Motion practice in the district courts of appeal.

• Author: Norse, Kristin A.
• Position: Florida

Motion practice is a function of both trial and appellate litigation. In the trial court, the primary method of moving a case forward and preparing it for trial occurs through the use of pretrial motions. Pretrial motions can be critical in shaping a case and resolving issues on their merits prior to trial.

In appellate courts, however, the focus of the judicial process rests primarily on the written briefs. Although motions and oral arguments have their role in this process, the merits of an appeal are almost always decided based upon the arguments presented in the briefs. Because the briefs form the cornerstone for an appellate decision, appellate court procedures likewise center on the briefs. In this context, motion practice in the appellate courts, in some respects, departs from the normal procedure; it asks the court to address an isolated issue in the appeal, perhaps even before the appellate record is complete, without the knowledge that a thorough review of the record and the briefs might provide.

In addition, trial counsel often gains a certain level of confidence in the predictability and uniformity of a trial court's resolution of motions. Such confidence is not as easily attained by appellate counsel. Trial motions are filed with and decided by an individual judge assigned to the case. They are generally resolved only after counsel has had the opportunity to argue the motion to that judge and to address any concerns the judge may have regarding the motion or the relief requested. By contrast, the infrequent motions filed in appellate courts are dispersed among a number of judges with whom counsel may have had no contact before the motion is decided. While appellate opinions are published and provide guidance to counsel (and perhaps other judges) in future appeals, appellate orders entered on motions are usually unpublished and known only to those parties and their counsel who receive them.

These unique characteristics of appellate motion practice provide challenges for the appellate practitioner. The type of motion practice that is successful before the trial court may be unsuccessful, or even a liability, on appeal. A familiarity with the motion process on appeal and the most common motions filed in appellate courts is essential to increase the efficacy of such motions.

The most common motion filed in an appeal is a motion for an extension of time. Pursuant to Florida Rule of Appellate Procedure 9.300(a), a motion to extend time "shall" contain a certificate that the moving party's counsel has consulted with opposing counsel and is authorized to represent that opposing counsel has no objection or will otherwise promptly file an objection. At least one district court has indicated that it routinely denies motions that lack this certificate. (1) It may be advisable to specifically title the motion "unopposed motion for extension of time" when opposing counsel has acquiesced to the extension to provide the reviewing judge or staff an immediate understanding that the motion is not contested.

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