Pete Wright:
Welcome to How to Split a Toaster, a Divorce Podcast About Saving Your Relationships, from TrueStory FM. Today, we investigate what happens when your toaster gets the envelope that it's ex appealed the divorce.
Seth Nelson:
Welcome to the show everybody. I'm Seth Nelson. As always, I'm here with my good friend, Pete Wright. Today, we're talking about the appeal. Divorce appeals are different. They don't rely on emotion or who seemed more convincing in court. They're about whether the trial judge got it right legally. Did the judge make a mistake? And that's where the appellate attorney comes in. Ceci Berman is a managing shareholder at Brannock Berman & Seider. She's board certified in appellate practice and focuses on complex commercial appeals. Ceci also has extensive experience handling bankruptcy appeals, family law and land use appeals. And she joins us today to help continue our tour of the divorce process. Ceci, welcome to The Toaster.
Ceci Berman:
Thank you so much Seth, and thanks Pete.
Pete Wright:
Well, it's great to have you here, Ceci, because I don't know if you've heard this, but Seth is not an appellate attorney and is a wash of nonsense, just trying to talk about it. He doesn't know anything. I'm really looking forward to having a smart, experienced attorney on the show finally, at long last.
Seth Nelson:
Well, not only that, I will add in, and we'll talk about whether appeals get decided just on the paper or whether there's oral argument. And Ceci has done countless oral arguments in front of the Florida Supreme Court, the Eleventh Circuit Court of Appeals. She's brilliant at it. So the podcast should be easy and there's no doubt in my mind that she will out duel without an issue today.
Pete Wright:
Outstanding. Ceci, let's start here. I think when people here appeal, they've never done this. We're talking about it in the context of going through your divorce case. This whole season has been the anatomy of a divorce case. Let's look at the anatomy of the appeal. I think most people probably think that an appeal sounds like a second chance, like a do-over, a way to argue their case again, but that's not quite right. So set us up. Tell us what the appeal is.
Ceci Berman:
Absolutely. And you're right, that's not quite right. So an appeal is a review of what has happened. So when you go to an appellate court, those judges are not sitting there looking at your case for the very first time like your trial judge did. They're only reviewing what happened in your trial court case. And that's a very different thing because you don't get to put new evidence on, you don't get to call new witnesses, you don't get to change what you've said or done. You're stuck with where you are, in terms of what kind of arguments you made, what kind of facts that you presented. All of those things stay the same.
So when you go on appeal, it's all about convincing the appellate court if you're the one appealing, that when it's reviewing what happened in the trial court, something went awry, something went wrong. And it's not because you have new evidence or new facts, it's because somehow, the trial judge, the trial court either somehow misunderstood the law in applying the law to those facts, or somehow, the facts at issue, and this is a much harder way to win, but somehow, those facts that are at issue, that there's just no way that hearing those facts, a court could have ruled as it did. I mean, that would be at your most basic, but it's not a do-over. It is a chance to take a look and a peek over the initial judge's shoulder to see if everything was essentially done correctly.
Seth Nelson:
And Pete, you were very kind in your intro, because you said that your ex appealed the divorce, which means in our hypothetical, I won at trial. Okay?
Pete Wright:
Well, actually, Seth, that leads me to my next question, which is who decides when to appeal? Is that the attorney? Is it the client who's up in arms about feeling like it didn't go their way? At what point, and who throws the flag on the field that says, "We need to appeal this thing"?
Ceci Berman:
Really, it's really all about if you lost. You don't appeal things you won. So if you're not happy with the outcome, then you are the one who appeals. Your lawyer doesn't decide to appeal. Your lawyer should be talking to you about whether you might want to appeal or not, and the pros and cons of that. Or if they're not talking to you, aren't comfortable talking to you about it, then sending you to someone like me or many of my appellate colleagues around the state to talk to you about those things. But at the end of the day, the person who appeals is the person who lost. And I know in a dissolution proceeding, there's not supposed to be a winner and loser per se, but basically, if you don't like the outcome, if things didn't go your way, you're the one who's going to file an appeal if you decide to appeal.
Seth Nelson:
Let me just add one thing before you go to your next question, because you said, who throws the flag on the field? So in the football analogy, we know if you want to challenge a play, you have to throw that flag before they snap the ball on the next play.
Pete Wright:
Right.
Seth Nelson:
There's very specific timeframes that you have to file in the lower court, the trial court, what's called a notice of appeal. And if you miss that timeframe, you're in big trouble.
Ceci Berman:
It's true, very big trouble. It's not fixable if you miss that timeframe. So lots of times, when you miss deadlines in court proceedings, you can get in trouble, the judge might not be happy, but many things are fixable, although not all. This is one of those things that is not fixable. If you miss the time for filing your notice of appeal, you are toast.
Seth Nelson:
See how she did that?
Pete Wright:
And Ceci can come back anytime. That was it, that was the thing.
Ceci Berman:
If you have a final judgment of dissolution, and I won't go too far down the rabbit hole here, but you have an opportunity to bring what's called, certain post-trial motions that will stop the time, stop the clock from running on when you have to file your appeal, but you have to file those motions timely too. If you don't, they're not stopping that clock. So there's a lot of places, a lot of pitfalls here. You have to make sure that you're entitled to one of those kinds of motions and you have to make sure you file it timely. But if you either don't need to or don't want to file one of those motions and you're not stopping that clock, then you've got 30 days from the final judgment to file your notice of appeal.
Seth Nelson:
And check your local jurisdiction on that. It could be different around the country and around the world, but-
Ceci Berman:
Oh, yes, yes, here in Florida.
Seth Nelson:
Yes, in Florida, but here's the point. It's from the date of the final judgment. That's the date the judge signs it, Pete, not the date of the trial.
Ceci Berman:
Yes.
Pete Wright:
Okay.
Seth Nelson:
And let's be clear, this happens at the end of a trial. If you settle your case, that's a whole different ballgame. There might not be anything to appeal when you settle because you settled it. The judge didn't make any decisions. Therefore, there's nothing that the judge could have done wrong.
Pete Wright:
What happens at the end of 30 days? What is the action that locks everything in place, saying that you can't appeal anymore?
Ceci Berman:
There is no action. It's just over. So we have a concept in the law called, finality. And everybody, every citizen has a right to know that at some point, you can't be hassled any further in a lawsuit or whatever, that things are final. They're done and they're over and they're final. And you have a right to rely on that. And so that's a really important concept, so that you're not being chased down in any kind of case or situation later. So, once the 30 days passes, it's done, it's final. It's over and there's nothing more to be done at that point. That's why, by the way, if you file a notice of appeal prematurely, it can be annoying. There are some kinks you'll have to work around, but of course, that's always safer. It's fixable. Filing late is not.
Pete Wright:
My other question goes back to the substance of an appeal, because I know we're talking about a review of the law, but I'm wondering if there is any sort of a bucket of common elements that you might say, "Oh, this is going to lead us down the road of an appeal. This is going to trigger. This particular view in court is going to trigger an appeal." Is there something that you see commonly where you know this is the road we're taking?
Seth Nelson:
The biggest one that we see when we're preparing for trial and doing research, so when you get an appeal, you go up to the appellate court and you'll have arguments, and Ceci will talk about the process more, but hopefully, the court will write an opinion. That's called case law. So in the case law, they explain what the trial judge did right or what the trial judge did wrong. A big thing in family law is the trial judge might have done everything perfect, except when they actually wrote the final judgment, they didn't write out what their findings of facts were. So the appellate court will say, "Look, chapter 61.13, subsection 3A through T," you have to make a parenting plan and you have to express and write findings of facts. Not necessarily for each factor, but you have to hit these factors that you relied on.
You might not thankfully have domestic violence in this case, you could just put not applicable, but you have to make your findings of facts. When you're looking at an alimony issue, you have to make your findings of facts on need and ability to pay. The court has to write those out. And a lot of times, the court, the trial courts, overworked, underpaid too many cases. They don't have enough law clerks or staff attorneys, and maybe they have the lawyers submit it. And maybe it's late and they're trying to get it done and they write some stuff, but it's not enough. And then on appeal, you say, "Appellate court, you require them to make the finding of facts. They didn't." And they'll send it back down to the trial judge to either... And that's called, remand. And they'll say, "Make your findings." Well, does the judge have good notes? Does the judge have a transcript? From where are they going to make these findings? Did they take them during the trial? What happened? So that's a big one I see.
Ceci Berman:
I think Seth has hit on one of the ones I think everyone knows about in a family law case that you would see most frequently. Beyond that, I would say, something that applies whether you're in family law or any kind of case, it's the usual, I'll call it gut check stuff. If you take a case that has a super high dollar amount at issue in alimony, I mean, we're talking seven figure swings or something, obviously, if you feel really strongly about it and you think you've put forth something that's not just... I don't want to get too far down a path here that's hard to talk about, about discretion and facts, but let's take a math error, something that's very clear on its face that you think is just, this is it. This is black and white and it's costing me a couple million dollars, let's say potentially.
Well, that's probably going to go on appeal, right? I mean, that's going to make the cost of the appeal worth it. So anything like that. Another big one I see in family cases sometimes, hopefully, it settles out and I don't do a lot of these myself personally, and they're not my favorite. But would you agree, Seth, that things get really ugly in the visitation realm and time with the kids? Obviously, I do a fair number of... We get relocation issues. You know that that's probably, if people are fighting that really hard, it's not that that's so much an appellate issue that's written about a lot. It's just from a pure human emotional standpoint, you can bet that usually, if people are fighting over whether they get to be in Florida or Washington State and one party is already in Washington State and one is in Florida, they're probably going to fight that tooth and nail until the end.
Seth Nelson:
Yeah. Because that's a case where it is clear someone won and someone lost. You got to relocate or you did not get to relocate with the child. So that is an appealable ripe for the emotions to go up on appeal, whether or not the judge made a mistake or not.
And I'm going to peel back the onion a little bit. It's not just whether the judge made a mistake. Because when I send an appeal to Ceci, I make it very clear. Ceci, if I made a mistake in trial that led to the judge's mistake, she's got to be able to tell my client, "Hey, Seth made a mistake and you're not going to get to appeal that issue," because you can't invite the error. You can't submit stuff and tell the judge one thing and you know it's wrong. And then you lose and you're like, "Hey, you got it wrong." And the judge is like, "You told me I should rule that way. You told me I should do that." It's called inviting error. And so, even though they got it wrong, if I invited the error, Ceci is in a tough bind. Right? She's got to tell the client that I just referred to her, Seth made a mistake. And because Ceci is so talented, she's not really in a tough bind. She's like, "Trial lawyer made a mistake." Right?
Pete Wright:
You're in a tough bind. Ceci's fine.
Seth Nelson:
That's right. Exactly.
Ceci Berman:
Ceci tries to walk a fine line.
Pete Wright:
Right.
Ceci Berman:
But there's a related concept. Can we talk about it for a second? Preservation?
Seth Nelson:
Please, please.
Ceci Berman:
Yeah. So right along what Seth mentioned, invited error, the other really important thing on appeal is something called preservation of error. So in the United States, judges are not tasked with knowing the law and everything. They hear all kinds of stuff and they hear all kinds of cases.
Pete Wright:
I'm sorry. Can I-
Seth Nelson:
Look at Pete's face. I wish you guys, I wish this was...
Pete Wright:
I can't. I need more Ceci.
Seth Nelson:
They're not tasked with knowing the law.
Pete Wright:
I'm not an attorney and you just blew my mind.
Ceci Berman:
They're not. They're not. They're attorneys. They know the law the same way Seth and I do. But right, I'm an appellate attorney, Seth's a family law attorney. Neither of us are corporate attorneys. Would you call us to tell you everything about corporate law? We might know a little, but that's not what we do. Well, judges sit and listen to over their careers, hundreds, thousands of cases, and they move around divisions. And one day, they're in criminal, and another day, they're in family, and another day, they're in civil. They probably did not practice in all of those areas as an attorney before they became a judge. So when I say, they're not tasked with knowing the law, yes, they're tasked with knowing procedural things and how to run their courtroom and they know the basics, but at the end of the day, it's the attorney's job to educate them about the way down in the weeds aspects of some statute or the law, whatever is at issue. I mean, that's what the attorneys are doing as advocates.
So, back to preservation of error, if a judge makes a mistake, but you never gave the judge the materials to make the right decision, or the judge made the mistake and you don't point it out and give the judge a chance to fix it, then you don't get to hold that in your back pocket, and then see how the rest of the case goes, let's say for instance, and then use that on appeal and complain about it to this reviewing court. Remember at the beginning, I said, "An appellate court is a reviewing court." They have to have something to review. So I can't complain about a trial court failing to take a particular action or rule a particular way, if I never gave that judge a chance to do it in the first place, and told the judge why the judge should do it in the first place, and then go in the very first instance I bring it up, is at the appellate court.
There are a couple exceptions to that. There's a concept called fundamental error, that's exactly as it sounds, but it is extremely rarely used. So you never rely on that. And it has its own body of case law. So that's called preservation of error. And it's important because sometimes people will come to me with an appeal and they will want to raise a number of issues and I'll say, "Well, did you all raise that below? Did you talk about it below?" And lo and behold, there's plenty of times when, "Not really." You didn't. And there's not much I can probably do about it for you now on appeal then.
Seth Nelson:
And it's really hard, Pete, because you're in the courtroom and something happens, and in a split second, you're making the decision like, "Do I call that out on the judge? Is that going to be really relevant for the remainder? I've already been battling with this court who is the decision maker on three other issues."
So it might be in the heat of the battle, so to speak, or in the heat of the moment, a strategic decision not to raise it. But then, do you jot it down that you want to raise that issue at closing arguments? At what point and where do you do it in the trial to be most effective and preserve it on appeal? And by the time, if that happens in the middle of day one and you're at the end of day two and three other things have happened, the judge is like, "Well, I'm about to rule." I'm like, "Well, judge, I want to do my closing." And they're like, "Well, I've already decided, but go ahead." I'm like, "Yeah, well, I need to talk to the record." Because now I want to let the judge know, "I think there's some things you need to hear and I'm preserving my record for a potential appeal."
Ceci Berman:
Right. And Seth is right. There's a big strategic component here. And I talk to clients about that before they get upset with their trial attorney. Everybody's seen cross-examinations on TV, and objection your honor, and all that. Well, the trial lawyers make decisions all the time, on purpose, in the moment, say not to object, even if they think and say, the testimony is objectionable and it is objectionable. And they do that because maybe they don't want to interrupt the flow and they otherwise, feel like it's going well. They don't want to irritate the judge. This isn't family law, but in a jury trial situation, they don't want to irritate the jury by jumping in constantly.
And they make that conscious decision that they know that if I don't object, I'm probably not going to be able to raise this issue on appeal. But I doubt this is going to be the be all, end all that flips a whole case on appeal. And in this moment right now, I'd rather take that risk and I'm not going to object. And that's just a strategy call that gets made and every lawyer I know who makes that decision, knows that they are not preserving it for appeal when they do that. And that may be perfectly okay. And sometimes in large enough trials, I will go along and I will sit with lawyers at trial to sort of have that debate sometimes. And they'll look over and they'll say, "Do I need to do this or not?" And I'll say, "What do you want to do? What are you thinking? Where are we going to go with this one day?"
Seth Nelson:
And it's hard when it's four o'clock and you have one more witness you're trying to get on, and the judge has said, "We're done at 5:30." And the other side is asking poor questions. They're compound, they're leading, there's all this stuff. But the judge made it clear, "We're done at 5:30." And now, I've got a way getting the trial done, not being able to get my evidence in that I need to get in, and just letting them ask their question to get done. Because the judge might say to the other side, "You got another half hour," and I keep objecting. And then the half hour goes by and I say, "Well, judge, half hour..." He's like, "Well, Mr. Nelson, you've been chiming in a lot here. I'm going to give them another 20 minutes." Okay. They get to run their courtroom. Right?
Pete Wright:
Sure, sure.
Seth Nelson:
So it's a balancing act, and these are split second decisions, Pete. They're happening in real time in the moment.
Pete Wright:
Court just moves forward.
Seth Nelson:
And that's why we talked about at trial, I want my clients to write things down on paper and not whisper in my ear because I might miss that question that I wanted to object to. So it's tough.
Pete Wright:
I want to back up just a little bit, because in the context of this conversation, we're coming off of our anatomy of a trial. Tell me about the anatomy or the machinery of the appellate process. And I mean, literally, what do you do? If I'm your client, Seth has referred me to you, what will I expect to see, hear and smell? Am I going to go to court with you? How does the appeals process differ?
Ceci Berman:
It's very different. So let's just talk about it, and I know Seth mentioned across the country [inaudible 00:20:48]. Let's talk. We're sitting in Florida. Let's talk about state court where you hear family law cases in Florida. So the way that works is you're going to file the notice of appeal we talked about. You're going to file it within 30 days. You can file it anywhere from final judgment to day 30, but it's from the moment you file the notice of appeal, you're going to file three briefs. Let me take a step back actually. So it's going to be really different from trial court where you're not going to have hearings, you're not going to be in and out of court. There's not going to be constant, maybe motions practice while your case moves along. It's not like that at all.
In appeal, assuming there's no cross appeal, let's take that out of the mix for a minute. In your standard run-of-the-mill appeal, you're going to have three briefs. You're going to have an initial brief by the party appealing, that party is called the appellant. You're going to have an answer brief by the party who's defending the appeal. That party is called the appellee. And then you're going to have a reply brief by the appellant. So basically, if I'm the one appealing, I'm the appellant, I get to say my piece and my initial brief. It's called a primary brief. It's big, it's long. It can be anyway.
Seth Nelson:
It's anything, but brief, let's put it that way.
Ceci Berman:
Right. The other side gets to respond with their answer brief, and then I get the last word as the party appealing with a much shorter brief called a reply brief, where I'm responding to the answer brief. I can't raise anything new for the first time in the reply brief, if I didn't put in the initial brief. I'm just rebutting what's in the answer brief. That's it.
Pete Wright:
It's all on paper.
Ceci Berman:
All on paper, unless there's an oral argument at the end of it all. And whether you have an oral argument, it's really going to depend a lot in Florida on where you are in Florida. So now, back to my timelines. I've got 70 days from my notice of appeal filing to file that initial brief. The other side has 30 days from when I file that, to file the answer brief, and then I have 30 days from the answer brief to file the reply brief. Having said that, those timelines stretch out usually. We have all throughout Florida, we have six district courts of appeal and they all have procedures for allowing stipulated extensions that the courts consider per se, reasonable except for, and family law if they involved child issues and there's some exceptions to the rules, and the exceptions are exactly where you'd expect them to be. So those deadlines often stretch out. 70 days might become 100, 130 days, 160 days, and so on.
Once the briefing is all done, those three briefs are done, if you want oral argument, you ask for it. It won't be given automatically. You have to file something asking for it. And then the appellate court will either grant it or it won't. You don't get it just because you asked for it. Now, here, we're sitting in Tampa right now and we are covered by the Second District Court of Appeal. If I am appealing from a final judgment here and I ask for oral argument, the Second District will grant it. So I know I will get it. But if I'm over, say in the Fourth District Court of Appeal, which is the West Palm Beach area, that's not necessarily true at all. I very well might not get my oral argument and it's truly going to be decided on the papers.
So now, if you want to fast-forward oral argument, that looks very different than a trial court hearing. A lot of times, somebody might go with their attorney to a hearing in trial court, and it's like watching a ping pong match. Let's say, Seth and I are the two attorneys. So there's Seth, now Ceci talks, now Seth, now Ceci, back and forth, back and forth. The judge isn't really involved. Right? The judge is either reading something in front of him or her. They're looking back and forth. There's not a lot of participation usually. Maybe a question or two. And then everybody leaves and goes home, and maybe the judge rules right then and there, maybe not. In an oral argument, what happens is you get a certain amount of time per side. It varies from appellate court to appellate court in Florida. It's usually 15 to 20 minutes per side. Here in the Second, it's 20 minutes.
And the party appealing, remember, that's the appellant, gets to go first. If they want to, they can reserve some time for rebuttal. So you'll see people reserve three, four or five minutes for rebuttal. They stand up and they talk. And then the appellee gets their 20 minutes, and then you get your rebuttal time. But unlike trial court, the judges, you've got three judges there, not one, and they're not quiet or they're usually not. And if you're the one appealing, it's usually not a good thing if they are quiet. They interrupt right away usually, and they ask questions. It is back and forth. I might get so far. If I'm the one appealing, I might say, "Good morning, may it please the court. My name is CeCi Berman. I'm here today on behalf of Seth Nelson." And I don't launch all until the facts of the case. They know all that. They've read the briefs. They don't want me to do that.
So I'm going to launch right into, "We're here today to talk about this alimony issue." And one of the judges might say, "Well, Ms. Berman..." They'll say, "Let me stop you right there. Wasn't it true that the judge said blah, blah, blah, about that alimony issue? How do you respond to that?" And they'll just put you on the spot and it will become a back and forth.
Seth Nelson:
It's much like being on the toaster. You just get interrupted and they ask you questions.
Ceci Berman:
They do, until your time runs out. And there's a judge up there keeping time. And sometimes if you're in the middle of answering a question or a judge has one more question, of course, the judge keeping time might say, "Well, go ahead and answer that question," and then you're done. But that's how it works. And if you get up and you're the one appealing, usually, not always, but usually, if they don't ask you anything, that's usually not a great sign. It can be a sign that they're not interested in what you're saying.
Seth Nelson:
That dog don't hunt, Pete.
Pete Wright:
Yeah. They made up their mind.
Ceci Berman:
Now, I did have one experience where I had a very quiet bench where I was appealing, and I thought, "Oh man." And then the appellee stood up and they just lit them up. And I was like, "All right." But that's not the norm usually. And a lot of our courts around here, I have to say, are pretty active with both sides. They're going to question both sides. And they have absolutely read the briefs before they get in there. There is a primary judge of the three who's been assigned to your case, but they all three make the decision. But the primary judge's chambers is the one who's really worked up the case, if you will, and they probably do have an opinion when they come in the door.
Pete Wright:
And they also, you can expect them to know the law, the foundational law that underpins your case.
Ceci Berman:
Right. Because you've given that-
Pete Wright:
Yeah, you gave it to them already.
Ceci Berman:
You've briefed it. You've briefed it, you've given them the facts, you've given them the law and the arguments as to why you think it went. So they're ready for that. And they're ready, then they come in to poke at what the perceived weaknesses are. Or maybe if they like your case, you might get a helpful question to help bring it out. Because remember too, there are three of them. What if they don't all agree? So one might start asking some friendly questions to get this guy sitting next to him or her, "Hey, you see this is a pretty good point she's got there." Sometimes you see some of that go on.
Pete Wright:
Except for the timekeeping judge. Timekeeping judges draw the short straw and it's just a judge with a watch.
Seth Nelson:
The thing that's very interesting about appellate practice, which you don't get in trial courts because you have one judge in trial court, is let's say there are three judges up there like Ceci is describing, which is very typical on a panel, and one judge thinks one way and the other judge thinks the other way, but they're trying to persuade the third judge. So they will be asking questions of Ceci to make their points, but they've already decided and they're making their points to the third judge. And Ceci in essence, is their spokesperson.
Pete Wright:
Sure, okay. It becomes sort of a political endeavor.
Ceci Berman:
A little. I was going to say, I wouldn't say political.
Pete Wright:
Fair.
Ceci Berman:
I would say that they've decided. They think that they're right. They know they need to convince the majority. So they're going to start trying to pull out of me as the advocate, answers to questions that help bolster-
Seth Nelson:
What they think should happen.
Ceci Berman:
... their thoughts. So that when they go behind, when we're done with the argument and they go conference with each other after the argument, which is what they do, they can say, "Here's my opinion and here's why. And you heard today, this is what went on."
Pete Wright:
How do you know when you win, right? Because if you say they have to convince the majority, and two judges agree, and the third one doesn't, who cares what the third one does? He is probably the timekeeping judge. You got your majority, 2/3?
Ceci Berman:
Well, yes, but in Seth's example, we had a judge on either end. So now, we care a lot. The two judges were trying to get the third one.
Pete Wright:
Got it.
Ceci Berman:
Yeah, yeah.
Pete Wright:
Fair.
Seth Nelson:
But Ceci, how long does it take to get an opinion?
Ceci Berman:
Also varies from court to court around the state here in Florida. Most cases are decided with what's called a PCA. PCA means, per curiam affirmed. So PCA. And essentially, what that's saying is you lose if you appeal or we are affirming, we are upholding what the trial court did, and they do it without any explanation. It's a single piece of paper that just says, per curiam, and then the word, affirmed, and that's it. And it doesn't explain why. That is the most common type of disposition. That comes out pretty quickly. If you have an oral argument, that comes out as fast as one week after the argument, two weeks. But I tell clients, "Don't panic, it can take up to a month." And then a couple of courts around the state are faster, slower than others.
Pete Wright:
I was expecting 90 days, a week to a month.
Ceci Berman:
No, no, no. A PCA, you could very quickly, maybe six weeks if they're going more slowly. That's if you have an oral argument. Now, by the way, if you don't have an oral argument, these timeframes are a little different. If you don't have oral argument, then you're really talking about how long it takes from the time you filed that reply brief, the last brief you had on file. And then again, it varies, but you could be looking at about four months from that date maybe, give or take.
Now, if you are going to get an affirmance, but they take the time to write an opinion explaining why the trial judge was right, or you're going to get an opinion with a reversal, which if the person appealing wins, there has to be an opinion explaining why the trial judge is being reversed. So the appellee, the party who's defending the trial court's decision, can win with either a written opinion affirming or a PCA. But if you're the one who appealed, you have to get an opinion to win because they have to explain why they're changing the trial court's determination. And so that opinion writing takes time, whether it's an affirmance or a reversal. And some of that depends on who is writing it, to be frank. That's going to take a few months and it can take up to many months up to a year, from the oral argument.
Seth Nelson:
Because what happens, Pete, is one of the judges will get assigned to write the opinion, but then they have to circulate it to the other judge's chambers. And then they all have to agree, or two could agree, and then write a dissent. And maybe drafts go back and forth between the judges. So there's a lot going on behind the scenes. And here's the interesting part to me, compared to a trial court, the client is not involved.
Pete Wright:
That was my next question. What am I doing in this whole process? I'm just sitting on my hands.
Ceci Berman:
You are. And so, what I'm going to tell you so that you're not freaking out about sitting on your hands, is when you first come to me at the outset of the appeal, I'm going to talk to you about all this. I'm going to talk to you about how long it typically takes. I'm going to talk to you about how long this process is. It's probably about a year. At its speediest, it's nine or 10 months, but that'd be really speedy. And at its slowest, it's a year and a half to two years, which is not the norm, but there are instances. So give or take, it's fair to say about a year, from the day you walk in my office and you file that notice of appeal, before this is going to be over.
Then I'm going to talk to you about exactly what I told you, how things are going to be quiet at first for a long time. Then things are going to spike up. Let's say, you're the appellant, so I'm representing you as the appellant. So I'm going to write your initial brief and it's going to go quiet and we're going to wait, and we're going to wait a month to up to four months. Because remember, I told you extensions are common for that answer brief. Then we're going to ramp back up and write the reply brief, and then we're going to wait.
Oral argument is usually running, like here in the Second DCA, it's running about two months after filing the reply brief, if you request it. So I'll let you know all those kinds of timeframes. I've seen it. It goes up to four months out in some courts. But basically, you know that we're going to be quiet again after the reply brief while we wait those two, three months for the oral argument. We're going to have the argument. And then I'm going to give you my thoughts at the end of the oral argument. I'm going to tell you how I thought it went.
Do I always know for sure? No. But sometimes you never know for sure if you're going to win and you never want to jinx anything, but you can usually tell you're going to lose. Not always, but usually, and I tell my clients. And the clients can watch. They can come with me to the argument. They don't need to. All of our oral arguments are streamed live here in Florida. So a lot of times, a lot of times, clients aren't necessarily local. So they'll watch it online, and then we'll debrief after and I'll tell them what I thought, how I thought it went.
Seth Nelson:
So there's two things to think about on this, Pete. Remember, 20 minutes aside. So Ceci gets up there, she does 15 minutes. They do their 20. She reserved five minutes for rebuttal. She does it. The judges move to the next case. The next case is not necessarily a family law case. It could be a criminal case, it could be a contract dispute case, it could be a slip and fall case. So just think about the judges sitting there all day, listening to all these different cases and all these different legal issues. And in the meantime, their law clerks maybe are back there working on next week's, what they call bench briefs, getting the judges ready for the oral argument or writing the opinions or revising opinions. There's a lot of work going on there. And maybe you're involved in reviewing the brief that Ceci wrote, or maybe she's talking to you about the strategies that she's pursuing, but it's not like you're in her office every day or calling when the kids don't get off the bus. Right?
Pete Wright:
Well, right, that seems to be a really important factor here. Because if I'm in an appeal, if something didn't go my way, there could be money at stake, there could be parenting plan at stake, and you're telling me now that it could be anywhere from four months to two years before we have this resolved. I'm curious what your relationship is with me during that time. Do you become my attorney or am I still engaging with Seth for other issues that come up? How do you juggle that relationship?
Ceci Berman:
So you've got a lot to unpack there. So again, we talk about all of that. And you might just be having to sit tight and it might be painful, and that's just maybe where we are. We haven't talked at all about stays pending appeal. Sometimes there might be a stay pending appeal, a stay of a trial court's judgment or a portion of that judgment. And so, depending on whether there is a stay or some type of partial stay in your case, maybe the judgment hasn't actually kicked in yet, because it's been stayed pending the appeal.
Pete Wright:
Define a stay. What is a stay?
Ceci Berman:
Let's take a really simple example, like payment of money. Let's say there's a judgment that orders you to pay $10,000. If you get a stay pending appeal, you don't have to pay the $10,000 until the appeal is over. Now, there's a lot we could get into. You don't automatically... For example, with a money judgment, you can't just get a stay. You usually have to post a bond to secure the party who won. There's stuff that goes into that. And a case is not automatically stayed pending appeal. And people don't realize that a lot actually. People do. That is worth mentioning. A lot of times, people think that if there's an appeal, that judgment is not going into effect while they're on appeal, and that's not true at all. It goes into effect. Unless there's a stay, it's in effect.
Seth Nelson:
So by way of example, let's say the judge says, "I've ordered the sale of the house," and a party is required to list the house within 30 days, and you appeal that. And you don't file a motion to stay selling the house, and it keeps moving forward and that house might get sold. Right? So that's why you really-
Pete Wright:
You should hear yourself when you're saying that stuff, right?
Seth Nelson:
Yes.
Pete Wright:
Come on. That's insane.
Ceci Berman:
Well, it sounds insane if you lost, but if you won-
Pete Wright:
Yes, articulately logical.
Ceci Berman:
... you'd likely sit around waiting on selling the house for a year because-
Pete Wright:
Totally.
Ceci Berman:
... you're going to think that the other side is appealing something that's worthless and is now jerking your chain.
Pete Wright:
I totally get it.
Seth Nelson:
Yeah. And by worthless, we mean, it's not a legitimate appeal. There's no legal basis to do it. And you need the money for the house because you need to get different accommodations and the market is good now.
Pete Wright:
Yeah, the world moves on.
Seth Nelson:
Right, exactly. So the good news is, there's still problems in divorce cases, Pete. I'm saying this sarcastically of course, about good news. So I'm always here to talk to. Maybe you're not hanging out with Ceci having a good time, but NLG is here. We'll answer the call.
Pete Wright:
Do you ever find yourself questioning the result of an appeal, that maybe you win an appeal and it ends up being something that you just feel, that doesn't feel right?
Ceci Berman:
I haven't had that feeling very often, but sure, there are times where I have definitely felt like I've lost a case I didn't think I should. I will also tell you though, that most appeals, appeals are expensive and they're time-consuming as we just discussed. So usually, people do not take cases up on appeal, unless it's either really important to them, really valuable financially to offset the cost of the appeal. The case volume and the number of appeals is so much lower than in the trial court, because people do not run off appealing every adverse judgment, nor should they. When they come to me, that's one of the first things we're going to talk about. We're going to talk about how much this appeal costs and is that alone worth your while, and what's going to happen in the meantime, and what is this elapse of time going to mean to you?
So when things do go on appeal, I find that most of the time, not always, but much of the time, it's not black and white who's correct. Because if it were, we probably wouldn't have the appeal because we wouldn't be spending that time and money. Usually, there's an argument to be made both sides. So yeah, I feel like I've lost appeals I should have won. But at the same time, I can often see how the argument could go one way or another. And it's hard to win an appeal sometimes. Remember, you're writing these briefs. They're getting this huge volume of cases. They know that to reverse, they have to write an opinion. It's a lot easier to send out a piece of paper that said, affirmed. So somehow, you have to catch somebody's attention and get them invested, and then really paying attention to your case.
Seth Nelson:
And Pete, there's an art to it, and Ceci is brilliant at it. And she will tell clients, and we've sent her clients, and she'll say, "Oh, this is a good one. This is something this appellate court might grasp onto." And she might be like, "They're not going to be really interested in this." Because remember, they're making decisions not just over this one judge, but over a larger area of the state. And it has to be something that is... Now, I don't want to say, worthy of their time because they're going to put in the time, they're going to read the briefs, they're going to do their work, but it's got to have a bigger legal importance than maybe just this one case.
Ceci Berman:
Right. And it can't be just right, like Seth would say, "Seth and I are fighting one another in court." It can't be. Then I'm like, "Well, he was just lying on the stand. How could they not see that?" That is not a good appeal, for example, fighting over who said what. You've got to have a real legal issue that warrants a second look, that then as Seth explained earlier, if they write an opinion, that becomes part of our body of case law in Florida and they're mindful of that. So, it matters.
Pete Wright:
Fascinating, fascinating.
Seth Nelson:
Let me tell you one more thing. Let's say you lost down below and you win on appeal, guess what you win?
Pete Wright:
What do you win?
Seth Nelson:
Ceci?
Ceci Berman:
You could have remand, at least most of the time.
Seth Nelson:
And you go back down to the trial court and get to spend more time with me and maybe try your case all over again.
Pete Wright:
Oh, what worldly delights await.
Seth Nelson:
Exactly. And Pete, let's just play this out.
Pete Wright:
With the same judge?
Seth Nelson:
You got a new judge, you got a new judge in family law, and that judge was the first week on the bench. They've never done family law before and it was already set for trial. And they walk in and they say, "This is my first day on the family law bench. This is my first trial. Mr. Nelson, call your first witness." And let's say they made a mistake. Okay. So remember, I got into this judge day one. That judge might be on this bench for three years. And so now, it takes the judge four months to write the ruling, and then it goes on appeal. It takes a year and a half. It comes back, the judge is still there.
Pete Wright:
Oh my goodness.
Seth Nelson:
And looks at me and says, "Mr. Nelson, you called me out on my mistake on the appellate level. All right, call your first witness." Now, they don't say it like that, but sometimes... And trial judges do not like getting appealed. They do not like getting reversed.
Pete Wright:
Well, and I imagine that the bar is set high on the other side too, that the appeals judges take very seriously, whether they're going to somehow be judging trial judges. They can't love doing it. It's got to be a meaningful change. Right?
Ceci Berman:
Yeah. I see what you're saying. And it's true. We do have a lot of appellate judges who were trial judges before they were appellate judges. So they know what it's like to be sitting in that position.
Pete Wright:
Yeah, yeah.
Seth Nelson:
Yeah. But they're very deferential, I think, in their opinion writing. The trial judge had a heavy burden, but just made this mistake.
Pete Wright:
A lot of understanding, empathy.
Seth Nelson:
Yeah, yeah, yeah.
Pete Wright:
Really, what we're talking about is you've just explained a process that seems astronomically expensive, especially if you get a new trial that I imagine, that filters out so, so many cases that just aren't going to get an appeal because of the dollar signs.
Ceci Berman:
Yes, I think so. Do you agree, Seth?
Seth Nelson:
100%. And not only that, in family law, let's say you got a ruling against you on a parenting plan, and we go to you and say, "Yeah, but that plan's going to be in effect for a year and a half." And now if you win, what do you get to do? You get to go back or a year, you get to go back and now they get to say, "But judge, we've been doing this for a year and it's working." Right? So you got to think that through.
Ceci Berman:
Right. And family law has a lot of those very practical things. I mean, every case does really, but family law in particular, has a lot of those practical things to be thinking about when you're considering an appeal, I think.
Seth Nelson:
Yeah. And just one more thing, because Ceci just touched on this. She goes, sometimes she's in court at the trial level helping out. And sometimes if I have a big memorandum of law that I'm explaining to a new judge, or I'm going to make a motion for summary judgment, or I have to write an order that the judge told me and I'm not really sure what the judge said, because I have the transcript, but maybe it's not clear. We've tried to have a rehearing or an explanation, a clarification hearing. So sometimes we'll get Ceci involved early because we don't want to make that mistake that gets appealed, or we want to really brief that at a high, high, high level because this is a huge issue. And I'll tell my client, "This is an issue that might go up on appeal. Let's get the appellate lawyer involved now if it's a real unique issue of law." So there's a lot going on there and it's great to have Ceci here. And Pete, if you notice, she said I was right more than once.
Pete Wright:
I know.
Ceci Berman:
I'm willing to say that Seth is often right.
Pete Wright:
Okay. Clearly, Ceci was not briefed before this show, but we're still super grateful that you were here, Ceci. Thank you so much for helping to educate our listeners on the anatomy of the appeals process. We sure appreciate it.
Ceci Berman:
Thank you. Thank you for having me.
Pete Wright:
And that does mark the end of the penultimate episode of our season 10, Seth. We've got listener questions next week.
Seth Nelson:
They're going to be good. We're going to have more great ones now that Ceci is on, like, "How can I hire her and not you, Seth?" I'm like, "She's an appellate lawyer. You don't want to do that."
Pete Wright:
Yeah. Warning to others.
Seth Nelson:
And Ceci, we know you've got plenty of work, but if you want people to find you, how do they get a hold of you?
Ceci Berman:
If people want to find me, well, Google is always great. Right? Ceci, C-E-C-I. So Brannock Berman & Seider is my firm, and it's easy to find out on the web. We're here in Tampa.
Seth Nelson:
But you do stuff all over the state?
Ceci Berman:
Oh, yes. Yeah, yeah.
Pete Wright:
And the website is super robust. So we definitely got the links in the show notes. And thank you so, so much, Ceci Berman and Seth Nelson, America's favorite divorce attorney. We'll catch you next week right here on How to Split a Toaster, a Divorce Podcast About Saving Your Relationships.
Outro:
How to Split a Toaster is part of the TrueStory FM Podcast Network, produced by Andy Nelson, music by T. Bless and the Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce & Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How To Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce & Family Law. Seth Nelson is licensed to practice law in Florida.
