Feng Shui Your Appeal: Create the Energy to Succeed.

• Author: Rose, Neil

Feng shui literally means "wind" and "water" in Chinese. (1) It is the ancient practice of arranging space to promote a harmonious flow of chi, or energy. (2) Feng shui philosophy suggests that we live in an invisible field of energy. (3) Arranging your home or office according to the laws of feng shui allows this energy to flow freely, promoting well-being, peace of mind, and success in business. (4) Perhaps surprisingly, applying certain feng shui principles to the appellate process may help create the energy needed to win an appeal. This article outlines some suggestions for lawyers to improve the energy flow of the appellate process and, thus, improve the chances of winning an appeal.

Step One: Taking the Appeal

An attorney must invest time and energy as a lawyer in determining whether to proceed with each appeal. Careful consideration should be paid as to whether an appeal should be taken at all. Taking a frivolous appeal may result in sanctions against counsel or a claim by the client for unnecessary fees or costs. Costs, including payment to the court reporter for preparation of the transcript of the trial or hearings, payment to the clerk for the preparation of the record, and the cost of a bond to supersede the judgment, must also be considered. Even more significantly, the client will have to pay his or her own appellate lawyer's fee, and potentially the other party's appellate lawyer's fee.

* Getting Paid--It is important to have a solid and clear written fee agreement to avoid any misunderstandings with the client. Whether taking the appeal on a guaranteed fee basis or a contingency fee basis, prompt evaluation must be given to the case to ascertain the validity of the appeal. Before accepting a contingency fee appeal, it is critical to delineate and articulate the specific issues that have a good chance for success on appeal. Otherwise, a significant amount of time, money, and energy will be lost-in-other words, bad feng shui. Taking the right steps and making the right decisions can prevent such a negative situation. Even if a fee is guaranteed, bringing an appeal without a clear idea of the issues is a mistake. Such a situation may culminate in a brief filled with borderline frivolous issues to justify the fact the filing of an appeal and collection of a fee. Meanwhile, the unhappy client has invested much time and money in a losing effort. In deciding whether to bring the appeal, consider the fact that chances of success may be greater as the appellee.

With a statutory or contractual right to attorneys' fees on appeal, act promptly and properly to preserve that right. A party can lose the right to recover attorneys' fees from the other party by failing to timely and adequately file a motion for fees. For example, Fla. R. App. P. 9.400(b) requires that a motion for fees be served no later than the time for service of the reply brief, and that it state the grounds on which recovery is sought. (5) A motion to assess appellate costs in the lower tribunal must be filed within 45 days after the mandate issues. (6)

* Select the Right Lawyer for the Appeal--Think about hiring an appellate specialist. Trial practice and appellate practice require different skill sets that a single lawyer is unlikely to possess. While a good trial lawyer must have the ability to persuasively present facts to a jury, a competent appellate advocate must combine skillful legal analysis with skillful written advocacy in order to persuade a panel of appellate judges. While a trial lawyer may be excellent at relating to the emotions of jurors, the trial lawyer may view the matter through the lens of appellate counsel. In addition, because of a schedule full of client meetings, depositions, hearings and trials, trial counsel may also lack the time needed to review the record, research the law, and draft the briefs.

Moreover, an appellate lawyer can bring an independent and objective perspective to the appeal. Appellate counsel can even be brought in early in the case to assist the trial lawyer with matters such as preservation of error and presentation of complex legal issues to the trial court. (7) Alternatively, an appellate specialist can be retained immediately after judgment to deal with post-trial matters and have early involvement in the appeal process. (8)

Step Two: Get the Record Straight

Ensuring that the appellate record is proper and accurate is one of the most important steps in creating a smooth and fluid appellate process. If the record is incomplete or inaccurate, there may be bumps in the road that can throw the court off track. Preparation allows momentum and a flow of positive energy, providing a better chance to win.

* Feng Shui Your Appellate Record by Directing the Clerk--The appellant can streamline the record on appeal by filing directions to the clerk within 10 days of the filing of the appeal, according to Rule 9.200. (9) If no directions to the clerk are filed, the clerk will prepare the "default" record described in Rule 9.200(a)(1), which may include thousands of pages of documents, many of which are not relevant. What this means is that the record will be unnecessarily cumbersome, resulting in a tremendous waste of resources. Additionally, finding and citing to the relevant documents in the record will be more difficult and time consuming. Without providing directions to the clerk, there is simply a great deal of wasted resources and energy--in effect, bad feng shui.

On the other hand, when the clerk is directed to include only the documents that are needed, the index to the record and the record itself are smaller, more manageable, less costly, and reduce waste of resources--all promoting a good flow of energy and good feng shui. As an added benefit, by creating the record on appeal soon after the notice of appeal is filed...