Ten signs that you need an appellate lawyer.

• Author: Gallagher, Betsy E.
• Position: Florida

This article presents 10 signs to recognize that you need an appellate lawyer. It could also be titled "Lessons I (Should) Have Learned the Hard Way." Although occasional mention of federal court appellate procedure is made, the scope of this article is generally limited to state civil court appeals.

1) You do not know that state court appeals in Florida are governed by the Florida Rules of Appellate Procedure.

They are further back in the rule book, not as long as the rules of civil procedure, and may have escaped your notice. It is essential, however, to have a good working knowledge of the Florida Rules of Appellate Procedure. These rules govern the procedure for handling appeals, and strict adherence to the rules is a must.

The rules, for example, present the jurisdiction of the appellate courts, including the circuit courts. Of critical importance, the rules contain the jurisdictional deadlines to file notices of appeal, writs, and notices to invoke the discretionary jurisdiction of the Supreme Court of Florida. These deadlines may not be extended by consent of the parties or order of the court. (1)

The appellate rules cover civil and criminal appeals. The rules also apply to administrative appeals (2) and workers' compensation appeals (3) Among other things, the rules govern the due dates for filing notices of appeal and writs, for preparation of any transcripts as well as the record on appeal, and most important, for filing the brief or petition. The rules additionally dictate the procedure for accomplishing these matters. For example, there are different page limitations depending on the type of brief filed. Briefs are also required to be in a specific font, and all briefs must contain a certification by counsel at the conclusion stating that the brief is in compliance with these font requirements. Some of the district courts of appeal routinely strike briefs for failing to strictly comply with the rules. (4)

As has been noted, an effective product in the appellate court requires a combination of skills which may be lacking in the trial lawyer. (5) This product requires command of the appellate rules, ability to recognize an appealable order, knowledge of how to present the trial court record to the appellate court, ability to identify the issues on appeal, and patience to distill a large record into a coherent, concise, and persuasive brief, as well as oration and debating skills.

2) You've grown to detest your opposing counsel and have the urge to disparage him or her in the brief and engage in motion practice in the appellate court.

There is no place for disparagement of your opposing counsel in appellate practice, especially in the brief. As Judge Morris Silberman of the Second District Court of Appeal points out, "These tactics suggest that the author must be resorting to name calling because his or her argument on the merits is weak." (6) Avoid attacking your opposing counsel. Simply state your disagreement.

Likewise, the filing of motions should be as limited as possible. (7) Judge Philip J. Padovano of the First District Court of Appeal notes that "[m]otion practice is more limited in appellate courts than it is in trial courts." (8) There are, of course, times when it is necessary to file a motion. Motions to dismiss on meritorious jurisdictional grounds and motions for extension of time to file the brief, for the clerk to prepare the index or record on appeal or for the court reporter to prepare the transcript of testimony are quite acceptable.

Florida appellate courts, however, do not tolerate frivolous motions or those filed in bad faith. (9) For example, Florida appellate courts have repeatedly expressed their displeasure over motions for rehearing which are without any merit. (10) These courts are increasingly likely to sanction lawyers for filing such motions. (11) Restraint should be used to avoid filing any unnecessary motions.

3) You do not know, understand, or care if your appellate case has an applicable standard of review. (12) Since 2000, the Florida Rules of Appellate Procedure have required briefs to include the applicable standard of review. (13) The Federal Rules of Appellate Procedure also require that the argument section of every appellant's brief contain "for each issue, a concise statement of the applicable standard of review...." (14) Although there have always been those who believe opinions are driven by result, (15) most agree that "understanding and applying the proper standard of review will lead to the result that you want." (16) Evaluation of the prospects for success of an appeal...