Appellate Basics

Florida Appellate Lawyers for Divorce & Child Custody Appeals are often asked to explain how an appeal “is different” from what happened at the trial court level.  This tutorial explains the main differences between trial court litigation and appellate litigation. 

The primary difference between appellate litigation and trial court litigation is that nearly everything in an appeal happens on paper and behind closed doors.  In an appeal, almost everything is presented to the appellate court through an “argument on paper” in an appellate brief.   

In other words, in an appeal, there are no depositions and there is no trial where a judge will listen to testimony from each party.  In most Florida divorce and child custody appeals, the entire case takes place on paper, with the lawyers explaining each party’s position in the appellate briefs. 

In some appeals there is a short hearing called an oral argument hearing.  However, unlike a trial, an oral argument hearing is typically only 20-40 minutes long, and consists only of legal argument from the attorneys to the appellate court judges.  To be clear, there is no testimony from witnesses at an oral argument hearing- only legal arguments from each party’s attorney.  It must be noted that in most appellate courts it is rare for there to even be an oral argument hearing in a divorce or family law appeal.  Nearly all of such appeals are decided by the appellate court reading each party’s legal briefs and making a written decision.

Another difference between appellate court and trial court litigation is the number of judges involved.  With most appeals, there is typically going to be three judges that review and decide your case.  In some instances, the three judges reviewing your case will initiate a process called “en banc review” that results in all of the judges at your appeals court (sometimes this is ten or more judges) taking part in deciding your case. 

It should be noted that each appeals court judge employs 1-2 attorneys called law clerks.  Law clerks are often from the top of the class at their law schools and play an integral part in the review of your case.  Although the process varies from judge to judge, in many instances, the judges will have the law clerks review the appellate briefs and prepare a bench memorandum which analyzes the legal arguments made by each party.  The appeals court judge will then review the briefs and the law clerk’s memorandum, before meeting with the other judges assigned to the case.

When the judges meet, there is a discussion of how whether each judge agrees or disagrees with the trial court’s ruling.  Ultimately, the decision to affirm or reverse the trial court’s ruling is made by a majority vote between the judges.  After a decision is reached, one of the judges will write the appellate court’s decision, called an “opinion”.   

The amount of time that it takes for your appeal to finish will vary depending on the complexity of the issues presented, number of extensions granted to the attorneys, and whether or not the appellate court deems it necessary to expedite your appeal.  Generally, most appeals take between 6-18 months to conclude.  However, when an appeal is expedited, the appeal can be over in as little as 2-4 months.

Call (561) 810-0170 or click here for more information about scheduling a consultation and strategy session with the Florida Divorce & Appellate lawyers of Bruce Law Firm, P.A..  The firm’s practice is limited to divorce and family law and represents clients in all of Florida’s appellate courts under fixed-fee pricing arrangements with a money back guarantee.  The firm shares fees with referring attorneys pursuant to Florida Bar rules.  All information on this website is subject to this Legal Disclaimer.  Click West Palm Beach Divorce Lawyer for the firm’s other divorce and family law website.