Appellate Law and the Appeals Process

Frequently Asked Questions (FAQs) from the Appellate Law Offices of Robin Bresky

While many website visitors researching appellate law and the appeals process have an understanding of the terms, laws, and guidelines involved in the appeal process, we realize that some visitors to this site may have some questions. Here we will answer some of the common questions about appeals and appellate law. If you have other questions, feel free to contact our law firm at 561-994-6273, or via email.

Here you will also find video clips that Appellate and Trial Support Attorney Robin Bresky has created to answer questions on appellate law, trial support services, summary judgments, motions to dismiss, writs of certiorari, writs of prohibition and interlocutory and administrative appeals and more.

 

Who’s who

Note that the party who files an appeal is called an appellant or petitioner, and a party on the other side is called a respondent or appellee. The appellant can be the plaintiff or defendant from the original case, depending on who is challenging the ruling of the court.

1. What is the basic explanation of an appeal?

After an opinion is rendered in a civil or criminal case by a lower tribunal, any party who disagrees with the ruling has the right to have the decision reviewed by a higher court. This process is known as the appeals process or appellate process, and typically requires the services of an appellate attorney. Your right to an appeal is both a U.S. Constitutional right and a Florida Constitutional right.

2. What is the first step in the appeals process?

The first step in the process is the filing of a “notice of appeal”. This is the document a person must file with the trial court in order to pursue an appeal.

 

3. How long do you have to file an appeal after a court decision is announced?

Typically, you have 30 days, but your lawyer will verify this for you.

 

4. How long is the time period between filing the appeal and obtaining a decision from the appellate court?

The process can be lengthy. Transcripts of the original decision must be prepared. All sides prepare and submit briefs and responses to briefs. Once all the information for the appeal is prepared, it is assigned for review and consideration.

 

5. What are the requirements for appealing a decision / how do you know if you can appeal?

To determine eligibility for appeal, first you must consider whether you are a person who can appeal, which an appellate attorney can verify. Next the court must have made a judgment, an appealable order, or an order after judgment that is appealable, and third – you must have the paperwork to substantiate the judgment. There must have been an error of law, fact, or procedure in your trial. Your attorney can advise you on whether you meet the requirements for filing an appeal.

 

6. Who can render an appealable decision?

Any lower tribunal can have their decision appealed.

 

7. Will oral arguments for my case be presented before the judges, or will they only consider written documents?

Oral arguments are not always presented in an appeal. The court or judge schedules oral argument only if one of the parties made a timely request and the court agrees that this oral argument could be helpful in their decision, or if the judges feel that they need to hear oral argument. The court will review the appellant’s brief and the respondent’s brief created by the attorneys for both the appellee and the appellant. The brief or memorandum establishes the legal arguments and explains why the appellate court should affirm or reverse the lower court's judgment. The appellate briefs are typically created by appellate attorneys, whose area of practice is appeals.

 

8. What are the decisions that an appellate judge panel can make / what options do they have?

• The appeals court may AFFIRM the lower court's order (meaning that the decision of the lower court will stand).

• If the appellate court finds that the decision of the lower court was erroneous, it will either REVERSE or REVERSE AND REMAND the lower court decision. 

Note that in some cases, the appellate judges may rule that the mistake was a harmless error – that it did not affect the outcome of the case / would not have made a difference. With an error like this, the original decision still stands.

 

9. Can the appellate court turn down an appeal?

Only if it’s a non-appealable order, which your appellate attorney can verify.

 

10. If you disagree with the decision of the appeals panel, do you have any recourse?

In rare cases with very specific criteria, you can appeal to the highest court possible – the Florida Supreme Court. Your appellate lawyer can advise you on this matter.

 

11. What is the appellate court structure in Florida?

In Florida, all appellate proceedings are governed by the Florida Rules of Appellate Procedure. Florida's court system has three tiers, two of which are appellate. The circuit courts are the trial-level courts in which actions are filed, and they also have some appellate authority (final orders of lower tribunals and administrative actions sometimes are appealable to the circuit courts).

District courts of appeal have appellate jurisdiction in standard cases. There are five district courts of appeal: Tallahassee (1st District Court of Appeals), Lakeland (2nd District Court of Appeals), Miami (3nd District Court of Appeals), West Palm Beach (4th District Court of Appeals) and Daytona Beach (5th District Court of Appeals). The Florida Supreme Court (in Tallahassee) is the highest court for important decisions on Florida law. It directly reviews the final orders of circuit courts and the decisions of the district courts of appeal.

 

12. Is there more than one type of appeal?

Many jurisdictions recognize two types of appeals, particularly in the criminal context. There is the traditional "direct" appeal in which the appellant files an appeal with the next higher court of review.

The other is the collateral appeal (or post-conviction petition), in which the appellant files the appeal in a court of first instance – usually the court that tried the case.

The main distinguishing factor between direct and collateral appeals is that the former only reviews evidence that was presented in the trial court, but the latter allows review of additional evidence: depositions, affidavits, and witness statements that were not present in the trial.

The standard for post-conviction relief is quite high and requires the appellant to demonstrate that the new evidence being presented wasn’t available during the normal period of trial discovery.

 

13. Do I have to have an attorney to appeal my case?

An appellant can represent him or herself in an appeal and present their arguments pro se (without legal representation). This is unusual, however, and not advised.

 

14. What is an Appellate Lawyer?

Just as trial lawyers focus in trial law, appellate lawyers focus in appellate law.  They are knowledgeable in the appeals process and in writing effective appellate briefs.  Whereas trial lawyers are typically effective in weaving facts of the case together into a persuasive story to present to a trial judge and jury, an appellate lawyer is effective at dealing with the facts of the law and concisely explaining why the appellate court judges should or should not affirm the circuit court’s decision.

 

15. Where is the Fourth District Court of Appeal and what do I need to know about it?

The Fourth District Court of Appeal is located in West Palm Beach, Florida (address, phone and website below) and handles appeals for Broward and Palm Beach counties. Court hours are Monday through Friday from 8 AM to 4 PM excluding holidays. Their “rules of appellate procedure” are a lengthy document that can be found on their website, on the left side column of the home page. There are a total of 12 Fourth District judges and their biographies can be viewed on the website as well.

The Fourth District Court of Appeal is located at:
1525 Palm Beach Lakes Blvd.
West Palm Beach, FL 33401-2399
Telephone: (561) 242-2000
Website: www.4dca.org

Note that The Third District Court of Appeal is located in Miami, Florida. Their website address is: www.3dca.flcourts.org

 

The Law Offices of Robin Bresky is a dedicated appellate law firm handling civil court appeals, and providing effective trial support. The firm serves Boca Raton, Delray Beach, Boynton Beach, West Palm Beach, Coral Springs, Parkland, Margate, Lauderhill, Fort Lauderdale, Deerfield Beach, Broward County, Palm Beach County, and the trial courts and lower tribunals within the jurisdiction of the 4th District Court of Appeals.