Five Common Mistakes Litigators Make That Handcuff the Right to Appeal

 
 
 

Filing an appeal is an important part of the litigation process. As a litigator, you must be thinking about the possibility of an appeal before, during, and after each trial or hearing. One misstep at any stage of the process could undermine your ability to file an appeal when necessary. Here are five critical mistakes Florida litigators make throughout the litigation process that often jeopardize the ability to file an appeal.

1. Failure to Understand the Applicable Court Rules

The most common mistake Florida litigators make that handcuffs their ability to win their case on appeal is the general failure to understand the three bodies of law on which a successful appeal relies. Florida appeals are governed primarily by three sets of rules:

  • The Florida Rules of Civil Procedure;

  • The Florida Rules of Evidence; and 

  • The Florida Rules of Appellate Procedure.

Each body of rules has provisions that affect the right to file an appeal at the appropriate time. To be an effective litigator, you must understand all three bodies of rules and know when and how to apply the respective provisions that are relevant to appeals. 

If you are not thinking about the possibility of an appeal at every stage of the process, you are doing a disservice to your client and inviting a malpractice action (Oteiza v. Braxton, 547 So. 2d 948 (Fla. 3d DCA 1989) (A party denied the right to appeal because of an attorney's failure to timely file a petition for review may recover for legal malpractice if, but for the attorney's negligence, the appeal would have been successful)).

Even if you are not an appellate attorney, you must know the appellate rules that are relevant to the right to file an appeal during or after the trial process. Here are more specific mistakes that could prohibit an appeal that Florida litigators make because they do not fully understand the applicable court rules.

2. Failure to Have a Court Reporter Present to Create a Transcript

If an attorney fails to provide a court reporter at a trial or hearing, there will be no transcription of the proceedings. Without a transcript, the appellant will have a difficult time providing an appellate court a sufficient record for appeal. As one appellate court noted: “Litigants who proceed . . . without a court reporter take a calculated risk. If the facts are determined adversely they may well be unable to demonstrate error on appeal due to the absence of a record.” Starks v. Starks, 423 So. 2d 452, 453 (Fla. 1st DCA 1982) (quoting Kauffmann v. Baker, 392 So. 2d 13, 15 (Fla. 4th DCA 1980)).

Likewise, in Albear v. Hillman-Waller, 275 So. 3d 690 (Fla. 3d DCA, 2019), the parties agreed to try the case without a court reporter present because they were “hoping for finality.” Id. at 690, n.1. When Albear appealed, the court granted the appellee’s motion to dismiss because there was no transcript of the bench trial. The court noted that “Appellant's burden includes a demonstration of error from the record, which he must supply.’” Id. (citing Cudeiro v. Dep't of Revenue ex rel. Fritz, 99 So. 3d 520, 520 (Fla. 3d DCA 2011) (quoting Kauffmann, 392 So. 2d at 15).

As a litigator, you must anticipate that a possible ground for appeal could arise in any proceeding. Before a trial or hearing even begins, you must prepare for a possible appeal by having a court reporter present to create a transcript of the proceeding. The price of always having a court reporter present is much less than the price, to you and your client, of potentially failing to preserve appellate issues. 

3. Failure to Timely and Contemporaneously Object to an Issue at Trial or at a Hearing  

Unless there is a fundamental error, an appellant cannot raise an issue for the first time on appeal. State v. Fernandez, 335 So. 3d 784 (Fla 2d DCA 2022). An issue raised on appeal must be addressed at the trial court level and preserved for appeal. “To preserve an argument for appeal, an appellant must timely and contemporaneously object at the trial level, on a stated legal basis, and then raise that specific contention again on appeal.”  State v. Petroni, 123 So. 3d 62 (Fla. 1st DCA 2013). If a party fails to object at the appropriate time, the uncontested issue is waived on appeal. DeLuca v. State, 384 So. 2d 212 (Fla. 4th DCA 1980). 

Failing to object could occur in any context at any stage of the trial process and result in a waiver of an appealable issue. This could include:

  • Striking a juror;

  • The admission or exclusion of evidence;

  • The admission or exclusion of a witness;

  • Improper comments made in closing argument;

  • Jury instructions;

  • A defective verdict form; 

  • Inconsistent or inadequate verdicts, and much, much more.

Failing to object appropriately in any of these contexts is often a consequence of not understanding the Florida Rules of Evidence and other court rules that can affect a party’s right to appeal. 

4. Failure to Understand the Critical Differences Between a Final and Non-Final Order and he rules that apply to each.

Florida Rule of Appellate Procedure 9.030(b)(1)(A) confers jurisdiction on the appellate court to review final orders of the trial court. 

Rule 90.30(b)(1)(B) confers jurisdiction on the appellate courts to review non-final orders as prescribed by rule 9.130. 

Rule 90.30(b)(2)(A) confers jurisdiction to review all other non-final orders via certiorari. 

Jurisdiction is invoked differently depending on the type of order and even the type of case. And the briefing schedule is also different.

Here are some examples. For final orders jurisdiction is invoke by filing a notice of appeal “within 30 days of rendition of the order to be reviewed.” Fla. R. App. P. 9.110(b). An appellant then has 70 days to file the initial brief.  For specified non-final orders in civil actions, jurisdiction is invoked by filing a notice of appeal within 30 days of rendition of the order to be review, but the initial brief must be served within 15 days of the notice of appeal and an appendix must accompany the brief. Rule 9.130(b) & (e). For specified non-final orders in criminal actions, jurisdiction is invoked by following the specific instructions under Rule 9.140. See Rule 9.130(a)(2); Rule 9.140. For all other non-final orders not specified in Rule 9.130, jurisdiction is involved by merely filing the petition of certiorari within 30 days of rendition of the order to be reviewed. No notice of appeal is necessary. Rule 9.100(b)

Failure to file a timely notice of appeal deprives the appellate court of jurisdiction to review the contested issue, Williams v. State, 2023 WL 2290823 (Fla. 1st DCA 2023), and “constitutes an irremediable jurisdictional defect.” Jenkins v. State, 268 So. 3d 931 (Fla 5th DCA 2019). The same is true for a failure to timely file a writ. 

Often what confuses attorneys is not knowing what constitutes a final order. A final order is one that resolves the cause of action for the parties and effectively ends the authority of the court over the cause and the parties. M.M. v. Florida Dept. of Children and Families, 189 So. 3d 134 (Fla. 2016). However, discerning this can sometimes be more difficult than one would think. This is why having knowing the rules and/or having an appellate attorney on your team is critical as a trial lawyer. 

5. Filing Improper Motions Directed at an Interlocutory (Non-final) Orders 

One of the biggest mistakes trial lawyers make is failing to understand that motions to vacate and motion for rehearing directed at interlocutory orders will not toll the time to appeal. While Florida Rule of Appellate Procedure 1.930(a)(5) allows courts to review “Orders entered on an authorized and timely motion for relief from judgment…,” motions to vacate directed at non-final orders are not “authorized.” Florida Rule of Appellate Procedure 9.130(a)(5) expressly provides that “[m]otions for rehearing directed to these orders are not authorized under these rules and therefore will not toll the time for filing a notice of appeal.”

Florida Rule of Civil Procedure 1.540(b) provides that a party may be relieved from a final judgment, decree, order, or proceeding. Various district courts have held that “Rule 1.540(b) permits a party to move to vacate a “final judgment, decree, order, or proceeding” on several grounds. The rule does not, however, authorize a trial court to grant relief from a non-final order.” Garcia v. Navy Fed. Credit Union, 224 So. 3d 339, 340 (Fla. 5th DCA 2017)(internal citation omitted); Piper Aircraft Co. v. Whyham, 455 So. 2d 650 (Fla. 4th DCA 1984); Hi-Tech Mktg. Group, Inc. v. Thiem, 659 So. 2d 479 (Fla. 4th DCA 1995). As such, trial lawyers cannot appeal an order issued on an unauthorized motion. Id.

The classic example is the scenario where a non-final order is issued, and the trial lawyer files a motion to vacate or for rehearing. While the motion is pending, the appellate time runs since the motion did not toll the appellate clock. A failure to know the applicable rules can completely prevent a claimant from appealing their case and can lead to a malpractice action. 

Eximius Writing Services can help you preserve the right to appeal.

Preserving the right to appeal is a critical part of the litigation process. Often, litigators are so focused on the trial process that they overlook the court rules that are necessary to preserve the appellate process. 

 Eximius Writing Services provides litigation support services that will help ensure that you are preserving the right to appeal your cases in a timely manner. We provide quality support services that track the litigation process and help you understand and follow all the court rules relevant to appellate review.

Don’t handcuff your client’s chances of winning on appeal. Call Eximius Writing Services today at 407-926-0167. We hold the key to preserving your right to appeal.

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