Federal Civil Appeals
You Need An Experienced Appellate Attorney To Handle Your Federal Civil Appeal
For many reasons discussed elsewhere on this website, it is usually a bad idea to have your trial lawyer represent you on appeal.
This is particularly true for federal appellate practice.
A lawyer handling a federal appeal for the first time will invariably be surprised to learn of a requirement he or she did not know existed within the local rules.
In Florida, a surprise for an inexperienced appellate lawyer may be embarrassing, but it is rarely damaging to his or her client.
Not so in federal appellate practice.
The local rules have teeth, and a failure to follow them usually has consequences.
If an attorney is unprepared for oral argument in federal court, or fails to anticipate questions the panel of judges thinks he or she should have, do not be surprised to see the shortcomings discussed in the ensuing opinion.
Federal Civil Appeals
In federal court, whether civil or criminal, most appeals travel the same general path:
Notice of Appeal
Preparation of the Record
Federal Civil Appeals follow the same general pattern, but there are some important differences.
Notice Of Appeal Deadline
For instance, in Florida, the Notice of Appeal deadline is simple and unforgiving. In all Florida appeals, the Notice of Appeal is due within 30 days of the date the order/judgment is rendered.
If you miss the deadline, forever hold your peace.
With a few minor and very rare exceptions, the deadline is jurisdictional in Florida.
The Federal Rules of Appellate Procedure are more complicated when it comes to the timing of the Notice of Appeal. Like Florida, the general rule is that the notice of appeal must be filed within 30 days after entry of the order or judgment being appealed. Fed. R. App. P. 4(a)(1)(A).
But there are exceptions. If the federal government, a federal agency, or an agent of the United States is a party to the case, the deadline for filing the notice of appeal is 60 days in civil cases. Fed. R. App. P. 4(a)(1)(B).
Moreover, if there are multiple plaintiffs or multiple defendants in a case, and one plaintiff or defendant files a notice of appeal, any other party to the case has 14 days from the date the first notice of appeal was filed to file their own. Fed. R. App. P. 4(a)(3).
Finally, in contrast to the rigid “30 days or bust” approach envisioned in the Florida Rules of Appellate Procedure, the Federal Rules of Appellate Procedure offer flexibility with the due date of the notice of appeal.
For example, under certain circumstances, the district court can extend the time for filing the notice of appeal. Fed. R. App. P. 4(a)(5). And even after the deadline has expired, if a party meets the requirements specified in Fed. R. App. P. 4(a)(6), the district court is permitted to reopen the time for filing the notice of appeal for up to 14 days.
The Importance Of Local Rules In Federal Appellate Practice
Another difference between federal appellate practice and practicing before Florida’s district courts of appeal is the importance of “local rules.”
With some minor exceptions, whether you are in Florida’s First District in Tallahassee, or Florida’s Third District in Miami, the appellate process is uniform.
Appellate practice varies greatly, however, between each of the federal circuit courts of appeal. This is especially true when it comes to the briefing stage of the appeal.
Each federal circuit has its own rules governing the content and formatting of briefs. These differences can be major, and the federal appellate courts tend to be very particular about litigants and their attorneys following the rules prescribed by a specific court.
Briefs will be rejected for all manner of minor transgressions, so attorneys need to pay close attention to the rules promulgated by each court, which change frequently. The rules vary widely from circuit to circuit regarding extensions of time for submitting briefs as well.
Oral Argument In Federal Civil Appeals
The role of oral argument is another aspect of federal appellate practice that differs greatly from appellate practice in Florida.
Although Florida appellate courts are not quite as liberal about granting oral argument as they have been in the past, for the most part, if you request oral argument in a civil appeal in Florida, the court will grant it.
In Florida, you request oral argument in a separate motion, not in the briefs.
The federal appellate courts require a statement regarding oral argument in the Initial Brief. Each party must indicate whether they feel oral argument would be helpful or whether it would be unnecessary, and must explain why.
Despite the invitation for input, in my experience, the federal appellate courts do not place much stock in the parties’ respective positions regarding the need for oral argument. I’ve been ordered to oral argument in civil appeals when both parties indicated it was unnecessary.
On the other hand, the federal courts of appeal will routinely reject requests for oral argument, even where both parties request it.
Oral argument in the federal appellate courts also tends to be much more focused and much more intense.
Federal judges tend to have very specific questions at oral argument, and will sometimes issue orders prior to oral argument directing counsel to come prepared to discuss certain issues.
Federal appellate judges are also much more likely to push appellate attorneys to defend the weakest aspect of their arguments through carefully thought-out questions or hypotheticals.
Oral argument is not for the faint of heart, and especially not in the federal circuits.
Call Mr. Brownlee to avoid these pitfalls.
He is admitted to all but two of the federal circuit courts of appeal, and has performed oral argument in the:
Fifth Circuit in New Orleans
Eleventh Circuit in Atlanta
First Circuit in Boston
and Sixth Circuit in Cincinnati
He has litigated in the:
and the United States Supreme Court
You are not likely to find another appellate attorney who has experience litigating in multiple federal appellate courts.