographs: Print Collection, The New York Public Library. Familiar scenes and faces in court. Retrieved from http://digitalcollections.nypl.org/items/9b51c6ed-b3d7-a26c-e040-e00a18061941


Among the many rule changes effective January 1, 2019, the Florida Supreme Court has created a new mechanism to notify an appellate court of related pending cases. New Rule 9.380 allows parties, without argument, to inform an appellate court of “related case or issue” that is either “arising out of the same proceeding in the lower tribunal,” or, helpfully, “involving a similar issue of law.”

How is this helpful to the appellate practitioner? If you are watching an issue develop and percolate in the trial courts or district courts, you can now notify the courts of other pending appeals or trial court decisions on the issue. Make note that this notice is not an opportunity to make additional argument: the rule expressly states that the notice “shall not contain argument.” Still, it’s a way to direct the courts to attempt uniformity in rulings.

Because there is no argument involved, the notice should follow the simple format of new Rule 9.900(k) [.pdf].