Florida Litigation and Appeals: Appealing the Trial Court's Decision

Introduction

From My Cousin Vinny to Law and Order, television and motion pictures have given Americans a view, albeit fictional as it usually is, into trial court proceedings. In fact, when most Americans think of "justice," a picture of two opposing attorneys, sitting with their clients before a judge and jury, must come to mind. Although people may have heard the term "appeal" connected with a dissatisfied partaker in America's legal system, most are unsure what an appeal entails. However, Americans are familiar with some famous results of the appellate process, such as Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the notorious U.S. Supreme Court decision which had the effect of allowing states to legalize abortion, and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Miranda v. California, which created the requirement that individuals must be read their constitutional rights before a custodial interrogation can occur.



Although appeals are not always as flashy as trials, they are important, both for a litigant who believes he or she has been wrongly served by the trial court, and for the development of the law in America. This article provides a general overview of the appellate process in Florida, discussing both the appellant's and the appellee's roles in the course of an appeal.




An Overview of Florida Appellate Law and Procedure

Appellate review is an important part of the American legal system. In fact, all states in this country provide for at least one level of appellate review. This, however, does not mean that the party bringing the appeal (the "appellant"), unhappy with the trial court's decision or jury's verdict, can retry his or her case in the appellate court. The appellate model followed in our legal system permits review of the trial court proceedings merely to determine whether there were any mistakes made during trial. Furthermore, even if there were mistakes (and it is a rare trial that is without some error), the appellant must demonstrate that the mistake affected the outcome of the trial to obtain appellate relief. That is, the appellant must show that the outcome would have been different if the mistake or error had not taken place or had been corrected by the trial court.



For an appeal to be heard, the parties must follow certain appellate rules. Because these rules differ from state to state, a party wishing to appeal a trial court's decision should consult with legal counsel who is well versed in the appellate practice of the state where the appeal is to be brought. This section of the article tracks the Florida appellate rules and the case law interpreting those rules.

Generally, appeals can only be brought from a "final" judgment. The final judgement is the trial court's order, which leaves nothing left to be done in the action except to follow the dictates of the judgement. See Allie v. Ionata, 503 So.2d 1237, 1240 (Fla. 1987) ("A final judgement is one that determines the rights of the parties and disposes of the case on its merits, leaving nothing more to be done in the cause except execution."); Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA 1999). Thus, for example, if a party is dissatisfied by a certain pre-trial ruling, the party must normally wait until the trial is complete, and a final judgement rendered, before bringing an appeal to challenge the ruling. This promotes what has been coined "judicial economy," by allowing all objections to the trial court's rulings to be heard at one convenient time. There are certain exceptions to the final judgement rule; however, those exceptions will not be covered in this overview.



Further, there are time limits during which an appeal must be taken. By failing to observe these time limits, the party may have waived its right to appeal. In Florida, the time limit starts to run when the trial court enters the final judgement. The appellant has 30 days from that date to file a Notice of Appeal. See Fla. R. App. P. 9.110(b) (civil cases); Fla. R. App. P. 9.140(b)(5) (criminal cases); Burkette v. Sharp, 752 So.2d 77, 78 (Fla.2d DCA 2000). If the notice is not filed in a timely manner, the appellate court does not have jurisdiction to hear the appeal, and it will be dismissed. See Macri v. La Coille, 710 So.2d 1389 (Fla. 5th DCA 1998), review denied, 727 So.2d 907 (Fla. 1999), and cert. denied, 120 S. Ct. 80, 145 L. Ed. 2d 674 (1999).



The appellant then has 10 days to file directions to the clerk and/or designations to the reporter. See Fla. R. App. P. 9.200. The party opposing the appeal, (the "appellee") has 10 days from the filing of the Notice of Appeal to file a "cross appeal" if he or she believes the trial court erred in failing to grant relief to the appellee. If a cross appeal is filed, the party's are termed, "appellant/cross appellee" and "appellee/cross appellant." The rules to follow when a cross appeal has been filed are beyond the scope of this article.



The clerk prepares the record and submits it to the appellate court within 50 days of the notice of appeal, and the appellant's initial brief is due 70 days from the date of the filing of the notice of appeal. although extensions of time are liberally granted if the opposing side does not object. See Fla. R. App. P. 9.110(e), (f); In Interest of M.M., 708 So.2d 990, 992 (Fla. 2d DCA 1998). The record consists of pleadings, pre-trial motions, and a transcript of the trial testimony, including rulings and exhibits. See Fla. R. App. P. 9.200(a)(1). There are also time limits for the filing of appellate briefs. Briefs are the written arguments of the appellant and the appellee that are submitted to the appellate court prior to the parties' oral arguments. For the appellate court to hear issues, the arguments must have been raised in the court below. That is, the claimed errors must have been brought to the trial court's attention while the court still had the opportunity to take some corrective action. If the trial attorney did not object to the error during trial, it is said that the issue has been "waived" on appeal. See J.L.A. v. State, 707 So.2d 380, 381 (Fla. 5th DCA 1998) (where no appropriate contemporaneous objection was made, issue was not preserved for appeal).



After the parties have filed their briefs, the matter is scheduled for oral argument, although, in some situations, appeals are decided solely on the basis of the submitted briefs. At one time, appellate lawyers could spend days presenting their case to an appellate court and could explore every facet of the trial below to uncover failings in the trial court's procedure. Now, appellate courts have voluminous caseloads that have dictated many changes in appellate advocacy. These changes include limiting the number of pages allowed in appellate briefs, which in Florida is now 50 pages for the appellant's initial brief, 50 pages for the appellee's answer brief, and 15 pages for the appellant's reply brief. See Fla. R. App. P. 9.210(a)(5). Briefs that go over the set page limit will be rejected, unless the court, in its discretion, permits an extension in the page limit. See Basse v. State, 740 So.2d 518, 519 (Fla. 1999) (initial and answer briefs shall not exceed fifty pages unless court permits a longer brief). Additionally, the time allowed for oral argument before the appellate court is very limited. Most appellate courts allow only a set number of minutes for oral arguments and the time limitations are strictly enforced. See Fla. R. App. Pro 9.320. In fact, appellate lawyers are usually timed to keep them within their allotted time for argument.



Appellants are also limited by the standard of review the appellate court employs. The standard of review refers to the level of deference that a reviewing court gives to a lower court's rulings. The greater the deference, the more difficult a burden it will be to convince the reviewing court to find error with the trial court's decision. The greatest deference is given to findings of fact. This is because the trial judge or jury had the best opportunity to observe the witnesses and judge their credibility, first hand. Thus, findings of fact will not be found in error unless the appellate court determines they are not supported by competent, substantial evidence or are clearly erroneous. See, e.g., Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976) ("It is not the function of the appellate court to substitute its judgement for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it."); Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998) ("The findings of the trial court, as the trier of fact, come to this court clothed with a presumption of correctness, and where there is substantial competent evidence to sustain the actions of the trial court, the appellate court cannot substitute its opinion on the evidence but rather must indulge every fact and inference in support of the trial court's judgement, which is the equivalent of a jury verdict). Questions that involve both law and facts, such as evidentiary rulings, are also allowed a great deal of deference. Once again, appellate courts respect the trial judge's ability to observe the witnesses and to judge their credibility. Finally, purely legal questions are reviewed de novo and are therefore afforded the least deference. See Florida Power Corp. v. Silver Lake Homeowners Ass'n, 727 So.2d 1149 (Fla. 5th DCA 1999).



Given these limits, it is important for clients to choose an experienced appellate lawyer who has a track record for persuading appellate courts to adopt his or her client's position within the limited time and space allowed for presenting that position. Moreover, given the deference allowed to the findings of fact and the limited scope of review for certain decisions of law, an experienced appellate advocate plays an integral part in any successful appeal. Equally important is obtaining a well-qualified appellate lawyer if the client is protecting the trial court's judgement as the appellee. By doing so, the Applebee increases his or her chances of having the court's ruling affirmed on appeal, thereby saving the costs involved in reversal for further proceedings.





Conclusion


Appellate advocates must be skilled in the art of persuasion, both orally and through the written word. They must also be well versed in the time and space constraints involved in presenting an appeal. Therefore, it is important to work with an attorney who has considerable appellate experience. By choosing such an attorney, the appellant increases the odds of having an unfavourable trial court decision altered or returned to the trial court for additional consideration. Likewise, the appellee is more likely to have the trial court's decision upheld, avoiding the costs of additional hearings or trials. Standing before a panel of astute judges and competently presenting a legal argument, while answering the judges' well-posed legal questions, is not for the faint hearted. It requires the rhetorical skills that only an experienced appellate lawyer can provide.




For further information, please contact Shannon McLin Carlyle

Shannon McLin Carlyle, P.A.
709 Mound Avenue
Leesburg, Florida 34748
Office: (352) 787-8001
Facsimile: (352) 787-8348
Email: AppellateLawyer@aol.com