Appellate and Post-Judgment Attorneys
Appeals, post-judgment motions and stays in the federal courts of appeals and the state courts of Florida, Washington, D.C. and Massachusetts, where the deadline is short and the record is closed.
An appeal is a review of what the trial court did on the record it had, not a fresh hearing of the dispute. New evidence is not received, witnesses are not recalled, and the reviewing court is not asked what it would have decided in the first place. It is asked whether a particular ruling was wrong under a particular standard, and whether the error affected the result. Both the federal and the Florida rules require the brief to name the standard of review for each issue, which is another way of saying that the standard usually decides the appeal.
Industria Business Lawyers handles appeals and the post-judgment stage that precedes them: reviewing the judgment for what was preserved, filing the motions that must come first, meeting the notice deadline, seeking a stay so the judgment is not enforced while the appeal runs, and writing the briefs. We also advise during a case on what has to happen at trial for an issue to survive above.
The deadline is the first thing to establish and the one thing that cannot be fixed later. In most courts it is 30 days.
What an Appeal Decides and What It Cannot
Six things govern whether an appeal is available, what it can reach, and what it is worth. Each is set by rule.
An Appeal Is Not a Second Trial
The reviewing court takes the case as the trial court left it. Under Florida Rule of Appellate Procedure 9.110(h) the court may review any ruling or matter occurring before the filing of the notice, which fixes what is reviewable. Error alone is also not enough. Florida Statute 59.041 provides that no judgment is set aside or reversed for misdirection of the jury, improper admission or rejection of evidence, or error in pleading or procedure unless the error has resulted in a miscarriage of justice. Federal Rule of Civil Procedure 61 directs a court to disregard errors that do not affect substantial rights.
The Record Is the Case
What is in the record is what the appeal has to work with. Under Federal Rule of Appellate Procedure 10(a) the record consists of the original papers and exhibits filed in the district court, the transcript of proceedings if any, and a certified copy of the docket entries. Florida Rule of Appellate Procedure 9.200(a)(1) is broader in form: unless the parties designate otherwise, it consists of all documents filed in the lower tribunal, all exhibits that are not physical evidence, any transcripts filed, and a progress docket. Rule 9.110(e) requires the clerk to prepare the record within 50 days of the notice and transmit it within 60 days.
Standards of Review
The standard applied to a ruling usually matters more than the ruling. Federal Rule of Appellate Procedure 28(a)(8)(B) requires the brief to state, for each issue, the applicable standard of review, and Florida Rule of Appellate Procedure 9.210(b)(5) requires the same in the argument. The rules fix several of those standards. Federal Rule of Civil Procedure 52(a)(6) provides that findings of fact must not be set aside unless clearly erroneous. Rule 72(b)(3) requires a district judge to determine de novo any part of a magistrate judge’s disposition properly objected to. On review of agency action, 5 U.S.C. 706(2)(A) reaches action that is arbitrary, capricious, an abuse of discretion, or not in accordance with law.
The Notice of Appeal and Its Deadline
The notice is short, and filing it on time is jurisdictional in practical terms. Under Federal Rule of Appellate Procedure 4(a)(1)(A) the notice in a civil case must be filed with the district clerk within 30 days after entry of the judgment or order appealed from, and under Rule 4(a)(1)(B) within 60 days if the United States or a federal agency, officer or employee is a party. Florida Rule of Appellate Procedure 9.110(b) requires a notice filed with the clerk of the lower tribunal within 30 days of rendition. Rule 3(c) sets out what the federal notice must contain.
Post-Judgment Motions and the Clock
Some motions extend the appeal deadline and some do not, and guessing is expensive. Federal Rule of Appellate Procedure 4(a)(4)(A) provides that if a party timely files a motion for judgment under Rule 50(b), to amend or make additional findings under Rule 52(b), to alter or amend or for a new trial under Rule 59, or for relief under Rule 60 filed within the Rule 59 period, the time to appeal runs for all parties from entry of the order disposing of the last such motion. Florida Rule of Appellate Procedure 9.020(h)(1) lists the motions that toll rendition.
Orders That Can Be Appealed Before the End
Most appeals wait for a final judgment. 28 U.S.C. 1291 gives the courts of appeals jurisdiction over appeals from all final decisions of the district courts, and 28 U.S.C. 1292(b) allows an immediate appeal of a non-final order where the district judge states in writing that it involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. Florida Rule of Appellate Procedure 9.130(a)(3) lists the non-final orders that may be appealed, on the same 30 day window. In arbitration matters, 9 U.S.C. 16 sets out which orders are appealable.
Where the Deadline Comes From in Each Court
The number is usually 30 days. What it runs from is not the same in any two of these courts, and that is where appeals are lost.
Federal courts of appeals. Federal Rule of Appellate Procedure 4(a)(1)(A) measures the 30 days from entry of the judgment or order appealed from, extended to 60 days under Rule 4(a)(1)(B) where the United States or a federal agency, officer or employee is a party. Rule 4(a)(3) gives any other party 14 days after the first notice to file its own.
Florida. Florida Rule of Appellate Procedure 9.110(b) measures 30 days from rendition, and Rule 9.020(h) defines rendition as the filing of a signed, written order with the clerk of the lower tribunal. A timely tolling motion means the order is not deemed rendered until the last such motion is disposed of, so the date on the judgment is not always the date that counts.
Washington, D.C. Rule 4(a)(1) of the Rules of the District of Columbia Court of Appeals requires the notice of appeal in a civil case to be filed with the Clerk of the Superior Court within 30 days after entry of the judgment or order, unless a different time is specified by the rules or the D.C. Code.
Massachusetts. Massachusetts Rule of Appellate Procedure 4(a)(1)(A) requires the notice to be filed with the clerk of the lower court within 30 days of entry of the judgment, decree, appealable order or adjudication, or within 60 days where the Commonwealth or an officer or agency of it is a party.
Next question: Which dispute resolution path fits the dispute? Then: How is a business case litigated?
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How We Take an Appeal From Judgment to Decision
What was entered, when it was entered or rendered, whether it disposes of everything, and which rule supplies the notice deadline. Confirmed in writing first, because nothing later can extend a missed deadline.
What was objected to, ruled on and made part of the record, issue by issue. Florida Rule of Appellate Procedure 9.330(a)(2)(A) bars a rehearing motion from raising issues not previously raised in the proceeding.
Whether a motion for new trial, to alter or amend, for judgment as a matter of law, or for relief from the judgment should be filed, and what each does to the appeal clock under Federal Rule of Appellate Procedure 4(a)(4) or Florida Rule 9.020(h).
Filed with the clerk of the trial court or lower tribunal within the applicable period, in the form the rules prescribe, naming the parties, designating the order and identifying the court to which the appeal is taken.
Execution on a federal judgment is stayed for 30 days after entry under Federal Rule of Civil Procedure 62(a). Federal Rule of Appellate Procedure 8(a) requires a party to move first in the district court, and Florida Rule of Appellate Procedure 9.310 does the same in the lower tribunal.
Designating and checking the record, ordering transcripts, and narrowing the appeal to the issues that were preserved and carry a favourable standard of review. Fewer strong issues read better than a list.
Under Federal Rule of Appellate Procedure 31(a)(1) the appellant files within 40 days after the record is filed, the appellee within 30 days after service, and the reply within 21 days. In Florida the initial brief is served within 70 days of the notice under Rule 9.110(f). Rehearing follows: 14 days federally under Rule 40(d)(1), 15 days in Florida.
FAQ
01 • Appeals How long do I have to file an appeal?
In most civil cases, 30 days. Federal Rule of Appellate Procedure 4(a)(1)(A) requires the notice within 30 days after entry of the judgment or order. Florida Rule of Appellate Procedure 9.110(b) requires it within 30 days of rendition. The District of Columbia and Massachusetts appellate rules both use 30 days from entry.
02 • Appeals Can I put new evidence in front of the appellate court?
No. The reviewing court works from the record made below. Federal Rule of Appellate Procedure 10(a) defines that record as the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries, and Florida Rule of Appellate Procedure 9.200(a)(1) defines it in comparable terms. If a ruling or document is not in the record, the appeal proceeds as though it does not exist.
03 • Appeals Why does the standard of review matter so much?
Because it sets how much deference the trial court gets on that issue. Federal Rule of Civil Procedure 52(a)(6) provides that findings of fact must not be set aside unless clearly erroneous, with due regard for the trial court’s opportunity to judge witness credibility, which is a high bar. The appellate rules in both systems require the brief to state which standard applies to each issue.
04 • Appeals Does filing an appeal stop the other side from collecting?
Not by itself. Federal Rule of Civil Procedure 62(a) stays execution and enforcement proceedings for 30 days after entry of a judgment unless the court orders otherwise, and Rule 62(b) allows a party to obtain a stay at any time after judgment by providing a bond or other security. Federal Rule of Appellate Procedure 8(a) requires a party to move first in the district court, and Florida Rule of Appellate Procedure 9.310 requires an application in the lower tribunal.
05 • Appeals Can an order be appealed before the case ends?
Sometimes. 28 U.S.C. 1291 covers appeals from final decisions, and 28 U.S.C. 1292(b) allows an immediate appeal where the district judge certifies in writing that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the termination of the litigation. Florida Rule of Appellate Procedure 9.130(a)(3) lists the non-final orders that may be appealed.
Judgments in Florida, Washington, D.C. and Massachusetts, and in the federal courts. Call (202) 860-1210 or send the judgment through the form. We will tell you the deadline, what the record supports, and whether a stay is worth seeking.
This page provides general information about appellate and post-judgment procedure under the federal and state rules cited and does not constitute legal advice. Reading it does not create an attorney client relationship. Rules and statutes cited were reviewed on the date this page was last updated and are subject to change. Whether an appeal is available in a particular case depends on its specific facts.