Saturday, May 21, 2016

A Lesson in Appellate Practice

On May 20, 2016, the Florida First District Court of Appeal rendered a decision in O'Conner v. Indian River County. It is worthy of review because it can provide broader edification and guidance than perhaps perceived at first glance.

This case has many similarities to the Court's decision last month in Miles v. City of Edgewater Police, the Court noted that the case factually "resembles the proceedings described in Miles." And it involved some of the same attorneys. In O'Conner, the injured worker 

The injured worker's attorneys were challenging the constitutionality of the fee provisions of Fla. Stat. 440.34. They presented the Judge of Compensation Claims with "two retainer agreements, one between Appellant and his attorneys’ law firm (the Firm), and another between Appellant and his union" and asked the judge to approve them. 

This is an important point, because there is no statute or rule that says a judge has to prospectively approve such an agreement. In our history as a system, there were those who routinely sent such agreements to the OJCC for prospective approval. But that practice fell out of favor, and is inconsistent with the "self-executing" nature of the workers' compensation act. 

There is no reason for judges to approve contracts between people. There is no context of which I am aware that contracts are pre-approved. Try taking your new car lease to the circuit court and asking the judge there to approve your contract. For that matter, try taking any contract with any lawyer anywhere to any judge for pre-approval. This is anomalous and inconsistent. I can find no other context in which people make contracts and then seek judicial approval. 

And in 2003, the legislature made clear that "The judge of compensation claims is not required to approve any retainer agreement between the claimant and his or her attorney." Fla. Stat. 440.34. This language has been ignored by the courts for now, and it will be curious to see if judges will nonetheless approve such agreements in the future. 

In O'Connor, the approval was not granted, and the attorneys "subsequently withdrew from representing the injured worker." The worker then "dismissed his pending petition for benefits (PFB)" (seeking workers' compensation benefits) and "filed a petition for writ of certiorari" (seeking a determination of the constitutionality of Fla. Stat. 440.34 by the appellate court). Certiorari is called an "extraordinary writ" and is a way to seek an appellate decision without first having a trial, determination and appealling. 

Most appellate cases in workers' compensation reach the First District through an "appeal." In those cases there has ben a PFB or motion, usually a hearing, and a "final order." But certiorari is a process that allows challenges without a "final order." Thus, the O'Conner case was procedurally before the Court on a certiorari writ.

But, the PFB had been dismissed. And the Employer/Carrier therefore sought "prevailing party costs." The trial judge granted that motion, concluding that the Employer/Carrier prevailed at trial when the injured worker dismissed the PFB. This happens from time to time in the workers' compensation system. 

O'Conner then filed an appeal of the order that awarded the prevailing party costs. To appeal a case, a party files a "Notice of Appeal," and in this case, the injured worker filed three of them, an original and two amended notices. Each of these "indicating that he was appealing the final order assessing costs." The Court noted that "nothing in the notices indicated that the real reason for his appeal was to challenge the earlier-entered retainer and fee order," but the Court concluded that this was in fact the purpose of the appeal.

In appellate practice, the notice of appeal is filed, and a "record" is prepared. This "record" documents what occurred at the trial tribunal. Then the party that filed the appeal writes down the error it alleges and describes the error and the law to the court in what is called an "initial brief;" the other side then describes its perceptions in an "answer brief." The first party can file a "reply brief." Sometimes a court will allow "oral argument" where the parties describe their positions to the judges, but many cases are decided "on the briefs." 

In O'Conner, the Court said that when the "initial brief" was filed the Court first learned that this "appeal" was a constitutional challenge essentially the same as the "writ of certiorari" review that had already been filed. The Court concluded that the injured worker "attempted to use this cost appeal to gain a second presentation of his argument concerning the retainer and fee order."

The Court noted that the distinction between Miles and O'Conner is that after counsel withdrew in Miles, the injured worker proceeded to trial on her own behalf, what is called "pro se" in Florida and "pro per" in some other jurisdictions. Since Miles went to trial, and her claims for benefits were denied, she could challenge all of the procedural history of her case in the appeal that followed. 

But O'Conner did not proceed to trial after the attorneys withdrew and filed for certiorari. The Court noted that O'Conner's attorneys never "indicate(d) that he was not actually challenging the cost order on appeal but only the order addressing the retainer agreement attorney’s fees." Thus, O'Conner looked different and distinct from Miles and the Court did not consolidate the two cases into one (which is commonly done at the appellate court when multiple cases all present the identical or very similar legal questions.

Once the Court understood the similarity, after the initial brief was filed, the Court issued an "order to show cause," which essentially asks a party or parties a question and allows it or them to respond. This order/question was "why the purported appeal of the cost order should not be dismissed and sanctions imposed" because it was misstated and essentially a repeat of the previously filed certiorari challenge to the fee statute. 

O'Conner responded to the "show cause" and asserted that "nothing in the rules required him to indicate in his notice of appeal that he was actually appealing the retainer and fee order, not the cost order." In other words, the Rules of Appellate Procedure do not require the appellant to be forthright and clear on what she/he is seeking. O'Conner's counsel "believed that his notice of appeal included earlier interlocutory order, and that the order at issue did not need to be described because no “benefits” as such were at issue."

The attorney also argued that the injured worker “reasonably expected” the appellate court "would consolidate the certiorari petition and this appeal on its own," in other words, the Court would figure out that the issues were the same, without being told, and decide the cases and issues all in one proceeding. This expectation was based on other documents filed that clearly informed the Court that the O'Conner certiorari had been filed earlier. 

The Court seems perturbed that it then had the same issue, constitutionality of Fla. Stat. 440.34 before it in the same case on both certiorari and appeal. The opinion notes that despite appealing "under the guise of appealing the cost order," O'Conner did not dismiss the earlier filed certiorari. In other words, O'Conner might have cured the situation if he had dismissed the certiorari after he filed the cost order appeal. He did not. The O'Conner petition for certiorari was denied March 15, 2016. The next day, the "show cause" order was issued by the Court regarding the appeal. 

The Court found fault in this. Concluding that the appeal was not of the cost order as asserted, it was misidentified; "the sole purpose of this appeal was not to challenge the ancillary cost order identified in the notice of appeal, but to use it as a pretext for making constitutional arguments about the fee statute." The pretext was to obtain review though "counsel knew or should have known" the fee issue was "not reviewable in an appeal of an order arising out of an ancillary proceeding (the cost issue)."

The Court noted that O'Conner's counsel could have changed course. It said that "at every opportunity" the attorneys "failed to make it clear to this court that the appeal solely involved the retainer and fee order." The filings stated the appeal was of the cost order, and simply stated, the Court concluded that it was not. 

The Court reminded "it is incumbent upon every member of the Bar to be honest and open with the courts of this state." Concluding that the attorneys were not "deliberately trying to mislead the court," the end result was in fact that the Court was mislead. So, the Court found it "appropriate to award attorney’s fees against" the attorneys representing O'Conner. The time spent by the Employer/Carrier's attorneys on this appeal will be paid by O'Conner's attorneys. 

Now, it is important to remember that no appellate case is "the law" until the decision becomes "final." After an appellate court makes a decision, it is published just as O'Conner was. Then after a period of time, the Court will issue a "Mandate," which is essentially the Court communicating that the time for any motions for reconsideration and rehearing have passed and the decision is final. The O'Conner decision is not final, and it could change. But regardless it is instructional.

Two critical lessons. First, is that candor towards the tribunal is more than not intentionally misleading. Every attorney is an officer of the court, part of the system of justice with which America is blessed. Attorneys should be forthcoming and responsive. It is rarely productive to just assume the tribunal will figure it out on its own. That stragegy may work out, but it is not the way to bet. And when someone is paying you for your expertise, they may expect your expertise to work to their advantage instead of a court just figuring it out to your advantage.

Second, when an "order to show cause" is issued, it should be carefully considered. Such an order presents an important opportunity to reflect. It is often an opportunity to reconsider. And, it is always a good opportunity to admit a mistake, seek forgiveness, and ask that no untoward sanctions occur. It may not be the best time to continue asserting an argument that does not appear to be working.  

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