Working with an Appellate Lawyer

Why work with an appellate attorney at all?

“If trial counsel has the means to utilize an appellate lawyer, it is highly recommended that he or she do so, because of the substantial differences one encounters on appeal as compared to trial.”

– Joseph W. Hatchett, former Florida Supreme Court Justice,
former Chief Judge of the U.S. Circuit Court of Appeals for the Eleventh Circuit

Appeals are different. Every decision arrives at the district court with a presumption of correctness. Ties and close calls go to the appellee. Standard of review is critical – most family law decisions are reviewed for abuse of discretion. If nine judges would look at what your judge did and shake their heads disapprovingly, but the tenth judge says it makes sense, then the decision will probably stand. And even if there is error, your panel just might look closer and ask: is this important enough to send this back for another round of litigation and stress for the litigants and trial court?

You must persuade with a subtler touch than you might in a trial memorandum. If your brief doesn’t reflect familiarity with the different rules and standards on appeal, then you’ve instantly made your and your client’s position less credible and persuasive.

And it’s easy for even the best divorce lawyers to forget that they are addressing judges and a clerk who are very intelligent, but generalists. Your brief may be the first family law piece your law clerk, fresh from law school, has ever read. The primary judge on the panel may be new to the district court, with a prior career devoted to, say, criminal law or personal injury.

You can’t assume the reader will know what you mean when you write “special equity.” Or that your reader will recognize your blunder and infer you really meant “unequal distribution.” Your brief must educate as well as persuade, without ever straying to the patronizing or simplistic.

Don’t get me wrong. Simplistic is awful; simple is great. The best appellate attorneys know that, no matter how long it took to write a 50-page brief, it’s worth the extra time to trim it to 35. That with effort you can—and must—make the most complex argument clear and concise. And, no matter the length of your argument or fluency in caselaw, much of your battle is won or lost in the statement of facts.

Think of the time, training, dedication, and experience you’ve invested in becoming an outstanding divorce lawyer. Can someone from another field of law, who is brilliant but only occasionally handles a divorce, step into your shoes a couple months before trial and handle the final hearing with your efficiency, effectiveness, and touch? No matter your brilliance and experience at trial, if you only dabble in appeals, are you offering your client the best possible odds to secure the result you need?

But the appellate attorney doesn’t know the case like I do.

That’s fine. Neither will the primary judge on your appeal. Or the law clerk going through the briefs and preparing the memorandum for the district court panel. It can only help to have the perspective of an appellate attorney with some distance from the hurly-burly of 18 months of litigation over issues as big as timesharing or business valuation – or as small as fighting over a dining room set or a fourth motion to compel updated bank statements.

Chief Judge Farmer explains:

“My own experience in both roles suggests that most of the time the trial lawyer is well-advised to bring in another lawyer to handle the appeal. This is not because appellate law is so arcane that only the cognoscenti can handle it. It is really because the lawyer who handled the trial is often unable to discern the appellate forest from the trial trees. Issues that consumed the trial lawyer are often of marginal significance at best on appeal; issues that seemed trivial during trial may become critical on review.”

Arabia v. Siedlecki, 789 So. 2d 380, 392 (Fla. 4th DCA 2001)
(Farmer, J., concurring in part and dissenting in part).

There might have been an equitable distribution issue that didn’t seem as important to you and your client as, say, alimony. Yet a reversal on that issue usually means the alimony and fee awards are coming back on remand, too. An appellate attorney with a fresh eye can have a better nose for the issue that turns a PCA into a reversal than you might after a year or two of hard-fought litigation.

Why one handling only family law appeals?

That’s not necessary. There are several superb appellate attorneys handling a wide range of appeals who can do a fine job with your family law appeal.

Yet an appellate attorney who focuses entirely on family law appeals will need less time to spin up on the central legal principles and current caselaw underlying your issue. More experience providing a concise education to the court on, say, the factors governing unequal distribution before carving into the meat of your case. An instant grasp of recent caselaw that alters the legal terrain, whether subtly or all at once.

Take the Mattson Memo/Giel Files. Sure, they’re tools to ensure you’re up to speed with the latest legal development that could affect your case – or even just to spark an idea for another approach you can try to secure the result your client needs. But they also reassure the trial lawyers I work with that they won’t have to spend the first couple of hours with me explaining, say, “unanticipated” vs. “contemplated and considered” before we talk about appealing an alimony modification.

How soon should I put in a call to an appellate attorney?

What would you tell a friend facing a divorce? The answer is the same here. The sooner, the better.

It never hurts – and can significantly help – to run the issues past someone else who can help ensure you lay the proper evidentiary or strategic foundation for the result your client needs. Or even just to ensure you lodge a sufficient objection or proffer to preserve the issue on appeal in case the judgment doesn’t go your way.

What’s most important, though, is that you don’t wait till after the motion for rehearing. For most arguments, the district court will consider an argument waived if you didn’t raise it in a motion for rehearing. And the days of the barebones, two-sentence-per-issue motion are over. If the DCA won’t be sure that you’ve squarely raised an issue and explained the reasoning underlying your argument, then you may have capsized your appeal before it was even time to file the notice of appeal.

There’s another reason for the urgency. Let’s say your final judgment isn’t really a final judgment, but actually is an appealable non-final order. Your motion for rehearing won’t toll anything, and you could blow the opportunity to have the DCA handle your issue until the entire case is over. Or take a nonfinal order that you already recognize is a nonfinal order. Then you know you’re dealing with an expedited briefing process, and your appellate attorney must have a thorough, persuasive brief ready to go in a couple of weeks rather than a couple of months.

Does it matter if my appellate attorney is in a different part of the state?

Not really. By far the most important part of the appeal are your briefs. Most cases are won and lost on the briefs and the record.

As for oral argument, here too is another gulf between appellate and trial practice. You may be one of the best divorce lawyers in Miami. But if your friend in Pensacola was just served with a dissolution of marriage petition, then you’re probably going to recommend an outstanding Pensacola divorce lawyer. Circuit courts, and trial court judges, can vary considerably. In any territory, the best divorce lawyers know—and are known by—the local judges. The approach the lawyer takes, before one judge or another, may vary considerably.

Far less so with oral argument in front of appellate judges. No, DCA judges aren’t interchangeable cogs in a monastic wheel. But, unlike trial, the preparation for and tenor of oral argument in an appeal will not differ nearly as much depending on whether it’s held in Lakeland or Miami.

And many appellate lawyers, including me, may charge for the time preparing for and arguing at oral argument, but do not charge for the travel costs incurred by heading over to your DCA. So the biggest difference you and your client may face by bringing aboard the out-of-towner is that you’ll be expected to know the best place to meet for dinner the night before oral argument.

Will the appellate attorney act as a partner who cares about my client as much as I — or more like Captain Hindsight, insurance adjuster extraordinaire?

When the ruling didn’t go your way, you and your client need to mount an effective challenge on appeal to correct the error below. Not to quibble about, say, whether another document should have gone into evidence. We’re united in a common goal: fixing the problem after an adverse ruling. Or even better, if we’re working together before the judgment and motion for rehearing, then maximizing the odds that the trial court agrees with you and issues as close to an appeal-proof order as possible.

I’ve already got a go-to appellate attorney.

Great! Then you already know the value of a trial-appellate partnership dedicated to getting the best possible result for your client – whether that means defending on appeal the outstanding ruling you won for your client, or going for the reversal after the district court determines that the trial judge should have signed your proposed judgment instead.

I’m not interested in interfering with your relationship with your favorite appellate attorney. But if the appellate attorney you usually call has a conflict, or is too busy for a new appeal, I’m happy to talk some more with you about your case.

Do you do referral fees?

Yes. I handle all appeals and original writ petitions on a flat fee basis, and in accordance with the Rules Regulating The Florida Bar, my firm pays a 25% referral fee.

Some lawyers happily accept it. From time to time, however, the process of litigation has so devastated a client’s finances that the trial lawyer asks me to apply it toward the flat fee that the client must pay to retain me.

Regardless, no ethical trial lawyer would make a referral fee a factor in deciding whom to recommend for an appeal. I offer it because I want to pique your interest in seeing my appellate work and practice – which helps you make a more informed decision about whether you think we can work together to secure the best possible result for your client. No matter which appellate attorney you work with, you should be comfortable asking for some sample briefs — properly redacted, of course — so you can satisfy yourself and your client that the appellate attorney is capable of providing outstanding representation.

How much will it cost my client to bring you aboard?

It depends. It will be a flat fee that will be clear after our strategy session. But we know there are several variables. The length of the trial or docket is only one piece. You can have a three-day trial after two years of litigation where the amount of alimony is the only major issue. Or you could have a one-day trial after nine months where Murphy’s Law kicks in; say, timesharing and parental responsibility issues accompanied by equitable distribution rulings where the business valuation was unfair, and the court refused a constructive trust over stock options. So we won’t know until we talk. But you’ll know this — you and your client will finish the strategy session with a solid number for what it will cost to mount the best appellate challenge possible. A number that won’t change no matter what happens. Stem to stern, from the motion for rehearing and notice of appeal, to briefing, oral argument, or any motions for clarification or rehearing en banc.