The Right to Appeal
The right to appeal is well-established in the Florida and national legal system. Judges, like attorneys and everyone else, sometimes make mistakes. Varying legal standards and complex fact patterns can lead to errors in judgment, and litigants should be prepared to challenge the decision in an appellate court.
The Wheeler Firm in Okaloosa and Walton County helps clients understand their appellate rights in family law cases and guides them through the appellate process from start to finish. Learn more about how to file an appeal with us now!
Consult with an Experienced Appellate Attorney
As stated above, judges sometimes make mistakes. When they do, you should consider filing an appeal to correct the judgment. Before identifying any errors made by the judge, you need to identify whether the judge made a legal error or an error interpreting the facts. The distinction between these two types of appeals can be crucial in deciding whether to appeal the decision.
- Abuse of Discretion while Interpreting Facts: Trial judges have enormous discretion when interpreting the facts of cases. To challenge a trial court’s interpretation of the facts, you will have a steep (but not impossible) burden on appeal. This includes decisions about what parenting plan to enter, how much alimony a spouse needs after the divorce, and who should receive certain property that was obtained during the marriage. Appellate courts may only disturb a trial court’s findings of fact if the judge committed an “abuse of discretion.” Wide latitude will be given to trial courts as they admit evidence at trial, and hear the testimony of witnesses. The reason is simple: Trial courts are in the best position to evaluate the evidence. No new evidence will be admitted on appeal. Therefore, appellate court’s tend to defer to the trial court on findings of fact except in the most egregious circumstances. For this reason, appeals are less likely to succeed if challenged due to a dispute over findings of fact. However, where the facts adduced at trial could not lead to the judgment that was entered, findings of fact can be appealed and can be reversed by the appellate court.
- De Novo Review of Legal Interpretations: On the other hand, trial judges have NO discretion when interpreting and applying the law. As a result, the trial judge MUST apply the correct legal standard or risk being reversed by the appellate court. For example, if a trial court were to apply a preponderance of the evidence standard when the clear and convincing evidence standard should have been applied, the judgment should be reversed for the trial court to apply the correct legal standard.
Decisions to appeal should be made on a case-by-case basis, after consulting with an experienced appellate attorney. Your family law attorney can help you understand what kind of issues you have on appeal.
The Notice of Appeal
A litigant has 30 days from the final judgment to file a notice of appeal (some non-final orders can be appealed, but for the sake of brevity, we will only consider final judgments). For instance, if you believe the judge applied the wrong legal standard while dividing your marital assets at trial, you need to file a notice of appeal within 30 days after the signed final judgment is entered. If you fail to file the notice within 30 days, you will not be able to pursue the appeal at a later date because the appellate court will no longer have jurisdiction. However, keep in mind that the notice of appeal merely announces to the court and to the opposing party that an appeal is being sought.
A knowledgeable family law or divorce attorney will advise his or her client immediately when the judgment is entered. Few attorneys handle appellate cases, even if they handled the case in the trial court, so you may need time to locate and retain counsel for the appeal. Aside from legal fees, you will need to file the appellate filing fee which is approximately $300.
The Record on Appeal
No new evidence will be offered in the appellate court. The trial court will review the clerk’s record, including the pleadings, orders, evidence admitted at trial and the judgment, as well as a transcript of the testimony taken at the hearing. The appellant is responsible for securing the record on appeal, and having it transmitted to appropriate Florida District Court of Appeal. The appellate court judges will review the record while and analyzing the parties’ arguments. It is not uncommon for an appellate record to be several thousand pages, depending on the duration of the trial court case and the length of the trial. Once the record on appeal is complete, the briefs will be submitted by the parties.
The Initial Brief
Within 70 days after filing the notice, the appellant must submit an initial brief. This brief is the core of the appeal. It contains all of the legal arguments for overturning the final judgment of the trial court, and any arguments that the trial court abused its discretion while interpreting the facts. If the record on appeal is delayed, then you must seek an extension of time to file the initial brief.
The Florida Rules of Appellate Procedure include numerous rules and formatting requirements that the brief must adhere to (e.g. length, font, and margins). Briefs are often 40-50 pages long, which is divided into various sections, including a table of contents, case history, factual background, arguments and conclusion. The initial brief will include an analysis of applicable case law as it applies to the facts of your case. In short, drafting the initial brief will require a substantial investment of time. The appellant is given 70 days to complete this brief.
Answer To The Initial Brief
Within 30 days of being served with the initial brief, the Appellee must file an Answer Brief setting out that parties’ position on the issues raised in the Appellant’s Initial Brief. The Answer Brief will set out legal and factual arguments to refute the arguments made in the initial brief. It too will be divided into various sections to allow the appellee an opportunity to refute the assertions made by the appellant.
Reply Brief
Finally, the appellant may choose to file a reply brief within 30 days of receiving the Answer Brief. It responds to the arguments made in the answer brief. Thus, it is usually the shortest of the three as the issues become more defined and the parties have successfully set out their respective arguments on those issues.
Wait for the Appellate Opinion and Review the Decision
Once the briefs are filed, the appellate court will issue an opinion. Opinions may be issued quickly or after a significant delay, depending on the decision made and the complexity of the issues presented. Attorney’s have little control over the speed of an appellate decision once the briefs are submitted. The opinion will either affirm the judgment, if it finds no reversible errors, or it will reverse the judgment and remand the case to the trial court to correct the judgment if errors are found. On occasion, the appellate court issues a per curiam affirmance (PCA) which simply states that the trial court’s decision is affirmed without an explanation as to why. For the party wanting an explanation from the appellate court, especially after waiting many months for the decision and investing in legal representation on appeal, this result can be frustrating. If the decision is reversed, the decision will be certified and then returned to the trial court for hearings consistent with the appellate court’s decision.
Appeals Involve Writing, Writing, And More Writing
As you can see from the process set out above, appeals involve a great deal of research and writing. They rarely involve oral arguments, although the court may convene a hearing to hear oral arguments from attorneys. Many attorneys prefer to be in court, and for that reason choose not to handle appellate matters. Appellate attorneys should have experience at legal writing and excel at persuading others through that medium.
Consultation with an Experienced Appellate Attorney
Attorney Andrew D. Wheeler has represented numerous clients in appellate cases, obtaining favorable results for clients in various family law matters. If you need to challenge the decision of a trial court, call us today at (850) 613-6923 and schedule an initial consultation to understand your right to appeal. We have offices in both Okaloosa and Walton Counties to serve clients throughout Northwest Florida.
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