Appellate Law in a Nut Shell

After a final judgment is entered by a trial judge, the decision rendered is reviewable by a higher court, called an appellate court. The right to appeal an adverse legal decision is granted by the United States Constitution and in state constitutions. A person has thirty (30) days from the entry of a final order to file a notice of appeal or loose their right to appeal.

Appellate law is different than trial litigation in that there is no discovery or the taking of testimony. The appellate record is limited to what was already presented to the trial court. It is recommended to have a court reporter at trial or final hearings. Without a court reporter recording testimony, there would be a limited record of evidence for the appellate court to review, thereby, reducing the probability of overturning the trial court's decision.

The appellate process consists of a multi-judge appellate panel who review the evidence in the court file to determine if the final judgment should be affirmed or overturned. The appellate decision is normally decided on the written appellate briefs filed by the parties.

Appellate law deals mainly with what judgments are appealable, how appeals are brought before the court, what will be required for a reversal of the lower court (e.g., a showing of "abuse of discretion," "clear error," etc.), and what procedures each party must follow.

The appeals system provides a check on the power of judges and juries, granting the higher court the authority to overturn what it considers erroneous or unconstitutional judgments or judgments it otherwise deems inappropriate.

The party appealing the final order is called the "Appellant". The party opposing the appeal is called the "Appellee".

Appellate practice varies from state to state and from federal district to federal district, so it is best to consult with a qualified attorney who is familiar with the State of Florida's appellate procedures. However, appellate procedures in most jurisdictions have some common elements.

An appeal typically begins with filing a notice of appeal in the trial court. The party appealing – known as the "appellant" – must also designate an appellate record. The appellate record consists of materials from the trial court that the appellant would like to present to the appellate court and use in appeal.

Appellate courts do not retry cases or hear new evidence. Instead, appellate courts review what occurred in the trial court to see if the proper procedures were followed and the proper law was applied.

Appellate court review usually defers to the trial court or jury on factual issues. On issues of law – for example, the interpretation of a statute or the Constitution – the appellate court will not defer to the trial court but will instead independently decide the issue of law.

On an appeal from a summary judgment motion the appellate court will independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial.

On an appeal from a judgment after a trial, the appeallate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial during the trial. Examples of such legal errors include the trial court giving erroneous jury instructions, erroneously admitting or excluding evidence, and failing to follow proper procedures. If the appellate court finds such legal errors, the appellate court will then determine whether these errors were prejudicial. A legal error is considered prejudicial only if there is some reasonable chance that it was likely to have effected the result in the case. Thus, minor legal errors are usually not grounds for a reversal.

In a typical case, the parties will file a total of three briefs with the court. In Florida appellant begins with an initial brief. Appellant's initial brief should explain the facts and procedural history of the case, and then explain why the appellate court should reverse.

Appellee then files a responsive brief. In the responsive brief appellee argues why the final judgment is correct and why the appellate court should not reverse.

Appellant may then file a reply brief. In the reply brief, appellant argues why appellee's arguments are wrong. Appellant may not make new legal argument in the reply brief; but only respond to appellee's arguments raised in appellee's responsive brief.

Once the writing of briefs is completed, the appellate court may hear oral argument. The time between finishing the briefs and oral argument varies with the court's work load and may be months. The appellate court may decide the appeal without oral argument.

The appellate panel will usually issue a written opinion explaining why it reached the decision that it did. Like the time between briefing and oral argument, the time between oral argument and the written decision varies considerably between different courts. If the appellate court deems it appropriate, the written opinon will be published in the official reports and will be binding authority (legal precedence) for litigants in the future.

A party dissatisfied with the appellate results may petition the state supreme court to review the final judgment. With a few exceptions, state supreme courts and the U.S. Supreme Court are not required to take any particular case; they choose what cases they will decide. Consequently, a petition asking a supreme court to take review of a previously reviewed decision must be carefully drafted if you wish discretionary review to be accepted.

As discussed above, most appeals involve cases that have been concluded in the trial court. However, a party can sometimes take an appeal from a trial court order before the case is over. Such appeals are called interlocutory appeals. Similarly, a party can sometimes ask an appellate court to issue an order – called a writ – requiring the trial court to modify one of its orders. The circumstances in which a party can file an interlocutory appeal or a petition for an appellate writ vary from court to court and are often very technical.

This outline gives a brief summary of appellate law in Florida. There are many factors that would affect the timing and approach to appellate proceedings. There are alternative ways to resolve your appellate claims, ranging from an inexpensive consultation, to appellate mediation, to filing of the briefs and oral argument. For specific information directed to your situation please contact this office at your convenience.