“Civil Appeals 101 for the Non-Lawyer”

                       By Marcia K. Lippincott
 

What Is a Civil Appeal?

     Mistakes happen to all of us, but when they happen in court, a judicial process called an appeal might assist to correct the mistake. An appeal cannot correct a mistake made by a litigant, or his attorney, it can only correct a mistake made by the trial court. Such a mistake is called judicial error. A civil appeal is an appeal in any type of litigation, other than criminal, brought to correct a judicial error.

     In Florida, every litigant in the Circuit Court is entitled to bring an appeal to one of the five Florida District Courts of Appeal. Filing a Notice of Appeal with the trial court begins an appeal. The timely filing of this Notice is critical to your right to appeal. An attorney should always calculate the time for your appellate deadline.

     An appeal is unlike a trial. There are no witnesses, and no exhibits. Rather, appeals are based upon a written record of the testimony, and the exhibits before the trial court. The appellate court does not accept new evidence.

     An appeal does not provide an automatic opportunity to begin anew. Rather, the appellate court must presume a trial court's final decision to be correct.

     Most of the legal work on an appeal is done in a written document called a brief. In that brief it is the attorney’s job to present: 1) a statement of facts documented by the appellate record; 2) points on appeal – raising the judicial errors allegedly made by the trial court; 3) an argument citing published legal cases and authorities supporting the points raised; 4) and a conclusion that explains the relief requested.

     Three judges are assigned to determine a district court appeal. Oral argument is permitted if requested. Each side is allowed 20 minutes to address the court and respond to judicial questioning. The decision is made in writing but may not provide the legal reasoning for the decision reached. No Florida civil litigant is entitled to review as a matter of right by the Florida Supreme Court, but in certain rare instances review may be possible.

What Does an Appeal Cost?

     Appeals vary significantly in cost and depend upon a variety of factors. These factors are: 1) the stage and length of the proceedings in the lower court; 2) the subject matter; 3) the number of legal issues and their complexity; and 4) the length and complexity of trial court exhibits. If you are contemplating an appeal, an appellate attorney can estimate the cost for your individual case after collecting certain information.

How Long Will an Appeal Take?

     Unlike litigants in an appellate court and their attorneys, appellate judges have no  strict time deadlines. However, in general, an appeal will take approximately one year or more from the time that the notice is filed until the decision.

Must a Final Decision Be Obeyed During An Appeal?

     A final decision of the trial court must be obeyed even though an appeal is filed, unless a stay is granted by the trial or appellate court. A stay is a legal order which maintains the status quo -- the situation before a final decision is entered. Money judgments can be automatically stayed upon the posting of a proper appellate bond. Stays from other types of judgments may require bonds or other conditions, or be denied altogether.

What Is the Difference Between a Final and Non-Final Appeal?

     A final appeal is an appeal from a final decision that resolves an entire case at least as to one party. During a case there are only certain orders that can be appealed before final decision. Appealable non-final orders include, but are not limited to: orders of temporary alimony, child support, child custody, and temporary injunctions. The trial court may continue with the litigation after the filing of a non-final appeal, and may even hold the trial. However, in such cases a final decision cannot be entered without the appellate court’s decision of  the non-final appeal or the appellate court's permission.

What is Certiorari?

     A writ of certiorari is a form of appellate review. The differences between an appeal and review by certiorari are significant. There is no right to a writ of certiorari as there is to a first appeal. And the standards of review are quite distinct. To prevail on a petition for writ of certiorari, the petitioner must show that the trial court departed from the essential requirements of the law and that the petitioner will suffer irreparable harm unless the writ of certiorari is granted. An example of an order that might be reviewed by certiorari procedures is a trial court order compelling that certain records of a litigant be produced.