FAQ: Appeals

What is an appeal?

How long does it take?

What kind of decisions does the appellate court render?

What happens to the order while it is on appeal? Is it still valid?

Can I attend the oral argument?

What happens to the order while it is on appeal? Is it still valid?

What can I do to help with the appeal?


What is an appeal?


An appeal is the legal process through which a higher court (the appellate court) is asked to review the orders or judgments of a lower court (the trial court) in order to determine whether any legal errors were made in the process or in the orders of the court.

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How long does it take?

An appeal is generally a rather lengthy process although in certain cases (usually those involving issues of child custody or injunctions) the appellate court can be asked to expedite the case. The time-table for an appeal is set forth by court rule although either party may ask the Court for permission to extend the time period. Such requests for extensions are quite common and are invariably granted by the appellate court.

In cases involving appeals from final orders (for example, final judgments of dissolution of marriage or final orders upon modification petitions), the first brief - which is filed by the appealing party (who is called "the Appellant") - must be filed seventy days after the filing of the Notice of Appeal. This brief is called the "Initial Brief of Appellant." The responding party (who is called "the Appellee") must file an "Answer Brief" twenty-five days later. The last brief, called the "Reply Brief," is due twenty-five days after the "Answer Brief." Therefore, if no extensions are sought by either party, an appellate case will be completely briefed within four months of the filing of the Notice of Appeal and at that point will be ready for oral argument.

After all of the required briefs have been submitted, the appellate court will normally schedule the case for oral argument. Oral argument is scheduled to take place within one to two months after the filing of the "Answer Brief." The oral argument is presented by the attorneys before a panel of three appellate judges. The judges are selected at random by the appellate court and assigned to a particular case. Depending on the number and nature of the issue presented to the appellate court, the time allowed for the argument will be form ten minutes per side to twenty minutes per side. Only the attorneys present the argument; neither party is required to be present, answer any questions or present any statement.

Following the oral argument, the appellate court must render a decision in the case. Depending on the type of decision to be rendered, the appellate court may take anywhere from one month to six months (and sometimes, although rarely, even longer!) to issue a decision.

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What kind of decisions does the appellate court render?

The appellate court can do one of two things with respect to an order on appeal: it can "affirm" the order, meaning that the appellate court agrees with the trial court's decision and finds no errors or mistakes, or it can "reverse" the order, meaning that the appellate court finds that the trial court was wrong or made some type of mistake in the order on appeal.

If the appellate court affirms the trial court's order it can do so either by a written opinion explaining why it agrees with the trial court's order or it can do so by what is called a "per curiam affirmance." A "per curiam affirmance," (called a "PCA") means that all three judges on the appellate panel agree with the trial court's decision and find no need to explain further. Therefore, a "per curiam affirmance" will say nothing more than, "per curiam, affirmed."

If the appellate court reverses the trial court's order, it is required to explain it's reasoning. Therefore, any reversal of the trial court requires a written opinion. An appellate reversal can be either a complete reversal of the trial court's order requiring an entire new trial or it can be reversal of just some of the rulings of the trial court, leaving others in place. An appellate reversal can also include instructions to the trial court as to how the case or certain issues in the case are to be decided when the case is returned to the trial court.

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What happens to the order while it is on appeal? Is it still valid?

The standard of review applied to the orders and judgments of the trial court is that such orders are presumed to be correct. Therefore, the order and judgments of the trial court remain valid and in effect during the pendency of an appeal and all parties are required to obey and comply with the orders and judgments of the trial court pending the appeal process. In some cases, the trial court can be asked to "stay" the effect of the order on appeal pending the determination of the appellate court. However, a "stay" of orders involving alimony or child support or other such payments is extremely rare and most "stay" orders - even when granted - are conditioned upon the payment of some portion of the trial court's order or require some provision for security such that if the order is affirmed on appeal, the party in whose favor the trial court's judgment was made is protected.

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Can I attend the oral argument?

Certainly. Many clients prefer to be present during the oral argument so that they may observe the process first-hand. Other clients feel quite comfortable not attending and permitting their appellate attorney to explain and describe the oral argument to them afterward. Your presence at oral argument is not required as only the attorneys are permitted to present the argument and you will not be asked any questions by the court. Whether to attend the oral argument is a personal decision to be made by you based upon your feelings and your needs. Therefore, any decision that you make is the correct decision.

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What happens to the order while it is on appeal? Is it still valid?

The standard of review applied by the appellate court to the orders and judgments of the trial court is that such orders are presumed to be correct and it is the burden of the appealing party to prove that there has been an error made by the trial court. Therefore, the order and judgments of the trial court remain valid and in effect during the pendency of an appeal and all parties are required to obey and comply with the orders and judgments of the trial court pending the appeal process. In some cases, the trial court can be asked to "stay" the effect of the order on appeal pending the determination of the appellate court. However, a "stay" of orders involving alimony or child support or other such payments is extremely rare and most "stay" orders - even when granted - are conditioned upon the payment of some portion of the trial court's order or require some provision for security such that if the order is affirmed on appeal, the party in whose favor the trial court's judgment was made is protected.

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What can I do to help with the appeal?

Your appeal is your case and although you are likely not an attorney, you know and understand a good bit more about your case than you might realize. Most lawyers understanding that in talking about their case, clients usually express the most salient aspects of the case. Even though your words may not sound like those that a lawyer might use, it is highly likely that your feelings about the case will also express the areas of the case that are most significant areas for an appeal. Therefore, the most important thing that you can do to help with your appeal is to discuss the case with your appellate lawyer - in detail - during your initial conference. However, you must also keep in mind that an appellate lawyer must select only the most significant aspects of the case to bring to the attention of the appellate court and sometimes a matter that maybe very significant to you from a personal standpoint may not be the most important issue in the case from a legal perspective. Your conversations with your lawyer will point out these areas in your case, if any. Most appellate lawyers also appreciate receiving written comments from the client with respect to any briefs filed by the opposing party and any written notes that you may wish to make if you deserve to read the Transcript of the proceedings. These latter matters are, of course, optional with the client and many clients prefer to simply leave the case in the hands of the appellate lawyer and have little further involvement. Just like attending the oral argument, such matters are personal decisions based upon your feelings and your needs.

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Greene Smith & Associates, P.A.
2555 Ponce de Leon blvd., Suite 230
Coral Gables, Florida 33134

Telephone: 786-268-2553
Telefax: 786-268-2556
info@greenesmithlaw.com



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