Process & Resources

Frequently Asked Questions About Appeals

Navigating the appeals process can be daunting if you do not regularly participate in it, let alone if you have never experienced it. To help you better understand the process, below we provide answers to some of the most frequently asked questions.

What is the advantage of hiring an appellate specialist for my appeal?

First, objectivity. Your trial lawyer has lived with your case, knows it inside and out, and may be invested in the arguments made and strategies employed. An appellate lawyer can look at your case as an outside observer would—and more important, through the lens that the appellate court judges will see it. With that perspective, an appellate lawyer can objectively select and develop the arguments in a way that is most likely to resonate with the appellate court judges. Second, expertise. Trial lawyers are practiced in arguing to trial court judges and juries and with experience become well-versed in the processes of trial courts and what works. Appeals involve different courts and different processes that experienced appellate lawyers know how best to navigate to give you the best chance of prevailing on appeal.

The Appeals Process

Many people are more familiar with the trial court process than with the way appeals proceed. Unlike in trial courts, where the ultimate end is a trial in which a judge or jury decides disputed facts, appeals courts primarily address and interpret the law and apply it the facts found in the trial court. Accordingly, the proceedings revolve around written arguments submitted by the parties. The following is a very general description of the appellate process in federal appeals and Florida state court appeals for informational purposes only. The relevant Rules of Appellate Procedure, Local Rules and Administrative Orders of the relevant courts—or better yet, an experienced appellate attorney—should be consulted for more specific information.

How do you initiate an appeal?

File a Notice of an Appeal. A party that is unhappy with a decision of a trial court initiates a first level appeal (e.g., an appeal from a judgment of a U.S. District Court to a U.S. Court of Appeals or an appeal from a final judgment or order of a Florida Circuit Court to a District Court of Appeal) by filing a Notice of Appeal with the clerk of the trial court. Appeals may not be taken from any decision of a trial court, but in most cases only from a final order or judgment. In limited circumstances, appeals in Florida state court cases are allowed from certain specific types of non-final orders, which are listed in Florida Rule of Appellate Procedure 9.030. In federal cases, appeals from interlocutory orders are even more limited, requiring very specific conditions to be present. There are strict time limits for filing a Notice of Appeal, in most cases within 30 days of “rendition” of the order or judgment and in some cases even sooner. The time limit generally cannot be extended.

What is involved in preparation of the record?

Ensuring that the appellate court receives the full picture of what occurred in the trial court is critical to success on appeal. The ultimate burden is on the appellant (the party that is asking the appellate court to overturn the decision of the trial court) to ensure that a sufficient record is transmitted to the appellate court. In many types of appeals, the clerk of court prepares the actual record and the appellant’s obligation is only to give the clerk directions as to the documents to include. In some types of appeals, however, no record is transmitted by the clerk and the parties are responsible for submitting the pertinent documents to the appellate court in appendices.

How do the parties present their case to the appellate court?

Appeals are argued almost entirely in written briefs. In simplest form, the appellant argues his/her/its case primarily through the initial brief (which is simply called the appellant’s brief in federal appeals), which lays out for the court what occurred in the trial court and the appellant’s arguments as to why the trial court ruled incorrectly. The appellee responds with his/her/its answer brief (the appellee’s brief in federal appeals), which sets forth the appellee’s version of what occurred and presents argument disputing the appellant’s arguments and supporting the trial judge’s rulings. The appellant may then file a reply brief responding to the appellee’s arguments. Additional briefing is permitted when there is a cross-appeal, i.e., when both sides are appealing rulings of the trial court.

Is an oral argument required?

No. Oral argument is permitted only if the court believes it would be helpful. In many appeals, oral argument is not held.

When and how will the court make its decision?

Appeals are decided by the court issuing a written opinion. The amount of time it takes for the court to issue its opinion varies widely, from a couple months to more than one year.

Florida Appellate Court Structure

What is the structure of the Florida Appellate Court?

Most appeals in Florida are initially heard by the District Court of Appeals. That includes for all cases tried in the Circuit Courts (the trial court for Family Law Cases; Probate and Guardianship; and other Civil cases that involve more than $30,000; as well as Criminal cases involving Felonies or Juvenile Delinquency), and appeals from final decisions of administrative agencies.

Structure of Florida Appellate Courts

Courtesy of www.flcourts.org

Appeals from County Courts (the trial courts in small claims cases and other cases that don’t fall under the jurisdiction of a Circuit Court or administrative agency), however, are generally appealable to the Circuit Court in the same county, where they are heard by appellate panels made up of three Circuit judges. Appellate decisions of the Circuit Court in those cases are appealable to the District Court of Appeal only in limited Circumstances.

Map of Counties Served by Florida District Courts of Appeal

Courtesy of www.flcourts.org

There are five District Courts of Appeal (DCAs) in Florida. The First District (1st DCA) is located in Tallahassee, the Second District (2nd DCA) is located in Lakeland, the Third District (3rd DCA) is in Miami, the Fourth District (4th DCA) in West Palm Beach, and the Fifth District (5th DCA) in Daytona Beach. The 1st DCA hears appeals from the Jacksonville and Tallahassee and Panhandle regions (Bay, Calhoun, Clay, Columbia, Dixie, Duval, Escambia, Franklin, Gadsden, Gulf, Hamilton, Holmes, Jackson, Jefferson, Lafayette, Leon, Liberty, Madison, Nassau, Okaloosa, Santa Rosa, Suwannee, Taylor, Wakulla, Walton, and Washington Counties); the 2nd DCA hears appeals from Tampa, Sarasota, Naples and surrounding Southwest and Central West Coast areas (Charlotte, Collier, DeSoto, Glades, Hardee, Hendry, Highlands, Hillsborough, Lee, Manatee, Pasco, Pinellas, Polk, and Sarasota Counties); the 3rd DCA hears appeals from Miami-Dade and Monroe Counties, the 4th DCA hears appeals from the West Palm Beach, Fort Lauderdale and Stuart Areas (Broward, Palm Beach, Martin, St. Lucie, Indian River, and Okeechobee Counties); and the 5th DCA hears appeals from Orlando and Daytona Beach and the surrounding Central Florida area (Brevard, Citrus, Flagler, Hernando, Lake, Marion, Orange, Osceola, Putnam, Seminole, St. Johns, Sumter, and Volusia Counties). The party that loses an appeal to the District Court of Appeal can ask the Florida Supreme Court to hear the case. Under Florida’s Constitution, the Florida Supreme Court hears cases only in certain specific circumstances. In a limited number of cases, the losing party always has the right to appeal to the Florida Supreme Court. But in most cases, the Court has discretion to choose whether to review a case.

What court will hear my federal appeal?

What is the structure of the Federal Appellate System?

The United States District Courts are the trial court in the bulk of federal cases. Parties that lose in the District Court have the right appeal to the United States Court of Appeals, which are sometimes referred to as Federal Circuit Courts of Appeals. There are 13 U.S. Courts of Appeals. 12 are geographically dispersed in major U.S. cities, with each Circuit hearing cases from the District Courts in its immediate vicinity, and U.S. territories allocated among the Circuits, as follows:

1st Circuit (based in Boston): Appeals from federal District Courts in Maine, Massachusetts, New Hampshire, and Rhode Island, as well as Puerto Rico.
3rd Circuit (in Philadelphia): Federal District Courts in Delaware, New Jersey, and Pennsylvania, and U.S. Virgin Islands
4th Circuit (in Richmond): Maryland, North Carolina, Virginia, South Carolina, West Virginia.
5th Circuit (in New Orleans): Louisiana, Mississippi, and Texas.
6th Circuit (in Cincinnati): Kentucky, Michigan, Ohio, and Tennessee.
7th Circuit (in Chicago): Illinois, Indiana, and Wisconsin.
8th Circuit (in St. Louis): Arkansas, Iowa, Minnesota, Missouri, Nebrasa, North Dakota, and South Dakota.
9th Circuit (in San Francisco): Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, as well as Guam and the Northern Mariana Islands.
10th Circuit (in Denver): Colorado, Kansas, New Mexico, Utah, and Wyoming.
11th Circuit (in Atlanta): Alabama, Florida, and Georgia.
D.C. Circuit (in Washington, DC): Appeals from certain Administrative Agencies and the U.S. District Court for the District of Columbia.

Map of U.S. Federal Circuits

Courtesy of www.uscourts.gov

The 13th U.S. Court of Appeals is the Federal Circuit (in Washington, DC), which has jurisdiction over appeals in certain specialized kinds of cases, including: (a) appeals in patent and trademark cases, including from decisions of the U.S. Board of Patent Appeals and Interferences, the U.S. Trademark Trial and Appeal Board, and U.S. District Courts; (b) appeals from the U.S. Court of Federal Claims, U.S. Board of Contract Appeals, and U.S. Merit Systems Protection Board, and certain claims against the federal government; (c) appeals from the U.S. Court of Appeals for Veterans Claims; and (d) appeals from the United States Court of International Trade, and the U.S. International Trade Commission.

Who can appeal to the U.S. Supreme Court?

The party that loses an appeal in a U.S. Court of Appeals, and in some instances, a party that loses in a state appellate court, can ask the U.S. Supreme Court in Washington, D.C. to hear the case, which is done by filing a Petition for Writ of Certiorari. The U.S. Supreme Court can generally pick and choose which cases it hears. Most years it agrees to hear less than 5% of the cases it is asked to review. Most of the cases it agrees to hear involve one or more of the following: (a) federal legal issues on which the circuits of the federal courts of appeals are in disagreement (known as “circuit splits”); (b) a dispute that the Court considers to be of great public importance (such as Bush v. Gore, Brown v. Board of Education, which declared segregation Unconstitutional, and similar cases); (c) a ruling by the court below finding a federal statute to be unconstitutional; or (d) recurring issues in interpreting the United States Constitution. A limited number of federal statutes allow for direct appeal from U.S. District Courts to the Supreme Court.