How are appeals different from trial court proceedings?

Trial court proceedings involve depositions, hearings, motions, and perhaps ultimately a trial where a decision is made by either a jury or (in some cases) a single judge. Extensive time is spent developing the facts of a case, and ultimately trying to persuade the decision maker to rule in your favor. Often that involves certain skills required to persuade a six person jury to see the case your way.

Appellate proceedings are vastly different. The case at the trial level is usually over, and the record of that case has been created and cannot be changed. An appellate lawyer takes all that occurred below, searches for the important issues and arguments, and presents written briefs to the appellate court. Generally, the Appellant files an Initial Brief, the Appellee files an Answer Brief, and the Appellant then files one final Reply Brief. In most cases, the Court will then order an oral argument in which the lawyers appear before and answer the questions of a three judge panel (or, at the Supreme Court of Florida, before all seven Justices). The oral argument usually ranges between 15 to 30 minutes per side, depending on the Court.

The skills and rules involved in trial court proceedings and appellate court proceedings are vastly different. An appellate oral argument is far different from a closing argument given to a jury at the end of trial. A closing argument is essentially a monologue where the lawyer summarizes the facts and testimony and attempts to persuade the fact finder to rule for his or her client. An appellate oral argument involves extensive, difficult questions being asked by the appellate judges concerning what happened below, and how the law applies to the facts of the case. An appellate lawyer must be able to quickly and effectively respond to any question, no matter how unanticipated, in order to assist the appellate court in resolving the issues.

As former Florida Supreme Court Justice Leander Shaw has noted:

“(T)here is a difference between the skills needed in litigating a case before trial and appellate courts. Trial litigation – focusing on jury trials – requires jury arguments that are generally structured to lead ordinary people to decide something based on compelling emotional arguments. . . . Thus, the ability to evoke an emotional response is important in making jury arguments. In appellate advocacy, however, the emphasis switches and the attorney must stress the application of law to facts – keeping in mind the appellate court’s concern for uniformity of the law and doing justice.”

Hon. Leander Shaw, Supreme Court of Florida.

Does the firm practice in the trial courts?

In some circumstances, yes. The firm advises clients and their litigation counsel on complex matters in the trial courts, merging our skills in research and brief-writing with an eye toward preserving issues for appeal. Additionally, clients with high-stakes litigation matters may ask us to bring our appellate experience to the trial court by attending trials and court hearings to ensure critical arguments are preserved and important objections made. Very few arguments, no matter how clever, can be successfully raised on appeal if not first made in the trial court.

What types of appeals does The Carlyle Appellate Law Firm handle?

The Carlyle Appellate Law Firm handles all types of appeals in both state and federal courts. Actions in the appellate courts generally arise in one of three ways. First, a party always has the right to appeal a final decision of the trial court. In these cases, the matter is essentially concluded at the trial level, and the case can then be reviewed by the appellate court for reversible error. Secondly, certain non-final orders may be appealed during the course of trial proceedings, though this category of matters is relatively small. For example, an order granting, modifying or dissolving an injunction is immediately appealable because it does not make sense to wait until the end of the case (which might take years) before the court can review such an order. The third type of appellate proceedings involves what are known as “original proceedings,” or what is more commonly referred to as extraordinary writs. Sometimes, in a given situation, a party may seek the review of the appellate court through a petition for a specific type of writ given the circumstances involved. The Carlyle Appellate Law Firm has extensive experience in all of these appellate proceedings.

What does it mean to be Board Certified in Appellate Practice?

The Florida Bar defines Board Certification as “the highest level of evaluation by The Florida Bar of competency and experience within an area of law, and professionalism and ethics in practice.” Seven percent of eligible Florida Bar members (approximately 4,800 lawyers), are Board Certified in a wide range of specialties.

In order to become Board Certified in the area of appellate practice, the applicant must have been engaged in the practice of law for at least five years. During the three year period immediately preceding the date of an application for certification, at least 30% of the applicant’s practice must have been spent in substantial and direct involvement in appellate practice sufficient to demonstrate special competence as an appellate lawyer. During the five year period immediately preceding application, the applicant must have sole or primary responsibility for at least 25 appellate actions, as well as having presented at least five appellate oral arguments. The applicant must have completed 45 hours of approved continuing legal education specifically dealing with appellate practice. The applicant must provide the names of at least four lawyers and three judges that he or she has practice with so that the appellate certification committee can conduct an investigation into the lawyer’s competency and professionalism. Finally, the applicant must pass an extensive, one day examination concerning all aspects of appellate practice in Florida.

At this time, there are 172 Board Certified Appellate Lawyers in the State of Florida. Board Certified Florida Bar members are the only Florida attorneys allowed to identify themselves as a “Specialist,” an “Expert,” or use the letters “B.C.S.” (which stands for Board Certified Specialist). Attorney Shannon McLin Carlyle has been Board Certified in appellate practice since 2004, and has served on the Appellate Certification Committee, including as that Committee’s Chair. Attorney Chris Carlyle has been Board Certified since 2006. Attorney John Bogdanoff is Board Eligible and will be taking the examination in 2016.

You have a former judge working with your firm. How long was David A. Monaco a judge, and where did he serve?

David A. Monaco was appointed Circuit Judge in Brevard County in 1997, and served in that capacity until 2003. In 2003, he was appointed to the Fifth District Court of Appeal where he served until 2012. Thus, Mr. Monaco served as a Circuit Judge for six years and an appellate judge for nine years. In addition, Mr. Monaco served as Chief Judge of the Fifth District from 2009-2011. He also served as Chairman of the District Court of Appeal Budget Commission, as well as the Chairman of the Conference of District Court of Appeal Judges.

How do I retain The Carlyle Appellate Law Firm?

We traditionally charge for most appellate work on an hourly basis. However, alternative billing methods will provide great predictability of the total fee paid and help you budget for the year. Some alternative billing methods also provide for a sharing of the risk. We are happy to work with you to find a mutually beneficial alternative billing method when possible. There are a number of options we can consider, including a modified hourly rate with a success fee or a flat fee.

Is it feasible to work with or retain The Carlyle Appellate Law Firm even if I’m not located near one of the Firm’s offices?

Yes. The Carlyle Appellate Law Firm has experience in all five of Florida’s District Courts of Appeal, as well as the Supreme Court of Florida and the Federal Eleventh Circuit. Filings at the appellate court are done electronically, so proximity to a courthouse is not an issue. Further, in most cases the only time an appearance at the courthouse would be necessary is for an oral argument, which happens only once in a given case. There is no appellate court of Florida that The Carlyle Appellate Law Firm has not practiced in, and can easily access.

Do appellate judges recognize the value of appellate specialists?

“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.”

Hon. Gary M. Farmer, Florida Fourth District Court of Appeal
Arabia v. Siedlecki, 789 So. 2d 380 (Fla. 4th DCA 2001)
(Farmer, J., concurring in part and dissenting in part)

“Effective presentation to a federal court of appeals, or to any appellate court, requires a blend of talents not necessarily found in the typical trial attorney.”

Hon. Laurence H. Silberman, U.S. Court of Appeals, D.C. Circuit,
Plain Talk on Appellate Advocacy, 20 Litigation 3 (1994)