Podcast: Discussing Appellate Writing with Tiffany Roddenberry and Tara Price

Nate Adams: Welcome to our Florida Capital Conversations podcast series. Today, our subject is appellate writing, and our guests are Tiffany Roddenberry and Tara Price. My name is Nathan Adams, my co-host is Mia McKown. We are so pleased that you have joined us today to consider another important issue associated with state government affecting the business community and our daily lives as Floridians, in this case dealing with the judicial system. There's none better to discuss appellate writing than our two guests today, Tiffany and Tara. To kick off our discussion, Tiffany and Tara, I know that you have had a background with the major courts in the Northern District of Florida and the 11th Circuit Court of Appeal. Both of you clerked with the United States District Court here in the Northern District of Florida and with the 11th Circuit. Tell us a little bit about that experience and how that plays into your appellate practice.

Experience Clerking for the U.S. Court of Appeals for the Eleventh Circuit and the U.S. District Court for the Northern District of Florida

Tiffany Roddenberry: Sure. So serving as a law clerk and it doesn't matter what level court it is. So Tara and I clerked for federal courts, but all of the district courts of appeal and the state Supreme Court also have what are essentially called elbow law clerk. And that means you are working directly with a judge and that the district court or trial court level, you're helping them, you know, research issues and write decisions. And you're also helping with things like jury trials at the appellate level, which Tara and I clerked at the 11th Circuit. At that level, you are really just working with a particular judge to decide appeals. So a matter has already been decided by a trial court and got up to the next level. And so you work directly with a judge and researching issues and also helping craft decisions that will resolve the appeal. And I believe both of my clerkships really informed how I view legal writing. The two judges I worked for had very different writing styles that both really informed what I know judges are looking for in good appellate briefs. Those experiences have really shaped who I am as a writer, as well as how I advise other attorneys how to prepare briefs.

Both of my clerkships really informed how I view legal writing. The two judges I worked for had very different writing styles that both really informed what I know judges are looking for in good appellate briefs.

Nate Adams: Tara, what about you?

Tara Price: Well, thanks Nate and Mia. Appreciate the opportunity to speak with you. Tiffany hit the nail right on the head. I mean, part of the joy of being able to clerk with a judge is being able to develop a relationship with that person who you can see as a mentor and they can help walk you through some best practices and some things to avoid. And you really get to see from a neutral perspective, a lot of various types of litigation or appeals play out, and it's fascinating to be able to do that, particularly as you begin your career. You don't have any bad habits you need to break or anything. And so you can kind of look at everything fresh. And it was just a fantastic opportunity where you could watch a trial or a hearing and then afterwards, ask the judge, "why did you sustain that objection, or why did they make that motion?" And with appeals, you could watch oral arguments, you could read briefs and you could kind of see how the judges would react to either various arguments or in the way that people wrote in which in some cases can actually work against you. So it was a wonderful opportunity to be able to go behind the scenes.

Part of the joy of being able to clerk with a judge is being able to develop a relationship with that person who you can see as a mentor and they can help walk you through some best practices and some things to avoid.

Overview of the Appellate Process

Nate Adams: What a great way to start a career. And now we're a few years in the rearview mirror, both of you are partners at Holland & Knight and you've begun this appellate practice. So I wonder, you know, suppose I have prevailed at the circuit court level and, you know, I'm trying to decide what to do next. Can you give us an overview of what that appellate process looks like and the decisions that would be relevant for me to think about?

Tiffany Roddenberry: So generally, under Florida's rules of appellate procedure, you have 30 days to appeal a decision, and at that point, you initially just have to file a notice of appeal and then the deadlines for briefs follow from that. And so typically, if it's a circuit court decision, you're going to be heard by the relevant District Court of Appeal, which there are five in Florida. And you take that up and it just a matter up to the individual party as to whether or not you want to appeal. You definitely have to consider who the judges are on the district courts of appeal, as to what you think they'll be sympathetic to your issue. Do you think you have a good chance of prevailing because appeals can be expensive, so there's a lot of practical considerations that you should keep in mind before initiating an appeal. But typically you file a notice of appeal, you have a deadline by which you file an initial brief so the party challenging the trial court's decision gets the first chance of outlining their issues for the appellate court to decide. We can kind of talk about what you might want to put in your initial brief and then the party, that won below gets a chance to respond in an answer brief within a set period of time. And then after that, the party challenging the trial court decision, the appellant, gets a chance in a reply brief to kind of point out any anything else they want to. And usually it just proceeds just like that, typically the Circuit Court clerk's office will prepare the record, which is what the judges will rely on in the appeal to decide an issue. And there's not a lot of motion practice or anything like that happens before. So it's a pretty orderly process, and it's usually considerations as to whether you want to go through that process and try to reverse the decision below.

It's a pretty orderly process, and it's usually considerations as to whether you want to go through that process and try to reverse the decision below.

Tara Price: To build often something Tiffany mentioned about how there isn't a lot of motion practice and the clerks will build the record. If you're a heavy litigator you might not realize that once you appeal, there are some exceptions to this, but for the most part, you don't get a new opportunity to put new things before the judge. This may or may not be a clean slate look at everything. There's no ability to do additional discovery or trying to get new matters into the record. For the most part, again, with some exceptions. What the trial judge or what the jury had in front of them, that's going to be what's in front of the appellate court. And so this isn't an opportunity to kind of have like a second bite of the apple to redo any sort of fact finding things in the record, if that's what you're trying to do, that is not what an appeal is. So that's an important consideration.

This isn't an opportunity to kind of have like a second bite of the apple to redo any sort of fact finding things in the record, if that's what you're trying to do, that is not what an appeal is.

Are There Benefits to Having an Appellate Attorney at the Trial Court Level?

Mia McKown: When you talk about you're not able to build facts or add additional information, we talk about needing an appellate lawyer and you guys come in and help us, you know, tee that up. But is there any value to having an appellate attorney assist, maybe with some of the trial proceedings? Is that beneficial at all?

Tiffany Roddenberry: Yeah, definitely. I think appellate attorneys can add something at the trial level just to ensure you are preserving every issue that you might want to appeal. Preservation is a huge issue, and a lot of appeals are kicked out for the simple reason that the party below doesn't do the job they were supposed to do to ensure that issue is preserved and could be taken to the appellate court for review.

Tara Price: Yeah. And so that looks like having someone who is appellate-minded, you know, sit with the trial attorneys and, you know, as the trial is progressing, you know, looking for those opportunities: make sure you object to this, make sure you ask for this, make sure you talk to the judge about this because if you don't take those opportunities to register in the record where it's in the transcript or there's some sort of documented record of you making that objection, a lot of times the entire argument's waived, and there's no way for you to argue later on that the trial court got it wrong. Again, there's some exceptions, but they usually involve very, very serious and dramatic error. And that's not most of the time what's going to be going up on appeal.

I think appellate attorneys can add something at the trial level just to ensure you are preserving every issue that you might want to appeal.

Tone at Appellate Courts vs. Other Courts

Mia McKown: Well, that's helpful to know, and I know actually, I've had experience with both of y'all helping me and my trial kind of pinpoint those issues, making sure when we get certain testimony that there are sites to the record that we can then pinpoint out and to make sure that it's there. And so I've had it in real time with the two of you both helping me and my cases. One thing that I also have learned from just even the limited appellate practice that I've had before one of the district courts of appeal, it seems like you walk in and there's just a whole tone and people act differently in appellate courts than they do in trial courts. Do you find that there's a different tone in the way people present themselves, even how they write some of their motions or write their briefs. For example, that the tone may be different in an appellate brief than, say, what I might file in a motion for summary judgment in the trial court level.

Tiffany Roddenberry: Definitely. Mia, I think that the tone is entirely different. I mean, I would say maybe you would agree or disagree, but I feel like state trial court in Florida and probably most states is kind of the wild, wild west. I mean, there are rules, but they are not aggressively enforced, not the way that they are in the appellate courts. And in the Florida rules of appellate procedure are very detailed. They prescribe the exact sections you should include in a brief, they tell you the exact fonts to use, the exact size. And a district court of appeal clerk will kick your brief out within a matter of days if you use Times New Roman font instead of Bookman Old Style or Arial. The practice is a little bit elevated just because it is much more structured. And there are rigorous rules in place for what appellate briefs should include, among other things.

A district court of appeal clerk will kick your brief out within a matter of days if you use Times New Roman font instead of Bookman Old Style or Arial.

Tara Price: And there's almost this unspoken way of practice in the sense of you don't really want to be the person who's banging on the table and getting exasperated in an appeal. It makes it look as though your argument isn't as strong as it probably is. So through your writing, and if you have an oral argument before an appellate court, you really want to present yourself in a very measured way and you want to keep it to the record, you want to keep it in the facts. If the other side says something that is a misstatement, you know, make sure you state it like it's a misstatement and you don't need to spend time saying that someone is trying to pull one over on the court or something like that. It's just too much, it's unnecessary, and it starts to reflect back on your own credibility. And one of the things you never want to lose with an appellate court, really with any court, but you never want to lose your credibility. That's the one thing you have.

One of the things you never want to lose with an appellate court, really with any court, but you never want to lose your credibility. That's the one thing you have.

Tips for Appellate Practitioners

Nate Adams: So if I'm a practitioner and you are going to give me some advice about what I ought to keep in mind in connection with the appeal going up, what comes to mind, what are the foremost tips that you would provide a practitioner?

Tara Price: So I think one of the most important things and we can get away from this and forget about this, but it's very important upfront to tell the court exactly what you want them to do and to ask for that. It's something that we're trained to do at the end, right? We start the story with the introduction and then we have our middle points and then we have our conclusion. In legal writing, it's very, very helpful to almost do the inverse of that, have the conclusions at the front so that when people are going through your writing, they know exactly where you're going and exactly what you want. They don't have to wait until the end of a 50 or 60 page brief to figure out what it is you want them to do for you.

They know exactly where you're going and exactly what you want. They don't have to wait until the end of a 50 or 60 page brief to figure out what it is you want them to do for you.

Tiffany Roddenberry: I would also say kind of talking a little bit about the tone, is to remember your audience. As Tara said, the audience here is a panel of three district court of appeal judges typically or the Florida Supreme Court or another appellate court. However, it is, but that's different than a jury. So never forget who your audience is. And even though these are very smart judges that are considering your case, don't assume that they know what you know about a case. I mean, we get we get so caught up in cases that we know it frontwards and backwards that we kind of, sometimes we draft things that we think is really built for someone who could, anybody could pick it up and start reading it. But that's not always the case. So keep in mind that judges are very smart, but you do have to educate them about your case, and you can't assume that they know things without you telling them. So make it easy to read and clear kind of keep that 50,000 foot perspective and don't bog it down with, you know, big words and long clauses. I mean, I clerked for a judge who has probably some of the shortest sentences ever in orders, and I just I love them because they're very short and to the point, concise and easy to read. So that's something that I would keep in mind in writing all briefs.

Never forget who your audience is. And even though these are very smart judges that are considering your case, don't assume that they know what you know about a case.

Keeping Policy in Mind During Arguments

Tara Price: Another good thing to focus on is really think about if your client were to win, what does that mean policy wise, right? Like, the court is looking not just at this particular case, but they're looking at the rule of law that it sets and what that means for future cases or other cases. Are you asking the court to dramatically expand the law? Is this a very narrow judicial interpretation that isn't going to have that much impact beyond your case? Those types of things weigh on the judges, and you may even hear them asking questions a lot of times hypotheticals, for the purpose of really exploring what kind of policy the court is establishing, whether they rule in your favor or whether they rule in your opposing counsel's client's favor. And so trying to really think through that, and if you can work it into your brief to explain what that policy is and why it makes sense and why it fits in with the patchwork of laws that we already have, I think would go a long way to help

Mia McKown: Tara, on those policy issues. I know the appellate court, obviously, that's something that, as you mentioned, is on their radar and they're thinking about, but in order to preserve the record do you need to have those policy arguments made at the trial court level too or is that something the appellate court can address, whether or not it was mentioned at the trial court level?

Tara Price: I think for the most part, as long as you make your objections and preserve the arguments that you want to make, I don't know that you need to argue every single reason why something you want is the right thing to do. You do want to put any particular legal argument in front of the trial court because you don't want to be in a position where you're asking the appellate court to rule on another legal basis that the trial court didn't really didn't really think of. But all that said, policy consideration is kind of like another justification for why ruling for your client is a good thing to do. It's not necessarily a legal basis or foundation upon which to rule, it's just another: 'and by the way, this is the right thing.' So it kind of helps round out your argument, but I don't know that in and of itself independently, it would be grounds for your client to win.

Policy consideration is kind of like another justification for why ruling for your client is a good thing to do.

Tiffany Roddenberry: I was going to bring up too, that a place for those kinds of policy arguments, a good place might be amicus curiae briefs, which are called friend of the court briefs, and they're typically offered by third parties to an appeal that they're not parties to the appeal, they don't have a dog in the specific fight before the appellate court, but they're usually the ones that will raise broader policy implications from what the court is considering. And I think that's a pretty significant practice before both Florida's District Courts of Appeal and the Florida Supreme Court. So there are definitely groups that are looking for those opportunities to weigh in on issues. And typically, I mean, even parties can kind of solicit that help to maybe use the amicus brief as an opportunity to really flesh out a policy issue that's of concern and just an FYI on those, those briefs are typically, they have to be preceded by a motion for leave to file that type of brief, and the applicable appellate court has to grant it, and then those briefs usually are filed the standard is 10 days after the brief they're supporting. So that's another place that parties might consider for raising those types of larger, broader policy implications that a decision might have, particularly on an industry at large.

Mia McKown: That's interesting.

Nate Adams: All right, guys. Well, this has been a very helpful discussion on appellate writing. I want to thank Tiffany and Tara for their time for their information and comments. And I want to thank my co-host Mia McKown. Mia, thank you for joining us again today.

Mia McKown: Thank you for having me. And Tiffany and Tara, thank you too. I learned a lot that bottom line, I think if I'm doing an appeal, I need to call an appellate lawyer and have them handle it to make sure the tone is right. And I mean, Lord, I probably wouldn't even get the format right for the appeal. So you definitely need to make sure you get an expert in that field. And I appreciate you guys sharing some of your advice with us.

Tiffany Roddenberry: Yeah. If nothing else, please take away from this conversation that if your brief does not have Bookman Old Style font or Arial font, you're probably going to be kicked out.

Mia McKown: It might get rejected.

Tiffany Roddenberry: You will get rejected.

Tara Price: Don't try to sneak in a bunch of like single-spaced stuff in the footnotes.

Tiffany Roddenberry: Yeah, you got to use the same font size. Clearly, appellate courts really care about font and font size, so you should too.

Nate Adams: And I think also your comment about amicus briefs is important because that's an opportunity, you know, for a nonparty to a case to weigh in on a case and something that they care about. That's a practice that you all participate in besides just actual appellate brief writing. Is that right?

Tara Price: Yes.

Nate Adams: All right. Well, that's helpful. Well, most of all, I want to thank the audience for joining us today, and we hope that you'll plan to join us for our next Florida Capital Conversations podcast. Have a great day!