How Unappealing: Managing Expectations on Appeal

Whenever someone is in the unfortunate position to have taken a case to trial and lost, his or her focus might immediately shift to filing a direct appeal. Of course, just about any trial lawyer will tell you that few trials are ever conducted without error, and appealing a case to ensure that those errors were not harmful or fundamental might be appropriate. After all, the appellate process has a special place in our American criminal jurisprudence. (In Miami, appeals from trial cases in circuit court are filed in the Third District of Appeal).

That (formally accused, now convicted) person, and/or his or her family, may spend considerable time, resources, and money trying to find and hire the best appeals lawyer in Miami. That lawyer, in turn, will invest an inordinate amount of time reviewing the record on appeal, researching the legal issues, and drafting a brief laying them all out.

These “investments” necessarily breed expectations: for the client, that the appellate court will agree with their position and grant relief (usually in the form of a new trial), and if not, at least explain why; for the lawyers, that, at a minimum, oral argument will be granted and/or a written opinion published. All of these expectations should be managed with great care from the outset of a case.

Nobody is Guaranteed Oral Argument

It used to be that on almost any direct appeal from a criminal case the parties could depend on having an oral argument; an opportunity to make their written arguments come to life and take one last crack at trying to convince the court that a certain position is correct. In the Third District Court of Appeal, it’s been over one year now since the Court elected to “adjust its practice of routinely granting oral argument.” These days, oral argument, or “OA,” will be heard “only in those cases where [the Court] believes its consideration of the issues raised will be enhanced.”

What’s more, even if a case was initially scheduled for argument, the Court reserves the right to remove it at any time. Much can be said — pros and cons — about this practice, but the simple truth is that, quite often, all an appellate court needs is the record on appeal and the written briefs of the parties. Oral argument is best reserved for clarification, not repeating arguments about which there is no confusion. So if the Court feels it can render a decision without OA, then what’s the big deal? I say: not much. But can the same really be said about the Court not authoring a written opinion explaining its ruling?

A Decision On Appeal Might Leave More Questions Than Answers

An appeal might take months to come to fruition. Compiling the record, reviewing it, researching the law, drafting and filing briefs are all time consuming processes; not to mention the time it takes for the Court to consider all of that and decide how it will rule on a case. One might expect that after all that time and consideration, whatever the ruling on an appeal might be, the Court will provide an explanation. But that’s not always the case.

Such is situation of the (oft-seen and always dreaded) “per curiam affirmance” or “PCA.” As one law review article puts it: a PCA is the equivalent of “you lose” without a word of explanation–no matter how high the stakes. PCAs are now commonplace in the District Courts of Appeal in Florida.

A case resulting in a PCA has profound impact on the parties. The losing party is often left without any meaningful recourse to further litigate the case. The losing party is usually relegated to moving the deciding court to reconsider issuing a written opinion, re-hearing the case en banc, or certifying an issue of great public importance for review by the Florida Supreme Court. But these last ditched efforts are seldom granted and remain extraordinary.

Frankly, most appeals don’t have a direct line to the Florida Supreme Court anyway. The opinion of the District Court of Appeal will usually be the final word on any given case. But win or lose, in cases with an opinion on appeal, the parties at least know why and how the Court decided the case. This provides them with the potential for further litigation and it also provides guidance for future litigants in the jurisdiction.

But for those left with only “per curiam affirmed” much is left to guess work. Thinking about appealing the PCA to a higher court (ie. Florida Supreme Court)? Think again. The Florida constitution holds that the Florida Supreme Court has mostly discretionary review on criminal cases and, to use its discretion, the Florida Supreme Court should find cases where the lower decision “expressly and directly” conflicts with decisions on similar issues in other appellate courts around the state. Because a PCA has no absolutely no written opinion or explanation, by default, that case won’t “express” any opinion to create conflict in the first place. So appealing to the Florida Supreme Court is all but futile. (There are varying approaches on how to “get around” a PCA to get further appellate review in either the Florida or United States Supreme Court. The short of it is: don’t hold your breath).

Manage Expectations As Well As The Merits Of Any State Appeal

With that being said, its important for may people considering hiring a Miami appeals lawyer to fully understand the process and properly manage expectations. This is not to scare people out of exercising their right to appeal; rather, it’s to educate people on the process they are about to undertake. There are plenty of cases where both oral argument and a written opinion are authored by the Courts–many of which result in a win for the appellant. Having realistic expectations can never be a bad thing. Without them, the appeals process can slowly become very unappealing and dissapointing.

This article was authored by attorney Jordan Redavid, founding partner of the criminal law firm Fischer Redavid PLLC. For a FREE consultation or review of your case, please call now.

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