If you’re headed up to an appellate court, you will find yourself in an entirely different world from that of the trial level. But, just like at trial, there is a lot of legal terminology you’ll need to understand. Without understanding the language of appellate courts, you can’t understand the appellate process. This post is intended to provide an introduction to some of the most important terminology used by appellate courts, and by doing so to provide an introduction to the appellate process. If you’re faced with an appeal, or will be soon, you should consult an appellate attorney.
Appellate Court
An appellate court is a court that reviews the decisions of trial courts. In Florida there are six district courts of appeal and the Florida Supreme Court. Additionally, circuit courts act as intermediate appellate courts from county court decisions. A litigant can appeal to an intermediate appellate court “as of right.” This means, for example, that the district courts of appeal are required to take jurisdiction when litigants timely and properly appeal the orders of circuit courts. The Florida Supreme Court, on the other hand, is a court of limited appellate jurisdiction and can hear only certain types of appeals.
Florida also has federal trial courts, three of them, that send appeals up to the U.S. Court of Appeals for the Eleventh Circuit. That appellate court also handles appeals from federal trial courts in Georgia and Alabama.
Appellant vs. Appellee
What’s the difference between an appellant and an appellee? The appellant is the party appealing the trial court’s ruling, generally an adverse ruling. The appellee is the party responding to the appeal, generally defending a favorable ruling. An appellant might be a company challenging a damages judgment, a prisoner challenging a sentence or guilty verdict, or a parent challenging an alimony award. The appellee in those cases would be the party who won the judgment, the State who won at a criminal trial, or the parent owed alimony under the judgment.
Appellate Brief
Unlike at trial, there are only three major filings in most appeals, and only one in-person proceeding. No new evidence is introduced, and briefs are limited to discussing the trial court record. First, the appellant files an initial brief that argues why the trial court’s decision should be overturned. This brief contains a statement of the facts and an argument section. Second, the appellee files an answer brief, an argument for why the trial court’s decision should be upheld. Third, the appellant has a chance to rebut the answer brief with a reply brief. In making its decision, the appellate court will consider only the record on appeal, the hearing transcripts, and the appellate briefs.
Appellate Judicial Clerk
An appellate judicial clerk is an attorney who works for an appellate judge, writing legal memoranda for the judge’s consideration. In appellate courts in Florida, generally each judge has two clerks. These lawyers are also called staff attorneys. An appellate judicial clerk should not be confused with the clerk of the appellate court, discussed below.
Appellate Judge
An appellate judge is a judge on an appellate court who considers cases and writes opinions. Unlike trial court judges, appellate judges hold hearings only rarely, in the form of oral argument, and they never consider evidence beyond the evidence presented at trial.
Appellate Panel
The district courts of appeal in Florida each have around a dozen judges. Every appeal is assigned to a panel of three appellate judges, with one judge on the panel taking the lead. The appeal is assigned to the lead judge’s chambers (or office). After the case is “perfected,” meaning the final appellate brief has been filed, one of the judge’s appellate clerks will read the briefs, look through the record on appeal and transcripts, research the issues, then write a legal memorandum on the issues presented in the appeal. Depending on an individual judge’s preferences, the clerk may or may not make a suggestion as to whether reversal or affirmance is proper. The legal memorandum will be sent to all three judges on the panel, and they will discuss the case, listen to oral argument, and make a ruling or rulings.
Appellate Outcomes
Every appeal is decided one way or another, either “on the merits” or through Dismissal. An appellate court will dismiss a case, meaning reject it without making a decision on the merits, if its lacks jurisdiction or if the appellant has repeatedly failed to follow the rules of appellate procedure. If an appellate court considers a case on the merits, there are generally two possible outcomes.
First, and by far the most common, an appellate court can uphold or affirm the decision below. The vast majority of appeals result in Affirmance, because generally there is a presumption that the trial court did not make an error, and this presumption can be very difficult to overcome. Many affirmances are styled “per curiam affirmance.” That simply means that all the judges on the panel agreed that affirmance was proper, and it generally means that the judges found no written opinion was necessary. Most appeals are per curiam affirmed. Notably, a per curiam affirmance is the best possible outcome for an appellee, because it cannot be appealed to the Florida Supreme Court.
Second, if an appellate court finds that the trial court erred in its ruling, it will reverse or overturn the decision. Upon Reversal, the appellate court may remand the case, or send it back, with instructions. Sometimes, the appellate court’s decision may mean there is no further work to be done at the trial level.
District Court of Appeal
The district court of appeal takes cases from county and circuit courts. Until 2022, there were only five district courts of appeal (DCAs). But in January 2023, the Florida Supreme Court created the Sixth District Court of Appeal, covering much of central Florida.
Final orders from all circuit courts and from county courts are appealable to one of these six district courts of appeal.
Writ of Certiorari
The writ of certiorari is a common law “extraordinary writ” asking for appellate review. In Florida, a petition for certiorari in a district court of appeal is proper when asking a district court to consider either (1) certain types of nonfinal orders of circuit courts or (2) orders of circuit courts acting in their appellate capacity, i.e. decisions of circuit courts in appeals from the county courts. The first form of certiorari is proper only when a petitioner can argue that the nonfinal order will cause harm that cannot be remedied on appeal after the case is over. The second form of certiorari is generally considered a “second bite at the apple,” and so the standard of review is very difficult to overcome.
Clerk of the Court
The clerk of the appellate court is responsible for managing the case load for the entire court, as well as all the filings. The clerk’s office may decide some motions without input from appellate judges.
En Banc
Sometimes a litigant will ask an appellate court to consider or reconsider a decision en banc. If granted, the case will be considered by the full court of appeal rather than by a panel of only three judges. Sometimes, if the court considers the issue particularly important, it will decide to consider an issue en banc without a request from any litigant.
Florida Rules of Appellate Procedure
Like at trial, proceedings at the appellate level are governed by their own rules of appellate procedure. These rules provide how and when appellate courts have jurisdiction, how and when jurisdiction is invoked, the timelines and formatting requirements for briefing, rules for the preparation of the record, rules on appellate motions practice, and rules on attorney’s fees.
Memorandum of Law / Bench Memo
At the appellate court, a legal memorandum is written by a judicial clerk for the benefit of the appellate judges on the panel assigned to a case. This type of legal memorandum is called a bench memo. For each appeal, the bench memo analyzes the arguments made in the appellate briefs, researches the law, discusses the merits of the arguments in light of the law, and explains these issues to the appellate court judges on the panel. The clerk’s memorandum of law is designed to help the appellate judges when they make a decision.
Oral Argument
Aside from the three briefs discussed above, litigants have one more chance to make their case in an appellate court. If requested and granted, the three-judge panel will allow each party a short block of time (generally fifteen to twenty minutes) to make an oral argument. While an appellate attorney will generally prepare an oral argument that lasts this set amount of time, judges will often interrupt the presentation with questions and hypotheticals regarding the law at issue in the case. Like the briefs, the appellant presents first, followed by the appellee, then the appellant is given a short rebuttal.
Record on Appeal
Unlike at trial, on appeal the appellate court will take no new evidence. The only evidence considered by the appellate court will be the evidence considered by the trial court. In addition, the appellate court will consider all of the pleadings, the motions, and the trial transcript. These documents are compiled together into the record on appeal, at the direction of the appellant and with the help of the clerk of the circuit court.
Standard of Review
The standard of review is often what makes or breaks an appellate case, because it determines the level of deference the appellate court gives the trial court’s decisions. The standard of review can also be considered in light of the strength of the presumption of correctness afforded the trial court. The appellant should argue that a less deferential standard applies, while the appellee should always argue for more deferential standard.
Competent, Substantial Evidence
The most difficult standard of review for an appellant (and the most favorable to an appellee) is a challenge to the evidentiary findings of a trial court. These findings are reviewed for competent, substantial evidence or for clearly erroneous findings. This standard of review is nearly impossible to overcome. The reason for this deferential standard is that trial courts judges and juries are considered to be in the best position to determine facts based on evidence at trial, while appellate courts, far removed from the live presentation of evidence, are at a disadvantage in this regard. Thus, the presumption of correctness is very strong when the standard of review is for competent, substantial evidence, and almost any evidence in the record will suffice to uphold an evidentiary finding.
Abuse of Discretion
The next most difficult standard is faced by appellants challenging discretionary decisions of trial courts. Discretionary decisions are reviewed for an abuse of discretion, in other words for decision-making that is unreasonable, arbitrary, or capricious. Such decisions are overturned only if “no reasonable person” would make the same decision. Discretionary decisions are generally those in which there are many permissible outcomes. They often deal with the management of the trial proceedings or the admission and exclusion of evidence.
De Novo
The least deferential standard of review is de novo, the review of questions of law. Under the de novo standard of review, an appellate court will give no deference to the trial court’s legal conclusions. The reason for the lack of deference is that, unlike with taking evidence or managing a case, trial courts are not in a better position than appellate courts to interpret the law. The interpretation of statutes, contracts, case law, and the rules of procedure are reviewed de novo. Because there is no presumption of correctness under de novo review, it is the standard of review most likely to lead to reversal. Thus, an appellant should argue, when possible, that the de novo standard applies, while an appellee should make the case that a stricter standard applies.
Thank you for spending some time with us at Alexander Appellate Law P.A. Please don’t hesitate to call us at (689) 259-5010, email us at info@alexanderappeals.com, or schedule a free consultation.
