Appeals | Litigation Support

 

Appeals | Litigation Support 

We have a full-service appellate team located throughout Florida to assist our clients, offering key support before, during, and after trial, ensuring we present decisive legal authority for our position. Utilizing our appellate team both to advise and take the lead on discreet issues throughout the course of a case provides clients with a significant cost and strategic advantage.

The Appellate Process

An appeal is a request to a higher court to review and change the decision of a lower court.  In the simplest terms, appellate attorneys handle cases on appeal. The circumstances by which a matter winds up on appeal can vary wildly from case to case.  Most decisions of a state or federal trial court are reviewable by an appellate court at some point in time.  However, the overwhelming majority of trial court orders are not immediately appealable, but only reviewable after the rendition of a final order at the conclusion of the case.  Nevertheless, review by an appellate court of certain non-final orders of the trial court is either specifically permitted by rule or, where appropriate, through the filing of an extraordinary writ, including petitions for writs of certiorari, prohibition, or mandamus. 

The most common structure for an appellate court system involves one court of last resort with largely discretionary review, commonly called a supreme court, and one intermediate appellate court with largely mandatory review.  Because of this jurisdiction, the intermediate appellate court is the court of final review for the vast majority of appeals.  Although most intermediate appellate courts are comprised of anywhere from seven to fifteen judges, most appeals are assigned to, and decided by, a smaller panel of three judges working together.  The appellant, who is the party bringing the appeal, presents written legal arguments to the panel through an initial brief.  In the initial brief, the appellant tries to persuade the appellate panel that the trial court judge committed reversible error.  The party defending the appeal is known as the appellee.  The appellee responds to the initial brief by filing an answer brief, where they try to convince the appellate court that the trial court’s decision was either correct or that any errors committed by the trial court were not significant enough to affect the outcome of the case.  After the appellee files an answer brief, the appellant is permitted to file a concise reply brief. 

While some cases are decided on the basis of written briefs alone, others are selected for oral argument before the court.  Oral argument in the appellate court is a structured discussion between the appellate lawyers and the panel of judges focusing on the legal issues in dispute. Each side is given a short time — usually between ten and fifteen minutes — to present arguments to the court.  Unlike opening and closing arguments in a trial court, however, it is highly unlikely for an appellate attorney to present more than a small portion of their argument without frequent interruptions by the court.  Rather, the attorney spends most if not all of the oral argument fielding questions from the panel. 

Sometime after the case is fully briefed and, in those cases where ordered the court hears oral argument, the panel will issue its opinion.  The panel’s decision is almost always the final word in the case, unless it sends the case back to the trial court for additional proceedings or one of the parties seeks review in a higher court (e.g., the Florida Supreme Court in cases in Florida’s state court or the United States Supreme Court in federal matters).  Additionally, on rare occasions the court may grant a rehearing en banc, which simply means that the entire court reviews the original three judge panel’s decision. 

A litigant who loses in the intermediate appellate court may seek review in the highest court.  In cases litigated in Florida’s state court system, the highest court is the Florida Supreme Court.  In federal court, the highest court is the United States Supreme Court.  In all but the rarest of cases, review by the highest court is discretionary.  A party seeking discretionary review by the highest court must file a petition for writ of certiorari asking the Court to review the case. Because review is discretionary, the Court does not have to grant review. The Court typically will agree to hear a case only when it involves an unusually important legal principle, or when two or more intermediate appellate courts have interpreted a law differently.

Post-Trial Orders and Appeals

Post trial or following entry of a final order, our team assists with motions, hearings, and the entire appellate process including appellate mediation, briefing, and oral argument. Our Appellate Team handles appeals in both State and Federal appellate courts in all substantive practice areas including, but not limited to, coverage, first and third party bad faith, and traditional liability defense such as threshold and set-off issues in motor vehicle accidents, premises liability, products liability, and worker's compensation immunity, to name a few. 

Interlocutory Appeals and Special Writs

An important and often overlooked factor in devising a litigation strategy is knowing which types of orders are subject to immediate review. In addition to appeals from final orders or judgments, our Appellate Team also handles interlocutory appeals from non-final orders.  In Florida, only a select group of non-final orders may receive appellate consideration immediately rather than at the end of a case.  Appeals from non-final orders are governed by Florida Rule of Appellate Procedure 9.130 and imposes the following limitations on non-final orders to the District Court of Appeal to those that:

(A) concern venue;

(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;

(C) determine:

(i) the jurisdiction of the person;

(ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve, or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment;

(iii) in family law matters:

a. the right to immediate monetary relief;

b. the rights or obligations of a party regarding child custody or time-sharing under a parenting plan; or

c. that a marital agreement is invalid in its entirety;

(iv) the entitlement of a party to arbitration, or to an appraisal under an insurance policy;

(v) that, as a matter of law, a party is not entitled to workers' compensation immunity;

(vi) whether to certify a class;

(vii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes;

(viii) the issue of forum non conveniens;

(ix) that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed; or

(x) that a permanent guardianship shall be established for a dependent child pursuant to section 39.6221, Florida Statutes;

(D) grant or deny the appointment of a receiver, or terminate or refuse to terminate a receivership;

(E) grant or deny a motion to disqualify counsel;

(F) deny a motion that:

(i) asserts entitlement to absolute or qualified immunity in a civil rights claim arising under federal law;

(ii) asserts entitlement to immunity under section 768.28(9), Florida Statutes; or

(iii) asserts entitlement to sovereign immunity;

(G) grant or deny a motion for leave to amend to assert a claim for punitive damages; or

(H) deny a motion to dismiss on the basis of the qualifications of a corroborating expert witness under subsections 766.102(5)-(9), and (12), Florida Statutes.

In addition to prosecuting and defending appeals from non-final orders as authorized by Rule 9.130, our team also handles those non-final orders for which appellate courts have original jurisdiction through special writs.  The most common special writs are writs of certiorari (typically concerning “cat out of the bag” discovery issues), writs of prohibition (often times directed to subject matter jurisdiction or the recusal of the trial court judge), and writs of mandamus (where a party seeks to compel the lower court to take action). 

Trial Support

Trial support is the process of providing consultation and support services to the firm’s day to day litigators regarding both current and prospective cases.  Trial support can take many forms, depending on the needs of the client, ranging from researching and documenting facts and law before a case comes to trial to assisting in the determination of damages after a case has been tried. In performing its trial support role, the Appellate Team assists with and prepares motions on dispositive issues such as motions for summary judgment, motions to dismiss with prejudice, and motions for judgment on the pleadings, as well as motions in limine, including preparing and responding to Daubert motions, and motions seeking sanctions for litigation misconduct.  The attorneys on our Appellate Team are also frequently consulted to provide strategies for obtaining discovery in aid of these motions. 

Other Services

In addition to all of the foregoing, the Appellate Practice Team is available to assist our clients with challenges to proposed state constitutional amendments, statutes, and administrative rules, as well as to monitor high risk exposure trials.

To learn more, click here to see our people who specialize in this practice area or click here to see a list of our verdicts for this practice area.