The appellate opinion is out - now what do I do?

• Author: Gallagher, Betsy Ellwanger
• Position: Florida

Sooner or later the opinion arrives. Of course, appellate lawyers immediately flip to the last page of the opinion for the bottom line: "affirmed" or "reversed," among other options. (1) From there, emotions can run from jubilance to misery or anger. Even Jane Kreusler-Walsh, (2) a seasoned appellate lawyer, admits there are times when she wants to "throw up" after receiving an adverse opinion. However, she gives herself a day before making any major decisions. Appellate practitioner, Angela Flowers, (3) takes "a deep breath, re-read[s] the decision to determine how bad the result really is before delivering the news to the client."

Whether your client has won or lost in the appellate court, there is often more work to be done with short deadlines as provided by the Florida Rules of Appellate Procedure. Meaningful thought from the right perspective is necessary before making the decision to file any post-opinion motions. Other steps, such as implementing the appellate court's opinion or any of the court's instructions, filing the motion to tax costs, and addressing orders on appellate attorneys' fees, must be taken in accordance with the appellate rules. This article addresses many, but not all, issues that arise and the steps to take once the appellate opinion is "out" in state court civil cases. (4)

Caution: Motions for rehearing, clarification, certification, rehearing en banc, and/or for written opinions should be filed sparingly.

Under Florida Rules of Appellate Procedure 9.330 and 9.331, post-opinion motions, except in bond validation cases, must be filed within 15 days of an order or "within such other time set by the court." (5) Since the rules allow appellate courts to extend the time for filing such motions, it is not a bad idea to request the court grant a short extension of time to file any motions under Rules 9.330 and/or 9.331, if the circumstances of your case allow, to permit a well thought out decision. Unless the appellate court extends the deadline for filing such motions, the court will deny as untimely the filing of a motion even one day late. (6)

Motions for Clarification

If, after reading the opinion several times, you do not understand the court's marching orders--for example, what steps should be taken on remand to implement the court's opinion--you might consider filing a motion for clarification. Under Rule 9.330(a), a motion for clarification "shall state with particularity the points of law or fact" in the decision that are "in need of clarification." This request is not appropriate in per curiam affirmed (PCA) decisions without opinions. Only one motion for clarification may be filed. A motion for clarification and a motion for rehearing may be filed jointly or separately. (7)

Sometimes a call to the clerk of the court will suffice to correct minor clerical errors in the opinion. James R. Birkhold, clerk of the Second District Court of Appeal, accepts calls from attorneys on purely ministerial matters such as an incorrect name of the trial judge, an error in an address, or an error in a case citation. Mr. Birkhold stresses that any substantive change, even seemingly minor, should be addressed in a motion for rehearing.

Motions for Rehearing

Lawyers must resist any temptation, no matter how strong, to ignore their case or to act rashly after an adverse result. Reflecting back to his days as an appellate practitioner, Judge Gary M. Farmer of the Fourth District Court of Appeal advises "walking around the block for days if necessary or pinching yourself several times if you are swept away by a loss" before filing any post-opinion motions. Judge Farmer stresses that counsel must take the time needed to reflect and put the matter in a better perspective before filing any motion(s).

Rule 9.330(b) specifically provides that only one motion for rehearing may be filed. (8) Also no motions under Rule 9.330 may be filed in response to the dismissal of a petition for an extraordinary writ, addressed in Rule 9.110(a), when the writ is directed to a district court decision without opinion. (9)

The proper grounds for filing a motion for rehearing are limited. Under Rule 9.330(a), "A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding." (10) Judge Richard B. Orfinger of the Fifth District Court of Appeal states that although the rule serves a useful purpose, motions for rehearing that improperly reargue the merits of the case are filed too frequently. Instead, the motion should address a real error in the opinion in a meaningful way. In this regard, Judge Farmer advises counsel to "get to the point immediately, without formality" by telling the court "in the first paragraph what was misunderstood or overlooked." As with appellate briefs, post-opinion motions should be short, easy to read, and to the point; if there truly is a basis for a motion, it should not take much space to explain your position.

Statistically, the chances of changing the court's mind in a way that impacts the result of the opinion are extremely small on motions for rehearing. Therefore, the motions should not be filed as a routine matter. Judge Robert M. Gross of the Fourth District Court of Appeal notes that of the 1,028 motions for rehearing received in the Fourth District during 2006, only 21 were granted. His analysis of the 21 successful motions revealed that they had three qualities in common: 1) they were short, usually limited to only three or four pages; 2) they had...