The Record - Appellate Practice Section of the …

1 The Record JOURNAL OF THE Appellate Practice Section . Volume XVII, No. 2 THE FLORIDA BAR Spring 2010. I N S I D E : Motions for Rehearing Message from the Chair ..2 and Rehearing En Banc: Tips for the Trade Discussion with the supreme Preserving Error: How High Is the Bar? ..10 By Carlos F. Gonzalez and Gerardo J. Rodriguez-Albizu 2010 Palm Beach Bench Bar Conference A Litigation whether rehearing motion Practice . Beginning in Success ..11. at the Appellate or trial State ex rel. Jaytex Realty Co. v. Green,2. Judicial Profiles ..12 court level is a zero- Judge Wigginton lamented that [t]he Remembering Judge sum game. There is experience of this court indicates that always a proverbial there is prevalent in the bar an opinion First DCA Expands Access winner and loser. that the filing of a petition for rehearing is to Electronically Filed Of course, advocates a routine step in every case decided by an Briefs ..18 always desire to be on Appellate court . 3 Expressing his frustra- The First District's Appellate the winning side of the tion with this Practice , Judge Wigginton Inn of C.

2 GONZALEZ equation. In a final at- further commented that it was not a tempt to persuade the compliment to the intelligence, the compe- Tallahassee Outreach Holds 3 CLE Lunches ..20 Appellate court as to tency or the industry of the court for it to the correctness of an be told in each case which it decides that advocate's position, it has overlooked and failed to consider'. Coming up: Appellate counsel fre- from three to twenty matters which, had quently file a motion for they been given proper weight, would CLE: rehearing or rehearing have necessitated a different decision. 4. Government en Aside from a bruised ego, there are Apparently Judge Wigginton's plea to the bar has fallen on deaf Lawyers - other reasons for filing Florida Rule of Appellate Procedure Practicing G. RODRIGUEZ- a rehearing motion. provides that a party may file a Chief among them may motion for rehearing within fifteen days Before the ALBIZU. be client relations. It is of the court 's order. Such a motion, how- Florida certainly easier to tell the client I did ever, must state with particularity the everything possible, it just didn't work points of law or fact that, in the opinion supreme court out after counsel has exhausted all rem- of the movant, the court has overlooked or June 10 edies afforded by the Rules of Appellate misapprehended in its decision, and shall Florida supreme Procedure.

3 This may be especially true not present issues previously raised in court when the client is a fruitful source of work the proceeding. 6 A cursory review of the Tallahassee, Fla. (think trial counsel). law interpreting Rule demonstrates For over half a century, Appellate courts that counsel frequently run afoul of the See page 22-23. have complained that the bar abuses latter See Rehearing page 5. 05/10. Message from the Chair 2009-10 Report of the Appellate Practice Section and a Warm Thank You for the Opportunity to Serve This Year We have been honored to see our Council of Appellate Lawyers devel- District, and more than half of the Judicial Representative, the Honor- oped the annual four-day summit. judges from the First, Third and Fifth able Peggy A. Quince installed as Our Fourth District court of Appeal Districts. Chief Justice of the supreme court Judge Martha Warner chaired the Building on that outreach momen- of Florida and the installation of ABA Appellate Judges Conference.

4 Tum, the Section is currently working many of our members to the Appellate The Section hosted a Joint AJEIS- with the Florida Appellate Judges judiciary. Returning as Chair Elect Florida APS Welcome Reception to Conference to advance a similar of the Section was retiring supreme 325 attendees, including state and format to promote greater Appellate court Justice Raoul G. Cantero, III, federal Appellate judges from Arkan- educational efforts with the Florida who has been extremely active as an sas, Arizona, California, Colorado, Appellate judges for the coming 2010- officer of the Section and as Liaison 11 year. to the supreme court 's Historical Also to that end, the Florida ap- Society. Retiring supreme court Jus- pellate judges have been active in tice Kenneth Bell joined the Section the Section , most notably in the area and serves as our Liaison to the Real of continuing Appellate legal educa- Property Section . tion. Under the leadership of Henry As part of our Section 's effort Gyden, chair of the Appellate Tele- to improve and expand the qual- phone Seminar Series subcommit- ity of its Appellate education for its tee, we have hosted Seminars every members, the Section moved in two month this year, and in addition, we directions this year.

5 It strengthened have been enormously grateful for the its relationship with the American regular participation of our Florida Bar Association Appellate Judges Appellate judges in our continuing Conference, which covers the ABA Appellate legal education seminars, Appellate Judges, ABA Council of Delaware, the District of Columbia, which Ceci Berman chairs, and Tele- Appellate Lawyers and ABA Council Florida, Indiana, Kansas, Kentucky, phone Seminars this educational year of Appellate Staff Attorneys, and Louisiana, Maryland, Minnesota, for our Members, including CLEs on strengthened the Section 's relation- Missouri, Nebraska, New York, North Appellate Ethics, Appeals of Post- ship with Florida Appellate judges. Carolina, Ohio, Oklahoma, Texas, Judgment Orders, Appeals of Orders As to the first prong, in November Virginia, Washington, the Sixth, Denying the Workers' Compensation 2009, the Section hosted a Joint ABA- Seventh, Ninth, and Eleventh Cir- Immunity Defense, other Workers APS Welcome Reception and heavily cuit Courts of Appeals, and Appellate Compensation Appeals Issues, Pass- participated in the ABA Appellate judges and justices traveling as far Through Jurisdiction of Florida's Judges Education Institute Summit as Guam, Trinidad and Tobago.

6 Our Appellate Courts, Premature Ap- ( AJEIS ), under the leadership of Section also had a strong showing at peals and Abandonment of Post-Trial our Programs Chair, June Hoffman, the Summit, both in attendance and Motions, Federal Appellate Issues, and our Joint ABA-APS Liaison Co- in speaker presentations from our Federal and State Criminal Appeals, Chairs, Harvey Sepler and Siobhan Section members, our Florida District Preservation of Error, Better Appel- Shea. In November, more than 300 court of Appeal Judges and Florida late Brief Writing and Oral Argu- Appellate judges, staff attorneys, and supreme court Justices, including ments. Appellate practitioners from around five of Florida's seven supreme court Last July, recently retired Florida the country met in Orlando, Florida, justices, and most of Florida's District supreme court Justice Raoul G. Can- for the Summit. The ABA's Appellate court of Appeal judges, including all tero, III, spoke on Ethics in Appellate Judges' Conference, the Council of 12 judges from the Fourth District, Practice .

7 In August, Judge William Appellate Staff Attorneys, and the 11 of the 14 judges from the Second See Chair's Message, next page 2. CHAIR'S MESSAGE. from previous page D. Palmer of the Fifth District court In April, Judge Judith Kreeger and CLEs and Appellate Telephone Semi- of Appeal, who serves as Chair of Clerk of the Florida supreme court , nars through better use of technology, the supreme court Committee on Tom Hall spoke on the second of the moving toward more cutting edge Alternative Dispute Resolution Rules two-part efiling series regarding de- topics, in addition to our customary, and Policy, discussed the proposed velopments in a state-wide portal on vital topics on Appellate Practice . We changes on Appellate Mediation in e-filing. are reaching out more to the District Florida, as well as providing infor- Following that, in May, Judge Courts of Appeal regarding topics mation on the Appellate mediation Judith Kreeger and Clerk of the and speakers to keep our CLEs in- program in effect in the Fifth District Florida supreme court , Tom Hall, teresting, Appellate -appropriate and since 2001.

8 Spoke on the second of the two-part timely. In October 2009, Deputy Chief efiling series regarding developments The Appellate Practice Section Judge of Compensation Claims David in a state-wide portal on e-filing. We has also reinvigorated its Appellate W. Langham, Judge of Compensation also had the participation of Florida Pro Bono Committee. Under the Claims John J. Lazzara, Tallahas- Appellate judges from around the leadership of Pro Bono Committee see District, Judge of Compensation State teaching us about The Art of Chair, Bryan Gowdy, the Pro Bono Claims, Kathryn Pecko, Fort Lauder- Objecting: A Trial Lawyer's Guide to Committee has expanded its network dale District, Judge of Compensation Preserving Error for Appeal, includ- of Appellate lawyers willing to under- Claims Thomas W. Sculco, Orlando ing, in order of speaker appearance, take pro bono representation in all District, and Judge Charles Kahn Chief Judge David Monaco, Fifth Dis- the District Courts and the supreme and Judge Peter Webster, First Dis- trict court of Appeal, Judge Melanie court .

9 These Appellate lawyers rep- trict court of Appeal, spoke in Tampa May, Fourth District, Judge Edward resent a diverse array of Appellate on The Art of Appellate Advocacy in LaRose, Second District, Judge Mark expertise, from across the state. The Workers' Compensation, as well as Polen, Fourth District, Judge Brad- clerks of all the Appellate courts, via a live Webcast. ford Thomas, First District, and Judge were contacted to inform them of the In February 2010, Chief Judge Paul Alan Lawson, Fifth District. Also in availability of these volunteers for pro Hawkes of the First District court of May, Former supreme court Justices bono Appellate representation, and Appeal spoke on Updates at the First Charles Wells and Raoul Cantero have increasingly directed more pro District court of Appeal. Also in Feb- educated us about Practice Before the bono appeals to our Committee. The ruary 2010, Chief Judge Hawkes of supreme court and about Discretion- Pro Bono Committee is also explor- the First District spoke on the first of ary Review Proceedings.

10 Ing working with a pro bono clinic at a two-part series on electronic filing In June, the Florida supreme Florida law schools. in Florida's Courts, with an emphasis court Justices have approved a re- The Appellate Practice Section has on e-filing in the First District court vised format to our Annual Discus- further renovated our website. Under of Appeal. And in February, our Sec- sion with the Florida supreme court , the leadership of Website Commit- tion produced its Advanced Appellate and the Justices will be educating us tee Chair, Jonathan Streisfeld, we Practice Certification Review Course on issues concerning (1) the future of are successfully expanding ways of for all Section members. court funding; (2) the status of efiling providing electronic access to the In March, Tom Hall, Clerk of the for the Appellate courts and the court Section 's information and CLE. We Florida supreme court , spoke on system in general; (3) how can we successfully completed our second Florida supreme court Jurisdic- improve or streamline the process of CLE webinar, and our monthly tele- tion.