Appellate Briefs - March 2012: Anticipating an Appeal in Motion Practice

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Motions practice, particularly preparing dispositive motions, is an opportune time to work with appellate counsel to be certain to make (and therefore preserve) the record and legal arguments you will want to use on appeal, whether to keep your victory or remedy a bad result.  Due consideration should be given to what types of motions to file, what evidentiary support is needed for any filed motions, and what legal arguments to advance.  Typically what is presented below constrains what is available for use on appeal, highlighting the critical importance of thorough planning and preparation in motions practice.
In Florida’s state courts, the resolution of some motions can be reviewed on an interlocutory basis as a matter of right.  Typically, these are motions that result in orders determining jurisdiction of the person, venue or the right to immediate possession of property.  Also included are motions resulting in orders deciding whether a receiver will be appointed, whether to grant, deny, modify or dissolve injunctions, whether arbitration or an appraisal will be ordered, whether workers’ compensation or absolute or qualified immunity applies, whether a class will be certified, and certain types of family law orders.  Other orders resolving motions may be reviewable by extraordinary writ, such as orders denying motions to disqualify counsel or to recuse a judge, although review by writ is discretionary and more difficult to obtain. 
At the risk of violating a rule of grammar, as you embark on motions practice, remember the old adage “you can’t get what you don’t ask for.”
Marie Tomassi is Florida Bar Board Certified in Appellate Practice. She has been an attorney with Trenam Kemker since 1988 and serves on the firm's three person Management Committee. She can be reached at mtomassi@trenam.com or 727-820-3952.

 

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