05/05

See “Chief Judge Sawaya,” page 16

Chief Judge David L. Levy:Giving His Regards to Broadwayby Edward G. Guedes1

Judge Thomas D. Sawaya: ChiefJudge of the Fifth DistrictCourt of Appealby Susan S. Lerner1

“What are you go-ing to believe…what you see withyour own eyes orwhat I tell you?”

With those words,then-Judge, now-Chief Judge David L.Levy of the Third Dis-trict Court of Appeal,opened the majorityopinion in the 2003

case of Act Realty Co., Inc. v. Rotemi Re-alty, Inc.2 If you ask him, he will tell youthat the use of that quotation reflects histrue personality. Suffice it to say that no

INSIDE:Message from the Chair:

And the Survey Says... .. 2

The Florida Bar’s“Successful AppellateAdvocacy Seminar” – AnInvaluable, Long-TermInvestment ...................... 3

A Practical Guide to ConflictReview in the SupremeCourt of Florida .............. 6

The End of an Era at theThird District Court ofAppeal: The Retirement ofJudge Robert L. Shevin,Judge Mario P. Goderichand Chief Judge Alan R.Schwartz ........................ 7

Learning to Put Yourself inthe Best Position toWin on Appeal:A Young Lawyer’sPerspective .................. 10

The Roots ofPreservation ................. 12

Senior Judges, MandatoryRetirement, and theFreedom to Chooseto ContinueContributing .................. 13

The RecordThe RecordJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O NJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O NJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O NJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O NJ O U R N A L • O F • T H E • A P P E L L A T E • P R A C T I C E • S E C T I O N

Volume XIV, No. 1 THE FLORIDA BAR Spring 2005

www.flabarappellate.org

Developing a greatmind does not requireyou to travel great dis-tances. And so it hasbeen with The Honor-able Thomas D.Sawaya, the seven-teenth judge appointedto serve on our state’sFifth District Court ofAppeal. Judge Sawaya

was born in Ocala on July 10, 1952. He haslived his entire life, educated himself, prac-ticed law, raised a family, and served onthree courts all within a 100-mile radiusof where his ancestors settled over 120years ago.

The year was 1883. Judge Sawaya’sgreat uncle arrived in Marion CountyFlorida to begin work as a hunting andfishing guide, after migrating to Cubafrom Italy. Judge Sawaya’s grandfather

other opinion of the Third District has everquoted a Broadway musical. The quota-tion reflects at once both Chief JudgeLevy’s sense of humor and his earnest de-sire to see past the trappings of the law inorder to effectuate real justice and “to pro-mote and protect the integrity of govern-ment and, ultimately, the best interests ofthe public at large.”3 Even a cursory re-view of Chief Judge Levy’s impressiverésumé reveals that his commitment is notmere lip service and that he has alwaysdedicated himself to promoting the publicgood.

Chief Judge Levy is a Miami native anda proud product of its public school system.He graduated from Miami Senior High

See “Chief Judge Levy,” page 17

Message fromthe Chair:And the SurveySays...

page 2

Judge Sawaya

Chief JudgeDavid L. Levy

2

THE APPELLATE PRACTICE SECTION OF THE FLORIDA BAR PREPARES ANDPUBLISHES THIS JOURNAL

John G. Crabtree, Miami .............................................................................................ChairThomas D. Hall, Tallahassee ............................................................................. Chair-electSusan Fox, Tampa ............................................................................................... Vice-ChairSteven L. Brannock, Tampa ................................................................................. SecretarySiobhan Helene Shea, Palm Beach ..................................................................... TreasurerDorothy F. Easley, Hollywood ................................................ Editor in Chief, The RecordPaul A. Avron, Miami ................................................................................ Assistant EditorCory Eichhorn, Boca Raton ...................................................................... Assistant EditorBetsy Gallagher, Tampa ............................................................................ Assistant EditorShelly J. Stirrat, Stuart ............................................................................ Assistant EditorMark S. Sussman, Miami Beach .............................................................. Assistant EditorAustin Newberry, Tallahassee ...................................................... Program AdministratorDanella Montenieri, Tallahassee ............................................................................. Layout

Unless expressly stated otherwise, the Journal’s articles reflect only theopinions and ideas of the Journal’s authors.

Message from the Chair: And the Survey Says...by John Crabtree

To betterserve its members,the Appellate Prac-tice Section needsto know who itsmembers are – howmuch of their workis appellate, howlong they have beenpracticing, howthey handle the

business side of their practice, andwhat they think about the Section’sactivities and services. To learn theanswers to these (and other) excitingquestions, we conducted a survey.Over 200Section members partici-pated. While the complete results willbe published on our website,www.flabarappellate.org, here aresome highlights:

The survey’s respondents were 54percent male and 46 percent female.Most had been in practice for sometime: 31 percent for 10 or fewer years,and 67 percent for 11 and more years,with 31 percent of those in practice formore than 20 years.

While 19 percent of the total re-spondents were board certified in ap-pellate practice, the likelihood of a re-spondent being board certifiedincreased with years in practice—ex-cept for those lawyers who had beenpracticing more than 30 years. (Anincreasing majority of the respon-dents practicing 16-30 years were

board certified, but only a quarter ofthose practicing more than 30 yearswere.)

The survey asked a series of busi-ness of law questions—sizes of firms,workloads of lawyers, types of fee ar-rangements and hourly rates.

Contrary to the lone-wolf image ofappellate lawyers, less than half (45percent) of the respondents said thatthey practice in firms of 5 or fewerlawyers, and only half of them weresolo practitioners. While 34 percentsaid they practice in firms of 6-40 law-yers, 5 percent practice in firms of 41-100 lawyers, and 16 percent practicein firms of over 100 lawyers.

Most respondents handled over 20appeals a year, though a majority didnot limit their practice to the appel-late courts. It appeared instead thatmost respondents spent a substantialamount of their time providing trialsupport—handling motions, memo-randa and jury instructions, and giv-ing general legal advice to trial law-yers.

Over 80 percent of the respondentssaid they handled appeals on anhourly basis—with an average state-wide rate exceeding $250 an hour.(The survey unfortunately did not dis-cern the effect of board certification,years in practice, or geographic re-gion). As for alternative billing ar-rangements, 46 percent of respon-dents handled appeals on a flat fee

basis, and slightly more than one-third (34 percent) handled appeals ona contingency fee basis

It was reassuring that 80 percentof the survey’s respondents were “sat-isfied” with the Appellate PracticeSection, and less than 1 percent wereactually “dissatisfied” with the Sec-tion.

Most of the respondents (62 per-cent) had used the Section’s website,and 93 percent of them found it use-ful. While almost all the respondents(96 percent) read The Record, only 75percent of the respondents used theSection’s guide to Florida’s appellatecourts—the Florida Appellate Prac-tice Guide.

Almost all of the respondents whoeither read The Record or used theGuide (97 percent) found the publica-tion useful, suggesting that we needto do a slightly better job of getting outthe Guide and increasing members’awareness of it. Since 65 percent ofthe respondents said they would liketo receive their updates to the Guideby email, future distribution should beeasy and inexpensive.

Perhaps the most interesting sta-tistic—at least for the Section’s Pro-grams and CLE committees—wasthat 90 percent of the respondentssaid they had learned about Sectionevents after the fact and that theywould have attended had they knownabout them before the events oc-curred. This was consistent with thediscovery that, while only 5 percent ofthe respondents had attended the lastSection retreat, 54 percent said theywere interested in attending the nextretreat. To close the gap between in-terest and attendance, we must obvi-ously give earlier and better notice: 55percent of the respondents said theywanted notice 1-3 months in advance.

__________On a personal note, I would like tothank the Section for allowing me tochair the organization for the pastyear. With the information we gainedfrom the survey, the focus of the Sec-tion should be clear. And with TomHall, Susan Fox, Siobhan Shea, andSteve Brannock in line to lead, the fu-ture of the Section looks very brightindeed.

3

The Florida Bar’s “Successful AppellateAdvocacy Seminar”— An Invaluable,Long-Term Investmentby Celene Humphries1

Anyone reading this article knowsthat most Appellate Practice Con-tinuing Legal Education (CLE) semi-nars are pure lecture. Participants sitand listen to multiple presentationsmade by knowledgeable appellatejudges and attorneys. The assump-tion is that each member of the audi-ence will apply the newly gainedknowledge of appellate law principlesto their cases. While very valuable,these standard-format seminars ne-glect the “doing” aspect of appellatepractice. There is much more to be-ing an appellate lawyer than know-ing the law. To be effective, an appel-late lawyer must hone his/herappellate brief-writing and oral argu-ment skills. An upcoming CLE semi-nar offers just that opportunity.

On July 20, 2005, Stetson Collegeof Law and the Appellate PracticeSection of the Florida Bar are present-ing the annual three-day SuccessfulAppellate Advocacy seminar. It will beheld at Stetson’s Tampa Law Center,adjacent to downtown Tampa. Thetuition for the workshop is $750 formembers of the Florida Bar’s Appel-late Practice Section or $795 for non-members. Tuition scholarships may beavailable. The tuition includes coursematerials, including the newly up-dated edition of FLORIDA APPELLATE

PRACTICE AND ADVOCACY (4th ed. 2005)authored by Raymond “Tom” Elligett,Jr., and the Honorable John M. Scheb.The tuition also includes the openingnight reception, breakfasts, lunchesand refreshment breaks.

The Florida Bar traditionallyawards a significant amount of CLEcredits to participants of the seminar.In 2003, the participants, includingme, received 20.5 general credits and2.5 ethics credits. Enrollment is lim-ited to 40 people, and registrants areaccepted on a first-come, first-servedbasis.

Each year, the Successful Appel-late Advocacy Seminar boasts a for-midable list of Florida’s top appellatejudges and lawyers. This year is noexception. The scheduled program

faculty will include: The HonorableCharles Wilson, Eleventh CircuitCourt of Appeals; The Honorable Wil-liam A. Van Nortwick, Jr., First Dis-trict Court of Appeal; The HonorableChris W. Altenbernd, Chief Judge,Second District Court of Appeal; TheHonorable Larry A. Klein, FourthDistrict Court of Appeal; The Honor-able Jacqueline R. Griffin, Fifth Dis-trict Court of Appeal; The HonorableThomas D. Hall, Clerk, SupremeCourt of Florida; Steven L. Brannock,Holland & Knight LLP; Raymond T.Elligett, Jr., Schropp, Buell &

Elligett, P.A.; Jane Kreusler-Walsh,Jane Kreusler-Walsh, P.A.; Gary L.Sasso, Carlton Fields; and RodolfoSorondo, Jr., former Judge of theThird District Court of Appeal andnow with Holland & Knight LLP.

The format of the seminar is this:Prior to arrival, each participantwrites an appellate brief on a prob-lem chosen by the seminar organiz-ers. The participant then comes to theseminar prepared to present oral ar-gument on the issue.

Yes, participants must take on thecontinued next page

4

task of writing an appellate brief.But, don’t let that fact deter you fromtaking advantage of this opportunity.In fact, it should be one of the mainreasons lawyers sign on for this ad-venture. Skilled appellate judges—the very judges who evaluate our ap-pellate briefs in real cases—carefullyread these briefs and offer their com-ments to the participants during theseminar. I found this portion of theseminar remarkably valuable andvery interesting. In my case, JudgeVan Nortwick of the First DistrictCourt of Appeal and Judge Melvia

Green of the Third District Court ofAppeal offered very helpful advice onappellate brief-writing and madeconstructive comments about mywriting. Never before or since have Ihad such direct feedback regardingmy appellate brief-writing skills.Both judges returned the writtenbriefs, complete with written sugges-tions and comments, to each of theparticipants in the group.

Fortunately, the program organiz-ers take a lot of the pain out of theappellate brief-writing process. Thefaculty provides the relevant factsthrough an exceptionally shortrecord. In my experience, all of theresearch was limited to a relativelyshort list of cases. In fact, no further

research was permitted. That is be-cause the seminar focuses on offeringguidance in appellate brief-writing,not research techniques.

On top of that, the chosen issueswere very interesting, debatable andtimely. Usually, one of the organizershas learned of a debated question oflaw as a result of his/her appellatework. When I participated, the issuewas whether an arbitration provisionin a contract can be separately en-forced while the viability of the arbi-tration provision is being challengedin a state court action. My suspicionis that Steve Brannock of Holland andKnight, LLP suggested the topic as aresult of his involvement in John B.Goodman Ltd Partnership v. THFConst., Inc., 321 F.3d 1094 (11th Cir.2003). The Supreme Court of Floridarecently issued a divided decision ad-dressing this very topic. See Cardegnav. Buckeye Check Cashing, Inc., 894 So.2d 860 (Fla. 2005). My experience atthe seminar working on the issue ad-dressed by the supreme court enabledme to understand the issues on appealand the implications of the variousopinions issued by the members of thesupreme court.

During the seminar, the partici-pants are divided into groups ofseven or fewer, and each group is al-located a private room with at leasttwo appellate judges. The judges firstdiscuss the participants’ briefs. Then,the attention of the small group turnsto oral arguments. For me, this waswhen the fun began. When I partici-pated, we were required to presentoral argument three times. Aftereach argument, the appellate judgesoffered very detailed and helpfulevaluations and suggestions. Wewere given a VHS tape of one of thosearguments so that, in the privacy ofour offices or homes, we could learnfrom watching ourselves deliver theoral argument.

The Successful Appellate Advo-cacy Seminar offers a unique twist onthe oral argument exercise thatmakes the experience even morevaluable. When I participated, wepresented the first two arguments tothe judges assigned to our smallgroup, arguing the position we hadbriefed. Then, on the last day of theseminar, the participants returned toargue the other side to a panel ofthree different judges. This was thepivotal moment for me.

SUCCESSFUL SEMINARfrom preceding page

5

I vividly remember driving fromStetson’s Gulfport campus to myhome in Riverview. Crossing the Sun-shine Skyway Bridge, I thought therewas no way that I could argue the los-ing side. After all, I had read all thecases and listened to the losing argu-ment twice. In fact, if an appellatecourt adopted that argument, I mightvery well doubt whether the courtfully understood the issue. As youmight have guessed, when I returnedacross the Skyway the followingmorning, it was with the realizationthat I had been arguing the wrongside all along. I wrote the wrong ar-gument and argued it twice. Now, Iwas prepared to forcefully advocatethe correct position. After all was saidand done, this was my most impor-tant lesson during the experience. Irealized that, when I appear on be-half of a client, I am always an advo-cate. Of course, I am mindful of myrole as an officer of the court and en-deavor to behave professionally andethically. But, in the end, my focus ison making the argument that winsthe case for my client.

This is the main lesson I learnedfrom the seminar: I need to be vigilantof the fact that my role as an advocatefor one side presents the risk that Imay lose perspective on the correctapplication of the law. More franklyput, I learned to be aware that the lossof an appeal does not necessarilymean that the appellate court waswrong. Judge Griffin commented onthis fact when she addressed theseminar participants. She explainedthat her first lesson as an appellatejudge was that she was no longer anadvocate taking a party’s side. Her jobis to properly decide the issue pre-sented by applying the law.

The seminar also includes lecturesregarding appellate practice skills, apanel question and answer segment,and an oral argument demonstrationby top Florida appellate judges andlawyers. The year I attended, manyparticipants agreed this was the mostentertaining portion of the seminar.Those who demonstrate the art oforal argument do a wonderful job ofshowing what to do and what not todo during an argument.

Finally, for those of you readingwho might wonder if this experienceis really for you, I can offer one moretidbit from my experience. Althoughthis is an intermediate level seminar,

the participants in my class had vary-ing levels of appellate experience. Inthe audience, I saw top-notch appel-late practitioners, whom I would puton my list of Who’s Who in appellatepractice. While some of the lawyersconfessed that they took the seminarbecause the substantial number ofCLE credits earned helped them tomeet their Florida Bar appellate cer-tification requirements, they alsoagreed that they left the seminarwith a better awareness of howFlorida appellate judges view thewritten and oral craft of appellateadvocacy.

The audience also contained attor-neys who were contemplating achange in their legal careers to the

land of appellate practice. They sawthis seminar as an opportunity tolearn more about appellate work.And, of course, many in the audiencewere somewhere in between thesetwo extremes. So, my advice would bethat, no matter what your experiencelevel may be in appellate practice, ifyou are interested in learning or fine-tuning your appellate advocacyskills, this seminar is invaluable.

(Endnotes)1 Celene Humphries, is a member of theAppellate Practice Section at Swope, RodanteP.A., where she focuses her practice on per-sonal injury and insurance bad faith. Sheearned her Bachelor of Arts degree at TulaneUniversity, and her Juris Doctor degree atTulane University.

6 continued page 19

EthicsQuestions?

CallThe Florida Bar’s

ETHICSHOTLINE

1/800/235-8619

A Practical Guide to Conflict Review in theSupreme Court of Floridaby Kathleen M. O’Connor1

majority of cases where “express anddirect” conflict is claimed.5 Even if aconflict is “certified” by the districtcourt of appeal, review is not guaran-teed because the supreme court maydecide a conflict does not in fact existand dismiss the case.6 This article willprovide an overview of conflict juris-diction and give pointers for seekingreview.

II. Review of “Express andDirect” Conflict Pursuant toArticle V, § 3(b)(3).

A. The Constitutional Provisions

Article V, § 3(b) of the Florida Con-stitution sets forth the mandatory, dis-cretionary and original jurisdiction ofthe Supreme Court of Florida.7 Effec-tive April 1, 1980, Article V wasamended to modify the supremecourt’s jurisdiction.8 The “most radicalchange” was to the Court’s discretion-ary jurisdiction. See In re EmergencyAmendments to Rules of AppellateProcedure, 381 So. 2d 1370, 1374 (Fla.1980). Previously, Article V gave thesupreme court power to review dis-trict court decisions in direct conflictwith a decision of any district court ofappeal or of the supreme court on thesame point of law. Conflict cases com-prised the “overwhelming bulk” of thecourt’s caseload. Id. at 1374.

In Foley v. Weaver Drugs, Inc., 177So.2d 221, 223-24 (Fla. 1965), the su-preme court ruled that discretionaryreview was available for per curiamaffirmances if a conflict could be foundby examining the “record proper.” Thisdramatically increased the Court’sworkload. As amended in 1980, ArticleV, § 3(b)(3) abolished the “recordproper” doctrine by requiring an “ex-press,” as well as a “direct,” conflict ofdecisions. See In re EmergencyAmendments, 380 So. 2d at 1375.9 Thisnarrowing of the Court’s discretionaryconflict jurisdiction was intended toallow the supreme court to functionmore efficiently and to reinforce therole of the district courts of appeal asfinal decision-makers in most cases.

B. Invoking the Supreme Court’sJurisdiction

The supreme court’s jurisdiction isinvoked by filing two copies of a no-tice, accompanied by applicable filingfees, with the clerk of the district courtwithin thirty days of rendition of theorder to be reviewed. Fla. R. App. P.9.120(b). The notice should be in theform prescribed by Fla. R. App. P.9.900(d) (“Notice to Invoke Discretion-ary Jurisdiction of Supreme Court”).The notice must contain the date ofrendition of the order to be reviewedand the basis for invoking the Court’sjurisdiction. Fla. R. App. P. 9.120(c).

C. Identifying the Conflict: The“Four Corners” Rule

The conflict alleged as a basis forjurisdiction must exist within the“four corners” of the district court’s de-cision. Reaves v. State, 485 So. 2d 829,830 (Fla. 1986). References in a juris-dictional brief to the record in the ap-pellate court are, therefore, improper.

D.“Express and Direct” Conflict:The Requirement of an Opinion

1. A “PCA” or a “PCD” is Ordi-narily Insufficient

A district court decision that sim-ply affirms the result below (“Per Cu-riam. Affirmed.”), commonly known asa “PCA,” is not reviewable by the Su-preme Court of Florida. Grate v. State,750 So. 2d 625, 626 (Fla. 1999);Jenkins v. State, 385 So. 2d 1356, 1359(Fla. 1980). Similarly, an unelaborateddenial of relief on an extraordinarywrit petition (“Per Curiam, Denied”),a “PCD,” is not reviewable. Stallworthv. Moore, 827 So. 2d 974, 978 (Fla.2002). Even a PCA or a PCD with ci-tations is not reviewable in most in-stances. Gandy v. State, 846 So. 2d1141, 1144 (Fla. 2003); Persaud v.State, 838 So. 2d 529, 531 (Fla. 2003);Dodi Publishing Co. v. EditorialAmerica, S.A., 385 So. 2d 1369 (Fla.1980).10

I. Introduction

The most frequently traveled av-enue for seeking review in the Su-preme Court of Florida is a claim ofdecisional “conflict.”2 The supremecourt has discretionary jurisdiction toreview two categories of conflictingdecisions: (1) a decision of a districtcourt of appeal that expressly and di-rectly conflicts with a decision of an-other district court of appeal or of thesupreme court on the same questionof law,3 and (2) a decision of a districtcourt of appeal that is certified by itto be in direct conflict with a decisionof another district court of appeal.4 Apetitioner seeking the first type of re-view faces a formidable uphill battlebecause review is denied in the vast

7

The End of an Era at the Third DistrictCourt of Appeal: The Retirement of JudgeRobert L. Shevin, Judge Mario P. Goderichand Chief Judge Alan R. Schwartzby Roberta G. Mandel1

I am a long time appellate prac-titioner and, like other appellatepractitioners, appreciate the vitalrole that our appellate judges playin not just the formation, but “legalmemory”, of Florida jurisprudence.In addition, appellate practitionersdevelop a deep bond with those be-fore whom we regularly present ourarguments and advocate for our cli-ents, usually with deep commit-ment and sometimes with down-right emotion. So it seems almostincomprehensible that three stal-warts of the Third District Court ofAppeal have retired at the sametime: Judge Robert L. Shevin, JudgeMario P. Goderich and former ChiefJudge Alan R. Schwartz. I recentlyhad the opportunity to intervieweach of these well-known andhighly respected jurists.

A. Judge Robert L. Shevin

H a v i n gserved as an As-sistant AttorneyGeneral myselffor over 15 years,it was an enor-mous privilegefor me to be ableto talk at lengthwith Florida’sformer Attorney

General, the Honorable RobertShevin. I was eager to learn moreabout a man I greatly admire.

The State of Florida was privi-leged to have the legal expertise ofJudge Shevin in all three branchesof government. Judge Shevin ex-plained that no other Floridian liv-ing today has served in all threebranches of government. He servedin the Florida House of Representa-tives from 1964-66, the State Senatefrom 1966-70 and as Florida Attor-ney General from 1971-79. He joined

the Third District Court of Appeal in1996. When asked which branch ofgovernment he enjoyed the most,Judge Shevin, the ideal of public ser-vant, responded he found eachbranch of government “meaningfuland gratifying.”

Beyond being a public servant,Judge Shevin is also a legal scholar.After graduating college in 1955, hegraduated second in his law schoolclass, magna cum laude from theUniversity of Miami School of Lawin 1957. While in law school, heserved as a member of the LawSchool Law Review. Later, in privatepractice, he argued cases in theNorthern, Southern and Middle Dis-trict Courts, the U.S. Court of Ap-peals in the Fifth, Eleventh and Dis-trict of Columbia Circuits. He alsoargued, and won, three cases in theU.S. Supreme Court.

Judge Shevin has fond memoriesof his days as Florida’s AttorneyGeneral, the constitutionally desig-nated “chief legal officer” for theState of Florida. The Florida Attor-ney General’s office has many divi-sions and programs, lending itself toa broad variety of fascinating legalissues, he explained. As AttorneyGeneral, he represented the pros-ecution in all criminal appeals instate and federal courts. But he alsoprosecuted and defended civil litiga-tion cases on behalf of State entitiesand officials in federal and statetrial and appellate courts, and be-fore administrative bodies acrossFlorida.

When asked about the best partof serving on the Third DistrictCourt of Appeal, Judge Shevin re-sponded that all of the judges on theThird District got along with oneanother very well and it was thatcollegiality between the judges thatmade his tenure on the Court themost pleasurable. He also greatly

enjoyed the variety of cases he heardwhile serving on the appellatebench.

When asked if he had any sugges-tions for attorneys who practice inthe Third District Court of Appeal,Judge Shevin responded that attor-neys should always come into Courtwell prepared. One of the biggestmistakes that he witnessed whileserving on the bench was that law-yers occasionally were not as pre-pared as they should be in Court.However, he quickly added thatmost of the attorneys were ex-tremely well prepared. With regardto brief writing, Judge Shevin ad-vised that attorneys should not feelas though they have to file 50-pagebriefs. He cautions that it is muchmore important to raise meritoriousclaims accurately.

Judge Shevin further reflectedthat appellate attorneys should al-ways ask for oral argument so theCourt has the opportunity to askthe parties questions about thecase. When asked if a trial attorneyis better prepared to argue the ap-peal of a case that he/she handledat the trial level, he quickly re-sponded that generally speaking,appeals are best left to those whospecialize in appellate law. Headded that the trial attorney on thecase should always make himself orherself available to assist the appel-late attorney.

I ended our interview with onequestion: how would Judge Shevinlike people to remember him. He re-sponded that he would like to be re-membered as a judge who alwaystried to be well prepared and re-spectful to each attorney who ap-peared before him. Speaking frommy own experience and probablyspeaking for many appellate practi-tioners who have appeared beforehim, that will surely be the case.

continued next page

8

END OF AN ERAfrom previous page

B. Judge Mario P. Goderich

It was al-ways a pleasurefor me to arguea case beforeJudge Mario P.Goderich. JudgeGoderich was al-ways pleasantand always agentleman. Hetreated every at-

torney who appeared before him withcourtesy and respect.

Judge Goderich is best described asa scholar. He graduated from the Uni-versity of Havana, Havana, Cuba in1952. He attended law school at theUniversity of Havana, where hegraduated as a Doctor of Civil Law in1957. He practiced law in Cuba beforecoming to the United States in 1961.Upon arriving in the United States, heworked in all types of odd jobs to ad-vance himself and his family. Possess-ing a keen legal mind, however, hewanted to resume his career as an at-torney. He enrolled in law school atthe University of Miami in 1963, andgraduated in 1966. When JudgeGoderich graduated from law school,he still was not able to return to thepractice of law because he was not aU.S. citizen. So he took a position asthe law librarian at the University ofMiami School of Law. He also workedas a law professor at the Law School.

Judge Goderich eventually wasable to return to the practice of law.He became one of the founders of theCuban American Bar Association(CABA) in 1974, and served as itsfirst President. He quipped that hiscampaign for President of CABA wasthe only one of his campaigns inwhich he drew an opponent.

Judge Goderich was appointed asan Industrial Claims Judge in 1975,where he remained until 1978. In1978, he was appointed to the posi-tion of Circuit Court Judge by Gov-ernor Reubin Askew. He served onthe Circuit Court bench until 1990.He never faced opposition in any ofhis re-elections to the bench.

In 1990, Judge Goderich was ap-pointed to the Third District Court ofAppeal. He was the first Cuban-

American judge appointed to serveon all three courts. When askedwhich court he enjoyed most, JudgeGoderich responded that he “loved”all three courts. But he found theThird District Court of Appeal themost “relaxed” at the same time thatit was the most “challenging.”

In 1997, Judge Goderich becamethe first recipient of the FranciscoGarcia-Amador Award, Center forHispanic and Caribbean Legal Stud-ies, University of Miami School ofLaw for his contributions to the law.

When asked what advice he wouldgive someone just graduating fromlaw school about the actual practiceof law, Judge Goderich recommendedthat a lawyer always act profession-ally and always be well prepared. Asfor oral argument, he maintainedthat a lawyer should get a “feel” forthe way the argument is progressing.He contended that if the court is notagreeing with an attorney’s argu-ment or position, the attorney shouldmove on to his/her next point.

Upon his retirement from the ThirdDistrict, the law firm of Gunster,Yoakley & Stewart tapped JudgeGoderich’s experience and expertisefor their law firm. Judge Goderich hasnow left his role as jurist and advisoras Senior Attorney to the law firm’slitigation department. In that lawfirm role, he brings nearly fifty yearsof legal experience with him. He nowconcentrates his attention on arbitra-tion, mediation, and, of course, appel-late matters. In addition to assistingclients, he will, undoubtedly, be in aposition to educate the firm’s associ-ates and shareholders. He describesthe firm as a “magnificent law firmwith an outstanding reputation.” Thiscertainly matches Judge Goderich,himself a magnificent human beingwith an outstanding, firmly-deservedreputation.

When asked how he would like theworld to remember Judge Mario P.Goderich, not surprisingly he humblyresponded, “There is no immortality,I will not be remembered.” With alldue respect to Judge Goderich, I don’tagree. While there is no immortality,those who have had the privilege ofappearing before Judge Goderich willremember his legal expertise, hiswarmth and his gentlemanly person-ality.

I also asked Judge Goderichwhether he would choose the same

career path again, if he had the op-portunity. He quickly responded hewould, adding that he truly has lived“the American dream.”

C. Judge Alan R. Schwartz

As an Assistant Attorney Generalbased in Miami, Ihad the privilege ofarguing hundredsof cases beforeformer Chief JudgeAlan Schwartz.This is not to sug-gest that my ar-guments were al-ways well received,but I never had any

doubt about whether Judge Schwartzagreed/disagreed with my position, ashe always clearly articulated histhoughts and views.

As far as this writer is aware, thereis no other jurist who has inspired theformation of a new terminology: “to beSchwartzed” or “to get Schwartzed” or“passing the Schwartz test.” Anyonewho has ever argued an appeal beforeJudge Schwartz is intimately familiarwith these terms. In fact, during myinterview with Judge Schwartz, I re-minded him that I had been the recipi-ent of his wrath many years earlier.Without missing a beat, JudgeSchwartz responded, “yes that wasyour heinous crime argument.” It isamazing to me that after authoringover seven thousand opinions in hislong legal career, Judge Schwartz re-called that argument, from 1990, in acase that was ultimately reversed forprosecutorial misconduct. I still re-member that day. I started my argu-ment with a description of thedefendant’s crime as “heinous.” I “gotSchwartzed” for it. And in hindsight,Judge Schwartz was absolutely rightto be upset with my terminology; thenature of the crime (shaking a babyto death) was not relevant to whetheror not reversible error had occurred inthe case. I learned a brutal, but valu-able, lesson from that experience. Andfortunately I was never “Schwartzed”again.

Judge Schwartz graduated fromHarvard College magna cum laude in1955 and Harvard Law School cumlaude in 1958. When asked why hechose the law as a career, he quippedthat he had to go into law, “since hewas a smart Jewish boy who hated thesight of blood.”

9

Judge Schwartz was appointed Cir-cuit Court Judge by Governor ReubinAskew in 1973 and re-elected, with-out opposition, in 1974. In 1978, Gov-ernor Askew appointed JudgeSchwartz to the Third District Courtof Appeal. His colleagues elected himChief Judge in 1983, and had suchrespect from his peers that he wascontinuously re-elected to serve asChief Judge from that point until hisretirement.

As a practicing attorney, JudgeSchwartz had the self-proclaimedtitle: “Emperor of Extensions.” Ironi-cally, as part of his responsibility asChief Judge, he reviewed each Motionfor Extension of Time filed in theCourt. Perhaps remembering his daysas the “Emperor of Extensions,” theCourt has the reputation of gener-ously granting multiple Motions forExtension of Time.

Judge Schwartz defines a brief asan “instrument of advocacy.” “A goodbrief is the opinion that you wouldlike the Court to write in your case,”he explains.

Twice nominated for the Fifth Cir-cuit Court of Appeals, Judge Schwartzwas also nominated four times by the

Judicial Nominating Commission forthe Supreme Court of Florida. He wasalso nominated for the Second DistrictCourt of Appeal.

Like many in the appellate commu-nity, Judge Schwartz is also a firm be-liever that the Florida Constitutionshould be amended to extend the re-tirement age of state court judges. Henoted that fifty years ago, when theFlorida Constitution was written, lifeexpectancy was much lower than it istoday. “Today, seventy is not old,”opined Judge Schwartz. Given thewealth of knowledge that is lost withthe premature retirement of vigorous,highly experienced jurists, this consti-tutional provision would seem to war-rant re-examination.

Though Judge Schwartz did not al-ways agree with my arguments, JudgeSchwartz was always my first choiceto hear an appeal of mine. He alwaysknew the record and the issues in thecase, in addition to knowing the law.Our arguments were, therefore, on thefiner points of the appeal or the lawas they might impact other cases. Healso would invariably asks poignant,thought-provoking questions.

Unquestionably, Judge Schwartz

has one of the finest legal minds inthe State of Florida, if not the coun-try. His commitment and dedicationto the legal system is beyond re-proach. And on April 22, 2005 JudgeSchwartz’s years of commitmentwere honored at the Twenty SecondAnnual Third District Court Seminarand Reception with the naming of the“Alan R. Schwartz Third DistrictCourt of Appeal Law Library.”

Although Judge Schwartz has “of-ficially” retired, he is still serving thejudiciary as a Senior Judge. Whenasked how he would like the world toremember him many years from now,he responded that he wants to be re-membered as a “person who took noguff.” Speaking for those who have ap-peared before Judge Schwartz, I thinkwe can safely say that he will be re-membered for his strong and forth-right nature.

(Endnotes)1 Roberta Mandel is the head of the appel-late department of Houck, Hamilton & Ander-son P.A., and a member of the firm. Sheserved as an Assistant Attorney General forover 15 years, and has successfully arguedmore than 500 appeals in the state and fed-eral court systems.

Annual AppellateDessert ReceptionThursday, June 23, 2005, 9:00 p.m.

The Florida Bar Annual MeetingOrlando Marriott World Center

Presentation of Adkins Awardand Pro Bono Award 10:00 p.m.

Make Plans to Attend!

2005Annual Meeting of

The AppellatePractice Section

In Conjunction with

The Florida BarAnnual Meeting

June 23, 2005Committee Meetings - 8:30 a.m.

Executive Council - Section Meeting 10:00 a.m.Orlando Marriott World Center

10

Do you like to WRITE?Write for The Record!!!

The Record is activelywelcoming articles on a widevariety of appellate issues.

Please submit your articles toDorothy Easley, Editor, Steven

M. Ziegler, P.A., 4000 HollywoodBlvd., Suite 375 South,

Hollywood, FL,or email to

dfeasley@bellsouth.net

Learning to Put Yourself in the BestPosition to Win on Appeal: A YoungLawyer’s Perspectiveby Cory W. Eichhorn1

From a young lawyer’s perspec-tive, appellate practice may appearto be an intimidating field of law. Itrequires diligence and precision inunderstanding and complying withrules of procedure, as well as an abil-ity to think outside the box whilewriting briefs and analyzing the law.Appellate practice also provides aninvaluable means of experiencingand directly affecting how the law isbeing shaped, while at the sametime interacting with a tribunal ofjudges in an intimate setting.

For a young practioner, the pur-pose of appellate law presents aunique intellectual challenge andlearning experience:

A reviewing court is . . . im-portant to coordinate divergentlegal contentions and to estab-lish principles and precedentsto guide the course of futurecases dealing with all subjects.An appeal then becomes desir-able for two reasons, first totest the correctness of the pro-ceeding when a litigant feelsthat he has not been affordedjustice under the law and, sec-ond to record and give sanctionto correct rules of law as it con-forms to changing conditions.Without some central review,the divergent opinions of nu-merous trial courts would be-come confusion compounded.2

Being part of this process makesappellate practice a humbling andrewarding experience. Life as ayoung appellate attorney does, how-ever, take hard work and a willing-ness to accept new opportunities —both of which require a youngpractioner to understand that ap-peals will be won and lost. Learningfrom successes and failures is key tobecoming a better appellate practi-tioner.

In my young career as an appel-late practioner, I have tried to followthese guidelines:

1. Obtain Litigation Experience

To understand and comprehendwhat happens at the appellate level,a young lawyer should have a funda-mental knowledge of the events lead-ing up to that appeal at the trial level.That doesn’t necessarily mean that ayoung appellate practioner must trya jury trial before making an oralargument. A young attorney can ob-tain litigation experience in otherways, i.e., taking depositions and at-tending hearings. These experiences,however, reveal how the process ofappellate law works in practice. Forexample, what facts are necessary tosupport a legal position or the rea-soning behind a trial judge’s deci-sion? First-hand understanding ofthe process and mechanism of litiga-tion will be an invaluable asset whenwriting a brief or making an oral ar-gument.

2. Become Involved

Join appellate organizations andmeet as many different appellatepractioners as possible. Many inter-esting appellate organizations exist,from the Appellate Practice Sectionof the Florida Bar to appellate prac-tice divisions of various county bars.Interacting with experienced appel-late practioners outside your lawfirm will expose a young attorney to

different methods of thinking as theyrelate to appellate practice. This willallow a young appellate practioner tobroaden his or her horizons andshould ultimately create a learningenvironment. In addition, attendingseminars is an invaluable way to be-come a better appellate practioner,while at the same time meeting newappellate lawyers with differentbackgrounds and experience levels.

For example, the Appellate Prac-tice Section of the Florida Bar spon-sors an intensive three-day seminarat Stetson University Law School.That seminar provides lawyers anopportunity to write a mock appel-late brief and argue mock oral argu-ments. The faculty at this seminar isbeyond reproach: numerous appel-late judges from district courts ofappeal and the Eleventh Circuit, aswell as respected and experiencedappellate practioners from aroundthe community. This seminar is arare opportunity to interact with ap-pellate judges and practioners out-side the framework of “real world”proceedings and to gain valuable in-sight into the major and minor de-tails involved in the day to day prac-tice of appellate law. This seminaralso affords valuable constructivecriticism that can be readily appliedto your next brief or oral argument.

I attended this seminar about twoweeks before my first oral argumentin the Second District Court of Ap-peal. I found the experience challeng-ing, rewarding and humbling, but Itruly felt it prepared me for the typesof questions and issues that the Sec-ond District ultimately focused on. Italso provided an opportunity to inter-act with judges and gave me a first-hand look at just how well preparedeven a “mock” appellate panel can be.The entire seminar experience mademe more comfortable presenting anoral argument, and more confident inmy brief writing. This year, the semi-nar will be held July 20 through 22,2005 at the new Stetson Universitydowntown Tampa law school campus.

11

CHECK OUT THESECTION’S UPDATED

WEBSITE!

http://www.flabarappellate.org

More information about the seminaris appearing in this issue of theRecord and on the Appellate PracticeSection’s website.

As for my first oral argument, itwas an exciting, enjoyable experi-ence. Presenting an argument on be-half of the appellee, I found the Sec-ond District to be extremely wellversed in the record. At one point, theCourt even questioned appellant’scounsel as to why certain documentsrelated to his argument were not in-cluded in the record. Truth be told, Iwas somewhat nervous during myintroduction to the Court. From thatpoint forward, I felt confident andwell prepared. At times, the Courtposed questions and focused on is-sues that I expected, and at othertimes the Court moved into areasthat were not so expected. Whetherthe questions were expected or unex-pected, however, I focused on the is-sues that the Court raised and ad-dressed them to the best of my ability.Through it all, I somehow survivedto argue another day.

3. Don’t Be Afraid to TakeChances

Although a young lawyer may nothave many opportunities to becomeinvolved in appellate law on a dailybasis, there are numerous opportuni-ties to become more exposed. For ex-ample, the Appellate Practice Sectionoffers a mentoring program that willassist young practioners with ques-tions about appellate procedure andappellate law. In addition, there arenumerous opportunities within theappellate pro bono arena to gain ap-pellate experience, both at the stateand federal level.

4. Ask Questions

When initially embarking on a ca-reer in appellate law, do not be afraidto ask questions about appellate pro-cedure or substantive appellate law.Asking law firm partners and/or su-pervisors questions about matters youare working on not only shows yourwillingness to learn; but makes you abetter lawyer and hopefully reduces,if not altogether avoids, mistakes. Inaddition, asking questions may re-solve issues on a broader scale relatedto standards of review and preserva-tion of error that a young appellate

lawyer could apply in the future.5. Welcome New Opportunities

In the same vein as asking ques-tions, offering to become involved inappellate matters — even on a dis-crete legal research issue — mayopen the door to more substantiveappellate work, perhaps writing abrief in a smaller matter or attend-ing an oral argument. Even if you feelthat your first appellate case is notas intellectually challenging as youmight have hoped, being involved inany case at the appellate level pro-vides a base from which a young law-yer can broaden his experiencewithin the field. Working on a smallermatter also allows a younger attor-ney to learn the rules of appellatepractice and procedure, the mecha-nisms for how an appeal is initiated,and the process in which the recordon appeal is prepared. In addition,just preparing the notice of appealand record will give a young lawyerthe right experience in appellate lawfrom the ground level, so that in thefuture, you can correct possible mis-takes made that could make a differ-ence in the outcome of an appeal. Un-derstanding appellate practice in itsentirety — not just writing briefs andattending oral arguments — will alsomake the young lawyer a more wellrounded and better appellatepractioner.

6. Know Your Role as an Appel-late Lawyer

Although a primary component ofappellate practice occurs at the ap-pellate level, appellate practionersare becoming increasingly involvedin advising lawyers and clients at thetrial level. From advice regardingpreservation of error issues to thedrafting of jury instructions, appel-late lawyers can and do provide im-portant analysis at the trial level.Embracing this role will not onlybroaden your horizons and expandyour utility as an appellate lawyer;it will also assist you in an under-standing of the issues that will ariseon appeal — which makes identify-ing arguments and drafting briefs amore streamlined process.

7. Be Prepared

Above all, be prepared. Take the

time to analyze your record, have anintimate knowledge of the pleadings,correspondence or transcript testi-mony that you are relying on in yourbriefs and at oral argument. That ini-tial preparation allows an appellatelawyer to be flexible and creative:both in drafting the brief and at oralargument.

Familiarity with the record andlaw will also allow a prepared appel-late lawyer to respond in a more ef-fective way to many of the questionsposed by the tribunal at oral argu-ment. It may also assist in identify-ing complicated issues related tostandards of review that an opponentmay not necessarily spot. This atten-tion to detail — without losing theforest for the trees — generally putsthe appellate court in a better posi-tion to understand your argument.That, in turn, gives you a greaterchance of prevailing on appeal. Insum, an appellate practioner cannever be too familiar with the recordor the law involved in his or her case.

Of course, the recommendationsdiscussed above are only guidelinesthat should be applied within theframework of a young attorney’s styleand work habits. Moreover, each casemay require a different approach andan ability to be flexible. In this re-gard, appellate practice is a learningprocess that has improved my criti-cal thinking and legal analysis. Itprovides me with new and excitingexperiences every day. As a youngattorney, opportunities abound in thefield of law. Take a chance. Welcomenew experiences. Write a brief. Makean oral argument. You may learnsomething new.

(Endnotes)1 Cory W. Eichhorn is an associate atProskauer Rose LLP in Boca Raton, Florida.He is a member of Proskauer’s litigation de-partment, where he focuses his practice oncommercial litigation and appellate practice.2 Village of Commercial Point v. Branson,251 N.E. 2d 705, 707 (C.P. 1969) (quoting LEE

K. SKEEL, OHIO APPELLATE LAW 7 (2d ed. 1969)).

12

continued page 22

The Roots of Preservationby Jack J. Aiello1

lower tribunals; and 2) they confirm,clarify, and develop the law for thebenefit of all.2 It is a fundamentaltenet of our constitutional form ofgovernment that no branch of gov-ernment or class of participantsshould have autonomous power overmaterial matters of substance andthat checks and balances be providedwithin the system to minimize thatdanger.

In that sense, one way that the re-view role of the appellate courts hasbeen viewed is as a check on thepower of judges and juries. Morepurely, in fact, the appellate courtsystem serves as a check on thepower of judges, because, except forthose very few instances of funda-mental error, appellate review is lim-ited to decisions made by the judgeof the lower tribunal. For example,even where one challenges the suffi-ciency of the evidence upon which ajury rendered a verdict, the appellatechallenge is to the decision of thetrial court not to direct a verdict orgrant a new trial.

C. Preservation RequirementsSeek to Promote Fairness, Judi-cial Efficiency and Limits onNotions of Appealability of Ev-ery Decision

Because it was never contem-plated that the appellate system

would support a re-trial of every de-cision or event that occurs in thelower court, a crucial limiting devicehas been developed in the commonlaw and in procedural rules to deter-mine and limit appealability. Thatdevice is the contemporaneous objec-tion rule.

The contemporaneous objectionrule requires, just as its name sug-gests, that in order to preserve an is-sue for appeal, an objection must bemade at or reasonably near the timethat the objectionable decision orevent occurred. The rule also re-quires that a decision on the objec-tion be obtained.

The contemporaneous objectionrule is “based on practical necessityand basic fairness in the operation ofthe judicial system.”3 The rule is es-sential to basic fairness in the opera-tion of the judicial system because atimely, proper objection places thetrial judge on notice of the possibil-ity of error and provides the judge theopportunity to correct it. That oppor-tunity serves not only the objectiveof fairness to the judge, but of fair-ness to the parties, with the hoped-for result that many material errorsare corrected and trials are able toprogress more smoothly.

The second part of the rule—thata decision is actually obtained on theobjection—is necessary to satisfy the

A. Introduction

An understanding of the publicpolicy underlying any substantiverule of law is a useful aid to advocacyabout the application of that rule oflaw. In the same way, an understand-ing of the policy underlying the pro-cedural rules governing the preser-vation of error can aid in advocacyabout the application of those rules,both in trial and appellate courts. Atypical instance might be arguing ei-ther side of an issue of whether trialcounsel’s words of “objection” suffi-ciently satisfied the policy to pre-serve the appellate record. The pur-pose of this article (aside fromsatisfying a commitment that Imade) is to explore this underlyingpolicy and to observe its relationshipto the rules of preservation that haveevolved in pursuit of it. Thus, thisarticle will discuss examples of cer-tain trial court preservation issues,but will not serve as a checklist orsurvey of specific preservation re-quirements in all of the many com-mon circumstances that arise at thetrial court level.

B. The Basic Reasons for Appel-late Review

Appellate courts perform two im-portant functions: 1) they review andcorrect, as necessary, decisions of

Ad or AdkinsAward and ProBono Awards?

JUSTICES OF THE FLORIDA SUPREME COURTfor

The Final Round of the Robert Orseck Moot Court Competitionand

An Open Discussion with the Justicessponsored by

The Appellate Practice Sectionand

The Young Lawyers Division

Thursday, June 23, 2005 • 2:00 p.m. – 4:30 p.m.

13continued next page

Senior Judges, Mandatory Retirement, and theFreedom to Choose to Continue Contributingby Dorothy F. Easley1

“‘In many cir-cuits and dis-tricts, seniorjudges are in-dispensable tothe proper con-duct of judicialbusiness.’ Infact the federalJudiciary de-pends on its se-nior judges to

such a degree that if tomorrowall the senior judges decided tocatch up on their lost leisure, thecourts would need an additional100 active judges to compensatefor the loss of the senior judges.If Congress and the Presidentchose not to create the newjudgeships, the federal courtswould grind to a halt.”2

A. Introduction

Article V, §8 of the Florida Consti-tution provides that “[n]o justice orjudge shall serve after attaining theage of seventy years except upontemporary assignment or to completea term, one-half of which has beenserved.” As appellate practitioners,many of us have noted with great re-gret the number of justices and ap-pellate judges “at the top of theirgame” who have retired under thisconstitutional mandate. That regretis not simply out of a growing affec-tion for our judiciary, before whom wehave appeared and learned to refineour arguments, but a desire to retainthe seasoned judicial scholarshipthat only comes with time, continuedstudy and experience. The training,in other words, is mutual.

This article touches on some of theissues surrounding mandatory re-tirement, and the seeming contradic-tion it presents: that we have decreedretirement of a sector of our judicialbranch that modern study after mod-ern study has demonstrated is a sec-tor proving itself to have tremendousproductivity, knowledge and, perhapsmost important, innovate views. Thecontradiction does not end there. The

same Florida Constitution that saysa judge, because of age, must leavethe bench, allows that same judge,the following week, to be assigned toproceed to adjudge the same, often-times very complicated case preciselybecause of his/her expertise.

There are many examples of inno-vation in the older of us. Take for ex-ample, Giuseppe Verdi’s compositionof Otello, Mary Baker Eddy’s found-ing of the Christian Science Monitorand Frank Lloyd Wright’s design andconstruction of the New York City’sGuggenheim Museum.3 All of thesemasterpieces were created by adultsbetween the ages of 70 and 91.4 Yet,despite our better education, we are aculture that remains obsessed withstaying young, missing “the most im-portant part of getting old: the brain’sphysiology changes in ways that pro-mote the person’s need for reflection,insight, and innovation.”5 Those arealso key attributes of judicial wisdom.

B. Some Facts ReflectingGreater Productivity, Reliabil-ity and Innovation in Our Se-nior Judges

Take for example, U. S. DistrictJudge Joe Fisher, a President DwightD. Eisenhower judicial nominee tothe U.S. District Court for the East-ern District of Texas, who served 41years on the federal bench.6 He was90 years old.7 And up until two weeksbefore his death, he carried nearlyhalf the caseload of an active judge.8

Those are amazing statistics for ajudge who, under the Florida Consti-tution, is presumptively unqualifiedto continue as a fully active judge be-cause of a numeric value. Yet, JudgeFisher was one of a growing numberof judges “across the country who,when they could opt for fishing tripsand wintering in Florida or just plaindoing nothing, continue[d] to handlesubstantial court caseloads. It is for-tunate for the Judiciary and taxpay-ers that these judges do.”9

At more than 90 years of age,Third Circuit Court of Appeals JudgeMax Rosenn chose to continue his

public service by staying on thebench.10 Judge Rosenn has been asenior judge for nearly 20 years, anddoes more work now as a senior judgethan when he came on the court in1970.11 “The courts run much moreefficiently,” said Judge Rosenn.12

“There’s better planning and acceler-ated production. With technologysuch as computers, we get out awhole lot more cases.” Judge Rosennenjoys working as a judge: “I get agreat deal of satisfaction in doingsomething useful.”13

At almost 95, Judge Joseph P.Kinneary of the U.S. District Courtfor the Southern District of Ohio wasthe oldest working senior judge in thecountry.14 Judge Kinneary took a 100percent draw on criminal cases (be-cause he liked them) and an 80 per-cent draw on civil cases. 15

And there is the case of SouthernDistrict of New York Senior JudgeMilton Pollack: “The lawyers tell methey need more time, but I tell themI really don’t have a lot of time at 931/2 years old.”16 Judge Pollack, whoserved on the court 34 years beforehis death at 97 years, further ex-plained: “I’m known for taking overlong-delayed reassigned cases andtelling the attorneys to come in nextMonday and be ready for trial.”17

Judge Pollack was highly regardedfor being able to clear up civil cases,particularly securities and trustcases that had been pending for pro-tracted periods.18 “His philosophy[wa]s that the harder you work, thelonger you live.”19

At more than 80 years of age,Judge Anthony Alaimo (S.D. Ga.) alsoremained very active; only a year be-fore turning 80, he handled a globalsettlement for about 900 plaintiffs ina class action suit.20 He feels no dif-ference between senior judge andactive judge, except that in certain in-stances in some courts, senior judgesdon’t retain their voting rights on ad-ministrative matters.21 “I think I trymore cases than some active judges,”he said.22 He carried a full caseloadby choice: “I’m like the old prizefighter. . .every time the bell rings I

14

Appellate Practice LuncheonTelephonic Seminars

A NEW SERIES WILL BEGINJULY 19, 2005

Third Tuesday of Every Month(Except June and December)

12:10 p.m - 1:00 p.m.

Registration Information Available at:www.flabarappellate.org

!!!!!!!!!!

!!!!!!!!!!

SENIOR JUDGESfrom previous page

come out of my corner.” 23

On the federal side, senior judgecontributions have increased justabout yearly.24 Even in 1999, 273 se-nior district judges completed morethan 17 percent of all civil and crimi-nal defendant cases and conducted19 percent of all trials.25 Eighty-sixsenior appellate judges handled 15percent of all oral arguments andbriefs submissions.26

Statistics show that only about 1.6percent of judges eligible for retire-ment choose full retirement beforereaching 15 years of service in activestatus.27 Even fewer choose full re-tirement instead of senior statuswhen they are eligible.28 A little morethan half of all federal judges acceptssenior status within one month afterbecoming eligible.29 Seventy-five per-cent accept senior status within ayear.30

But more than 8 percent workmore than 20 years before taking se-nior status.31 And some judges, suchas Federal Circuit Court of AppealsJudge Giles Rich, do not even accept

senior status at eligibility.32 JudgeRich served as an active judge formore than 40 years, and at age 95became the oldest active judge in his-tory.33 In 2003, upon learning of thedeath of Judge Rich, who even thenwas still working with active judgestatus, Acting Assistant Secretary ofCommerce and Acting Commissionerof Patents and Trademarks, Q. ToddDickinson stated: “Judge Rich wasthe single most important figure intwentieth century intellectual prop-erty law. . . . He devoted his career toprotecting and nurturing the geniusbehind the technology that advancedthis nation from the Industrial Ageto the Age of Information. . . . At thetime of his death, Judge Rich was theoldest active federal judge in U.S. his-tory. His age, however, was never re-flected in his opinions. His view onthe patentability of software, one oftoday’s most contentious patent is-sues, was far more expansive thanthat of younger colleagues’ scores.Judge Rich leaves a rich legacy in hisvoluminous body of judicial opinionsand in the 1952 Patent Act which hehelped to draft. We have lost the deanof the twentieth century patent sys-tem.”34

C. Modern Statistics Suggest theSenior of Us Are GenerallyHighly Productive, Collabora-tive and Better Decisionmakers.

That these active senior judges aregoing strong and working well intotheir 90s is consistent with modernstatistics on the population as awhole. For example, the AustralianGovernment dismissed the mythssurrounding older employees, andcited to a study by Rhodes, who ex-amined 185 research studies andfound that internal work motivation,overall job satisfaction and job in-volvement were positively, ratherthan negatively, associated withage.35 Reark Research also concludedthat older workers could be countedon in crisis situations, were more de-pendable, did a better quality job andcooperated more on the job.36

Further, to get a more realistic pic-ture of cognitive functioning in olderadults, Dr. Thomas Hess, professor ofpsychology at N.C. State University(Raleigh), and “his researchers haveemphasized social contexts and thereal-life settings in which seniors en-gage their minds in their memorystudies.”37 Dr. Hess’ research into so-cial cognition and aging, funded by a$1 million grant from the NationalInstitute on Aging, also reflects that“older adults perform as well or bet-ter than younger adults in tasks thatinvolve making objective decisionsand assessing people’s character.”38

Dr. Hess further determined in onestudy that “if the information was rel-evant to older adults, they could fo-cus their cognitive resources,” and“performed almost exactly likeyounger adults. Older adults tendedto focus on the argument that wasmade rather than on who made it,which is the way we would think aninformed decision-maker would goabout making a decision.”39

In another study, Dr. Hess “pre-sented groups of older and youngeradults with positive and negative de-scriptions of fictitious individualsand asked the subjects to evaluatethe honesty and intelligence of thoseindividuals.”40 “[O]lder adults werebetter than younger adults at judg-ing a person’s character and compe-tence.”41 “Middle-aged and olderadults make more complex judg-ments because they focus on the most

15

meaningful factors that could impactan individual’s behavior,” Dr. Hess ex-plained.42 The senior sector of ourpopulation appreciates “what is im-portant in assessing character be-cause of their years of experience andsocial expertise. Young people haven’thad as much experience in the socialworld, and they haven’t had as muchtime to learn about the many factorsthat relate to behavior, so they tendto focus on qualities that are some-what superficial.”43

Conclusion

F. Scott Fitzgerald once wrote that“[t]he test of a first-rate intelligenceis the ability to hold two opposedideas in the mind at the same time,and still retain the ability to function.One should, for example, be able tosee that things are hopeless and yetbe determined to make them other-wise.” In the face of modern research,it would appear that forced retire-ment based on constitutional dis-qualification because of a numericvalue, rather than performance andproductivity, misses the mark. It pre-sents the very real and significantrisk that we are forcing out the mostexperienced, wisest, productive, reli-able, and even healthiest of ourjudges because of an arbitrary num-ber and unsubstantiated stereotypes.

While there may have been ratio-nal reasons at one time for the 65 ver-sus 70 versus 71 mandatory retire-ment age designation, in a populationliving longer than ever before, cur-rent facts bear out that the argu-ments previously advanced in de-fense of mandatory retirement of ourjudges (the stereotypes of deteriorat-ing health, reduced productivity,burnout and mental decline with age)no longer apply and do not make eco-nomic sense. In the face of currentfacts, the question becomes, on whatrational basis today can mandatory,versus voluntary or graduated, re-tirement at the magical age of “70years” rest? Perhaps the issues sur-rounding mandatory retirement arebetter addressed on a judge-by-judgebasis by the Judicial QualificationsCommission. Perhaps, for the benefitof Florida’s citizens and for the Benchand Bar, mandatory retirement is anissue worth revisiting.

(Endnotes)

1 Dorothy F. Easley, M.S. & J.D., is a part-ner and a Florida Bar board certified appel-late practitioner with Steven M. Ziegler, P.A.,the firm specializing in managed care, healthlaw, employment practice, general liability, in-surance and appellate. She serves as anelected member of the Section’s ExecutiveCouncil and on its various committees. Shealso serves on the Appellate Court Rules Com-mittee of the Florida Bar.2 Senior Judges Give New Meaning to “Vol-unteer” (quoting Federal Judiciary Adminis-trative Office Director Leonidas RalphMecham), The Third Branch, Newsletter ofthe Federal Courts Vol. 32(7) (July 2000),website address: http://www.uscourts.gov/ttb/july00ttb/july00ttb.html.3 David Solie, M.S., P.A., The Myth of “Di-minished Capacity” (Dec. 22, 2004), websiteaddress: http://www.healthandage.com/Home/gm=0!gc=37!l=2!gid2=2936. Source:David Solie, MS, PA. How to Say It to Seniors:Closing the Communications Gap with ourElders. (2004) Prentice Hall Press, New York.4 Id.5 Id.6 Senior Judges Give New Meaning to “Vol-unteer”, quoting Federal Courts Administra-tive Office Director Leonidas Ralph Mecham,The Third Branch, Newsletter of the FederalCourts Vol. 32(7) (July 2000), website address:http:/ /www.uscourts.gov/ttb/july00ttb/july00ttb.html.7 Id.8 Id.9 Id.10 Id.11 Id.12 Senior Judges Give New Meaning to “Vol-unteer”, quoting Federal Courts Administra-tive Office Director Leonidas Ralph Mecham,The Third Branch, Newsletter of the FederalCourts Vol. 32(7) (July 2000), website address:http:/ /www.uscourts.gov/ttb/july00ttb/july00ttb.html.13 Id.14 Id.15 Id.16 Id.17 Senior Judges Give New Meaning to “Vol-unteer”, quoting Federal Courts Administra-tive Office Director Leonidas Ralph Mecham,The Third Branch, Newsletter of the FederalCourts Vol. 32(7) (July 2000), website address:http:/ /www.uscourts.gov/ttb/july00ttb/july00ttb.html.18 Id.19 Senior Judges Give New Meaning to “Vol-unteer”, quoting Federal Courts Administra-tive Office Director Leonidas Ralph Mecham,The Third Branch, Newsletter of the FederalCourts Vol. 32(7) (July 2000), website address:http:/ /www.uscourts.gov/ttb/july00ttb/july00ttb.html.20 Id.21 Id.22 Id.23 Id.24 Id.25 Id.26 Senior Judges Give New Meaning to “Vol-unteer”, quoting Federal Courts Administra-tive Office Director Leonidas Ralph Mecham,The Third Branch, Newsletter of the FederalCourts Vol. 32(7) (July 2000), website address:http:/ /www.uscourts.gov/ttb/july00ttb/july00ttb.html.

27 Id.28 Id.29 Id.30 Id.31 Id.32 Senior Judges Give New Meaning to “Vol-unteer”, quoting Federal Courts Administra-tive Office Director Leonidas Ralph Mecham,The Third Branch, Newsletter of the FederalCourts Vol. 32(7) (July 2000), website address:http:/ /www.uscourts.gov/ttb/july00ttb/july00ttb.html.33 Id.34 Patent and Trademark Office MournsDeath of Judge Giles S. Rich, Press Release#99-14 (June 10, 1999), website address: http://www.uspto.gov/web/offices/com/speeches/99-14.htm.35 Australian Government, Dept. of Employ-ment and Workplace Relations, Working withEmployers, citing Reark Research “Attitudesof People Aged 55-64 to Employment, Unem-ployment and Early Retirement.” (1990),(Sept. 21, 2004), website address: http://www.dewrsb.gov.au/toolboxes/matureage/default.asp.36 Id.37 North Carolina State University, Dr. Tho-mas Hess, Studies Suggest Seniors’ MemoriesMight Not Be So Bad, After All (May 21, 2003),website address: http://www.nfbnet.org/pipermail/nosb/2005-February/000153.html.38 Id.39 Id.40 Id.41 Id.42 North Carolina State University, Dr. Tho-mas Hess, Studies Suggest Seniors’ MemoriesMight Not Be So Bad, After All (May 21, 2003),website address: http://www.nfbnet.org/pipermail/nosb/2005-February/000153.html.43 Id.

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CHIEF JUDGE SAWAYAfrom cover

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soon followed and settled in Ocala. Heowned and operated a grocery storeand boarding house in Marion County.Chief Judge Sawaya’s father carriedon the family’s entrepreneurial tradi-tion with the first Chrysler-Plymouthnew car dealership in the area.

Thus, in the era of muscle cars,young Judge Sawaya’s playgroundwas the auto service department athis father’s dealership. He reminiscesthat the hobby he had as a child wasone that most boys his age could onlydream of having. Always the quickstudy, Chief Judge Sawaya became acertified mechanic at the age of 15.When he was old enough to drive onhis own, he bought a brand new or-ange AMX two-seater sports car. Itsprevious owner had driven only 50miles in the car before totaling it, andthe owner’s insurance company soldthe sports car to Chief Judge Sawayaas salvage for $500. Chief JudgeSawaya spent the next two years re-building it.

But, even with wheels of his own,Chief Judge Sawaya stayed close tohome. After graduating from BlessedTrinity Catholic School in 1969, heheaded west a hundred miles to theUniversity of South Florida, where hereceived his undergraduate degree.He then traveled a short distance back

east to Stetson University College ofLaw, where he finished an impressivefourth in his law school graduatingclass in 1977.

Chief Judge Sawaya returnedhome to Ocala and maintained a gen-eral law practice there until 1986,when he threw his hat in the ring in athree-way race for a newly-createdcounty court slot, emerging victorious.As a county court judge, he tried civilcases and handled dependency hear-ings in circuit court.

In 1990, he ran unopposed for an-other new position, this time in circuitcourt, where he served for ten years.His judicial mentor was the late Hon-orable Wallace Sturgis. Chief JudgeSawaya remembers that JudgeSturgis was always fair, with no dis-tinction for the hometown you camefrom to plead your client’s case or thenumber of years as a lawyer you hadunder your belt.

In looking back on his time as atrial judge, Chief Judge Sawaya re-calls how he really enjoyed the jurytrials more than anything else. Healso especially misses the people heworked with everyday in his office andin the Marion County clerk’s office, in-cluding the bailiffs, the local attorneysand the court reporters. Even duringhis circuit court tenure, Chief JudgeSawaya eagerly accepted the honor ofserving as an associate judge on theFifth District Court of Appeal. There,he realized that the research and writ-ing work of an appellate court judgesuited him well.

In late 1999, a new seat on the FifthDistrict Court of Appeal opened thatgave Chief Judge Sawaya another op-portunity to use his talents. His col-leagues and friends encouraged himto apply, which he did, and in Febru-ary 2000, Governor Jeb Bush elevatedCircuit Court Judge Thomas D.Sawaya to the appellate bench. ChiefJudge Sawaya is just starting his sixthyear there, and for the past two years,has served as the Fifth DistrictCourt’s Chief Judge. He is also thecurrent Chair of the Technology Com-mittee for all the Florida DistrictCourts of Appeal, no small task con-sidering that the committee is con-stantly looking into the latest technol-ogy. While acknowledging thechallenge of the job, Chief JudgeSawaya loves working at the Courtand is very fond of his fellow judges,whom he describes as extremely col-

legial.During the work week, Chief Judge

Sawaya commutes to the Fifth Dis-trict courthouse in Daytona Beachfrom a family home in Winter Park.He spends his weekends with his fam-ily in Ocala. He also enjoys readingnonfiction, mostly historical biogra-phies, and occasionally fishes.

Chief Judge Sawaya and his wifeJeannie have been married since1980. They have three children. Theiryoungest, a daughter, is the valedic-torian of her class and has set hersights on becoming an attorney. TheSawayas’ oldest son has just gradu-ated from college and is starting hisown business, and their middle child,a freshman at Florida State Univer-sity, intends to pursue a career inmedicine.

Chief Judge Sawaya tries to be asgood an influence on his children ashis parents were on him. His father,who is 91 and still lives in Ocala, re-mains the most influential person inJudge Sawaya’s life. His father taughthim the importance of working hard,being honest, and taking pride inwhatever work you do. Even as ayoung attorney, Chief Judge Sawayatook his father’s lessons to heart by ed-iting every letter before he signed offto make sure that it read well.

Chief Judge Sawaya’s attention todetail and outstanding writing skillsare evident in his long list of legal ar-ticles, which includes a 27-chapterWest publication entitled, “Florida Per-sonal Injury and Wrongful Death Ac-tions,” and the hundreds of publishedlegal opinions that he has authored.The Supreme Court of Florida hasquoted from and expressly adoptedJudge Sawaya’s opinions in its writtenopinions. In a special concurrence,Chief Justice Anstead stated, “I par-ticularly commend the thoroughness ofJudge Sawaya’s opinion for the FifthDistrict which we approve today.”Bellsouth Telecomms., Inc. v. Meeks,863 So. 2d 287, 293 (Fla. 2003).

Chief Judge Sawaya modestly de-clined to point to any one opinion asstanding out, but most students ofFlorida’s appellate courts would likelycite Campus Communications, Inc. v.Earnhardt, 821 So. 2d 388 (Fla. 5thDCA 2002), rev. denied, 848 So. 2d1153 (Fla.), cert. denied, 540 U.S. 1049(2003), as the most notable reporteddecision that Chief Judge Sawaya hasauthored to date, a case that involved

17continued next page

a myriad of issues such as free speech,individual privacy rights, retroactiv-ity, and statutory construction.

In Earnhardt, the Fifth DistrictCourt of Appeal upheld the constitu-tionality of the Earnhardt Family Pro-tection Act, which made photographsand videotapes of autopsies confiden-tial and exempt from Florida’s publicrecords act. The events surroundingthe decision captured internationaland national attention. The opinionitself has been cited in several otherjudicial decisions and law review ar-ticles. In deciding the complex issuesthat the Court faced, Chief JudgeSawaya, writing the unanimous paneldecision, explained:

“The Florida Constitution gives ev-ery citizen the right to inspect andcopy public records so that all mayhave the opportunity to see and knowhow the government functions. It isalso a declared constitutional prin-ciple that every individual has a rightof privacy, and while our constitutiondoes not catalogue every matter thatone can hold as private, autopsy pho-

tographs which display the remains ofa deceased human being is certainlyone of them. But we need not say sobecause the Legislature has said soand that is its prerogative, not ours.”821 So. 2d at 402.

All of the attention surroundingEarnhardt notwithstanding, eachtype of appeal is interesting to ChiefJudge Sawaya. When he writes anopinion, he starts from scratch, con-ducting his own research and review-ing the record on appeal to ensure theopinions are complete and correct. Ifthere is precedent for a primarypremise, he uses string citations in hisopinion for guidance and as a researchtool for attorneys.

Chief Judge Sawaya also has point-ers for practitioners. His definition ofa good brief is one that gets to theheart of the case and gives the courtthe issues and the relevant research.A good brief should also discuss thepertinent cases on both sides of an is-sue and then articulate a reason forfollowing the position that the advo-cate is proposing. Chief Judge Sawaya

is not opposed to a long brief providedit meets these criteria. He defines agood oral argument as one that getsright to the point and one in which thelawyer is willing to concede the weakpart of his or her case.

At the end of the day though, hardwork, honesty, and integrity are alawyer’s stock in trade, Chief JudgeSawaya believes. These attributeshave guided him through his career,and although Chief Judge Sawaya hasnot strayed very far from his roots, hisimpact on the law has gone far indeed.

(Endnotes)1 Susan Scrivani Lerner has been FloridaBar board certified in appellate practice since1996. Upon graduating from the Universityof Florida School of Law in 1982, Ms. Lernerclerked for two of the original judges on theFifth District Court of Appeal, the HonorableWarren H. Cobb and the Honorable WinifredJ. Sharp. Ms. Lerner is in private practicewith the Law Firm of Josephs, Jack &Miranda, P.A. in Miami, Florida. The firmhandles commercial, personal injury, wrong-ful death, product liability, insurance law, ex-tra-contractual liability law, plaintiff and de-fense, in the state and federal trial andappellate courts.

CHIEF JUDGE LEVYfrom cover

School in 1961, then attended the Uni-versity of Miami where he obtainedhis undergraduate degree with a ma-jor in Government and a minor in His-tory. After completing his stint at theUniversity of Miami, Chief JudgeLevy attended the University of TulsaCollege of Law, where he received hislaw degree and was named to theDean’s Honor Roll.

Perhaps foreshadowing his laterpassion for teaching, Chief JudgeLevy did not immediately begin prac-ticing law after graduating from lawschool. Instead, for two years, heserved as a full-time junior highschool teacher instructing students inhistory, geography, civics and math-ematics. After two years, though,Chief Judge Levy entered the legalprofession as an Assistant State Attor-ney in the Eleventh Judicial Circuitof Florida (Miami-Dade County) inthe office of the State Attorney Rich-ard E. Gerstein. He served the publicin this capacity for almost eight years,during which he was appointed se-quentially to the positions of ChiefProsecutor of the Criminal Divisionand Chief Prosecutor of the Organized

Crime and Public Corruption Pros-ecution Unit. His dedication to thepublic interest earned him the atten-tion of Governor Reuben Askew, whoin 1978 appointed him to the positionof Circuit Court Judge in the EleventhJudicial Circuit of Florida.

Ten months after being appointedto the bench, Chief Judge Levy was re-elected as Circuit Court Judge for asix-year term. The first three yearsof his tenure he spent in the criminaldivision of the Circuit Court where,notwithstanding what defense attor-neys might have expected from hiseight years of experience as a prosecu-tor, he earned a reputation with prac-titioners as an intelligent, well-pre-pared and even-handed jurist. ChiefJudge Levy’s time in the criminal di-vision was brief however, for in 1980he was transferred to the civil divisionwhere he remained until his elevationto the Third District Court of Appealin 1989. It was during this time,though, that Chief Judge Levy got hisfirst taste for being an appellate judge.He was assigned by the Chief Judgeof the Eleventh Judicial Circuit toserve as a member of the AppellateDivision of the Circuit Court. He alsocontinued to explore his interests ineducation by serving eight years onthe Judicial Educational Committee

of the Eleventh Judicial Circuit.In 1984, Chief Judge Levy was re-

elected to a second, full term as Cir-cuit Court judge, but his term was cutshort in January 1989 when GovernorBob Martinez appointed Chief JudgeLevy to serve on the Third DistrictCourt of Appeal. Chief Judge Levyhas served on the Third District forthe past 16 years, during which he hasbeen retained by the electorate inthree general elections. Chief JudgeLevy has remained actively involvedin efforts to improve the judiciary ofthe State of Florida, serving on theSupreme Court Committee on Stan-dards of Conduct Governing Judgesand the Education Committee of theFlorida Conference of District Courtof Appeal Judges.

Chief Judge Levy’s tenure on theThird District culminated this yearwith his unanimous election to theposition of Chief Judge of the court.With the retirement of Judge AlanSchwartz on January 1, 2005, thecourt found itself with a change inchief judges for the first time in morethan two decades. While Chief JudgeLevy was not the most senior judgesitting on the court at the time –Judge Gerald Cope predated ChiefJudge Levy on the court by a little lessthan one month – Chief Judge Levy’s

18

CHIEF JUDGE LEVYfrom previous page

prior indication that he intended toretire from the bench in the near fu-ture led his colleagues unanimouslyto elect him as Chief Judge so that hewould enjoy the honor of the position,albeit for only six months.

At a recent breakfast of the DadeCounty Bar Association’s JudiciousBreakfast Series in Miami, ChiefJudge Levy indicated that practitio-ners should not expect any revolution-ary changes at the Third District nowthat he has become Chief Judge. Heexpressed his gratitude to JudgeSchwartz for the latter’s efforts onbehalf of the Court and indicated thatthe Court’s current practices and pro-cedures would remain in effect, in-cluding the Court’s liberal policy withrespect to being afforded oral argu-ment. Chief Judge Levy even hintedthat extensions of time, alreadyknown to be generously granted at theThird District, might become moregenerous under appropriate circum-stances.

Were the foregoing history the en-tirety of Chief Judge Levy’s profes-sional career, it would be more thanmost accomplish in a lifetime. How-ever, being a judge has only partiallyinformed Chief Judge Levy’s perspec-tive on the world. As previously indi-cated, Chief Judge Levy has alwayshad a passion for teaching. In addi-tion to the various educational postshe held as a circuit court and appel-late judge, Chief Judge Levy also bal-anced the grueling demands of beinga judge with the equally grueling de-mands of being an educator at numer-ous colleges and universities in SouthFlorida. His credentials as an educa-tor are dizzying, particular when oneconsiders that he obtained them whileserving as a full-time judge.

From 1977 to 1979, Chief Judge

Levy served as an adjunct professorin the Criminal Justice Program atNova University, where he taughtcourses in history, government andthe American legal system. For thepast 22 years, however, Chief JudgeLevy has found his home away fromhome, as it were, as an adjunct pro-fessor at St. Thomas University. AtSt. Thomas, he has taught under-graduate courses dealing with sub-jects such as constitutional law, stateand local government, law and thejustice system, organized crime, thecourt system, American history, thesociology of law and the legal profes-sion. At the St. Thomas UniversitySchool of Law, he has served in asimilar and contemporaneous capac-ity teaching courses in professionalresponsibility and legal ethics, crimi-nal procedure, constitutional proce-dure, courtroom procedure and whitecollar crime.

Not content with reserving histeaching prowess for one institution,Chief Judge Levy has at various timesduring the past 20 years, simulta-neously served as adjunct professor atFlorida International University,where he has taught courses in con-tracts, legal research and the justicesystem, University of Miami, wherehe has taught criminal law, legal re-search and civil procedure, and Mi-ami-Dade College, where he taughttrial practice and appeals, family law,contracts, trial preparation and crimi-nal law. He managed to do all thiswhile also serving on the AdvisoryBoard of the legal assistant programof Miami-Dade College. In short,Chief Judge Levy has demonstrateda seemingly inexhaustible capacity toteach the future leaders of our com-munity.

During his distinguished career,Chief Judge Levy has earned innu-merable accolades and honors fromeducational institutions and profes-sional and civic organizations

throughout South Florida. The oneclosest to his heart, perhaps, is the oneconferred on him by St. Thomas Uni-versity in December 2003, when hewas named Outstanding Jurist of theYear. Chief Judge Levy has indicatedthat St. Thomas University will con-tinue to play a prominent role in hislife, even after he retires from thebench.

While Chief Judge Levy’s time asChief Judge will be a short one, thelegal community is fortunate to havehis stewardship during this criticaltime as the composition of the ThirdDistrict changes. With five of theeleven sitting judges having been ap-pointed during the past fifteenmonths, practitioners can rest as-sured that a steady hand is at therudder. Chief Judge Levy will con-tinue the traditions of professional-ism and collegiality, which makepracticing before the Third Districtsuch an enjoyable experience. And asthe inevitable date of self-imposedretirement looms ever closer forChief Judge Levy, the legal profes-sion and the community at large cantake solace in knowing that he willcontinue to play an important role aseducator in shaping the minds of fu-ture generations of lawyers in ourcommunity.

(Endnotes)1 Mr. Guedes is a shareholder in the Miamioffice of Greenberg, Traurig Appellate Prac-tice Group. He obtained his law degree fromthe Harvard Law School and is presentlyboard certified by the Florida Bar in appel-late practice. Mr. Guedes is currently Co-Chair of the Third District Court of Appeal50th Anniversary Committee and serves onthe Appellate Court Rules Committee of theFlorida Bar, where he is chair of the AmicusCuriae subcommittee.2 863 So. 2d 334 (Fla. 3d DCA 2003). Thequotation is from the musical, Chicago, andis uttered by a character caught by his wife,in flagrante delicto, being unfaithful to herwith not one, but two women at the sametime.3 Id. at 335-36.

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19continued next page

GUIDE TO CONFLICT REVEWfrom page 6

PCAs and PCDs fail the jurisdic-tional test for express and direct con-flict because review is only availableunder Article V, § 3(b)(3) if a districtcourt decision contains “some state-ment,” indicating that it has “expresslyaddresse[d] a question of law withinthe four corners of the opinion itself,”which could “hypothetically … createconflict if there were another opinionreaching a contrary result.” Gandy, 846So. 2d at 1144, quoting Florida Star v.B.J.F., 530 So. 2d 286, 288 (Fla. 1988).11

The supreme court has noted on anumber of occasions that conflict re-view manifests a “concern with deci-sions as precedents as opposed to ad-judications of the rights of particularlitigants.” Ansin v. Thurston, 101 So. 2d808, 811 (Fla. 1958). A decision thatdoes not expressly address a questionof law has no precedential value and“does not create discord in the deci-sional law of this state.” Mystan Ma-rine, Inc. v. Harrington, 339 So. 2d 200,201-02 (Fla. 1976). Accordingly, thosedecisions are beyond the scope of thesupreme court’s conflict jurisdiction.

Because a written opinion is crucialto further review, effective January 1,2003, the Florida Rules of AppellateProcedure were amended to allow aparty to seek a written opinion. See Fla.R. App. P. 9.330(a). As amended, Rule9.330(a), which applies to motions forrehearing, clarification and certifica-tion, provides that “[w]hen a decisionis entered without opinion, and a partybelieves that a written opinion wouldprovide a legitimate basis for supremecourt review, the motion may includea request that the court issue a writ-ten opinion.” The request must includea signed statement of the party’s attor-ney certifying a belief that the opinionwould provide a legitimate basis for su-preme court review and stating specificreasons why the supreme court wouldlikely grant review if an opinion werewritten.

An exception to the general rulethat precludes review of PCAs andPCDs exists if the decision cites, as con-trolling precedent, a case that: (1) ispending in the supreme court; (2) hasbeen reversed on appeal or review; or(3) has been receded from by the su-preme court. Jollie v. State, 405 So. 2d418, 420 (Fla. 1981); see also Gandy,

846 So. 2d at 1143.12 The citation to thepending or reversed case is “prima fa-cie express conflict” that allows thesupreme court to exercise its jurisdic-tion. Jollie, 405 So. 2d at 420.

2. Decision of a Majority Is Re-quired

The decision for which review issought must be a majority decision. Aplurality opinion cannot serve as abasis for supreme court review.Kennedy v. Kennedy, 641 So. 2d 408,409 (Fla. 1994). Statements in dissent-ing or concurring opinions cannot fur-nish the basis for conflict jurisdiction.Jenkins v. State, 385 So. 2d 1356, 1359(Fla. 1980). In addition, the conflictmust be with a decision of anotherdistrict court of appeal or the supremecourt. Intradistrict conflicts are not re-viewable by the supreme court underarticle V, § 3(b)(3).13

3. Review Cannot Be Based onConflict with a Rule or Statute

Because the Florida Constitutionspecifically provides for discretionaryreview of decisions of district courtsthat expressly and directly conflictwith “a decision” of another districtcourt or the supreme court, there isno jurisdiction to review a decisionthat allegedly conflicts with a rule ora statute. Persaud, 838 So. 2d at 532;Allstate Ins. Co. v. Langston, 655 So.2d 91, 93 n.1 (Fla. 1995).

E. Types of Express and DirectConflict

The supreme court has found “ex-press and direct” conflict in a numberof different contexts. The following listincludes many of the areas that havebeen identified by the court. Some ofthe categories necessarily overlap.14

1. Adopting an Opposing Ruleof Law

A classic conflict arises from adopt-ing an opposing rule of law. FloridaPower & Light Co. v. Bell, 113 So.2d697, 698 (Fla. 1959). These decisionsare “in collision” and create a conflictof authority on a point of law. Bell, 113So. 2d at 698. Although a conflict mustbe “express,” it is not necessary for thedistrict court to specifically identifyconflicting decisions in its opinion.

Ford Motor Co. v. Kikis, 401 So. 2d1341, 1342 (Fla. 1981). The districtcourt’s discussion of the legal prin-ciples it applied is a sufficient basis forconflict review. Id. On the other hand,a conflict that is merely “inherent” or“implied” is insufficient. See Dep’t ofHealth and Rehab. Serv. v. Nat’l Adop-tion Counseling Serv., Inc., 498 So. 2d888, 889 (Fla. 1986).

Because a “conflict” is required, acase of “first impression” is necessar-ily unreviewable in the absence of acertification or another constitutionalground of jurisdiction. Ellsworth v.Nash Miami Motors, Inc., 142 So. 2d733, 734 (Fla. 1962).

2. Misapplying SupremeCourt Precedent

In a number of recent cases the su-preme court found conflict where adistrict court misapplied supremecourt precedent. See, e.g., Robertson v.State, 829 So. 2d 901, 904 (Fla. 2002).15

The misapplication of binding prece-dent creates conflict with the prece-dent itself. Robertson, 829 So. 2d at904. In this situation, the districtcourt misreads or misapprehends asupreme court decision.16 The conflictmay result from reading the prece-dent too broadly or too narrowly.

3. Failing to Apply Precedentto Same or Similar Facts

A conflict exists if a district courtreaches a different result in a case thatinvolves substantially the same con-trolling facts as those involved in aprior case decided by another districtcourt of appeal or the supreme court.See Crossley v. State, 596 So. 2d 447,449 (Fla. 1992); Nielsen v. City ofSarasota, 117 So. 2d 731, 73 (Fla. 1960).

4. Applying Precedent to Ma-terially Different Facts

An “express and direct” conflictmay also arise if a district court ap-plies a precedent to a case involving amaterially different factual situation.See Dep’t of Transp. v. Anglin, 502 So.2d 896, 897 (Fla. 1987).

5. Apparent Conflict

The supreme court has acceptedcases based on “apparent conflict”with a decision of another district

20

GUIDE TO CONFLICT REVEWfrom previous page

court of appeal, see Fitzgerald v.Cestari, 569 So. 2d 1258 (Fla. 1990);D’Oleo-Valdez v. State, 531 So. 2d 1347(Fla. 1988), or a decision of the su-preme court, see Public Health Trustof Dade County v. Menendez, 584 So.2d 567 (Fla. 1991). In Menendez, thedistrict court held that a medical mal-practice action against a public hos-pital was governed by the four yearstatute of limitations for actionsagainst a state agency, rather than thestatute applicable to medical malprac-tice actions. This created an “apparentconflict” with the Supreme Court’sprior decision in Carr v. BrowardCounty, 541 So. 2d 92 (Fla. 1989),where the Court, in an action againsta public hospital, addressed the con-stitutionality of the medical malprac-tice statute of limitations and repose,without discussing whether that stat-ute prevailed over the statute of limi-tations applicable to suits againststate agencies. The supreme court re-solved the apparent conflict by hold-ing that the statute of limitations forsuits against state agencies appliedand limited Carr to its holding thatthe medical malpractice statute oflimitations and repose is constitu-tional.

6. Dicta Conflict

Express and direct conflict may befounded upon a district court rulingthat conflicts with dicta in a decisionof the supreme court or another dis-trict court of appeal. See CowanLiebowitz & Latman, P.C. v. Kaplan,30 Fla. L. Weekly S155, S155 (Fla.Mar. 17, 2005) (accepting jurisdictionwhere district court’s holding ex-pressly and directly conflicted withstatements, “albeit in dictum,” in priorsupreme court decisions); see alsoGarcia v. Cedars of Lebanon Hosp.Corp., 444 So. 2d 538, 539 n.3 (Fla. 3dDCA 1984) (recognizing thatinterdistrict conflict for supreme courtjurisdiction may be based on dicta).

7. “Tag Along” Conflict

This type of conflict arises when adistrict court cites as controlling pre-cedent a decision that has been ac-cepted for review or overruled by the

supreme court.17 These cases typically,but not always, involve citation PCAs.

F. Discretion to Review

Conflict review is discretionary, notmandatory. Even if a conflict exists,the supreme court may decline to ex-ercise its jurisdiction, particularly if itappears that the issue involved is un-likely to recur. The 1977 CommitteeNotes to Fla. R. App. P. 9.120 addressthis issue and provide that the peti-tioner may wish to include in the ju-risdictional brief a short statement ofwhy the supreme court should exer-cise its discretion and accept reviewif it finds that it has jurisdiction. Thisis typically accomplished by includinga section toward the end of the argu-ment section of the jurisdictional briefentitled “Statement of Reasons WhyReview Should Be Granted.” Obviousreasons include the confusion createdby conflicting precedents, the effect ofthe district court’s decision on a largenumber of cases or a broad categoryof cases, and the likelihood the sameissue will arise in future cases.

G.Scope of Review

Once the supreme court acceptsconflict jurisdiction, it has jurisdictionover all issues in the case. Murray v.Regier, 872 So. 2d 217, 223 n. 5 (Fla.2002). The court has discretionaryauthority to consider issues outsidethe scope of the conflict if the issueshave been briefed and argued and aredispositive of the case. Savona v. Pru-dential Ins. Co. of America, 648 So. 2d705, 707 (Fla. 1995). The Court exer-cises its discretion sparingly and it isunusual for the Court to consider is-sues outside the scope of the conflict.See, e.g., State v. Castillo, 877 So. 2d690, 692 n.3 (Fla. 2004) (declining toaddress issue that was not integral tothe conflict issues); Heidbreder v.State, 613 So. 2d 1322 (Fla. 1993).

H.The Briefs on Jurisdiction

The petitioner’s brief on jurisdic-tion must be served within 10 days offiling the notice to invoke. See Fla. R.App. P. 9.120(d). The brief, which can-not exceed 10 pages, is to be accompa-nied by an appendix containing onlya conformed copy of the decision of thedistrict court for which review issought. Id.; see also Fla. R. App. P.

9.210(a)(5). The respondent’s brief onjurisdiction shall be served within 20days after service of the petitioner’sbrief. The briefs must comply with for-mal requirements of Fla. R. App. P.9.210. No reply brief is permitted.There is no provision in the rules foramicus curiae briefs on jurisdiction.18

The supreme court may postpone aruling on jurisdiction until after brief-ing on the merits. A ruling on jurisdic-tion will issue in most cases withinthree to six months. Motions for re-hearing addressed to the supremecourt’s grant or denial of a request toexercise its discretionary jurisdictionare not permitted. See Fla. R. App. P.9.330(d).

If a practitioner has not filed juris-dictional briefs in some time, it maybe beneficial to look at recent briefs onthe supreme court’s website.Briefs filed since August of2000 are available at http://www.floridasupremecourt.org/clerk/briefs/index.shtml. The briefs are in-dexed by case number.

III. Review of a “Certified”Conflict Pursuant to Art. V, §3(b)(4)

A. The Constitutional Provision

Pursuant to the 1980 amendmentsto Article V, the Supreme Court ofFlorida may review any decision of adistrict court of appeal “that is certi-fied by it to be in direct conflict with adecision of another district court ofappeal.” Art. V, § 3(b)(4), Fla. Const.19

The district court may certify the con-flict on its own or pursuant to the re-quest of a party. See Fla. R. App. P.9.330(a).

B. The Certification

The district court decision shouldactually certify a conflict with an iden-tified decision from another districtcourt of appeal. A vague reference toanother case is generally not enough.20

In the absence of a certification, thecase would likely be subject to themore rigorous standard applied tocases involving “express and direct”conflict.21

C. Invoking the Supreme Court’sJurisdiction

Review of a certified conflict is not

21

Appellate Practice WorkshopJuly 20-22, 2005

At the new Stetson University campus.

For registration information, please contact theOffice for CLE, Stetson University College of Law

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automatic. As with other types of dis-cretionary review, the petitioner mustinvoke the supreme court’s jurisdic-tion by filing two copies of a noticeaccompanied by applicable filing fees,with the clerk of the district courtwithin thirty days of the order certi-fying conflict. Fla. R. App. P. 9.120(b).It is important to note that, in casesof certified conflict, no briefs on juris-diction are permitted. Fla. R. App. P.9.120(d).

D. “Direct” Conflict With Deci-sion of Another District Court ofAppeal

For certified conflicts, the constitu-tion requires only a “direct,” but notan “express” conflict with a decision ofanother district court of appeal. Thus,the certification and citation to con-flicting authority may be sufficient,without a detailed discussion of theconflict. This type of review is limitedto conflict with decisions of other dis-trict courts of appeal. That is becausea district court has no authority todecide a case in conflict with a deci-sion of the supreme court and accord-ingly there would be no need to cer-tify a conflict with a decision of thesupreme court.

E. Briefing in Certified ConflictCases

Although briefs on jurisdiction arenot permitted, in preparing a brief onthe merits, it is prudent to addressthe jurisdictional issue of conflict.This is because the supreme courtdoes not always agree with a districtcourt’s conclusion on the existence ofa conflict.

Conclusion

If a conflict exists with a decisionof another district court of appeal, theadverse party in the district courtshould seek a certification from thedistrict court to facilitate review bythe supreme court. If that avenuefails, or if a conflict exists with a deci-sion of the supreme court, then reviewmust be sought based on “express anddirect” conflict. While obtaining re-view is difficult, following the correctprocedures and understanding themeaning of “conflict” will enhance aparty’s chances of success.

(Endnotes)1 Kathleen M. O’Connor is a partner withThornton, Davis & Fein, P.A., and is FloridaBar board certified in appellate practice. Sheis Current Chair of the Dade County Bar As-sociation Appellate Court Committee and Co-Chair of the Third District Court of Appeal50th Anniversary Committee. She serves onthe Appellate Court Rules Committee of TheFlorida Bar and the Board of Directors of Mi-ami-Dade FAWL. She has argued appeals inall five of the Florida District Courts of Appealand in the Supreme Court of Florida.2 See Gerald Kogan and Robert Craig Waters,The Operation and Jurisdiction of the FloridaSupreme Court, 18 Nova L. Rev. 1151, 1201(1994) (hereinafter “Kogan and Waters”) (not-ing that “the largest single category of petitionsfor review allege that jurisdiction exists be-cause the opinion under review conflicts withan opinion of another Florida appellate court”).3 See Art. V, § 3(b)(3), Fla. Const.4 See Art. V, § 3(b)(4), Fla. Const.5 Kogan and Waters, supra note 2, at 1199(stating that “the bulk” of petitions seeking toestablish jurisdiction based on “express anddirect conflict of decisions” are “summarilydenied.”). Even if the Court initially acceptsjurisdiction, it may decide after considerationof briefs on the merits that no “express anddirect” conflict exists. See, e.g., Stine v. Jain,873 So. 2d 326 (Fla. 2004).6 See, e.g. Famiglietti v. State, 838 So. 2d 528(Fla. 2003) (in case of certified conflict, su-preme court determined jurisdiction was im-providently granted and dismissed cause);Vega v. Independent Fire Ins. Co., 666 So. 2d897 (Fla. 1996) (Court determined after oralargument that case in which district court cer-tified conflict should be dismissed because ju-risdiction was improvidently granted).7 Fla. R. App. P. 9.030(a) paraphrases thesupreme court’s jurisdiction.8 See Arthur J. England, Jr., et al., Constitu-tional Jurisdiction of the Supreme Court ofFlorida: 1980 Reform, 32 U. Fla. L. Rev. 147(1980). For an abbreviated summary of the his-tory of the 1980 amendment, see Jenkins v.State, 385 So. 2d 1356, 1360-63 (Fla. 1980) (En-gland, C.J, concurring specially).9 See generally Gerald B. Cope, Jr., Discre-tionary Review of the Decisions of Intermedi-

ate Appellate Courts: A Comparison ofFlorida’s System with those of the Other Statesand the Federal System, 45 Fla. L. Rev. 21(1993).10 See generally Steven Brannock & SarahWeinzierl, Confronting a PCA: Finding a PathAround a Brick Wall, 32 Stetson L. Rev. 367(2003).11 The rule precluding review of PCAs cannotbe circumvented by filing an extraordinarywrit petition. Persaud, 838 So. 2d at 533.12 Review is available pursuant to Art. V, §3(b)(4) if the district court explicitly notes adirect conflict of decisions.13 An intradistrict conflict is to be resolved bythe rehearing en banc procedure in the districtcourt of appeal. Fla. R. App. P. 9.331.14 Kogan and Waters, supra note 2, at 1231-36. The authors note “four broad and some-times overlapping categories” of (i) holdingconflict, (ii) misapplication conflict, (iii) appar-ent conflict, and (iv) piggyback conflict. Id.Within the area of misapplication conflict, theauthors cite to three subcategories: (a) erro-neous reading of precedent, (b) erroneous ex-tension of precedent and (c) erroneous use offacts. Id. at 1232.15 See also Knowles v. State, 848 So. 2d 1055,1056 (Fla. 2003); Rosen v. Fla. Ins. Guar. Ass’n,802 So. 2d 291, 292 (Fla. 2001); Fla. Dept ofTransp. v. Juliano, 801 So. 2d 101, 103 (Fla.2001); Vest v. Travelers Ins. Co., 753 So. 2d 1270,1272 (Fla. 2000).16 Arab Termite and Pest Control of Fla., Inc.v. Jenkins, 409 So. 2d 1039, 1041 (Fla. 1982)(finding conflict created by district court’s “er-roneous reading” of supreme court precedent).17 Jollie v. State, 405 So. 2d 418, 420 (Fla.1981).18 See Fla. R. App. P. 9.370; see also Sylvia H.Walbolt & Joseph H. Lang, Jr., Amicus Briefs:Friend or Foe of Florida Courts?, 32 Stetson L.Rev. 269, 280 (2003).19 The amended constitution also provides fordiscretionary review of a question certified bythe district court of appeal to be of “great pub-lic importance.” See Raoul G. Cantero III, Cer-tifying Questions to the Florida SupremeCourt: What’s So Important, 76 Fla. B.J. 40(May 2002).20 Kogan and Waters, supra note 2, at 1242.21 Id.

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ROOTS OF PRESERVATIONfrom page 12

objective that the trial judge make aruling in the context of the trial courtproceeding. In other words, if the liti-gant does not secure a ruling, thereis no “decision” of the trial court forthe appellate court to review.4

Another rule that bears on the na-ture of the objection necessary to pre-serve the record is the harmless errorrule. Essentially, the appellate courtwill not reverse a decision of a trialcourt for an error that has not materi-ally affected the proceedings, even ifthe error was preserved.5 For example,if the alleged trial court error is therefusal to permit certain testimony,the complaining litigant must do morethan simply protest; the testimonymust be proffered. The proffer willgive the appellate court some sub-stance to analyze in the context of therest of the record to determinewhether, if error, it was harmful.

As suggested above, these preser-vation rules not only serve the pur-pose of fairness to the judge and theopposing party, but also help to con-trol the flow of cases to the appellatecourts. In that way, preservation lawcan be seen as helping to strike thebalance between protecting the valid-ity of one’s day in court and constitu-tional right to review, and judicial ef-ficiency.

As a (hopefully) interesting aside,the well-settled “Tipsy Coachman”rule exemplifies this objective of ju-dicial efficiency and is, in one respect,the flip side of the contemporaneousobjection rule. The Tipsy Coachmanrule provides that the appellate courtmay affirm the trial court decisioneven if the court’s legal basis was in-correct, so long as there is an alter-native basis in the record that wouldsupport the judgment.6 In fact, forpurposes of judicial efficiency — andjust the opposite of the contempora-neous objection rule — the prevailingparty need not have even raised thelegal issue upon which the appellatecourt may base an affirmance.

For that reason, the rule may bethought of as the “InspectorClousseau” rule, under which the ap-pellate court will protect the litigantand judge who, in effect, bumble theirway to the right result. Without sucha rule, there would be many more

reversals.The court system does not have

the luxury of an overabundance of ju-dicial resources to permit it to re-mand cases only for judges to correcttheir reasoning in an already-correctdecision. So, in order to promote oneof the objectives of the contempora-neous objection rule, the TipsyCoachman rule evolved as an excep-tion to the obligation to object.

D.The Preservation Rules inAction

With the policy underlying therules of preservation in full view, thevast majority of the decisions on pres-ervation issues make logical senseand show that an understanding ofthis policy can reward counsel who isadvocating a preservation issue eitherin trial or appellate court. For ex-ample, a contemporaneous objectionto the admissibility of evidence or toan improper question readily furthersthe policy of the rules. The objectionaffords the trial judge an opportunityto think about the prospective evi-dence in the context of the trial anddecide whether it truly is admissible,and affords the opponent an opportu-nity to consider whether to withdrawthat evidence rather than risk creat-ing reversible error.7 Similarly, an ob-jection to an arguably improper ques-tion affords the judge the same reviewopportunity and the opponent the op-portunity to withdraw or re-phrasethe question.

When the trial court chooses to ex-clude evidence at trial, the preserva-tion rules require that the proponentproffer the evidence.8 That ruleserves the purpose of permitting thetrial judge to hear the evidence andto decide whether, in the context ofthe case, it should be admitted. Therule serves a second purpose of pro-viding a record for the appellate courtto analyze in deciding whether theexclusion of that evidence was botherroneous and harmful.

The long-time requirement that aparty whose motion in limine is de-nied must again object to the evidencewhen offered at trial in order to pre-serve the error serves the policy of thepreservation rules, although it hasbeen a subject of recent change anddebate. That common law rule recog-nizes the difficulties facing a trialjudge in deciding a motion in limine

and that the judge can often benefitfrom hearing other evidence in thecase and then deciding the eviden-tiary objection in context. Just howmuch preservation should be requiredhas been thrown into debate by a leg-islative change to the rules of evidencethat became effective in 2003. Thatrule change provides that if the judgehas made a definitive ruling eitherexcluding evidence or permitting it, ator before trial, the opposing partyneed not re-raise the objection at trialto preserve the issue.9 It is inevitablethat there will be differences of opin-ion about whether this statute fur-thers the policy of the preservationrule and how liberally it should be en-forced.10

The requirement of presenting thetrial court with a motion for a newtrial or for directed verdict beforechallenging the sufficiency of the evi-dence on appeal serves the policy ofthe contemporaneous objection rule.It does so by affording the trial judgethe opportunity to consider all of theevidence or objectionable event anddetermine, from her advantageousvantage point, whether a new trial iswarranted.11 The trial judge’s decision(and observations, if the motion isgranted) become valuable to the ap-pellate court in reviewing the legalcorrectness of the trial court ruling.

The inconsistent verdict rule isalso in harmony with the contempo-raneous objection rule. When a juryfinds on multiple issues inconsis-tently—for example, when the juryfinds no liability, but neverthelessawards damages—the law requiresthe would-be appellant to object inthe lower tribunal before the jury isdischarged.12 With a timely objectionin hand, the trial court can re-assignthe jury to an immediate encore de-liberation of the pertinent issues.And, as a final example, the require-ment that a party must offer a writ-ten jury instruction to preserve thecourt’s refusal to give an instructionis, in essence, a “proffer of law”,which, much like the proffer of evi-dence, gives the trial court a fair op-portunity to reconsider its ruling andthe appellate court a fair opportunityto review the decision for error.13

Conclusion

The contemporaneous objectionrule serves the laudable purposes of

continued page 24

23

The application filing period is July 1 -August 31 of each year. Applicationsmay be requested year-round, butonly filed during this two month period.

All requirements must be met by theAugust 31st filing deadline of the yearin which you apply.

Your application must be approvedbefore you become eligible to sit forthe examination, usually given inMarch.

Certification can help you by giving you a way to makeknown your experience to the public and other lawyers.Certification also improves competence by requiringcontinuing legal education in a specialty field.

Certification StatisticsThere are currently 155 attorneys Board Certified inAppellate Practice. The area was started in 1993. Certifiedattorneys make up approximately 6% of The Florida Bar’stotal membership.

If you would like to becomeBoard Certified in AppellatePractice or would like morecomplete information, pleasecontact the area’s staff liaisonbelow:

Carol VaughtLegal Specialization

& EducationThe Florida Bar

651 East Jefferson StreetTallahassee, FL 32399-2300800/342-8060, ext. 5738 or

850/561-5738

cvaught@flabar.org

Certification is granted for fiveyears. To be recertified,

requirements similar to thosefor initial certification

must be met.

What are therequirements?

☞ Have been engaged in thepractice of law for at least fiveyears prior to the date of theapplication.

☞ Demonstrate substantial in-volvement in the practice ofappellate practice during thethree years immediately pre-ceding the date of application.(Substantial involvement isdefined as devoting not lessthan 30% in direct participationand sole or primary responsi-bility for 25 appellate actionsincluding 5 oral arguments.)

☞ Complete at least 45 hours ofcontinuing legal education(CLE) in appellate practiceactivities within the three yearperiod immediately precedingthe date of application.

☞ Submit the names of fourattorneys and two judges whocan attest to your reputation forknowledge, skills, proficiencyand substantial involvement aswell as your character, ethicsand reputation for profession-alism in the field of appellatepractice.

☞ Pass a written examinationdemonstrating special knowl-edge, skills and proficiency inappellate practice.

There are many benefits to becomingBoard Certified in Appellate Practicesuch as:

★ Malpractice carriers discounts.

★ Advances the importance andsignificance of certification to largemalpractice carriers.

★ Good source of referrals from bothattorneys and the general public.

★ Ability to advertise yourself as a“certified specialist” in your chosenarea of practice.

★ Young lawyers are seekingcertification as a means of expeditingtheir professional advancement.

★ Name is listed in the Directory issueof The Florida Bar Journal in theCertified Lawyers’ section.

Thinking About Becoming BoardCertified in Appellate Practice?Thinking About Becoming BoardCertified in Appellate Practice?

For more information,visit our website at

www. FLABAR.orgClick “member services,”

then “certification.”

24

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providing basic fairness to both thejudge and the party opposing aneventual appeal and of restricting theflow of cases to the appellate courts.That rule underlies and has spawnednumerous rules of law specifying theminimum procedures for preservingappellate issues. Although there arecertain limited circumstances inwhich the rules of law that haveevolved are only debatably consistentwith the contemporaneous objectionpolicy, the policy serves as a fairlyreliable predictor of what the re-quirements will be in a given circum-stance. Therefore, an understandingof that policy can be useful to a triallawyer or appellate practitioner inadvocating preservation issues.

(Endnotes)1 Jack Aiello is a partner with Gunster,Yoakley & Stewart, P.A. in West Palm Beach.He is a Florida Bar board certified appellate

practitioner and Immediate Past-Chair of theAppellate Practice Section.2 For a brief discussion of the history of ap-pellate courts in the United States andFlorida, see Raymond T. Elligett and JudgeJohn M. Scheb, FLORIDA APPELLATE PRACTICE

AND ADVOCACY, ch. 1. (1998).3 See Castor v. State, 365 So. 2d 701, 703(Fla. 1978). The rule is practically necessarybecause without it, it is likely that the appel-late courts would grind to a halt, inundatedwith appeals over issues the parties showedno concern about below and with efforts todetermine whether the errors newly com-plained of were harmful or harmless (in theabsence of any discussion of them on therecord, proffers, etc.). As the supreme courtobserved, “Delay and an unnecessary use ofthe appellate process result from a failure tocure early that which must be cured eventu-ally.” Id.4 See, e.g., Fleming v. People’s First Finan-cial Savings & Loan Ass’n, 667 So. 2d 273, 274(Fla. 1st DCA 1995) (where trial court did notexpressly rule on a motion for leave to amenda counterclaim and no implied denial of themotion appeared in the record, the appellatecourt ruled that there was nothing for thecourt to review).5 Section 59.041, Fla. Stat., (2004), is thetest of the footnote.6 Dade County School Board v. Radio Sta-tion WQBA, 731 So. 2d 638, 644-45 (Fla. 1999).7 Dowd v. Star Mfg Co., 385 So. 2d 179, 181

(Fla. 3d DCA 1980).8 Key v. Angrand, 630 So. 2d 646, 648-49(Fla. 3d DCA 1994).9 See § 90.104(1)(b), Fla. Stat. (2004), whichwas amended in 2003 with the following sen-tence: “If the court has made a definitive rul-ing on the record admitting or excluding evi-dence, either at or before trial, a party neednot renew an objection or offer of proof to pre-serve a claim of error for appeal.”10 In one recent Third DCA case, the courtruled that the objecting party was requiredto re-raise the objection at trial, although theopinion does not mention the new statute.Philip Morris, Inc., etc. v. Lynn French, 30Fla. L. Weekly D48, 52 (Fla. 3d DCA Dec. 22,2004). In a recent Fourth DCA decision,Judge Klein expressed the view that the stat-ute serves the important purpose of reduc-ing the number of certain post-convictionproceedings, such as claims of ineffective as-sistance of counsel, in criminal cases.Mallory v. State of Florida, 866 So. 2d 127,128 (Fla. 4th DCA 2004).11 Shofner v. Giles, 579 So. 2d 861, 862 (Fla.4th DCA 1991).12 See, e.g., Lindquist v. Covert, 279 So. 2d 44,45 (Fla. 4th DCA 1973) (rule applied in casewhere jury rendered verdict finding defen-dant negligent on the plaintiff ’s claim, butalso finding the defendant not to be negligenton the cross-claim).13 Luthi v. Owen-Corning Fiberglass Corp.,672 So. 2d 650, 651 (Fla. 4th DCA 1996).

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