THE NUTS & BOLTS OF APPELLATE PRACTICE - … NUTS & BOLTS OF APPELLATE PRACTICE Presented as part of FLORIDA DISPUTE RESOLUTION CENTER’S 23rd ANNUAL CONFERENCE “TREASURING THE

THE NUTS & BOLTSOF APPELLATE PRACTICE

Presented as part of

FLORIDA DISPUTE RESOLUTIONCENTERS

23rd ANNUAL CONFERENCETREASURING THE PAST & SPIRIT OF

CHANGEJuly 30 - August 1, 2015

JW Marriott Grande Lakes, Orlando, Florida

Presented by Wendy S. LoquastoFox & Loquasto, P.A.

1201 Hays Street, Suite 100Tallahassee, FL 32301

(850) [email protected]

The Nuts & Bolts of Appellate Practice Prepared by Wendy S. Loquasto, Esq. Page 1

mailto:[email protected]

TABLE OF CONTENTS

GOAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OUTLINE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. The Nature & General Principles of Appellate Review. . . . . . . . . . . . . . . . . 1A. DCAs Generally Have Final Appellate Jurisdiction. . . . . . . . . . . . . . 1B. Error-Correcting Nature of Appellate Courts.. . . . . . . . . . . . . . . . . . . 2C. Preservation of Error Required by Contemporaneous Objection. . . . 2D. Fundamental Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3E. Trial Courts Decision is Presumed Correct.. . . . . . . . . . . . . . . . . . . . 3

1. Presumption of Correctness as to Factual Determinations. . . . 42. Exceptions to Presumption of Correctness. . . . . . . . . . . . . . . . 43. Tipsy Coachman Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

F. Appellants Burden of Proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5G. Harmful Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6H. Three-Judge Panels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. Mechanics & Time Lines for Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7A. Different Times Apply to Different Types of Appeal. . . . . . . . . . . . . 7

1. Civil appeals from final orders.. . . . . . . . . . . . . . . . . . . . . . . . . 72. Discretionary review in supreme court from DCA opinions. . . 83. Nonfinal orders 9.130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84. Criminal appeals 9.140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85. Death penalty cases 9.142. . . . . . . . . . . . . . . . . . . . . . . . . . . . 86. Juvenile delinquency 9.145. . . . . . . . . . . . . . . . . . . . . . . . . . . 87. Termination of parental rights & dependency 9.146. . . . . . . 88. County court decisions 9.160. . . . . . . . . . . . . . . . . . . . . . . . . 89. Probate & guardianship 9.170.. . . . . . . . . . . . . . . . . . . . . . . . 810. Workers compensation 9.180.. . . . . . . . . . . . . . . . . . . . . . . . 811. Administrative cases 9.190. . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Check for Orders Expediting the Appeal. . . . . . . . . . . . . . . . . . . . . . . 8C. Extensions of Time in the Absence of a Stay for Mediation. . . . . . . . 8D. Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9E. Time for Disposition of an Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 10F. Motions for Rehearing, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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G. Mandate.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III. Extraordinary Writs Just a Few Words. . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. Standards of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10A. What is the Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10B. Review of Factual Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Competent Substantial Evidence. . . . . . . . . . . . . . . . . . . . . . . 112. CSE & Clear and Convincing Evidentiary Burden .. . . . . . . . 133. Factual Findings Based on Undisputed Facts. . . . . . . . . . . . . 144. Questions of Weight, Credibility & Conflicts in Evidence. . . 145. What is CSE?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. De Novo Review of Legal Decisions. . . . . . . . . . . . . . . . . . . . . . . . . 151. Statutory Interpretation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162. Construction of Contracts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 163. Summary Judgment Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . 164. Other De Novo Review Rulings. . . . . . . . . . . . . . . . . . . . . . . . 16

D. Review of Discretionary Decision is by Abuse of Discretion. . . . . . 171. Family Law Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172. Evidentiary Issues.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173. Trial Procedural Matters.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184. Jury Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185. Post-trial Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

V. Why Mediate Appellate Cases?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18A. Appellee Has Little Incentive to Settle.. . . . . . . . . . . . . . . . . . . . . . . 18B. Educating the Parties Regarding the Appellate Process. . . . . . . . . . 18C. Global Settlement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19D. Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19E. Attorneys Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19F. Risk of Losing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

VI. Mediation Programs in Florida. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20A. Fifth District Court of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20B. Eleventh Circuit Court of Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . 21C. Other Appellate Mediation Programs.. . . . . . . . . . . . . . . . . . . . . . . . 22D. Private Mediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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VII. Florida Appellate Mediation Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

IX. Other Included Materials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24A. The Appeal of Appellate Mediation: Making the Case for an Attractive

Dispute Resolution Tool, by Jeanette Bellon & Sharon C. Degnan, Fla.Bar Journal, Vol. 83, No. 3 (March 2009). . . . . . . . . . . . . . . . . . . . . 24

B. Florida Rules of Appellate Procedure 9.700-9.740. . . . . . . . . . . . . . 24C. Fifth District Court of Appeal Mediation Program Materials. . . . . . 24

1. Mediation FAQ.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242. Mediation Questionnaire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243. Confidential Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244. Response to Referral Order. . . . . . . . . . . . . . . . . . . . . . . . . . . 245. Motion to Waive Fees with Affidavit. . . . . . . . . . . . . . . . . . . 246. Joint Motion to Relinquish Jurisdiction.. . . . . . . . . . . . . . . . . 247. Joint Stipulation for Dismissal. . . . . . . . . . . . . . . . . . . . . . . . . 248. Mediation Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249. Joint Motion for Extension of Time.. . . . . . . . . . . . . . . . . . . . 24

D. 11th Circuit Kinnard Mediation Center Materials. . . . . . . . . . . . . . . 251. Mediation in the Eleventh Circuit Court of Appeals. . . . . . . . 252. Circuit Mediation Process (flow chart). . . . . . . . . . . . . . . . . . 253. Private Mediator Procedures of Mediation of Appeals. . . . . . 254. 11th Circuit Rules 33-1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255. Civil Appeal Statement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256. Confidential Mediation Statement. . . . . . . . . . . . . . . . . . . . . . 257. Brief Extensions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258. Post-Settlement Dismissal Procedures. . . . . . . . . . . . . . . . . . . 25

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GOAL

The goal of this presentation is to provide an understanding of the appellateprocess for mediators and tools to aid them in empowering the parties to resolvethe issues.

OUTLINE

I. The Nature & General Principles of Appellate Review

A. DCAs Generally Have Final Appellate Jurisdiction: Floridas DistrictCourts of Appeal are generally the courts of last resort for appeal because the FloridaSupreme Court has limited powers to review. This point was explained in Whipplev. State, 431 So. 2d 1011 (Fla. 2d DCA 1983), as follows:

With Floridas rapidly growing population and enormous appellatecaseload, if every litigant had a right of review in the supreme court, thecourt would be so overwhelmed that it could not possibly focus on theimportant cases. In fact, this was one of the principal reasons which ledto the creation of the district courts of appeal in 1957. When thesupreme court caseload reached 1,225 cases in 1955, the JudicialCouncil of Florida proposed creation of the district courts of appeal.Their objective was to restrict access to the Supreme Court of Florida inorder to avoid double appeals and to make appellate justice more readilyavailable to litigants by hearing appeals near the source. The legislatureagreed, and on November 6, 1956, the voters overwhelmingly adoptedan amendment to Article V of the Florida Constitution providing forcreation of the district courts of appeal. It was originally intended thatthe district courts were to have final appellate jurisdiction in most cases.However, this finality eroded as the supreme court began looking to trialrecords, rather than to district court holdings to establish conflictjurisdiction. . . . As the finality of the district courts continued to erode,the supreme court caseload, which had decreased to 555 in 1959,became even more staggering with 2,676 cases filed in that court infiscal year 1978-79. About half of those were petitions for conflictcertiorari. As a result of considerable study, an amendment to Article Vof the Florida Constitution was proposed to revise the jurisdiction of the

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supreme court and district courts of appeal. The amendment wasadopted by the voters on March 11, 1980. The amendment limits thesupreme courts mandatory review of district court of appeal decisionsto those declaring invalid a state statute or provision of the stateconstitution. It provides for discretionary review of district courtdecisions declaring valid state statutes or expressly construing aprovision of the state or federal constitution or affecting a class ofconstitutional or state officers. Discretionary review is also given inthose cases which expressly and directly conflict with the decision ofanother district court of appeal or the supreme court on the samequestion of law. The supreme court may no longer search into therecord proper to determine whether a district court affirmance createsa necessary conflict. Thus, the district courts of appeal now have finalappellate jurisdiction in most cases, as was originally intended.

Whipple, 431 So. 2d at 1013-14 (footnotes omitted).

B. Error-Correcting Nature of Appellate Courts: Appellate courts are errorcorrecting courts. Whipple, 431 So. 2d at 1014, also explains this point as follows: Under our present constitutional scheme, the district courts of appeal engageprimarily in the so-called error-correcting function to insure that every litigantreceives a fair trial. This frees the supreme court to discharge its judicialpolicy-making function of clarifying the law and promulgating new rules of law. Inother words, appellate courts exist not to supervise trial courts but to review forjudicial error occurring in the trial court. Gamble v. State, 449 So. 2d 319, 322 (Fla.5th DCA 1984) (Cowart, J., dissenting).

C. Preservation of Error Required by Contemporaneous Objection: In orderto appeal an issue, it must have been preserved for appeal. In other words, the allegederror must have been brought to the trial courts attention by contemporaneousobjection so the trial court has an opportunity to correct the error. See Gamble v.State, 449 So. 2d 319, 322-23 (Fla. 5th DCA 1984) (explaining that thecontemporaneous objection rule gives proper appreciation to the respective functionsof the two judicial levels by allowing the trial court to correct readily recognizableand technical errors and avoid unnecessary appeals).

The Florida Supreme Court summarized the principles of preservation of error

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by contemporaneous objection in Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010). Thecontemporaneous objection requires these three components to preserve error:

First, the party must make a timely, contemporaneous objection at thetime of the alleged error. Second, the party must state a legal groundfor that objection. Third, [i]n order for an argument to be cognizableon appeal, it must be the specific contention asserted as legal ground forthe objection, exception, or motion below. While no magic words arerequired to make a proper objection, we reiterate here that the concernarticulated in the objection must be sufficiently specific to inform thecourt of the perceived error.

Id. at 1108-09 (citations omitted).

D. Fundamental Error: In the absence of a contemporaneous objection, theappellate courts may only consider an alleged error for the first time on appeal if itconstitutes fundamental error, that is, error that goes to the foundation of the case. This point was explained by the Florida Supreme Court in Daniels v. State, 121 So.3d 409 (Fla. 2013), as follows:

To justify not imposing the contemporaneous objectionrule, the error must reach down into the validity of thetrial itself to the extent that a verdict of guilty could nothave been obtained without the assistance of the allegederror. In other words, fundamental error occurs onlywhen the omission is pertinent or material to what the jurymust consider in order to convict.

In defining the scope of the fundamental error doctrine, we haveexplained that a fundamental error is one that goes to the foundation ofthe case or goes to the merits of the cause of action. Further, wereiterated that appellate courts should employ the doctrine offundamental error very guardedly.

Daniels, 121 So. 3d at 417 (citations omitted).

E. Trial Courts Decision is Presumed Correct: In appellate proceedings,

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the decision of the trial court has a presumption of correctness. Applegate v. BarnettBank of Tallahassee, 377 So. 2d 1150, 1151 (Fla. 1979). Because the presumptionof correctness is a principle of appellate procedure, it applies in all appeals to alltypes of trial-level decisions. Philip J. Padovano, Florida Appellate Practice 19:2,at 359 (2015 ed.).

1. Presumption of Correctness as to Factual Determinations: Appellate courts are required to give the evidence a constructionfavorable to the prevailing party on review and to draw all reasonableinferences concerning the facts in favor of the prevailing party. SeeChicken N Things v. Murray, 329 So. 2d 302, 305 (Fla. 1976) (statingthat the reviewing court will give the evidence a construction favorableto the prevailing party); Fawaz v. Fla. Polymers, 622 So. 2d 492, 495(Fla. 1st DCA 1993) (Indulging in the presumption that the appellee,as the prevailing party, is entitled to the benefit of all reasonableinferences that can be drawn from the evidence in a light most favorableto it . . . .), distinguished on other grounds, E. Airlines v. Griffon, 654So. 2d 1194 (Fla. 1st DCA 1995).

2. Exceptions to Presumption of Correctness: The presumption ofcorrectness does not apply to an order declaring a state statute faciallyinvalid, because this is an issue of law and there is a strong presumptionin favor of the validity of all statutes. Philip J. Padovano, FloridaAppellate Practice 19:2, at 359 (2015 ed.); and see Ocala BreedersSales Co. v. Fla. Gaming Ctrs., Inc., 731 So. 2d 21, 24 (Fla. 1st DCA1999) (explaining that Florida appellate courts have resolved the conflictbetween the presumption of correctness afforded trial courts and thepresumption of constitutional validity of statutes by deferring to thelegislature in the enactment of law), decision affd, 793 So. 2d 899 (Fla.2001).

Additionally, the presumption of correctness is not as strong whenthere are competing presumptions, such as in summary judgment caseswhen the appellate court is required to draw every possible inference infavor of the party against whom summary judgment was entered. PhilipJ. Padovano, Florida Appellate Practice 19.2 (2015 ed.); and seeHorning-Keating v. Employers Ins. of Wausau, 969 So. 2d 412, 418

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(Fla. 5th DCA 2007) (The presumption of correctness generallyapplicable to all orders subject to appellate review is relatively weak inreview of a summary judgment because the appellate court is in no lessof a position than the trial court in reviewing documentary evidence.).

3. Tipsy Coachman Rule: When a trial court reaches the right result,but for the wrong reason, the appellate court may nevertheless affirmunder the Tipsy Coachman Rule. See, e.g., Carraway v. Armour & Co.,156 So. 2d 494, 497 (Fla. 1963).

The pupil of impulse, it forcd him along,His conduct still right, with his argument wrong;Still aiming at honour, yet fearing to roam,The coachman was tipsy, the chariot drove home; * * *

Id. (quoting Oliver Goldmans poem Retaliation).

F. Appellants Burden of Proof: Because there is a presumption ofcorrectness that attaches to the trial courts decision, it is the appellants burden inappellate proceedings to demonstrate reversible error. As explained in Applegate v.Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979), the appellant mustpresent the appellate court with an adequate record to demonstrate the error, whichincludes a transcript of the proceedings below. When a complete record is notpresented to the appellate court by appellant, the case will be affirmed, as explainedbelow:

In appellate proceedings the decision of a trial court has thepresumption of correctness and the burden is on the appellant todemonstrate error. The Applegates correctly point to the lack of a trialtranscript or a proper substitute as fatally flawing the appellate courtsruling. The written final judgment by the trial court could well be wrongin its reasoning, but the decision of the trial court is primarily whatmatters, not the reasoning used.

Even when based on erroneous reasoning, a conclusion ordecision of a trial court will generally be affirmed if the evidence or analternative theory supports it. However, a misconception by the trial

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judge of a controlling principle of law can constitute grounds forreversal.

The trial courts imposition of a constructive trust could well besupported by evidence adduced at trial but not stated in the judges orderor otherwise apparent in the incomplete record on appeal. The questionraised by Barnett Bank clearly involves underlying issues of fact. Whenthere are issues of fact the appellant necessarily asks the reviewing courtto draw conclusions about the evidence. Without a record of the trialproceedings, the appellate court can not properly resolve the underlyingfactual issues so as to conclude that the trial courts judgment is notsupported by the evidence or by an alternative theory. Without knowingthe factual context, neither can an appellate court reasonably concludethat the trial judge so misconceived the law as to require reversal. Thetrial court should have been affirmed because the record broughtforward by the appellant is inadequate to demonstrate reversible error.

Applegate, 377 So. 2d at 1152 (citations omitted).

G. Harmful Error: Not just any error will result in reversal on appeal. Theappellant is required to prove that the alleged error was prejudicial not harmlesserror. Section 59.041, Florida Statutes (2015), codifies this rule as follows:

No judgment shall be set aside or reversed, or new trial grantedby any court of the state in any cause, civil or criminal, on the ground ofmisdirection of the jury or the improper admission or rejection ofevidence or for error as to any matter of pleading or procedure, unlessin the opinion of the court to which application is made, after anexamination of the entire case it shall appear that the error complainedof has resulted in a miscarriage of justice. This section shall be liberallyconstrued.

See Young v. Becker & Poliakoff, P.A., 88 So. 3d 1002, 1013 (Fla. 4th DCA 2012)(Only when it appears that evidentiary errors injuriously affected the substantialrights of the complaining party will a judgment be reversed. Appellant has the dutyto demonstrate not only error in evidentiary rulings, but prejudice from such rulingsas well. (Citations omitted.)).

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H. Three-Judge Panels: Appellate decisions at the DCA level are made bythree-judge panels and appellant must convinced at least two of the three judges thatreversible error occurred to obtain relief.

The majority opinion on an issue of law establishes the law of the case, whichwill control the case on future legal proceedings on remand. Greene v. Massey, 384So. 2d 24, 27 (Fla. 1980) (An opinion joined in by a majority of the members of theCourt constitutes the law of the case. A concurring opinion does not constitute thelaw of the case nor the basis of the ultimate decision unless concurred in by a majorityof the Court. ); and see Lendsay v. Cotton, 123 So. 2d 745, 746 (Fla. 3d DCA 1960)(A concurring opinion has no binding effect as precedent; such an opinion representsonly the personal view of the concurring judge and does not constitute the law of thecase.).

Per curiam affirmances or PCAs have no precedential value. See Dept ofLegal Affairs v. Dist. Ct. of Appeal, 434 So. 2d 310, 311 (Fla. 1983) (The issue iswhether a per curiam appellate court decision with no written opinion has anyprecedential value. We hold that it does not.); and see Acme Specialty Corp. v.Miami, 292 So. 2d 379, 380 (Fla. 3d DCA 1974) (As noted before, this was a percuriam opinion with no reasons or authorities given and, although this may besufficient to support a plea of res judicata as between the original parties, such percuriam affirmance opinion does not stand for any general pronouncement ofprinciples of law that might have been urged by the parties in their pleadings andbriefs.).

II. Mechanics & Time Lines for Appeals

A. Different Times Apply to Different Types of Appeal: Always be sureto check the appellate rule applicable to the specific appeal for timing elements,because they may vary. There are specific rules for the various types of appeals:

1. Civil appeals from final orders Florida Rule of AppellateProcedure 9.110,

2. Discretionary review in the supreme court from DCA opinions

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rule 9.120,3. Nonfinal orders 9.130,4. Criminal appeals 9.140, 5. Death penalty cases 9.142, 6. Juvenile delinquency 9.145, 7. Termination of parental rights & dependency 9.146, 8. County court decisions 9.160, 9. Probate & guardianship 9.170, 10. Workers compensation 9.180, and 11. Administrative cases 9.190.

The times for when the index (table of contents for the record) and record aredue and when the initial brief is due varies under the appellate rules depending uponthe type of appeal, so the specific rule must always be consulted. For instance, incivil appeals, the clerk of court is required to prepare the index within 50 days ofwhen the notice of appeal is filed and the initial brief is due within 70 days. See Fla.R. App. P. 9.110(e) & (f). In appeals from nonfinal orders, no index or record isprepared by the clerk, rather the parties submit appendices, and the initial brief is duewithin 15 days of the filing of the notice of appeal. See Fla. R. App. P. 9.130(e) &(e). Therefore, the window for mediation is very small in appeals from nonfinalorders. For administrative appeals, the same 50- and 70-day time periods applicableto civil appeals apply. See Fla. R. App. P. 9.190(a). However, in workerscompensation appeals, the record is prepared within 60 days of when the notice ofappeal is filed or when the order determining insolvency is determined, and the initialbrief is due 30 days thereafter. See Fla. R. App. P. 9.180 (f)(7) & (h).

B. Check for Orders Expediting the Appeal: In some appeals, particularlyfamily law cases involving children and workers compensation, the DCAs mayprovide expedited treatment to the appeal, prohibiting extensions of time for briefingexcept upon a showing of good cause. Consequently, it is important to know if therehave been any court orders entered in the appeal that control the timing of the appealin the particular case.

C. Extensions of Time in the Absence of a Stay for Mediation: The timingfor when the brief is due and the courts policies for extensions of time for briefingare important, because there may or may not be an automatic stay entered formediation. (There is a stay in the 5th DCA, but not at the 11th Circuit.) If there is no

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stay of the appellate proceeding, then the appeal will continue to progress under theapplicable timing requirements and the parties will need to obtain extensions of thosetime limitations to participate in mediation.

In most state appeals, once the initial brief is filed, appellee then has 25 days(20 plus 5 days for mailing) to serve the answer brief. See Fla. R. App. P. 9.110(f),9.210(f), 9.420(e); Fla. R. Jud. Admin. 2.514(b). The reply brief is due within 25days. See Fla. R. App. P. 9.110(f) & 9.210(f).

Important Note: The addition of the five days for service by mail oremail is set out in Florida Rule of Appellate Procedure 9.420(e), by itsadoption of Florida Rule of Judicial Administration 2.514. The five-dayrule remains in effect despite the innovation of electronic filing andservice. See Fla. R. Jud. Admin. 2.516(b)(1)(D)(iii) (stating that emailservice is treated as service by mail for computation of time). Nevertheless, the Rules of Judicial Administrative Committee (RJAC)passed an amendment to rule 2.514 at its January 2015 meeting whichwill eliminate the five-day rule:

(b) Additional Time after Service by Mail orE-mail. When a party may or must act within a specifiedtime after service and service is made by mail or e-mail, 5days are added after the period that would otherwise expireunder subdivision (a).

As the immediate past chair of the Appellate Court Rules Committee(ACRC), I can say that an amendment was passed by the ACRC to rule9.420(f) that will continue the addition of five days for service by email, but this is an issue all lawyers need to be aware of because RJACschange will affect all areas of practice.

D. Oral Argument: Although oral argument may be requested in an appealsunder Florida Rule of Appellate Procedure 9.320, it is discretionary and the appellatecourts are selective in the cases in which they grant oral argument. Consequently,there is no guarantee that the parties will even have the opportunity to present theircase to the appellate court by any other means than their brief. Even if oral argumentis granted, it is usually limited to 15 minutes per side and the parties are not even

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permitted to sit at counsel table (unlike at the trial court level). Indeed, mostappellate practitioners discourage their clients from attending oral argument.

E. Time for Disposition of an Appeal: There is no time rule as to when thecourt must dispose of a case, however, the DCAs have an internal policy of disposingof cases within 180 days of oral argument or conference.

F. Motions for Rehearing, etc.: Motions for rehearing, clarification,certification, rehearing en banc, and for written opinion are under Florida Rules ofAppellate Procedure 9.330 & 9.331 are rarely successful and most are summarilydenied.

G. Mandate: Mandate, which is the courts last official act before closingits file, is issued after the expiration of 15 days from the date of the order or decisiondisposing of the case. See Fla. R. App. P. 9.340(a). The appellate court losesjurisdiction over the case once mandate is entered.

III. Extraordinary Writs Just a Few Words

There are several extraordinary writs: Certiorari, Prohibition, Mandamus,Habeas Corpus, Quo Warranto, and All Writs, the preparation and timing for whichare controlled by Florida Rule of Appellate Procedure 9.100. The time for filingthese petitions varies (30 days for certiorari, which is the most common writ), butother petitions have no timing requirement. Always consult the rule. It is importantto note that the petition is essentially the initial brief, so there is no delay between thefiling of the petition and briefing in writ cases. Moreover, extraordinary writ casesare usually given expedited review by the DCAs, since they often involve stays of theproceedings in the lower court. Consequently, the opportunity for appellatemediation in extraordinary writ cases is extremely limited.

IV. Standards of Review

A. What is the Standard of Review: The term standard of review is usedin appellate practice to describe the test the appellate court applies in evaluating thelower tribunals decision. The applicable standard depends upon the nature of theruling sought to be reviewed. The standards of review take into account the structureof the judicial system and the differing functions of the trial and appellate courts. For

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instance, appellate courts do not defer to a lower tribunals ruling on an issue of law,because the lower tribunal is not in a better position than the appellate court to definethe law. On the other hand, appellate courts do defer to lower tribunals on questionsof fact, because the lower tribunal is the trier of and an appeal is not an opportunityto relitigate facts. Philip J. Padovano, Florida Appellate Practice 19.1 (2015 ed.)The parties are required to state the standard of review under each issue presented inthe briefs. See Fla. R. App. P. 9. 210(b)(5).

B. Review of Factual Decisions:

1. Competent Substantial Evidence: CSE is the touchstone forappellate review of factual decisions so long as there is CSE in therecord to support the factual findings in the order, it will be affirmed. This point was explained by the Supreme Court of Florida as follows inShaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976):

It is clear that the function of the trial court is to evaluateand weigh the testimony and evidence based upon itsobservation of the bearing, demeanor and credibility of thewitnesses appearing in the cause. It is not the function ofthe appellate court to substitute its judgment for that of thetrial court through re-evaluation of the testimony andevidence from the record on appeal before it. The test, aspointed out in Westerman [v. Shells City, Inc.265 So. 2d43 (Fla. 1982], is whether the judgment of the trial court issupported by competent evidence. Subject to the appellatecourts right to reject inherently incredible and improbabletestimony or evidence, it is not the prerogative of anappellate court, upon a de novo consideration of the record,to substitute its judgment for that of the trial court.

Parties should not appeal cases that simply present CSE issues, assuch appeals are frivolous. This point was explained by the First DCAin Swanigan v. Dobbs House, 442 So. 2d 1026 (Fla. 1st DCA 1983),which remains one of the clearest statements of the CSE standard ofreview:

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AFFIRMED. Ordinarily, that single word wouldreflect our disposition of this appeal. Because we find thiscourt reviewing more and more needless appealspresenting similar points for review, however, it seemsappropriate to comment on a recurrent error by appellateattorneys stemming from an apparent misconception of thepurpose and limited scope of appellate review.

We begin our discussion by quoting the appellantspoint on appeal:

The deputy commissioner erred infinding that the claimant was not entitled topermanent total disability benefits orpermanent partial disability benefits in excessof the 15% rating accepted by theemployer/carrier as there is competent,substantial evidence in the record to supporta showing of change of condition as requiredby Florida law as a basis for a modification.(emphasis added).

Appellant then argues rather ably, we note thatthere is competent, substantial evidence in the record tosupport her claim for modification of workerscompensation benefits. That being so, appellant asks us toreverse the deputy commissioners order denyingmodification. The point on appeal, however, as stated byappellant, is self-defeating under applicable standards ofappellate review. We do not review whether there wascompetent, substantial evidence to support the claimdisallowed by the deputy; we only review whether therecord contains competent, substantial evidence to supportthe deputys order.

We can readily concede, as argued by appellant, thatthe record contains competent, substantial evidence to

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support her claim for modification. Unfortunately,however, the record likewise contains competent,substantial evidence that supports the deputys findingsand order denying her claim. Factually, this case couldhave been decided either way, depending on the testimonyand evidence accepted and believed by the deputy. Theissues presented and decided by him were essentiallyfactual. We do not retry the claim at the appellate level andsubstitute our judgment for that of the deputy on factualissues supported by competent, substantial evidence, andappeals asking us to do so are frivolous. CatronBeverages, Inc. v. Maynard, 395 So.2d 261, 262 (Fla. 1stDCA 1981). See also, Redding v. Cobia Boat Co., 389So.2d 1003, 1004 (Fla.1980); Croft v. Pinkerton-HayesLumber Co., 386 So.2d 535, 536 (Fla.1980).

We suggest that a convenient and practical means foravoiding this common error is to state, at the outset of eachpoint argued, the legal standard for appellate review reliedupon for reversal, i.e., lack of competent, substantialevidence to support the order rendered, abuse of discretion,erroneous application of a rule of law, etc. The argumentshould then demonstrate not only the existence of the errorcomplained of, but why that error requires reversal underthe applicable standard of appellate review. By thuslimiting the points on appeal to arguments within theproper scope of appellate review, counsel will avoidfrivolous appeals and may well benefit from the moreconvincing form of argument directed specifically at whythis appellate court can and should grant the reliefrequested.

Swanigan, 442 So. 2d at 1027-28.

2. CSE Standard & Clear and Convincing Evidentiary Burden: Evenwhen the evidentiary burden before the trial court is one requiring proofby clear and convincing evidence, the appropriate standard of review

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remains the CSE standard. This point was explained as follows inMcKesson Drug Co. v. Williams, 706 So. 2d 352 (Fla. 1st DCA 1998):

In civil cases involving the burden of clear andconvincing evidence, an appellate court may not overturna trial courts finding regarding the sufficiency of theevidence unless the finding is unsupported by recordevidence, or as a matter of law, no one could reasonablyfind such evidence to be clear and convincing.Accordingly, the appellate courts function is not toconduct a de novo proceeding or reweigh the evidence bydetermining independently whether the evidence as awhole satisfies the clear and convincing standard, but todetermine whether the record contains competentsubstantial evidence to meet the clear and convincingevidence standard.

McKesson Drug Co. v. Williams, 706 So. 2d at 353-54 (citationsomitted).

3. Factual Findings Based on Undisputed Facts: It is important todistinguish whether the trial courts factual findings are ones thatresolve disputed facts, as opposed to ones made based on undisputedfacts, because the latter is subject to the less stringent clearly erroneousreview standard. See Philip J. Padovano, 19:6, at 378 (2015 ed.); andsee Holland v. Gross, 89 So. 2d 255 (Fla. 1956) (A finding which restson conclusions drawn from undisputed evidence, rather than on conflictsin the testimony, does not carry with it the same conclusiveness as afinding resting on probative disputed facts, but is rather in the nature ofa legal conclusion.).

4. Questions of Weight, Credibility & Conflicts in the Evidence: The trier of fact, whether that is the jury or a judge in a nonjury case, hasthe discretion to resolve conflicts in the evidence, weigh the evidence,and make credibility determinations, and so long as those determinationsare supported by CSE, they will be affirmed. In explaining this point tomy clients, I use the red-light, green-light analogy. It does not matter

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that five people said the light was red, if one person said the light wasgreen, the trier of fact can choose to believe that one person and findthat the light was green. The only thing the factfinder cannot do is saythe light was yellow.

5. What is CSE? In order to be CSE, the evidence must accord withreason and logic. This point was explained as follows in Paul H.Cowart/Building Specialty v. Cowart, 481 So. 2d 83, 84-85 (Fla. 1stDCA 1986):

In order to be sufficient to support a conclusion,evidence must be more than competent, it must besubstantial and must accord with logic and reason as well.The fact that a witness may be competent to testify abouta particular subject does not mean that any and all evidencegiven by the witness concerning that subject may beautomatically accepted and relied upon by the deputy.Although given by a competent witness, evidence which isentirely incredible and which fails to accord with logic andreason cannot constitute competent substantial evidence onthe question at hand, no matter how convincing thedemeanor of the witness nor how seemingly solid andunshakeable his or her testimony. Indeed, Websters ThirdNew International Dictionary (unabridged) includesamong its definitions of the word substantial thestatement consisting of, relating to, sharing the nature of,or constituting substance . . . material . . . not seeming orimaginary. . . .

Id. at 84-85 (citations omitted) (emphasis supplied).

C. De Novo Review of Legal Decisions: Appellate courts are not requiredto defer to lower tribunals on issues of law. In reviewing issues of law, appellatecourts apply the de novo standard, which simply means that the appellate court is freeto decide the question of law anew without deference to the trial judge as if theappellate court had been deciding the question in the first instance. Philip J.Padovano, Florida Appellate Practice 19:4 (2015 ed.). The most common issuessubject to de novo are:

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1. Statutory Interpretation: Issues of statutory interpretation arereviewed under the de novo standard. Murray v. Mariner Health, 994So. 2d 1051, 1056 (Fla. 2008) (Statutory interpretation is a question oflaw subject to de novo review.).

2. Construction of Contracts: Interpretation and construction ofcontracts and settlement agreements are also reviewed under the de novostandard. Ivester v. Parkway Regional, 996 So. 2d 909 (Fla. 1st DCA2008) (question pertaining to construction of settlement agreement wasreview de novo); Munroe v. U.S. Food Service, 985 So. 2d 654, 655(Fla. 1st DCA 2008) (Interpretation of settlement agreements isgoverned by contract law, and whether an agreement constitutes a validcontract is a matter of law subject to de novo review.).

3. Summary Judgment Orders: Summary judgment orders arereviewed de novo under the same standard in Florida Rule of CivilProcedure 1.510(c) applied by the trial court: (1) The pleadings mustshow no genuine issue of material fact, and (2) the moving party mustbe entitled to a judgment as a matter of law. The appellate court mustdetermine whether the trial court properly disposed of the case bysummary judgment, i.e., that there were no disputed issues of materialfact, and, if so, if the trial court was correct on the merits. See Philip J.Padovano, Florida Appellate Practice 19:4, at 364-65 (2015 ed.).

4. Other De Novo Review Rulings: Judge Padovanos treatise liststhese additional issues that are subject to de novo review:

(a) Rulings on the sufficiency of a complaint;(b) Dismissal of a complaint based on a legal right, suchas lack of jurisdiction;(c) Judgment on the pleadings;(d) Directed verdict;(e) The right to arbitration; and(f) Admission of expert scientific testimony.

Philip J. Padovano, Florida Appellate Practice 19:4, at 363-67 (2015ed.).

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D. Review of Discretionary Decision is by Abuse of Discretion: Reviewof decisions that fall within the trial courts discretion are reviewed under the abuseof discretion standard of review. The leading case describing the abuse of discretionstandard is Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), which adopted thefollowing statement as the test for reviewing a judges discretionary power:

Discretion, in this sense, is abused when the judicial action isarbitrary, fanciful, or unreasonable, which is another way of saying thatdiscretion is abused only where no reasonable man would take the viewadopted by the trial court. If reasonable men could differ as to thepropriety of the action taken by the trial court, then it cannot be said thatthe trial court abused its discretion.

Id. at 1203 (quoting Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)).

In explaining this issue to my clients, I tell them that since I would have toshow that no reasonable person would have come to the same conclusion that the trialjudge did, I would essentially have to show that the judge was crazy. A meredisagreement from an appellate perspective with the reasoning or opinion of the lowertribunal is not enough to justify the reversal of a discretionary decision. Philip J.Padovano 19:5, at 368 (2015 ed.) (footnote omitted).

Some of the typical issues that are subject to the abuse-of-discretion standardare:

1. Family Law Decisions: Many of the issues raised in family lawcases are discretionary, such as alimony, custody, and equitable divisionof martial property. Nevertheless, it is important to distinguish whetherthe judge is exercising discretion or applying a legal principle to thefacts, because the latter will be subject to the de novo standard. PhilipJ. Padovano, Florida Appellate Practice 19:5, at 370 (2015 ed.).

2. Evidentiary Issues: Generally, the admission or exclusion ofevidence is reviewed for abuse of discretion. Russ v. State, 832 So. 2d901, 908 (Fla. 1st DCA 2002). But it is important to distinguish whetherthe judges ruling is actually based on the application of the EvidenceCode, since such decision will be subject to the de novo standard. See

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Philip J. Padovano, Florida Appellate Practice 19:5, at 372 (2015 ed.)(explaining that most evidentiary decisions are based on the judgesdetermination of relevancy, which is discretionary, but other evidenceissues, such as privilege, are not discretionary).

3. Trial Procedural Matters: Most pretrial procedural issues in civilcases, such as rulings on motions to amend and continuances, arediscretionary with the trial judge. Philip J. Padovano, Florida AppellatePractice 19:5, at 370 (2015 ed.)

4. Jury Instructions: Some jury instructions are reviewed for abuseof discretion; however, the refusal to give an instruction that a party isentitled to as a matter of right would be reviewed de novo. Philip J.Padovano, Florida Appellate Practice 19:5, at 373 (2015 ed.)

5. Post-trial Motions: Rulings on motions for rehearing or new trial,additur or remittitur, to vacate a judgment under Florida Rule of CivilProcedure 1.540, stay execution of a judgment, attorneys fees, andtaxable costs are subject to the abuse-of-discretion standard. Philip J.Padovano, Florida Appellate Practice 19:5, at 373-5 (2015 ed.)

V. Why Mediate Appellate Cases?

A. Appellee Has Little Incentive to Settle: It may seem counter-intuitiveto mediate on appeal since the trial court has already determined who the winner andwho the loser is in the litigation. And, indeed, an appellee is likely to have littleincentive to settle on appeal.

B. Educating the Parties Regarding the Appellate Process: Still, there aregood reasons for mediating on appeal, as pointed out in the attached article entitledThe Appeal of Appellate Mediation: Making the Case for an Attractive DisputeResolution Tool, 83 Fla. Bar. J. No. 3 (March 2009), by Jeanette Bellon and SharonC. Degnan. For instance, appellate mediation is an excellent opportunity to educatethe parties about the appellate process, how the appellate court is likely to view theappeal, and the realistic chances of success. Oftentimes clients believe an appeal isa means of obtaining a new trial and they want to present new evidence that was notsubmitted below. This, of course, is incorrect. Appellate courts do not retry the case

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on appeal and the record on appeal is limited to the evidence and arguments that werepresented to the trial court. As is often said, appeals are not an attempt to get asecond bite of the apple. Moreover, clients are often unaware that winning on appealdoes not necessarily mean they will automatically achieve the result they want,because cases are often remanded back to the trial court for additional proceedings. On remand, the case may be assigned to the exact same judge who decided the caseoriginally and if a new trial is required, all the expense associated with a new trialwill be incurred.

C. Global Settlement: Another important incentive to mediate is theopportunity for a global settlement of all issues. The issues on appeal may be limitedin nature, for instance, to an evidentiary issue. The remedy in such a situation maybe reversal and remand for new trial. Thus, if appellant prevails on appeal, a newtrial, complete with all its time and expense, will be necessary. Mediation can resolvethe evidentiary issue, but it can also resolve the entire case, thereby avoiding the timeand cost associated with a new trial and allowing the parties to control their own legaldestinies.

D. Costs: Costs are awarded to the prevailing party in all appeals underFlorida Rule of Appellate Procedure 9.400. This will include the cost of the record,including transcription costs, and the filing fees. Although the filing fees of $300 or$400 are not generally prohibitive, there are costs for preparation of the trialtranscript and record, which can be hundreds of dollars. The Statewide UniformGuidelines for Taxation of Costs in Civil Actions includes other costs that should andmay be taxed, such as the cost of an expert witness in attorney-fee issue hearing onremand. See In re Amdmts. to Unif. Guidelines for Taxation of Costs, 915 So. 2d 612(Fla. 2005).

E. Attorneys Fees: Attorneys fees may also be recoverable on appealprovided there is a contractual or statutory basis for an award of fees. It should benoted that if there is a basis for fees in the lower tribunal, that basis is extended toappellate proceedings by section 59.46, Florida Statutes (2015). An appellant casecan easily involve 80 to 120 hours of attorney time in the preparation of the briefs andoral argument, and some cases involve multiple attorneys and firms and can run intohundreds of hours. At a minimal hourly rates of $250 or $300 an hour, one can seethat a simple appeal can easily cost between $20,000 and $36,000. For higher hourlyrates of $500 to $600 an hour, legal fees of $50,000 to $70,000, or even more, can

19


easily be taxed against the nonprevailing party, in addition to his or her ownattorneys fees. Thus, appeals can be very costly.

F. Risk of Losing: Like any legal proceeding, there is always the risk oflosing, even when it appears that the law is on your side. With the presumption ofcorrectness afforded to trial courts and the necessity to preserve error and demonstrateprejudicial error, many seemingly good appeals end with a per curiam affirmance(PCA), and the client is left with no explanation as to why he or she lost the appealand no avenue to seek further review.

VI. Mediation Programs in Florida

A. Fifth District Court of Appeal: The 5th DCA began a pilot appellatemediation program in 2001 for final civil and family law appeals. The programproved to be a success and was made permanent in 2004. To date, in excess of 30%of the cases set to mediation have been resolved.

This mediation program is different from other mediation programs in the stateand most other appellate court mediation programs. Selection of cases appropriatefor mediation are made by one of three screening judges on the court. In all eligiblecases (final civil and family appeals with attorneys representing all parties), theparties complete a mediation questionnaire setting forth the issues involved in theappeal, their position, and their opinion as to whether mediation would be helpful.

Once a case is selected, mediation is mandatory within a limited span of time,so the delay will not affect the course of the appeal.

Parties are free to select their own mediator from a list of mediators who arecertified in appellate mediation. Mediators agree to accept referrals from the courtfor parties who cannot agree on a mediator at a $200 per hour rate and to accept upto two pro bono cases per year, for a limited time span per case, for parties who areunable to afford the mediation process. In most cases, the parties mutually agree onthe mediator. The 5th DCA has a search function for listed mediators on its website www.5dca.org.

Florida Rules of Appellate Procedure 9.700-9.740, which are discussed belowand included in the materials, will control.

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http://www.5dca.org.)

B. Eleventh Circuit Court of Appeals: The Eleventh Circuit Court ofAppeals uses its Kinnard Mediation Center (KMC) to mediate civil appeals underFederal Rule of Appellate Procedure 33 and Eleventh Circuit Rule 33-1 to helpparties resolve their disputes with the help of a neutral third-party. Each yearhundreds of appeals are resolved through the mediation program. This service isconducted at no charge to the parties. A copy of its website is included in thesematerials.

In the 11th Circuits KMC program, full-time court employees who haveextensive trial and appellate experience, as well as experience in negotiation,mediation, and practice and procedure, are generally the mediators, although there areprovisions for private mediators to be used. The 11th Circuits mediators are locatedin Atlanta and Miami.

All civil appeals are eligible for appellate mediation in the 11th Circuit. TheKMC mediators review each appeal they are assigned before scheduling it formediation and the mediators, a senior judge, or a hearing panel of judges may directthe parties to participate in mediation, which is often done before briefing hasoccurred. Counsel for the parties are required to submit a civil appeal statement andconfidential mediation statement assessing the prospects for the appeal. The selectionof the case for mediation and the filing of confidential mediation statement does notstay the appellate proceeding, however, so the parties will need to apply forextensions of time for briefing and all time-sensitive aspects of the appeal.

Mediations are usually conducted in person in Atlanta or Miami, and themediator will discuss (a) the legal issues and appellate courts decision-makingprocess regarding these issues; (b) any efforts to settle the appeal; (c) the partiesunderlying interests, preferences, and motivations; (d) future events based uponvarious outcomes of the appeal; (e) how resolution of the appeal could affect theunderlying problem; (f) cost-benefit and time considerations; and (g) any proceduralalternatives possibly applicable to the appeal, such as vacating an order or remand.

If an impasse is declared in the mediation, the KMC will grant one extensionto file a brief that is due within 14 days of the impasse for up to 21 days.

If the parties settle the case during mediation, then they file a joint or agreedmotion to dismiss the appeal under Federal Rule of Appellate Procedure 42(b) and

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Eleventh Circuit rule 42-1(a). Note that settlement likewise does not stay any of theproceedings in the appeal, so extensions will need to be sought.

All mediations in the 11th Circuit are confidential. The court mediators notesand the parties confidential mediation statements do not become part of the courtsfile and are never seen by the judges who ultimately determine the case if themediation is unsuccessful.

C. Other Appellate Mediation Programs: The First and Fourth DistrictCourts of Appeal previously had mediation programs, but both were eliminated dueto budget constraints. The Fourth DCA recently considered reinstituting itsmediation program, but declined to do so.

D. Private Mediation: Private mediation is always available to the partiesin an appeal, but when they are pursued outside the confines of a recognized program,such as the Fifth DCAs, the parties will be required to obtain the necessaryextensions of time for any time-sensitive proceedings in the appeal and notify thecourt if a settlement is reached.

VII. Florida Appellate Mediation Rules

The Florida Rules of Appellate Procedure have adopted mediation rules thatapply to mediations in all appellate courts, including those pursued in circuit courtsacting in their appellate capacity. These rules, 9.700-9.740, are included in thematerials.

The rules provide that the court, upon its own motion or upon the motion of aparty, may refer a case to mediation at any time. Fla. R. App. P. 9.700(b). If themotion is made by a party, then it must include a certificate indicating that the movanthas consulted with opposing counsel and stating their position on the motion. Fla.R. App. P. 9.700(b)(1)-(3). The mediation conference shall be held within 45 daysof the referral by the court, unless the parties agree to postpone mediation until afterthe time for filing briefs has expired, and the mediation must be completed within 30days of the mediation conference. Fla. R. App. P. 9.700(c). Unless otherwise orderedor agreed, the times for processing the appeal are tolled during the period of thereferral to mediation. Fla. R. App. P. 9.700(d). Any motion to dispense withmediation must be filed within 10 days after discovery of the facts that constitute the

22


grounds for the motion. Fla. R. App. P. 9.700(e).

All cases are eligible for mediation except the following: (1) Criminal andpostconviction cases, (2) habeas corpus and extraordinary writs, (3) civil or criminalcontempt, (4) involuntary civil commitments of sexually violent predators, and (5)collateral crimes cases. Fla. R. App. P. 9.710.

The mediation procedures require the parties to appear personally or by theirattorney or representative, who must have full authority to settle without consultation. Fla. R. App. P. 9.720(a). If a party fails to appear at a duly noticed mediationconference without good cause, sanctions may be imposed. Fla. R. App. P. 9.720(b). The mediator, after consulting with the parties, sets the mediation conference date andcontrols the procedures to be followed in the mediation. Fla. R. App. P. 9.720(c) &(d). A party representative appearing at the mediation must have full authority tosettle and certificates of authority must be filed with the court and served on theparties to identify the party representative. Fla. R. App. P. 9.720(f) & (g).

As to the appointment of the mediator, the parties may file a stipulationdesignating a duly qualified mediator within 10 days of the court order of referral tomediation, or the court will appoint a certified appellate mediator. Fla. R. App. P.9.730(a) & (b). Any party can move to disqualify a mediator for good cause. Fla. R.App. P. 9.730(c). A substitute mediator may be agreed upon or appointed. Fla. R.App. P. 9.730(d). If the court appoints the mediator, he or she shall be compensatedat the rate set in the referral order. Fla. R. App. P. 9.730(e). Unless otherwise agreed,the cost of the mediator shall be prorated among the named parties. Fla. R. App. P.9.730(e).

Upon completion of the mediation, if there is no agreement reached, themediator shall report the lack of agreement without comment or recommendation. Fla. R. App. P. 9.740(a). If an agreement is reached, then it must be reduced towriting and signed by the parties and their counsel, and the mediator must file a reportwithin 10 days after the agreement is signed. Fla. R. App. P. 9.740(b).

VIII. Resources to Learn Appellate Practice

Philip J. Padovano, Florida Appellate Practice (2015 ed.)

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The Florida Bar, Florida Appellate Practice (9th ed.)

The Florida Bar Appellate Practice Section, which has a website(http://www.flabarappellate.org) and publication, The Record, old issues of which areon the website.

Websites of the DCAs and supreme court include the Notices to the Parties andInternal Operating Procedures for the various courts, which include helpfulinformation. In addition, those websites include the courts administrative orders,such as those pertaining to electronic filing and stipulated extensions.

First DCA: www.1dca.orgSecond DCA: www.2dca.orgThird DCA: www.3dca.orgFourth DCA: www.4dca.orgFifth DCA: www.5dca.orgSupreme Court: www.floridasupremecourt.org

IX. Other Included Materials

A. The Appeal of Appellate Mediation: Making the Case for an AttractiveDispute Resolution Tool, by Jeanette Bellon & Sharon C. Degnan, Fla. Bar Journal,Vol. 83, No. 3 (March 2009).

B. Florida Rules of Appellate Procedure 9.700-9.740.

C. Fifth District Court of Appeal Mediation Program Materials:

1. Mediation FAQ2. Mediation Questionnaire3. Confidential Statement4. Response to Referral Order5. Motion to Waive Fees with Affidavit6. Joint Motion to Relinquish Jurisdiction7. Joint Stipulation for Dismissal8. Mediation Report9. Joint Motion for Extension of Time

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http://www.floridasupremecourt.org/http://www.5dca.orghttp://www.4dca.orghttp://www.3dca.orghttp://www.2dca.orghttp://www.1dca.org(http://www.flabarappellate.org

D. 11th Circuit Kinnard Mediation Center Materials:

1. Mediation in the Eleventh Circuit Court of Appeals2. Circuit Mediation Process (flow chart)3. Private Mediator Procedures of Mediation of Appeals4. 11th Circuit Rules 33-15. Civil Appeal Statement6. Confidential Mediation Statement7. Brief Extensions8. Post-Settlement Dismissal Procedures

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Bar Journal Article

http://www.floridabar.org/...0d731e03de9828d852574580042ae7a/44901668a1136a3985257567006ce242!OpenDocument&Highlight=0,jeanette,bellon,mediation*[7/23/2015 7:27:12 PM]

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March, 2009 Volume 83, No. 3

The Appeal of Appellate Mediation: Making the Case for an Attractive DisputeResolution Toolby Jeanette Bellon and Sharon C. Degnan

Page 32

One may wonder how and why appellate mediation could ever serve as a practical resolution tool. Presumably, settlement negotiations were not fruitfulbefore trial. One party has already received a favorable ruling in the case. The answer, though sometimes surprising, is fairly simple. A global caseresolution through appellate mediation can save both the parties and the courts considerable time and valuable resources and can promptly bring toan end a dispute that could otherwise potentially drag on for years to come. The goals of this article are to provide a brief overview of the appellatemediation programs currently being utilized in Floridas federal and state courts of appeal, to dissipate any negative preconceptions regarding appellatemediation, and to suggest that, in certain cases, appellate mediation can serve as a valuable tool in settling a dispute.

The Benefits of Appellate MediationAppellate mediation can serve various functions depending on the specific circumstances and nuances of a particular case. In many cases, appellatemediation brings the parties together in order to educate them on the appellate process in general and to inform them of how appellate courts are likelyto address the issues on appeal. An appellate mediator is likely to bring to the parties attention the fact that an appellate court will not re-try the caseor take additional evidence, and will often point out to the parties that the appellate courts jurisdiction is limited in scope to those narrow issuesbrought before it under a specific legal standard of review. This opportunity to discuss the ramifications of the applicable standard of review, themerits of the case from an appellate point of view, and the inherent risks of proceeding on appeal can be invaluable in helping to remove a clientsunrealistic expectations. In this way, it is similar to mediation at the trial level.

In addition, appellate mediation provides a forum to educate each party of the fact that the appellate court is likely to place a strong presumption ofcorrectness on a trial courts order or judgment entered after a jurys verdict and to make clear that whenever a party pursues a case on appeal, he orshe is facing an uphill battle. Just like juries and trial courts, appellate courts can be unpredictable. Even in cases that may appear to be open-and-shut, the inherent risk in an appellate proceeding cannot be disregarded and should not be ignored.

Another benefit of appellate mediation is that even though the issues on appeal may be quite limited, there is nonetheless the potential for exploring aglobal resolution of an entire dispute. Often, the most effective appellate mediations focus on resolution of a whole case and include any collateralissues or anticipated future litigation between the parties, rather than strictly focusing on the narrow issues presented in the appellate proceeding. Inthis way, an appellate mediation offers a remedy that cannot be crafted by the appellate courts, which are constrained to decide only those limitedissues before it. A global resolution not only saves the cost of the appeal, but also saves the additional expenses associated with supplementallitigation. Appellate mediation also often helps parties to recognize that if a case is not resolved and the appellate process runs its course, there maybe extensive litigation costs incurred. In some cases, through the mediation process, a party may come to realize that he or she cannot afford topursue an appeal and that the cost of victory may be prohibitive, since success may mean a new trial and perhaps even another appeal.

The Importance of Timing in Appellate Mediation

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The structure and timing of an appellate mediation can be critical to the process. In some cases, the key to success is beginning the process as earlyas possible even before the record on appeal has been completed. This early approach to mediation can be useful to both the parties and thecourt because it results in significant savings to the litigants and precludes the appellate court from having to engage in any work on those cases thatare successfully resolved through the appellate mediation process. Mediation conferences can be scheduled well in advance of the deadline for thefiling of the initial brief. Moreover, in an early mediation context, even where the entire dispute is not settled, there is still the potential for substantialbenefits to the parties through the narrowing or resolving of some of the appellate issues, thereby significantly streamlining the appellate process.

However, in other cases, especially those where the party defending the appeal feels very confident in his or her legal position, it may make sense toschedule the mediation conference after the initial brief has already been filed. If the initial brief demonstrates the strength of the appellants legalarguments, it may make the opposing party recognize that his or her status as the prevailing party is not guaranteed. Without the benefit of havingreviewed the initial brief, the appellee may not have enough information to truly assess the risk of reversal. Once a party has reviewed a strong briefand recognizes the possibility that a favorable order or judgment is likely to be set aside, a newfound willingness to compromise, which otherwise maynot be present, may arise. The knowledge that the trial court may have been wrong in its ruling may induce the appellee to try to mediate from theposition as the apparent winner of the dispute.

Floridas Appellate Mediation Programs The 11th Circuit Court of Appeals In 1992, the U.S. Court of Appeals for the 11th Circuit initiated its appellate mediation program. Since theinception of the program, hundreds of appeals are resolved each year through mediation. In the 11th Circuit, certain categories of cases areexcepted from mediation, such as cases where a party is proceeding pro se or is incarcerated, as well as habeas corpus and immigration appeals.Otherwise, virtually all civil cases are eligible for mandatory appellate mediation.

Appellate mediation in the 11th Circuit is conducted, at no charge to the parties, by the courts mediators, who are full-time court employees, pursuantto Federal Rule of Appellate Procedure 33 and 11th Circuit Rule 33-1. Parties may substitute a private mediator for the court mediator uponagreement of all parties, though at their own expense. Mediation is scheduled after court of appeals docketing and before the briefing processbegins. In addition, the mediator has authority to adjust the briefing schedule if the following conditions are met: All parties agree to an extension oftime; the extension will facilitate settlement; the deadline for submitting the brief has not passed; and counsel has not previously filed a motion for anextension of time. Importantly, however, practitioners must remember that mediation in the 11th Circuit does not automatically stay the appellateproceeding, which means that all appellate deadlines will remain in force unless motions for extension are sought.

Before proceeding to mediation in the 11th Circuit, parties are required to submit a civil appeal statement and a confidential mediation statement, bothof which are prepared by counsel. Similar to mediation at the trial level, the confidential mediation statement and mediators notes never becomepart of the courts file and remain confidential at all times. Prior to the mediation conference, the mediator reviews the notice of appeal and thedistrict court and court of appeal dockets, as well as the relevant portions of the record, in order to become familiar with the issues. At mediation,clients and all persons necessary to resolve the appeal, with full negotiating and settlement authority, must be present along with their counsel.

If a settlement is reached, a joint or agreed motion to dismiss should be filed pursuant to Federal Rule of Appellate Procedure 42(b) and 11th CircuitRule 42-1(a). Practitioners must be warned, however, that settlement does not automatically stay any actions that are required to be undertaken bycounsel under the Federal Rules of Appellate Procedure, such as the ordering of necessary transcripts and the filing of briefs. Thus, if a brief is dueprior to receiving an order on a motion to dismiss based upon a settlement, an extension of time to comply with the deadline must be requested fromthe court.

The Fifth District Court of Appeal Although at one point in time, most of the Florida district courts of appeal had mediation programs in place,currently only the Fifth District Court of Appeal maintains such a program. In the Fifth District, appellate mediation began as a pilot program in 2001for civil and family law appeals from final orders where all of the parties were represented by counsel. Due to its success, the program becamepermanent in 2004. To date, 30 percent of all appeals sent to mediation in the Fifth District have been resolved through mediation.

Appellate mediation in the Fifth District differs significantly from the 11th Circuit. A mediation questionnaire, which must be completed by the partiesand filed with the court in all eligible cases, requires the parties to set forth the issues on appeal and to state their position on whether a mediation willbe worthwhile. Selection of cases for mediation is then made by one of three sitting judges on the court, each of whom has become a FloridaSupreme Court certified mediator. The judge who reviews the mediation questionnaire will not participate as a member of the merits panel on thecase in the event that mediation is held, but is unsuccessful. If a case is selected for appellate mediation, participation is mandatory. If, on theother hand, the reviewing judge agrees that mediation will not be beneficial, the parties are advised of this fact by the court and the case proceedsthrough the appellate process.

Parties first try to mutually agree to a mediator from a list of over 200 mediators who are certified in civil, family, or dependency mediation by TheFlorida Bar and who have attended the Fifth Districts appellate mediation training. Although it rarely happens, if the parties are unable to agree ona mediator, the court will randomly select one.

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Unlike the federal 11th Circuit, parties will automatically receive an extension of all appellate deadlines upon receipt of the mediation questionnaire bythe court. Thereafter, if the case is ordered to mediation, all appellate deadlines will be tolled for up to 45 days until mediation is completed. Inaddition, parties that are ordered to mediation bear the cost of mediation equally. If the case is not accepted for mediation, all deadlines will begin torun from the date of the letter informing the parties that the case has not been accepted for mediation.

If mediation is successful, the court will dispose of the case as is appropriate in light of the settlement. This could include dismissing the appeal,remanding the case to the trial court for approval of the settlement agreement, or entering a stipulated order consistent with mediation settlement. If,on the other hand, mediation is unsuccessful, the appeal will continue its normal course through the appellate court.

ConclusionAlthough, at first blush, it may seem unproductive and counterintuitive to mediate a case where a winner and loser have already been decided, it mustbe remembered that so long as a case is pending on appeal, a partys victory may be short lived. For this reason, the benefits of mediating a case atthe appellate level should not be ignored. A practitioner should recognize and give serious consideration to the pros and cons of whether appellatemediation might be a useful tool in his or her case when proceeding on appeal. With a realistic appreciation of the inherent risks involved in anyappellate proceeding, combined with effective advocacy, it may be possible to transform an angry appellant or appellee, who is facing the prospect ofnever-ending litigation, into a satisfied client with a settled case.

In 2006, Floridas five district courts of appeal received approximately 24,000 appeals. In addition, the Florida Supreme Court received 2,500 cases

that year. See In re Report of the Committee on District Court of Appeal Workload and Jurisdiction-Rule of Judicial Administration, 921 So. 2d 615, 617(Fla. 2006).

Donna Riselli, Appellate Mediation, APP FL-CLE 26-1. 26.2 (2003).

Id.

Id.

Id.; In addition, statistics from the 11th Circuit Court of Appeals reveal that only 17 percent of all civil cases are reversed on appeal. See Mori Irvine,

Better Late Than Never: Settlement at the Federal Court of Appeals, 1 J. App. Prac. & Process 341, 357 n.73 (1999).

Donna Riselli, Appellate Mediation, APP FL-CLE 26-1, 26.2 (2003).

Id.

Id.

Id.

Id. at 26.1 (2003).

Id.; Donna Riselli, Appellate Mediation at the First District Court of Appeal: How and Why it Works, 75 Fla. B. J. 58, 60 (Jan. 2001).

Donna Riselli, Appellate Mediation, APP FL-CLE 26-1, 26.2 (2003).

See 11th Circuit Court of Appeals, Kinnard Mediation Center, www.ca11.uscourts.gov/offices/mediation.php. In the 11th Circuit, the KinnardMediation Center conducts mediation of civil appeals. Circuit mediators are located in Atlanta, Tampa, and Miami.

The Kinnard Mediation Center mediated 843 appeals in 2002; 893 appeals in 2003; and 925 appeals in 2004. See Robert J. Miemic, Mediation and

Conference Programs in the Federal Court of Appeals: A Sourcebook for Judges and Lawyers, FJC-MISC-2006-2 (2006).

Kinnard Mediation Center, Mediation in the 11th Circuit Court of Appeals 1 (2008), available at www.ca11.uscourts.gov/documents/pdfs/KMC-MEDIATION-PROGRAMS.pdf.

Id.

Id.; Kinnard Mediation Center, Private Mediator Procedures for Mediation of Appeals 1 (2008), available atwww.ca11.uscourts.gov/documents/pdfs/privmediator.pdf.

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Id. at 5.

Eleventh Circuit Rule 33-1(e).

Kinnard Mediation Center, Mediation in the 11th Circuit Court of Appeals 2, 4 (2008), available at www.ca11.uscourts.gov/documents/pdfs/KMC-MEDIATION-PROGRAMS.pdf.

Eleventh Circuit Rule 33-1(c)(3), 33-1(d).


Id. at 3-4.

Id. at 5-6.

Id. at 6.

The First and Fourth district courts of appeal also had appellate mediation programs, which were abolished due to budget constraints. See Donna

Risselli, Appellate Mediation, APP FL-CLE 26-1, 26.1 (2003).

See Fifth District Court of Appeal, Mediation, www.5dca.org/Mediation/mediation.shtml.

See Vitakis-Valchine v. Valchine, 793 So. 2d 1094, 1098 n.2 (Fla. 4th D.C.A. 2001).

See Fifth District Court of Appeal, Mediation, www.5dca.org/Mediation/mediation.shtml.

Id.

Mediation forms including the questionnaire can be obtained at www.5dca.org/Mediation/mediation_forms.shtml.

See Fifth District Court of Appeal, Introduction to Appellate Mediation Program, www.5dca.org/Mediation/Forms/Questions_Answers.shtml.

Id.

Id.

See Fifth District Court of Appeal, Mediation information (cont.), www.5dca.org/Mediation/mediation_information_cont.shtml.

Id.

See Fifth District Court of Appeal, Introduction to Appellate Mediation Program, www.5dca.org/Mediation/Forms/Questions_Answers.shtml.

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Id.

Jeanette Bellon is an appellate attorney and an associate in the Miami office of Kubicki Draper.

Sharon C. Degnan is a board certified appellate attorney and partner in the Ft. Lauderdale office of Kubicki Draper. Both Ms. Degnan and Ms. Bellonpractice in the areas of litigation support, appellate practice, and insurance coverage disputes.

This column is submitted on behalf of the Appellate Practice Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather

M. Lammers, editors.

[Revised: 02-10-2012]

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THE NUTS & BOLTS OF APPELLATE PRACTICE - … NUTS & BOLTS OF APPELLATE PRACTICE Presented as part of FLORIDA DISPUTE RESOLUTION CENTER’S 23rd ANNUAL CONFERENCE “TREASURING THE