by Carrie Ann Wozniak, Esq., Partner, Akerman LLP with Pamela Masters, Esq., Clerk of Florida’s Fifth District Court of Appeal
Most appellate practitioners know that the Clerk’s Office is the gateway to the Court. All documents are led in the Clerk’s Office and reviewed by the Clerk, who is responsible for ensuring that the jurisdictional and procedural requirements are met for those documents to be acted upon and for your case to be perfected and sent to a judge’s chambers for analysis and decision. If an attorney, paralegal, or assistant has a question concerning ling, he or she often contacts the Clerk’s Office. Stay in the good graces of the Clerk’s Office and you are well on your way to a pleasant and efficient appellate experience. There are some common and completely avoidable errors made by appellate practitioners that can lead to a fall from the good graces of the clerks and a less than stellar reputation for you and your Office. Whether or not you are an offending party, these helpful reminders of the proper procedures practitioners should follow will help you keep your appellate cases on track.
- Use The Proper Procedure To Secure an Extension of Time.
Most of the appellate courts now use agreed-upon extensions of time to extend the time for ling briefs rather than requiring motions for extension of time pursuant to Florida Rule of Appellate Procedure 9.300. For example, the Fifth District Court of Appeal issued Administrative Order 5D13-02, allowing parties to agree to an extension of up to 90 days for an Initial Brief or Answer Brief and 60 days for a Reply Brief and to file a notice of agreed extension of time. No order is needed granting the extension. However, the procedure may only be used in criminal and civil appeals (including dissolution of marriage), and not in appeals in adoptions, dependency, termination of parental rights, expedited, or emergency cases and not in original proceedings — including petitions for writs of certiorari. The same procedure applies in the Second District, see Administrative Order 2013-1; the Third District, except that extensions for Initial Briefs and Answer Briefs may be for an aggregate total of 120 days and 60 days for Reply Briefs, see Administrative Order Re: Agreed Extensions of Time For Filing Briefs In Certain Appeals, 3D13-01; and the Fourth District, which allows the same time periods as the Third District. See Admin. Order No. 2011-2. The mistakes most commonly made when using agreed-upon extensions are attorneys using the procedure to agree to more than the allowed amount of extension and using the procedure in a proceeding in which it is not allowed, i.e., to extend the time to respond in a certiorari proceeding or an adoption appeal. Once the parties have agreed to the maximum number of days allowed by the administrative order, any further extension must be sought by motion led with the Court.
- Consult With Opposing Counsel Concerning Extensions of Time, Be Specific, And Don’t Be Excessive.
The Clerk’s Office receives far too many motions for extension of time that do not state that opposing counsel was consulted and what his or her position is on the motion. This is required by Florida Rule of Appellate Procedure 9.300. See Fla. R. App. P. 9.300(a) (“A motion for extension of time shall . . . contain a certificate that the movant’s counsel has consulted opposing counsel and that the movant’s counsel is authorized to represent that opposing counsel either has no objection or will promptly le an objection.”). The Clerk’s Office also receives many motions for extension of time that do not specify how much time is needed or seek an excessive extension. The Fifth District rarely will entertain a request for extension beyond 90 days to le a brief. In fact, such requests must be acted on by a three-judge motions panel and not by the Clerk.
- Do Not Wait For A Show Cause Order To File A Brief, And If One Is Issued, Respond To It.
The Clerk’s Office receives too many motions for extension of time that are led only after an order to show cause why the case should not be dismissed for failure to le a brief is issued by the Court. The clerks detest receiving a motion for extension in response to a show cause order, and are especially aggravated when the motion is not accompanied by an official response to the show cause order. It appears that some attorneys rely on the clerks to be their calendaring system, which is entirely inappropriate, annoys the Clerk’s Office, and is not sound appellate practice.
- Do Not Include A Request For Oral Argument In A Brief; File It Separately.
Per Florida Rule of Appellate Procedure 9.320, requests for oral argument must be led as a separate document not later than the time for ling the last brief of that party. Fla. R. App. P. 9.320 (“A request for oral argument shall be a separate document served by a party not later than the time the last brief of that party is due.”). Many attorneys include the request for oral argument in a brief, which is improper. Frequently such requests will be overlooked as the Clerk’s Office does not read entire briefs before docketing them. If the request is missed by the Clerk’s Office, the case will be calendared as an “oral argument waived” case, and bringing the request to the Court’s attention after the case has appeared on a non-oral argument calendar is likely to lead to a determination that the request is untimely. Request oral argument as early in the case as possible, but in no event after the time for ling your last brief and do so in a separate pleading.
- Show The Clerk Why The Appeal Is Timely In The Notice Of Appeal
When ling a notice of appeal, if the date of the judgment is more than 30 days prior to the notice of appeal — in other words, it would appear to the Clerk that the notice is untimely on its face — counsel should state inthe notice that a motion tolling the time for appeal (such as a motion for rehearing) was led, the date it was served, and the date it was ruled upon. Attaching the motion tolling time and the order on the motion allows the clerks to easily and quickly make a determination about jurisdiction. The clerks spend a great deal of time gathering information from the lower tribunal to determine whether the appellate court has jurisdiction, and the attorney ling the notice of appeal has all the necessary information at his or her fingertips. Share it!
- Read The Acknowledgement Of New Case And Other Correspondence From The Court Carefully.
Correspondence is sent by the Court for a good reason. For example, the Fifth District’s Clerk sends an acknowledgment of new case in every appeal. It contains important information that will inform an Appellant how the Clerk’s Office has opened and categorized the case. Aside from obvious issues like spellings of names and alignment of parties, the most important item on that acknowledgment is whether the Clerk’s Office has opened the case as a final or non-final appeal (which have very different brie ng deadlines and record issues). The Clerk is delighted to entertain a motion if counsel disagrees with how the Clerk’s Office has characterized a case. The Clerk is much less happy when he or she has to issue a show cause order for failure to le an initial brief, and receives a response stating that the brief is not due yet because the appeal is a final appeal as opposed to a non-final appeal. Every practitioner should read the acknowledgment of new case and take prompt action if she or he believes that the Clerk has opened the case incorrectly.
- Inform The Court Promptly Concerning Settlement.
Way too often parties request a stay because they are resolving the case, but then they do not tell the Court when the case has been resolved. A motion to dismiss the appeal should be promptly led if the appeal is rendered moot by a settlement. Unfortunately, more often than not, the Clerk’s Office does not even receive a response to an order to show cause requiring an attorney to advise as to the status of the case! On some occasions, the Clerk’s Office actually has to call the attorneys involved in the appeal to determine the status, which is not a good way to stay in the Clerk’s good graces. An attorney’s job on a case is not over when the settlement agreement is executed. Let the Court know as soon as possible about the settlement.
- Keep the Court Informed on Matters that Required Relinquishment of Jurisdiction.
Similar to the failure to inform the Court when a case has settled is the failure to inform the Court when the purpose for a relinquishment of jurisdiction has been fulfilled. If the relinquishment has been requested to obtain a final appealable order, the proper procedure is to file the order with the Court as soon as possible after it is obtained. Practitioners should bear in mind that an order rendered by the lower tribunal after the stated period of relinquishment has expired is a nullity. Therefore, appellate lawyers must be aware of the end of the relinquishment period and move to extend the period before it expires if an order has not yet been rendered by the lower tribunal. It is simply bad form to request the appellate court to accommodate some procedural defect in your appeal and then not follow through, thereby creating more work in the Clerk’s Office when, if the period expires and nothing has been led, it has to issue an order to show cause.
- Use Your Manners.
It should go without saying, but unfortunately does not, that when a lawyer or member of a lawyer’s staff calls the Clerk’s Office with a problem or question, the call should be conducted with courtesy and civility. The Clerk’s Office receives several phone calls per month from lawyers or staff during which the clerk answering the phone is not treated with common courtesy, or even worse is yelled at or called names! The Clerk’s Office is here to serve the public and takes great pride in doing so with professionalism. The same effort should be extended by appellate counsel and their staff dealing with the Clerk’s Office.
In sum, keep in mind that thousands of appeals are led each year with unique procedural issues that take time to address, research, and resolve. Every lawyer handling an appeal should be familiar with, consult and follow the rules of appellate procedure. It is also a good practice to consult the website of the district court in which you are practicing to keep abreast of new administrative orders. Finally, it is in every attorney’s and every client’s best interest to make a Clerk’s job easier whenever possible to do so.