Florida Appeals Cases: Should You Appeal?
Eric Lanigan has practiced Florida law since 1976. He has presented Florida appeals cases for both appellees and appellants. The very basic information of appeals and how they work are very straightforward, yet need to be explained for anyone who believes that their case could be won, overturned, their sentence changed, a jury award altered, etc.
Eric eplains that an appeal is essentially nothing more than having a higher court review and determine whether or not a legal ruling by a lower court was correct. And it is strictly as to the application of law not interpretation of fact.
So typically a trial court will make some kind of legal ruling. For instance whether or not to allow a particular document or other item into evidence. And if the lawyers believe that the trial court was not correct in the application of the law then they appeal that ruling to the higher court.
And typically a county court appeals to the circuit court. And if something appeals in the circuit court then you appeal to the appellate court. And if you believe that the appellate court is in error, then you appeal to the Supreme Court.
So it’s basically a method for a higher court to review the application of law of a lower court.
Who Decides an Appeal?
If you’re in a Florida county court, which in Florida involves cases worth less than $15,000 in damages and you believe that the county court judge made an error in the application of law or the interpretation of law, then your appeal goes to the next highest court which is the circuit court.
And although the circuit court is a trial court, it can sit as an appeals court for rulings of the county court.
The most common appeals are from trials or legal matters in the circuit court which deal with cases where the damages are greater than $15,000 to the appellate courts. And in Florida there are five appellate courts and they’re separated out by geographical area. And then if the ruling of the appellate court is believed to be in error you have an appeal to the Supreme Court.
How Likely is a Case to Go to the Supreme Court?
Very unlikely. The Florida Supreme Court is the court which independently decides which cases it hears or does not hear.
The five district courts don’t have that discretion. There are certain kinds of appeals that they can decide not to hear, but they’re very, very few. But, most of them, they have to rule on them: they have to hear them, they have to rule on them.
Whereas the Supreme Court however many cases get appealed to it, it decides which it will hear or not hear.
What Kinds of Cases May Be Appealed and What Aspect?
Well, literally any kind of case can be appealed. But the only thing that you’re appealing is the lower court’s application or interpretation of law.
You’re not appealing, except in very rare circumstances a lower courts acceptance or non-acceptance of certain facts.
Appeals are about the law, not about the facts.
So I Can’t Go Back Because I Found a New Witness?
Well that would be different than an appeal. For instance, let’s say you had a trial, and right after the trial was over, you found a critical witness and you want to have the judge rehear the trial because of this new witness and the judge says “no, I won’t reopen the trial.”
Well, if you believe that the judge in refusing to do so has either misapplied or misinterpreted the law, then you would be appealing.
But there again, you’re appealing the legal issue, not the factual issue.
What Kind of Lawyer Should I Choose for an Appeal?
You want to hire a lawyer who understands the appellate process and who understands the different style of advocacy that’s involved in an appeal.
A lawyer can be a good trial lawyer and that same lawyer can be a good appellate lawyer as long as they understand the different methods that are used and the different style that can be used in trial advocacy vs. appellate advocacy.
Because they’re quite different. I often sy that the difference between a trial judge and an appellate judge is, a trial judge is sort of like a judge that is watching a movie. It’s all going on in front of him.
The lawyers are engaged in presenting their witnesses. He’s listening to the testimony of the witnesses, the objections. He’s looking at the exhibits which might be physical items, it might be videos…he’s actively involved.
It’s like the equivalent of watching a movie. Whereas an appellate judge I would say would be analogous to reading a book. There’s not all this activity going on in front of them, they’re reading a story.
And just like it takes different things to make a book compelling and interesting than would be involved in making a movie compelling and interesting.
And what happens lots of times if someone is traditionally a trial lawyer and they attempt to use the same methodology in an appeal that the might use at a trial, they’re going to put a judge to sleep who’s trying to read the brief.
Because they’re not interested in theatrics and they’re not interested in mountains of evidence. They’re interested in, “I want to read a concise, interesting and compelling story. I don’t want mountains of irrelevant things thrown at me.
Do You Need My Testimony or My Information to Write Your Appellate Brief?
No. What you need is the record of what happened. Whether it’s the pleadings that were filed in the court file. The transcript of the trial. Or if you’re appealing 
something that happened at a hearing, the transcript of the hearing.
Those are the things that are going to matter. Because if the client tells me about something that occurred but it was never brought to the attention of the trial court, it’s not going to be heard for the first time in the appellate court.
And that’s the biggest mistake we often see is someone will come in and they’ll talk about this or that piece of evidence and then you’ll read the trial transcript and you’ll see that that evidence was never presented to the trial court.
Well it may be the most compelling evidence in the world but it’s completely irrelevant to the appellate court because it wasn’t part of the trial.
What May Be Appealed in a Criminal Case?
Like in a civil case, basically any legal ruling that the judge makes can be appealed.
If the judge makes a ruling to exclude some evidence, or you might appeal that on the basis that he’s not correctly applying the rules of the case law pertaining to that type of evidence.
So any type of ruling made by the court, very often jury instructions are appealed and you can also appeal—and it’s the least likely to be successful as an appeal—that the jury ignored the overwhelming weight of the evidence.
Appellate courts, whether dealing in a civil or a criminal case, absent very obvious situations, are not going to as we say, “invade the purview of the jury or the finders of fact.” Unless they can say that there was just no evidence to support what the jury did or how the judge decided the facts if it’s a non-jury trial.
But generally speaking, that’s an area that if that’s what you’re appealing, you probably have a loser.
Could I Have My Sentence Reduced, Get a Conviction Overturned, or a New Trial Ordered?
Sure, those are all potential remedies if the trial court erred in some application of law. There are all types of remedies that a court can have on the appellate level. Sometimes they will just enter a reversal.
Sometimes they will reverse what the trial court did and remand—that means send back—a case to the trial court with specific instructions as to what the trial court is to do to remedy the situation.
In a Civil Case, Can the Judges Reverse a Judgment or Reduce the Damages?
Yes.
What is the Likelihood or How Often Do Appeals Work?
How Often is the Appellant—the Person Filing the Appeal—Successful?
Well if you dealt in raw percentages, the answer is in, a small minority of occasions. And quite frankly it’s not because there’s any prejudice against appellants, it’s because the vast majority of cases that are appealed should not be appealed.
It’s because they’re not going to get reversed. Either the trial court did not commit error or the error is the type that is often referred to as not reversible error.
Kind of like a big mistake vs. a little mistake that really doesn’t impact the final outcome. Many cases the vast majority of cases especially in the criminal arena, an appeal is a waste of time.
Is There Any Type of Appeal That is Likely More Reversible Than Another?
No, I don’t think so. It’s all a matter of what the judge has done or has failed to do.
I had a case a few years ago involving a franchise and the sale of a franchise and failing to follow the franchise laws, and before we even got to trial, we appealed the rulings of the trial judge twice and on both occasions the court overruled what the trial judge did.
So, I think what you have to do in appellate activity is be astute in picking your fights.
Do You Represent Clients Who Have Won Cases That Are Appealed?
And If I Won the Case and My Case is Then Being Appealed by the Losing Side—the Appellee—Will You Represent Me?
Sure, we represent both sides. The person doing the appeal as well as the person who won at the trial level, whatever the issue may have been and who is now facing an appeal from the side against whom the trial judge ruled.
How Long Do Appeals Take? How Long Does an Appeal Last?
It depends on the type of appeal that you have. If it’s the appeal of a final order which is a ruling that ended the case at the trial level. You’re probably in the range of nine months.
All the briefs and everything are going to be filed with the court within probably four months, sometimes five depending on if extensions have been granted for the time to file briefs which is very common. It might extend further than that.
But let’s say your run of the mill appeal, you’re probably looking at a nine-month process before you have a decision.
If you have there are some unique types of appeal where you are appealing what we call a non-final order. So it’s not a type of order which brings the case to a conclusion, but it’s one that the law allows you to take up on appeal despite the fact that it doesn’t bring the case to a conclusion.
Exceptions to a 9-Month Appeal: Writ of Certiorari
Those are historically known as Writ of Certiorari and those appeals tend to happen to proceed fairly quickly because the proceedings of the trial court are being held up while that’s going on.
What is an Oral Argument?
Oral argument is something we don’t see that much of anymore. But appeals are the writing and submitting of briefs. Memorandums are describing the pertinent facts and arguing the law.
You can request that you be given oral argument which is the opportunity to come before the appellate court and make oral arguments in regards to the case. It is the discretion of appellate court whether to allow oral argument and if they think the issues are compelling, interesting or confusing, then they’ll grant oral argument.
As the appellate courts, like the trial courts have become more and more crowded, without an adequate number of judges, appellate oral argument has become less and less common because they just don’t have the time to do it. So they just rely upon the appellate briefs that have been submitted.
