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The Florida Rules of Appellate Procedure are More than Mere Guidelines

By W. Aaron Daniel Last Friday, the Fifth District Court of Appeal reminded practitioners that the Florida Rules of Appellate Procedure are not just helpful suggestions. In Hagood v. Wells Fargo, 5D12-2016, (Fla. 5th DCA May 17, 2013), the Fifth took three attorneys to task for a parade of errors that ran afoul of the Rules, issuing this general disclaimer for unsuspecting readers:

[WARNING:] The quality of the legal work performed by [the] attorneys in this case is disturbing.

How disturbing is it, you ask? Well, at the end of its opinion, the Fifth asked the attorneys for the Appellant, Mr. Hagood, to show cause why they shouldn’t be sanctioned. While we don’t derive any schadenfreude from the mistakes of our fellow officers of the court, we do try to learn from those mistakes and pass on that knowledge to others, because there, but for the grace of God, go us all.
That being said, Appellant’s counsel made not one, but three potentially sanctionable errors:

Accordingly, pursuant to Florida Rule of Appellate Procedure 9.410, each attorney for Appellant named on the briefs shall, within 10 days, show cause in writing why sanctions should not be imposed for [1] violating the appellate rules of procedure regarding the provision of record support for facts, [2] for misrepresenting the facts in the initial brief, and [3] for filing a legally untenable and therefore frivolous reply brief.

Let’s take these errors one at a time. First, Florida Rule of Appellate Procedure 9.210(b)(3) provides that when drafting the statement of the case and facts, “[r]eferences to the appropriate volume and pages of the record or transcript shall be made.” This means citing to the record in order to support “each material statement of fact.” 2 Fla. Prac., Appellate Practice § 16:16 (2013 ed.). Not only will you avoid sanctions by following this rule, you will also help your case by providing clarity to the court. But Appellant’s counsel completely disregarded this rule:

Like Appellant’s initial brief, the reply brief fails to properly cite to the record on appeal to support any factual assertions.

Second, an attorney’s duty of candor to the court actually extends to appellate process too! Not only did the Appellant’s counsel misrepresent facts, they misrepresented the facts in a painfully conspicuous way:

The brief repeatedly

Source: http://kulaandsamson.blogspot.com/2013/05/the-florida-rules-of-appellate.html

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