WALLBERG & RENZY, P.A.

Frequently Asked Questions - Appeals

 

What is an appeal?

An appeal requests a higher court to review the decision of a lower court or administrative agency to correct legal error.

 

What is legal error?

A legal error, correctable on appeal, is one made by the court or administrative body. Mistakes by the parties, or their attorneys are not correctable on appeal.

 

Why do I need an appellate attorney?

The appellate process requires different skills from those used at trial. A trial attorney should be experienced in selecting a jury, questioning witnesses, and controlling evidence. Appellate success requires the devotion of large blocks of uninterrupted time for thoughtful, creative, and scholarly work. In a practice devoted to appeals an appellate attorney sharpens the exceptional legal research, analytical, and writing skills needed on a daily basis.

Effective advocacy before an appellate court is distinctly different from trial advocacy. Convincing a panel of appellate court judges to adopt a certain legal position is not the same as making your case to a jury. Moreover, an appellate attorney brings a fresh perspective so that your case is viewed as the appellate court views it.

The appellate rules regarding what can be appealed, when you can appeal, and what must be done to preserve and prosecute an appeal, are intricate. An appellate attorney can help protect you from traps waiting for the uninformed.

 

What does an appellate attorney do?

An appellate attorney determines whether an order is appealable, and the deadline for filing that appeal. Also, there may be other steps needed at the trial level to preserve your appellate rights, and an appellate expert can make that determination.

The decision to appeal is very difficult. It requires consideration of the chances of success, risks, time, money, and also the emotional toll of further litigation. An appellate attorney can assist you in making your best decision.

Once the decision to appeal is made, an appellate attorney will make sure your appeal is filed on time. Otherwise, you will lose your right to appeal. If mediation is ordered in your case, an appellate attorney will represent and assist you at mediation.

An appellate attorney must assure that a full and complete record necessary for the points raised is prepared and presented to the appellate court. Next, the time intensive work begins of reviewing the record, performing detailed research and analysis, and preparing the written documents – “briefs” – that present your case to the appellate court.

Oral argument may be granted in your case and an appellate attorney will represent you at oral argument. This is a short opportunity to answer the appellate judges’ questions while presenting your points, or responses on appeal.

Once the appellate court enters the decision, an appellate attorney must evaluate the decision to determine if there is any further action needed.

 

What orders are appealable?

Determining whether a trial court order is reviewable is a legal question that should be determined by an appellate attorney.

 

What is the deadline for filing an appeal?

Your right to appeal can be lost by not acting timely. Generally, you have thirty days from the filing of the order to commence your appeal by the filing of a Notice of Appeal. The timely service and filing of an authorized post-trial motion may postpone the running of your thirty-day period until the filing of the order disposing of that motion. However, you should never rely upon your own calculations. An appellate attorney should make the determinations of whether an order is appealable, and when to appeal. There is no room for error.

 

How long does an appeal take?

There is no definite timeframe. The time varies depending upon a number of factors. Generally, an appeal will take at least one year except in the very rare case where it can be expedited.

 

If I appeal, do I have to comply with the order appealed?

An appeal, by itself, does not excuse you from the responsibility of complying with the order. Rather, you must seek and obtain a “stay” from the trial court to be excused from compliance.

 

What is a “stay”?

A “stay” is a legal order that maintains the status quo – the situation before the order was entered. The posting of a proper appellate bond automatically stays money judgments. “Stays” from other judgments may require bonds, certain conditions, or they can be denied.

 

Can I appeal before the case is over?

Certain orders may be appealed before the case is concluded. Examples of some of these orders are those that determine:

1) the right to the immediate possession of property;
2) child custody or monetary relief in a family law matter;
3) injunctive relief; or
4) jurisdiction of a person.

A higher court can sometimes review other non-final orders by special writ. An appellate expert should determine this question.

 

Can I introduce new evidence on appeal?

No. An appeal is a review proceeding limited to the evidence in the record.

 

Where will my case go on appeal?

For a Florida state court case, your case will go to one of Florida’s five District Courts of Appeal. Florida is divided into five geographical districts:

First DCA – Tallahassee;
Second DCA – Lakeland;
Third DCA – Miami;
Fourth DCA – West Palm Beach; and
Fifth DCA – Daytona Beach.

Your case will go the District Court of Appeal that governs your geographical area.  Federal cases from Florida go to the Eleventh Circuit Court of Appeals based in Atlanta.

 

How many judges will consider my appellate case?

Generally, three judges of the appellate court will decide your case.

 

If I lose on appeal to a District Court of Appeal, can I appeal to the Florida Supreme Court?

In Florida, most decisions of our five Florida District Courts of Appeal (DCA) will be the final appellate court decision in a civil, i.e. non-criminal matter. It is extremely difficult for a civil case to reach the Florida Supreme Court. A right to Supreme Court review in a civil case is limited to a DCA decision that declares a state statute or provision of the state constitution invalid.

Otherwise the Florida Supreme Court has discretion whether to accept any case for review. The requirements for discretionary review are a written decision of a Florida District Court of Appeal that expressly: 1) declares valid a state statute; 2) construes a provision of the state constitution; 3) affects a class of constitutional or state officers; 4) conflicts with another Florida appellate decision; 5) certifies conflict with another Florida appellate decision; or 6) passes upon a question certified to be of great public importance. Even if your case is one of the very few to meet these requirements, the Florida Supreme Court may still refuse to review your case.

 


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