Appellate Litigation

Podhurst Orseck is a leading Florida appellate law firm. One of our partners devotes his practice exclusively to appellate litigation, and another focuses primarily on appeals but also handles complex trial-level motions and is an experienced trial lawyer. They are consistently listed among the top-rated appellate lawyers in Florida. The firm has vast experience before the United States Court of Appeals for the Eleventh Circuit, the Florida Supreme Court, and the Florida District Courts of Appeal. Our appellate partners have also briefed and argued appeals in federal appellate courts throughout the United States and in the Supreme Court of the United States.

The firm’s appellate practice mirrors the substantive diversity of the firm’s practice, and includes plaintiff’s catastrophic personal injury and wrongful death cases, aviation and other mass torts, class actions, and commercial litigation of all types, including securities fraud, ERISA and business disputes.

  • The Appellate Process in the U.S. Court of Appeals for the Eleventh Circuit:

The Eleventh Circuit is one of the busiest courts of appeals in the federal judiciary, handling appeals from district courts in Florida, Georgia and Alabama. Given the industries and geography of these states, the court’s civil docket often involves litigation involving international trade, maritime disputes (commercial and tort), aerospace, tourism, and the banking sector. The busy Southern District of Florida, home to the bustling international gateway city of Miami, frequently generates appeals involving international business disputes and banking, aviation, and tourism-related cases, particularly in the hotel and cruise industries.

Civil appeals in the Eleventh Circuit typically take 18-24 months to resolve, from the date the appeal is filed to the date the court issues a decision. Once the matter has been briefed, only approximately 17% of cases are assigned to the court’s oral argument calendar. Thus, the quality of briefing is essential to our clients’ favorable representation before the court. The court’s mediation program actively monitors civil appeals and frequently requires the parties to participate in mediation before the case is submitted to the court for decision.

A party who loses in the 11th Circuit may petition the Supreme Court of the United States for further review.

Several representative decisions of our work on behalf of clients in the 11th Circuit:

  • Ray v. Spirit Airlines, Inc., 767 F.3d 1220 (11th 2014) (reversing order dismissing putative class action of airline passengers)
  • Finnerty v. Steifel Laboratories, Inc., 756 F.3d 1310 (11th Cir. 2014), cert. denied, 135 S.Ct. 1549 (2105), (affirming $1.5 million jury verdict for securities fraud in case tried by Podhurst Orseck).
  • Abecasis v. Cummings, 467 Fed.Appx. 809 (11th Cir. 2012) (affirming dismissal of $75 million fraud and breach of contract claims Podhurst Orseck successfully defended clients against).
  • Murphy v. Fla. Keys Elec. Co-op Ass’n, Inc., 329 F.3d 1311 (11th Cir. 2003) (revising 11th Circuit law concerning contribution between tortfeasors in admiralty tort action).
  • Western Group Nurseries, Inc. v. Ergas, 167 F.3d 1354 (11th Cir. 1999) (reversing dismissal of client’s suit against limited partner of tax shelter partnership).
  • Eskra v. Provident Life & Acc. Ins. Co., 125 F.3d 1406) (11th Cir. 1997) (affirming client’s $5,000,000+ verdict in age discrimination and breach of contract action).

Florida State Appellate System:

The state appellate system is divided into five District Courts of Appeal (DCA) and the Florida Supreme Court. A party may appeal as of right to the DCA in which the trial court is located. The Florida Supreme Court is a court of limited jurisdiction and, with certain exceptions, may only review civil appeals in cases of conflicting rulings between DCAs or the Supreme Court on a point of law or a matter of great public importance.

Located in Miami, our firm has the greatest depth of experience in the Third DCA, which presides over appeals from courts in Miami-Dade County and the Florida Keys (Monroe County). But our appellate partners have also handled many cases in the nearby Fourth DCA (primarily Broward and Palm Beach Counties) and the Second DCA (covering the Greater Tampa and Naples area), as well as some appeals upstate in the First and Fifth DCAs.

Our firm has a proud history of victories in the Florida Supreme Court, particularly on behalf of plaintiffs in tort cases. The following cases are representative of our more recent work before the Florida Supreme Court.

  • Soper v. Tire Kingdom, Inc., 124 So. 3d 804 (Fla. 2013) (reversing DCA and reinstating class certification of consumer class action).
  • Cox v. St. Josephs Hospital, 71 So. 3d 795 (Fla. 2011) (reinstating multi-million dollar jury verdict that had been reversed by the DCA).
  • Vreeland v. Ferrer, 71 So. 3d 70 (Fla. 2011) (concluding that aircraft owners are liable for negligent operation by pilot, and that Florida law is not preempted by federal law).
  • Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) (reversing DCA, which had ordered a new trial in a medical malpractice case for an unpreserved error).
  • Wagner Vaughan McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So. 3d 1187 (Fla. 2011) (reversing DCA in part, clarifying how attorney’s fees are to be allocated in wrongful death cases with multiple survivors).

Top Appellate FAQs:

Q. HOW MUCH TIME DO I HAVE TO FILE AN APPEAL?

A: The rules governing the deadline for filing an appeal can be surprisingly complicated, and because a failure to file an appeal within the deadline is jurisdictional (meaning the appeals court lacks the power even to consider an untimely appeal), we strongly recommend consulting an experienced appellate lawyer immediately upon issuance of an adverse ruling from a trial court. Generally, one has thirty (30) days from the date of issuance of a final order to lodge the appeal, but calculating that deadline depends upon which system the case is in (state or federal), whether authorized motions for rehearing or post-judgment relief are pending, or whether the order is truly “final” and appealable, or one of a select class of interlocutory rulings that may be appealed. Since the analysis of when an appeal is due can be complex and highly context-specific, it is important to consult an appellate lawyer as soon as possible.

Q. WHY HIRE AN APPELLATE LAWYER FOR AN APPEAL?

A. One of the benefits of retaining the services of an experienced appellate lawyer after a ruling in the trial court is that your case gets a “fresh look” from someone who is not yet intimately familiar with the details of the case and who is familiar with the way that appellate judges may view the issues. Appellate lawyers are able to objectively assess the relative strengths of your case and can strategize which issues are most likely to have a chance of success on appeal. Experienced in the ways appellate judges approach a case, our appellate partners are excellent writers and oral advocates who excel at crafting written briefs and presenting oral argument in a credible and persuasive manner, targeted at the appellate audience that will be the final arbiter of the case.

Q. DOES IT EVER MAKE SENSE TO CONSULT AN APPELLATE LAWYER EARLY ON, WHILE THE CASE IS STILL PROCEEDING IN THE TRIAL COURT?

A. Yes, and many times an appellate lawyer can help trial counsel identify and get around legal issues that could be problematic for a later appeal. One of our appellate partners is regularly retained by trial lawyers to provide “trial support,” whereby he briefs and argues key complex motions before the trial court, strategizes with trial lawyers on how to preserve certain issues for appeal, and even plays an active role at trial, arguing legal matters as they come up.

Q. HOW MUCH DOES IT COST TO HIRE AN APPELLATE LAWYER?

A. We take on appellate representation through a variety of fee structures, depending upon the nature of the case and the preference of the client. In tort cases, we typically handle appeals on a contingency basis (we get paid only if we win). The Florida Bar has established guidelines for contingency fees in personal injury and wrongful death cases. See Rule 4-1.5 of the Rules Regulating the Florida Bar:

(http://www.floridabar.org/divexe/rrtfb.nsf/FV/A8644F215162F9DE85257164004C0429).

In commercial appeals, we typically charge an hourly rate, though we are open to discussing a hybrid fee (a reduced hourly rate blended with a contingency fee) or even a flat fee structure, depending on the case.