Good amicus curiae briefs—supposedly “friend-of-the court” briefs—can impact the court’s decision-making process, either with respect to the outcome of the case or the rationale expressed by the court for reaching that outcome. Yet appellate judges and appellate practitioners complain that, all too often, amicus briefs bring nothing new or of value to the court and instead merely reiterate the arguments advanced by one of the actual parties to the appeal. Those briefs are not truly amicus briefs and, unfortunately, they cause courts to be wary of the value of the amicus brief, even though—when properly written—it can be the court’s best friend in reaching the right decision.
We will begin this Article by discussing amicus briefs in general and the specific use of them in the United States Supreme Court. We will then explore the Florida experience with amicus briefs, both by examining Florida decisional law and by reflecting on interviews with Florida appellate judges and practitioners. We will conclude by considering the possible need for changes in the Florida rule on amicus briefs.
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The general procedures governing the preparation and filing of appellate motions are contained in Rule 9.300 of the Florida Rules of Appellate Procedure. In some instances, these procedures must be applied in conjunction with additional requirements established by a more specific rule relating to the subject matter of the motion. This Article discusses appellate motion practice in general and the special requirements that apply to the most common types of motions.
A party may file a motion in an appellate court to resolve any matter that is not addressed by some other remedy established by the Florida Rules of Appellate Procedure. Rule 9.300(a) states that “[u]nless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor.” This broad statement authorizes the use of motions in a variety of situations.
Despite the broad scope of Rule 9.300(a), the parties should attempt to minimize the need for filing motions in an appellate court. Motion practice is necessarily more limited in appellate courts than it is in trial courts. A final judgment is entered at the trial level only after many issues have been resolved through the pretrial and trial stages of the proceeding by orders and rulings on motions. In contrast, the merits of an appeal can be decided without preliminary rulings or decisions. The parties conceivably could obtain a decision on the merits of a well-presented appeal without filing a single motion.
Given these differences, the appellate courts repeatedly have cautioned lawyers to exercise restraint when filing motions in appellate proceedings. Many of the motions filed in appellate courts are unnecessary.
In addition to appellate jurisdiction, the Florida Supreme Court and Florida’s district courts of appeal have original jurisdiction to issue various types of writs. These original proceedings expand the scope of relief available in Florida’s appellate courts beyond the relatively limited appellate review. For example, while appeals are available only from final judgments and from a limited class of nonfinal orders, original writs often can be used to obtain relief from interlocutory orders for which no immediate appeal exists. In addition, original writs can be used to prevent harm that a final appeal would not adequately remedy.
An appellant dreads nothing more than the receipt of a thin envelope from the district court of appeal containing an adverse per curiam affirmance (not so affectionately known to appellate lawyers as a “PCA”). After months, and perhaps years, of effort in the trial and appellate courts, the appellant is rewarded with the equivalent of “you lose” without a word of explanation. Worse yet, in most circumstances, a PCA is the end of the line for an appeal. In Florida, with one possible exception, a PCA cannot be reviewed by the Florida Supreme Court.
In 1799, French troops in Egypt discovered a granite slab inscribed with a decree praising an Egyptian king. The decree appeared in hieroglyphic, demotic, and Greek. This slab, the Rosetta Stone, enabled scholars to compare the Greek writings to the other two languages. The stone “was the key to the deciphering of Egyptian hieroglyphics.” Sometimes, trial judges and lawyers need to look for a Rosetta Stone to decipher the meaning of decisions handed down by the appellate courts. In law school, students are trained to read appellate decisions and apply them to other cases. However, students are taught little about how to interpret and enforce appellate court decisions. Certain kinds of decisions, or certain language used in decisions, may have different meanings in different contexts, or in different courts. It is not always enough to read the court’s decision in the particular case. It sometimes is necessary to read other decisions to understand what the appellate court wants the trial court to do. Often, it is necessary to seek further guidance from the appellate court.
This Article will discuss some issues that arise after an appeal is concluded, and, as further proceedings are held in the trial court below, the need for clear directions from the appellate court to the trial court and to the parties and appropriate remedies when the trial court fails to understand or to comply with the appellate mandate.
Appeals focus on legal errors. They are not a place to attempt to retry the facts. But that does not dictate that counsel ignore the importance of the facts in their briefs. Our common law legal system is fact driven. A difference in the facts may empower the advocate to distinguish the client’s case from what appears to be a determinative adverse precedent.
The facts should neither be something counsel rushes through to write the argument section of the brief, nor an afterthought. The brief’s statement of the facts stands as an integral — and often crucial — part of the appellate process. Just as well written facts may make the case, poorly written or misleading factual statements may condemn the brief to defeat and discredit its author. This Article offers suggestions on effectively conveying the facts in an appellate brief. The same principles should apply in a trial court brief.
Although the parties and their lawyers had no direct contact in the months that had passed since trial, the flames of bitterness burned brightly on appeal. The amount in controversy was large.
Feelings were hard. Appellate briefs and motions asserted charges and countercharges of straying outside the record and misrepresenting the facts. Counsel accused each other of advancing “specious,” “outrageous,” and “disingenuous” arguments, founded on “wholesale misrepresentations” if not outright “lies.” An extreme scenario? Yes. Typical of appellate practice? No. But such counterproductive diversions occur with disturbing frequency, even in cases involving experienced and skilled appellate lawyers—lawyers who should know better.
There is no shortage of well-written and informative articles identifying such unprofessional, if not unethical, conduct. The focus of this Article is to suggest specific responses when opposing appellate counsel approaches or crosses the line.
Dogs have enjoyed a place of privilege and affection in the hearts and minds of most Americans. The greyhound breed specifically has enjoyed a rich and noble history, which often has been intertwined with the life of aristocracy. Nonetheless, the breed has been forced into a dangerous and cruel activity that is fueled by the suffering and death of thousands of nonhuman animals. The number of states that still allow this type of “entertainment” is dwindling, and many groups, as well as individuals, are fighting to bring an end to the industry. This Comment focuses on the abuse and mistreatment inflicted on greyhounds and posits that anti-cruelty statutes are ineffective protection for greyhounds because they are interpreted within a framework that considers nonhuman animals property and that excludes nonhuman animals from moral consideration. Because of this, the most, and likely only, effective way to protect the greyhounds is to abolish greyhound racing.
Almost thirty years ago, the Florida Legislature exercised its exclusive power to waive sovereign immunity when it adopted Florida Statutes Section 768.28. The statute, modeled on the Federal Tort Claims Act (FTCA), which has been analyzed in federal court opinions, is straightforward in its language. However, several decades of Florida Supreme Court decisions construing Florida’s waiver statute have generated a body of case law so incoherent and confusing that there are no defined legal boundaries of governmental tort liability and there is no clear framework with which to analyze immunity. The Court has effectively transformed the waiver statute to fit the current majority’s ideology.
This Article examines the enigmatic body of government tort law that the Florida Supreme Court has created since the Florida Legislature enacted the waiver statute and explores some of the anomalies, inconsistencies, ironies, and paradoxes surrounding this controversial and volatile area of law. Even before the Florida Legislature enacted the first statutory waiver of sovereign immunity, the extent of government insulation from tort liability was the subject of much debate and criticism, but the Florida Supreme Court has compounded the confusion enormously with conflicting and sometimes irreconcilable decisions. The confusion is the product of a number of factors, including the Court’s initial failure to consider the language of the waiver statute and its federal counterpart, its failure to construe strictly the scope of the waiver statute, its gratuitous adoption of a nebulous and unwieldy implied immunity for discretionary governmental functions, its unnecessary rejection and revival of the public-duty doctrine, and its ever-changing ideology and views concerning the principle of stare decisis.
In Volume 25 of the Stetson Law Review, Spring 1996, I wrote my first article about annexation in Florida, A Practical Perspective about Annexation in Florida.
That article has been cited widely because it summarized annexation law at that time and discussed annexation from a city’s, county’s, and landowner’s perspective. That article also discussed handling and avoiding annexation challenges, with a substantial emphasis on joint-planning-area agreements (agreements between cities and counties that set forth future annexation areas).
The purposes of this Article are to update the 1996 article, discuss Chapter 164, the Florida Governmental Conflict Resolution Act (which now expressly applies to annexation), and suggest changes to Chapter 171, the Municipal Annexation or Contraction Act. It is anticipated that the Florida Legislature will revise Chapter 171 in 2003 substantially; therefore, the reader should consult that statute to determine the current status of Florida annexation law.