Top 10 appellate mistakes (or why you need an appellate specialist).

• Author: Elligett, Raymond T., Jr.
• Position: Florida

While some may resist admitting it, all lawyers realize the practice of law becomes more complicated and specialized each year. Appellate practice is no exception, as appellate judges have observed.

Judge Silberman of the United States Court of Appeals for the District of Columbia warns: "Effective presentation to a federal court of appeals, or to any appellate court, requires a blend of talents not necessarily found in the typical trial attorney."(1)

Justice Anstead, speaking on ethics at the "Appellate Practice for the General Practitioner" Florida Bar seminar last spring, questioned if the competency provision in the Rules of Professional Conduct required trial lawyers to associate with appellate counsel, at least in significant cases.(2)

In the spirit of "top 10" lists, this article explores 10 mistakes lawyers should be careful to avoid when they tread into appellate waters.

1) Rendition--Unauthorized Motions

Everyone knows you have 30 days to appeal. But not everyone appreciates the nuances of the 30 days running from the "rendition" of the order in question.

Fla. R. App. P. 9.020(h) defines rendition of an order: "An order is rendered when a signed, written order is filed with the clerk of the lower tribunal." However, certain motions toll the rendition of certain orders as to certain parties.

The most common motions authorized to toll rendition in civil cases are motions for new trial and motions for judgment in accordance with prior motion for directed verdict (f/k/a as a motion for JNOV). Rule 9.020(h) lists all the "authorized" motions that toll rendition.

Filing a motion that is not authorized will not toll rendition of the final order. If the party who wants to appeal waits longer than 30 days from the filing of the final order to appeal because of an unauthorized motion (one that does not toll rendition), the appeal will be untimely (and will be dismissed).(3)

Motions that toll rendition are authorized to toll only final orders. Thus, counsel who files a motion directed to a nonfinal order may lose the opportunity to seek review of the nonfinal order (assuming it can be reviewed at that time, for example, pursuant to Rule 9.130).(4)

One's initial reaction on losing the ability to seek review of a nonfinal order may be that the party always can seek review at the end of the case. Not necessarily. For example, in Irwin v. Walker, 468 So. 2d 241 (Flat 2d DCA 1984), a party sought relief under Fla. R. Civ. P. 1.540. The trial court denied her motion and she moved for rehearing. She prevailed on her motion for rehearing and it looked like she had won. The opposing party sought and obtained a writ of prohibition because the court lacked jurisdiction to entertain the unauthorized rehearing. Of course, by then it was too late for the movant to seek appellate review of the initial denial.

An order granting a new trial is not a final order, so a motion for rehearing does not toll rendition for the purposes of filing an appeal.(5)

2) Rendition--Untimely Motions

Rule 9.020(h) provides only authorized and timely motions toll rendition. Rule 9.020(h) does not reveal the timing requirements. For those one must turn to the applicable trial procedure rules.

For example, Fla. R. Civ. P. 1.530 requires that motions for new trial and rehearing be served within 10 days. A sometimes-overlooked distinction is how to count the 10 days. In nonjury trials, the 10 days runs from the date of filing of the order. In jury trials, it runs from the return of the verdict (even though judgment is sometimes not entered until later).(6)

Cases illustrate additional timing mistakes lawyers have made. The trial court may not enlarge the time for serving such post-trial motions.(7) The 10-day period for rehearing begins to run upon filing, even if the final judgment is mailed. Thus, a party does not get any additional "mailing" time in which to serve the motion.(8)

3) Multi-Party Case Mistakes

Any case with more than one plaintiff and one defendant presents additional risks of appellate mistakes. A 1992 change in the rendition rule provides new opportunities.

Formerly, a timely post-trial motion by one defendant tolled the time for a co-defendant to file a...