This month’s Litigation Tip comes directly from one of our favorite boutique litigation firms in San Francisco: Lewis + Llewellyn.

Founding Partners Marc Lewis and Paul Llewellyn spoke at our litigation related seminars many years ago, and we frequently have attorneys from the firm speak at our annual Superior Court and Federal Court Boot Camps as well as our Depo training programs, including Evangeline Burbidge, Ryan Erickson and Becca Furman.

California Adopts New Rule for Initial Disclosures in Discovery

On September 30, 2023, California Governor Gavin Newsom signed Senate Bill No. 235 (SB235) into law, which amends California Code of Civil Procedure section 2016.090.  It institutes a new procedure for initial disclosures of information and documents.  Beginning on January 1, 2024, parties will be required to make initial witness and document disclosures within 60 days of another party’s request.  Failure to comply or act in good faith with the new law will result in a court-imposed sanction of $1,000.

The initial disclosures shall include:

“The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information … that the disclosing party may use to support its claims or defenses, or that is relevant to the subject matter of the action or the order on any motion made in that action.”

“A copy, or a description by category and location, of all documents” and

Any insurance policies that may be used “to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.”

The new law also clarifies that “a party is not excused from its initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party’s disclosures, or because another party has not made it’s disclosures.”  The rule will remain in effect until January 1, 2027.

These changes have the potential to streamline fact investigations and reduce the amount of written discovery exchanged between parties.  The new timeline will also require counsel to evaluate their position and case strategy much earlier to ensure all relevant information is captured in the initial disclosure.  Counsel would be well-advised to familiarize themselves with the new rule, which may catch opposing counsel off guard.

Thank you to everyone at Lewis + Llewellyn for allowing us to re-publish your Litigation Tip of the Month and most especially for speaking at our litigation seminars year after year!

We just held our Four-Part Exam Prep course for the Certified Legal Specialist Exam in Appellate Law. We have several other recorded packages for past exam prep programs in different subject areas available for purchase here (immigration, tax, Criminal and Workers Comp) as well.

Below is a list for how to prepare and study for the exam in Appellate Law, discussed at our Four Part Exam Prep course for the Certified Legal Specialist Exam in Appellate Law by Judith Posner of Benedon & Serlin LLP and Athena Roussos, C. Athena Roussos Appellate Law (and former grader of the exams).

You can also find our Free Exam Prep download here, which has about four hours of advice on how to prepare and take the exam, from prior programs in multiple subject areas.

With the exception of the discussions directly related to appellate law, the tips are universally applicable to all exam subject areas.  Below are some great tips!

The PURPOSE of the exam is to test your proficiency in the area of Appellate Law

• Areas that should be well known to practitioners who specialize in Appellate Law
• Not designed to test obscure areas

Multi-Choice Questions

• Multi-choice questions test applicants’ knowledge of specific areas in a broad range of subjects
• Typically involve a clear and definite answer; usually do not involve “pick the best choice”
• Questions in past have had 4 possible choices
• Difficulty level of the questions is varied
• Usually, the facts in the question are pertinent (not thrown in to distract)
• A “yes” or “no” question will usually have two “yes” and two “no” choices with different reasons given
  e., “Yes, because
  ” or “No, because
  __.”
• Expect at least some procedural questions based on the Cal. Rules of Court, i.e., some questions have a distinct answer based on the rules of court, such as number of days given for filing a certain document.

Essay Questions

• Essay questions are short and designed to be answered within 30 minutes – make sure to save enough time for both essays in each hour writing block
• Essay questions include more “should” type questions (i.e., what should the attorney do in this situation?), and there may be a number of possibilities to consider rather than one correct answer
• Focus is on issue spotting and analytical skills / application of law to facts
• Sometimes will involve more than one subject area, such as ethics/professional responsibility and briefing
• Answer is not always clear or definite – there may be arguable sides or a number of options to discuss
• Facts are usually pertinent and not designed to trick you; explain the relevance (or non-relevance) of the facts in your answer
• Helpful to outline essay questions in advance of writing to pick up on facts in question and cover areas raised by question; consider ethics and client counseling issues in addition to procedural aspects of question. Go back to your outline when you are done to make sure you wrote about everything in your outline
• If applicable in a question, make sure to consider preliminary issues, such as the standard of review and presumptions on an appeal

Subject areas

• See the Appellate Law 2023 Exam Subject Areas (in Pincus Handbook and available online at the bar’s website here)
• Exam is almost entirely based on California state appellate court practice but does include USSC (petitions for certiorari)

Checklist of considerations

1. Who is my client and what are my ethical obligations?
2. What kind of order/judgment is at issue, and is it appealable?
3. Is there a need for a stay or immediate relief? If so, how is it obtained?
4. Is the record complete, and, if not, how do I ensure it becomes complete?
5. What standard(s) of review apply, and how do they impact the likelihood of success on appeal?
6. Were the issues properly preserved in the trial court to obtain appellate review?
7. What are the technical briefing rules and requirements?
8. Will there be oral argument? If so, are there new authorities to bring to the court’s attention? Is there a need for supplemental briefing?
9. Upon review of the court’s opinion, are there errors needing correction? Is a petition for rehearing or review warranted? Certiorari?

• Is publication ordered? Should it have been?
• Have appellate costs been ordered? What about appellate fees? Where do you seek appellate costs and fees, if ordered, and when? Is the remittitur correct?

How to Prepare / Study Plans

• Set aside enough time to study
• Consider forming study groups with anyone else you might know who will be taking the exam
• Do the sample essay questions and time yourself on them
• Consider your strengths and weaknesses and what areas you need to focus on
  • What areas of appellate law are you more familiar or less familiar with?
  • How long has it been since you took an exam? If exam skills are rusty, you may want to take more time to prepare
• Make sure you are familiar with the Cal. Rules of Court applicable to appeals
• Brush up on the ethics rules that apply to appeals
• Treatises on California appellate law such as Rutter Guide: Civil Appeals and Writs, CEB or Matthew Bender Treatises are great study aids

Practical Considerations

• Get plenty of rest before the exam: it is a long day!
• Have a comfortable workspace that is quiet and will be uninterrupted.
• Remember to breathe!
• If you fall behind in timing, do not despair; do your best to keep going.
• Think of yourself as an appellate practitioner as you’re taking the exam, i.e., how would you advise a client who came to you with these questions.

What to Expect

Logistics

Exam will take place on October 24, 2023 from 8:00 a.m. to 5:00 p.m.

See the Bar’s Scheduling Bulletin here.

• You should have already registered for the exam. The timely filing deadline was Aug. 15, 2023. The final late filing deadline is Sept. 15, 2023.
• Results will be released March 15, 2024.

Exam is REMOTE for most; however, in-person is available for some.

• See the 2023 Exam Admittance Ticketing Bulletin.

You must use a LAPTOP COMPUTER.

• See the 2023 Exam Laptop Bulletin for technical requirements:
  https://www.calbar.ca.gov/Attorneys/Legal-Specialization/Becoming-a-Certified-Specialist/Exam-Information/Laptop-Computers
• Desktops are NOT allowed.
• You will need to download the ExamSoft software and complete the mock exams.
• You will need to register your laptop.
• Read the Laptop Bulletin carefully.
• Reserve enough time to complete all pre-exam tasks.

Exam is CLOSED BOOK.

• Exam will be remotely proctored, using human proctors and artificial intelligence.
• Any suspicious activity will be flagged.

Timing and Format

• 8:00 a.m. to Noon: Eight 30-minute essays
• Essay questions are given in 1-hour sessions with 2 essays per session
• 2:00 p.m. to 5:00 p.m.: 75 multi-choice questions
• 2 sessions of roughly 75 minutes per session

In Part 2 of the discussion on How to Mindfully Preserve the Record for Appeal in Florida Civil Cases (read Part I here), former Chief Judge of Florida’s Third District Court of Appeal, Gerald B. Cope, Jr., and Lorayne Perez, both partners at Akerman LLP, continue to share key litigation tips on preserved error, fundamental error, invited error, and MORE to help you effectively preserve the record for appeal in Florida civil cases.

Don’t miss Gerald speak on these vital appellate practices during the upcoming two-part webinar, Preserving the Record for Appeal in Florida Civil Cases on August 1 and 3, 2023.

Use coupon code PTRFL10 to receive a 10% discount on your order. ***New Orders Only!

Preserved Error

When the objection is timely and the litigant obtains a ruling on it, it is preserved error.

On Appeal, Are You Limited to the Same Cases or Authorities You Cited to the Trial Court? No. While the substance of each argument or objection needs to be presented in the lower tribunal, “[t]he preservation of error requirement does not demand that trial attorneys prepare arguments or objections in the trial court as if they were points in an appellate brief.” Philip J. Padovano, Florida Appellate Practice § 8.1, at 160 (2015).

A (Limited) Safety Net–Fundamental Error (Florida state courts) or Plain Error (Federal courts).  A fundamental error “may be urged on appeal, though not properly presented below.”  Ray v. State, 403 So. 2d 956, 960 (Fla. 1981). It is “‘error which goes to the foundation of the case or goes to the merits of the cause of action.’” Id. (citation omitted).

The “doctrine of fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Id. Fundamental error includes, for example, “imposing on a defendant compensatory damages which are not authorized by law and which are contrary to law . . . .” Security Bank, N.A. v. Bellsouth Advertising & Publishing Corp., 679 So. 2d 795, 803 (Fla. 3d DCA 1996), approved, 698 So. 2d 254, 256 (Fla. 1997).

Federal courts will review unpreserved errors under a “plain error” standard solely in “those circumstances that ‘undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.’” Marjam Supply Co. of Fla., LLC v. Pliteq, Inc, 812 Fed. Appx. 803, 810 (11th Cir. 2020) (citing united States v. Young, 470 U.S. 1, 16 (1985)).

• Note: The federal Eleventh Circuit has stated that it has the discretion to consider an argument that was not raised in the district court. See Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1250 (11th Cir. 2012). The court will consider an issue not raised below it “in involves a pure question of law, and refusal to consider it would result in a miscarriage of justice,” “where the interests of substantial justice is at stake,” “where the proper resolution is beyond any doubt,” and where the argument involves “significant questions of general impact or of great public concern.”

Exception: Constitutional Issues in Administrative Cases.  When there is a constitutional issue in an administrative case, a litigant will not be able to obtain a ruling from the administrative agency on the constitutional question. “Generally speaking, administrative agencies are not the appropriate forum in which to consider questions of constitutional import.” Myers v. Hawkins, 362 So. 2d 926, 928 n.4 (Fla. 1978);Southern Alliance for Clean Energy v. Graham, 113 So. 3d 742, 748 (Fla. 2013)(“administrative agencies lack . . . power to consider or determine constitutional issues”); Miles v. City of Edgewater Police Dept., 190 So. 3d 171, 178 (Fla. 1st DCA 2016)(“In Florida workers’ compensation proceedings, constitutional challenges of any sort need not be preserved for appellate review, because JCCs lack jurisdiction to determine constitutionality.”).

The aggrieved litigant should exhaust administrative remedies and then raise the constitutional claim as part of the appeal of administrative action to the district court of appeal. Key Haven Associated Enterprises, Inc. v. Bd. of Trustees of the Internal Improvement Fund, 427 So. 2d 153, 157-60 (Fla. 1982).The litigant should be sure the record is sufficient to allow the court of appeal to consider the constitutional claim. In certain circumstances a litigant may present the constitutional issue in a new action in circuit court. Id.

Caveat: Be sure to research case law in the administrative field at issue in your case.

Types of Error.  In addition to preserved error and fundamental or plain error, another type of error is invited error. “[A] party may not invite error and then be heard to complain of that error on appeal.” Terry v. State, 668 So. 2d 954, 962 (Fla. 1996).

Harmless error.  An error is harmless when “there is no reasonable possibility that the error complained of contributed to the verdict.” Special v. West Boca Medical Center, 160 So. 3d 1251, 1256, 1265 (Fla. 2014)(holding that harmless error test in criminal cases is applicable to civil cases).

In determining whether an error is harmless, the appellate court must ask: Could the admission of evidence that should have been excluded have contributed to the verdict?  Could the exclusion of evidence that should have been admitted have contributed to the verdict?  Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful. Id. at 1256-57.

After Preserving the Error for Appeal, Take Care Not to Waive or Abandon the Argument During the Appeal.

Be sure to raise your issue in the initial brief. Otherwise, it may be deemed waived. See, e.g., Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (“For an appellant to raise an issue properly on appeal, he must raise it in the initial brief. Otherwise, issues not raised in the initial brief are considered waived or abandoned.”); State Dep’t of Rev. v. Price, 182 So. 3d 782, 783 n.5 (Fla. 1st DCA 2015) (“[W]e can only address arguments raised by an appellant if the arguments are in the initial brief.”).  An argument cannot be raised solely in a footnote in the appellant’s brief. R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 41 n.1 (Fla. 3d DCA 1996)(“[A]rguments which are not made as a point on appeal . . . but are found only in footnote in the appellant’s brief, are not properly presented to the appellate court for review.”)(citation omitted).

In federal court, you must devote a specific section of your brief to the issue and cite authority, lest the issue be deemed waived. See Jysk Bed’N Linen v. Dutta-Roy, 787 Fed. Appx. 608, 612 (11th Cir. 2019) (“Dutta-Roy makes perfunctory reference to his argument that the ACPA is ‘non-retroactive,’ but fails to cite authority or devote a specific section of his brief to this issue; this is insufficient to preserve the issue on appeal.”). See also Fed. R. App. P. 28(a)(5); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2004)

Gerald Cope, Jr. is a popular, frequent speaker in our appellate law programs, “Preserving Your Record for Appeal” in 2017 and “Appellate Skills and Strategies Boot Camp: Navigating State and Federal Appeals” in June 2014.  As mentioned above, Lorayne Perez is a partner at Akerman LLP and she also lectured in 2017 at our “Preserving Your Record for Appeal” program to rave reviews.

You don’t want to miss out on the full discussion in our upcoming program Preserving the Record for Appeal in Florida Civil Cases on August 1 and 3, 2023!

We are so excited that former Chief Judge of Florida’s Third District Court of Appeal, Gerald B. Cope, Jr. is speaking at our upcoming Preserving the Record for Appeal Two-Part Webinar on August 1 and 3, 2023.

Use coupon code PTRFL10 to receive a 10% discount on your order. ***New Orders Only!

Gerald is now a chair of Akerman’s Appellate Practice. He and Lorayne Perez, also a partner at Akerman LLP, created detailed outlines for the program.  Below is a post we adapted from one of their outlines, discussing recent important developments in preserving your appeal, as well as a discussion about the concept of preservation and the judicial mind.

What is highlighted below are initial guiding principles prepared by Gerald and Lorayne about how to preserve a record for appeal in Florida civil cases. Gerald, as well as a variety of other prominent speakers, will elaborate on these principles during the upcoming two-part webinar, Preserving the Record for Appeal in Florida Civil Cases, to be held on August 1 and 3, 2023.

RECENT IMPORTANT DEVELOPMENTS

•  R. Civ. P. 1.530(a) (eff. 4/27/2023) – requires the filing of a motion for rehearing to preserve for appellate review a trial court’s failure to make required findings of fact. Fla. Fam. L. R. P. 12.530 was also amended in the same manner. See In re: Amendments to Fla. R. Civ. P. 1.530 and Fla. Fam. L.R.P. 12.530, 2023 WL 3104357 (Fla. Apr. 27, 2023).
• The court’s opinion adopting the above amendments states that the amendments are “applicable to all orders, not just final judgments, and makes clear that the rules apply only when a judge is required to make specific findings of fact and not when a party seeks to make other challenges to a trial court’s order.”
• Rule is in effect now, but motions for rehearing are pending, so rule might be subject to further change.
• This will be addressed in more detail later in our presentation at Preserving the Record for Appeal in Florida Civil Cases.
• Effective January 1, 2023, Florida has a Sixth District Court of Appeal (22-163, § 4, Laws of Fla.):
  • Headquartered in Lakeland, Florida
  • Extends from Orlando and Lakeland to Ft. Myers and Naples.
  • Not bound by decisions of any other District Court of Appeal. CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC, 2023 WL 1487713, at *3 (Fla. 6th DCA 2023).
  • Administrative Order 23-01: Requires that appellants’ briefs contain “As to each issue presented, a statement as to where in the record on appeal the issue was raised and ruled on as well as identification of the applicable standard of review.

• In federal court, you no longer have to raise in a post-trial motion a purely legal issue which was the basis of an unsuccessful motion for summary judgment in order for the issue to be preserved for appeal. See Dupree v. Younger, 143 S.Ct. 1382, 598 U.S. — (May 25, 2023).
• You do still have to raise in a post-trial motion a sufficiency-of-the-evidence argument that was previously raised in a summary judgment motion.
• When in doubt, raise the issue anew in a post-trial motion.

PRESERVATION OF THE RECORD IN FLORIDA CIVIL CASES

THE CONCEPT OF PRESERVATION

Inside the Judicial Mind.

Fairness.  When an appellant asks an appellate court to reverse a judgment or order, this is a request that the panel write an opinion saying the trial judge made a mistake serious enough to require the proceeding to be done over.

In fairness to the trial judge, the appellate court wants to know that the appellate issue was presented to the trial judge in an understandable way.

“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (internal quotation marks omitted) (emphasis added).

“[A]n objection on specific grounds does not preserve the error for purposes of appeal on other grounds.” Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir. 1997). See also Fed. R. Evid. 103; Palavicini v. Wal-Mart Stores East, LP, 787 Fed. Appx. 1007, 1012 (11th Cir. 2019) (holding that an argument was not preserved where “the objection was not clear or specific enough for [the circuit court of appeals] to understand” the argument).

Judges Are Attuned to Preservation Arguments.  Many civil practitioners proceed directly to the merits of their opponent’s argument, without looking at the threshold question whether the appellate issue was presented in the trial court.

Over half the workload of Florida’s appellate courts is criminal law, and in criminal cases, preservation issues are constantly raised. Appellate judges become attuned to preservation, and are receptive to preservation arguments where they have merit. Preservation is an issue practitioners should be alert to.

Organizing Principles.  Every outline on preservation, including this outline, has pages of detail.  Is preservation a hodge-podge of disconnected rules, or is there an organizing principle or theme?  For the most part, the authorities in this outline are applications of the basic preservation rules to specific situations.

Contemporaneous Objection Rule

The basic idea is simple: an objection must be promptly presented to the trial court so as to give the judge a fair chance to rule on it.

To meet the objective of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.

Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).

And counsel must obtain a ruling on the objection.

In Florida state court, if you file a motion setting forth your argument, but you never obtain a ruling, the issue is not preserved for appeal. See, e.g., Grazette v. Magical Cruise Co. Ltd., 280 So. 3d 1120, 1123 n.1 (Fla. 5th DCA 2019) (“[T]his issue was not properly preserved as it was never set for hearing and was never brought to the court’s attention at any point after filing.”).

(to be continued in our seminar and Part 2 of this post!)

To learn more about this topic, including a discussion about what a Preserved Error is, types of Error and not accidentally abandoning the argument during your appeal, sign up for our upcoming program, or order the recorded package: Preserving the Record for Appeal Two-Part Webinar.

Additional authorities that Gerald and Lorayne mention include:

1. Philip J. Padovano, Florida Appellate Practice.
2. Philip J. Padovano, Florida Civil Practice.
3. Charles W. Ehrhardt, Florida Evidence.
4. Charles W. Ehrhardt, Florida Trial Objections.
5. Stephen L. Brannock, “Florida Civil Appellate Practice,” in The Florida Bar, Advanced Appellate Practice and Certification Review.
6. 3 Fla. Jur 2d, Appellate Review, Part V – Preserving Questions Below.
7. Jason S. Lambert, “The Perfect Proffer,” Florida Bar Journal (April 2015).

Always popular at our seminars, Gerald Cope previously spoke on this topic in our “Preserving Your Record for Appeal” in 2017 and also at our “Appellate Skills and Strategies Boot Camp: Navigating State and Federal Appeals” in June 2014.  As mentioned above, Lorayne Perez is a partner at Akerman LLP and she also lectured in 2017 at our “Preserving Your Record for Appeal” program to rave reviews.

Looking forward to the program!