Five easy pieces: advice for getting your case to the appellate court (and back again) intact.

• Author: Cone, Charles Tyler
• Position: Florida

The appellate process is, in theory, a model of simplicity: a maximum of three briefs and maybe an oral argument. Even an appeal suffering from "acute motion sickness" (1) is less procedurally complex than the average trial.

But the devil, as they say, is in the details. Several of the more diabolical details of the appellate process concern the interplay between the trial and appellate courts before, during, and after the actual appeal.

In other words, the transition of a case to and from the appellate court can quickly become a series of stumbling blocks. To avoid these obstacles, trial lawyers--even those who send their appeals to other attorneys down the hall or up the street--should keep in mind the following pieces of advice.

All Types of Appellate Review Not Created Equal

Successfully getting a case to the appellate court begins by knowing how the case will proceed once it gets there. Virtually every decision a Florida trial court makes in a typical civil case is reviewable in at least one of these ways:

1) A "final-order" appeal taken at the end of the case; (2)

2) An "interlocutory" appeal taken immediately after the entry of certain nonfinal orders; (3)

3) Review by certiorari (or some other extraordinary writ). (4)

Which decisions are reviewable by which methods is beyond the scope of this article. For present purposes, the key is knowing that several aspects of the appellate process will vary according to the type of review.

Know When and How to Start the Appellate Process

Potential stumbling blocks come up at the beginning of the appellate process. In fact, if the appellate court's jurisdiction is not properly invoked, the appellate process can be over before it begins. (5)

The proper method of invoking an appellate court's jurisdiction depends on the type of review. Final-order appeals are commenced "by filing 2 copies of a notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed." (6) Interlocutory appeals are commenced in exactly the same way. (7) Review by extraordinary writ, by contrast, is commenced "by filing a petition, accompanied by a filing fee if prescribed by law, with the clerk of the court deemed to have jurisdiction." (8) The most common type of petition, a petition seeking a writ of certiorari, must be filed "within 30 days of rendition of the order to be reviewed." (9)

Right from the beginning, the type of review matters. (I told you it would be important!) More specifically, at this stage the type of review determines:

1) Which court. Notices of appeal (of both final and nonfinal orders) are filed with the trial court. Petitions are filed directly with the appellate court.

An error in this regard is not fatal; the notice or petition is deemed filed when first received and then transferred to the correct court. (10) The error is nevertheless to be avoided, as it can create confusion and delay the appellate process.

2) Notice or petition. Commencement of a final order or interlocutory appeal requires a notice of appeal. Commencement of an extraordinary writ proceeding, on the other hand, requires a petition.

Do not underestimate the difference between the two. A notice of appeal is a one-paragraph document the content of which is largely a matter of form. (11) A petition is the functional equivalent of an initial brief. (12)

Confusing the two may not be fatal to the actual appeal. (13) However, anyone who sits down to draft a petition the day before it is due will quickly discover that the error may well be fatal to his sanity or--if he delegates this task to an appellate attorney with access to a blunt instrument--his personal safety,

3) For Whom the Motion Tolls. The 30-day time limit for filing both notices of appeal and petitions for writs of certiorari begins to run upon "rendition" of the order to be reviewed. Rendition usually...