“You have permission to use the word ‘that’”: Lindsey Lawton on legal writing & Florida procedure comparisons

Timothy Kowal, Esq.
March 21, 2023

Appellate practitioner and former Florida Supreme Court career staff attorney Lindsey Lawton sits down with us to talk legal writing. For Lindsey, writing is not just her day job, she draws influence for use and enjoyment of the written word from beyond legal briefs. While she maintains a grammar beat on LinkedIn, Lindsey says language ultimately is about being a communicator, not a technician.

(Example: I asked Lindsey if the example “the reasons are as follows” is technically incorrect as containing a subject-verb disagreement. Yes, says Lindsey, but “as follow” just sounds too weird.)

Then we continue our experiment in comparing and contrasting state procedural rules. Here is what we gleaned about the differences between California and Florida:

👉 In FL, the Supreme Court makes the rules of civil procedure, unlike CA where that is the province of the legislature.

👉 Unlike CA, in FL the rules allow parties to create an electronic recording of proceedings for purposes of an appellate record.

👉 Both CA and FL have no horizontal stare decisis: district appellate courts may freely disagree with one another.

👉 But unlike CA, a FL District Court of Appeal cannot ignore its own past decisions: to do that, it has to take the matter up en banc (like in the federal system).

👉 Unlike CA, in FL all the appellate opinions are published.

👉 But unlike CA, in FL there is no right to a reasoned opinion, meaning most affirmance are summary affirmances (how frustrating!!).

👉 Unlike CA, in FL there is no right to oral argument on appeal.

👉 Like CA, FL is beginning to experiment with “focus orders,” identifying issues counsel should be prepared to discuss at oral argument.

👉 Like CA, FL follows the doctrine on appeal that a judgment will be affirmed if valid for any reason, even if the trial court’s stated reasons were deficient or wrong.

👉 But FL has a much more colorful name for this: the Tipsy Coachman doctrine!

Lindsey Lawton’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:


Lindsey Lawton  0:01 
Do you have permission to use the word that I don't really know where this advice to strike the word of that originated from?

Announcer  0:10 

Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:24 
Hello, everyone. I'm Jeff Lewis.

Tim Kowal  0:26

And I'm Tim Kowal, Both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorney some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague. Yeah,

Jeff Lewis  0:41

if it's not helpful recommend it to your opposing counsel. And a quick thank you to our podcast sponsor casetext. Casetext is a legal research tool that harnesses AI and a lightning fast interface. To help lawyers find case authority fast. I've been a subscriber since 2019 Highly endorse their service and listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp That's case text.com/cal.

Tim Kowal  1:05 

All right, Jeff. And today we're going to continue our tour through the country and talking with other appellate practitioners in other states and we can compare is all the soapbox issues that we talked about grousing about California procedure? Maybe California is the same or better or worse than other states. So today, we're pleased to invite appellate attorney Lindsey Lawton to the show. Lindsay is an appellate attorney in Florida and until late 2020. She was a career staff attorney to justice Alan Lawson of the Florida Supreme Court before that Lindsay was a career staff attorney to justice Stephanie Ray and a senior law clerk to judge Joseph Lewis Jr. of Florida's First District Court of Appeal. Lindsay spent nearly four years at the Florida Supreme Court and nearly 10 years at the District Court. During that time, she evaluated hundreds of appeals and extraordinary writ petitions, including researching writing and making recommendations to her judges and justices. In late 2021. Lindsay presented for the Florida bar's appellate practice section on appellate brief writing, which will be apropos as we discussed legal writing during today's podcast. Welcome to the show, Lindsay. Thanks for being here.

Lindsey Lawton  2:14
Thank you, Tim, and Jeff, for having me.

Tim Kowal  2:17 
Well, let's start off by asking you to tell us a little bit more about your practice. Is there anything I didn't cover in my introduction that we should know?

Lindsey Lawton  2:24 

Yes, well, I always get confused about how to explain what I am. On the one hand, I am a solo practitioner, because I have my own law practice called Lawton law, where it's just me. But I actually also work closely with another law firm to on many of my cases, in an of counsel role in that law firm is the Bradley law firm out of Orlando. And pretty much everything I do is appeals for a little bit of trial support.

Tim Kowal  2:47 
All right, what do you like best about your practice, you moved from working in the Court of Appeal system to being a private practitioner, Jeff, and I moved from working in litigation to moving up into appellate work. And I think that sometimes we had to remove some of the harder adversarial edges from our practice. Maybe you had to get more adversarial in the way you write an advocate.

Jeff Lewis  3:08 
We had to remove a lot of adverbs from our vocabulary, which was from the trial court up to the Court of Appeal.

Lindsey Lawton  3:13
Always a good idea.

Tim Kowal  3:14
Yeah. Tell us about that transition from a career research attorney in the Court of Appeal to private practitioner.

Lindsey Lawton  3:20 
Sure. So when I left the court system, I was aware of the concern that a lot of people have about whether they can transition from being in this neutral role as a law clerk helping the judges to an advocate. So I talked to a few of my friends who had gone before me from making that transition to get some pointers. One of them recommended that I read Brian Garner's book, The Winning brief. So that was the first thing I read, to help myself with the transition. And I think it helped out quite a bit. You know, it didn't really feel like that hard of a transition. And I think one reason is, I think the better briefs do sound more like like the courts writing than what some people might think. They don't have all those adverbs. And like just sort of bombastic language. Of course, you do want to punch it up, just maybe one notch. And so my colleague, Brian, Mike Brownlee has helped me punch mine up just a little bit. So it's always good to have another set of eyes on your writing. But for the most part, I think the courts like it when you write in this more objective sounding way. So I think my background has served me well there.

Tim Kowal  4:20 
Yeah. Let me ask you this. As you're talking, I got to thinking that sometimes when I write for the Court of Appeal, versus when I write for the trial court, when I write for the trial court, I feel like I have to You said to kick it up one notch from judicial writing. When I'm writing in the trial court, I feel like I have to kick it up two notches, because sometimes opposing counsel has got it up, you know, turned to 11. And sometimes they think, Oh, well, they're just going to lose the judge. But sometimes the judges go for their maybe they're like a ruling based on Well, this party had more adverbs. They obviously feel much more strongly about their argument than you do, Mr. Colwell. So they must be right. Is there any merit to that do trial judges do you think maybe because they're pressed for time they have to have more their calendar that they they will just look to who has the loudest brief, maybe put a thumb on the scale that in that way, even imperceptibly without them knowing they're doing that. I wonder if they do that sometimes?

Lindsey Lawton  5:10
I don't know. I don't think there's any way to know, you know, I just in I don't usually appear in the trial courts, but even in the appellate court, sometimes my opposing counsel will have it taken up a couple of notches on the front, or the just being loud front. And I just hope that what I've heard from judges is true that they don't really respond well to that.

Tim Kowal  5:29 
Yeah. Well, given your long background in the Florida State appellate system, I think this almost goes without saying, but I'll ask anyway. Would you rather be in state court or in the federal court, the 11th circuit in Florida?

Lindsey Lawton  5:41 
Well, you predicted it, I would rather be in state court. I think my background is in state court. But with that said, I have had a few federal appeals already. And I'm learning the ropes over there and doing whatever I've got to do to learn what I need for each case. So yeah, it's just you know, less familiar, but there are a lot of overlap and a lot of similarities to

Tim Kowal  6:02 
Yeah, we're going to be talking about differences between California and Florida state rules of civil procedure and appellate procedure a little bit later on. Are there any differences that you discover between state law and 11th circuit's procedure that can tend to trip up practitioners? I know there are differences. Sure. What about Would you rather be the appellant or the respondent? Or is it the appellee in Florida system

Lindsey Lawton  6:26
in Florida is the Epperly when you're talking about the appellant versus the appellee. Of course, we also have petitioners versus respondents. But I would definitely I'm pausing, because I said definitely. I would say it rather, editor. Yes, I think I'd rather be I definitely would rather be the APA li or the respondent in one sense, and that is statistically the APA, Li and the respondent are the most likely to win. And we all like to win. But being the appellant is more of a challenge. And you're really creating the product from the ground up a lot more. And so it can be more interesting.

Tim Kowal  6:59 
We sometimes ask our guests to tell us what is unique about their legal practice. But with you, Lindsay, I think I know the answer. Because after reading your bio and talking with you offline, I know you to be a dedicated amateur of language and I give amateur at the classical meaning a person who lovingly pursues a study not as just a mere means of trade but as a devout disciple. And in your bio, you say this about your relationship with language. This is Lindsay Lawton, I enjoy language, all language written, spoken, sung and signed, I mean everything about language from delightful nuances and the meanings of words to the beauty of different dialects. And the connection between linguistics and culture, I'm sometimes mistaken for the grammar police, open parenthesis only because I make a hobby of handing out helpful tips, close parenthesis, that goes on a bit, tell us more about why you're so enamored of language, and how that makes your practice unique.

Lindsey Lawton  7:54
I don't know why I'm so enamored of language, except that I would just compare it to, you know, the reason that I like ice cream and chocolate, it's just, you know, it tastes good. I enjoy language is just natural to me, you know, and I always enjoyed reading as a kid, I had great English teachers in high school and went on to become an English major, probably because of that. I also was a Spanish major. So that's part of the, you know, it's not just that I love the English language, or the grammar, I love, linguistics and language. And so it's just natural to me, and how that makes me and my practice unique. I guess I'm just very I have the grammar rules have always stuck in my brain. And so for the most part, my writing is going to be very polished from a medical perspective. And I'm going to enjoy the process of it, which I believe translates into a good product and a good, something enjoyable to read.

Jeff Lewis  8:49

And California, it's about 70 to 90% of all appeals go nowhere near whether it's a de novo review from a motion or substantial evidence review from trial. Yes, I'm similar stats in Florida in terms of the prospects of an appeal.

Lindsey Lawton  9:02 
Yes, it's very similar. I know, there's one appellate court that I've been to a lot of CLE is at where the court provides it statistics. And I think it's somewhere around like 85% of the cases get

Tim Kowal  9:13
affirmed. Wow. Oh, that's even higher than in California. Yeah.

Lindsey Lawton  9:17
Yeah. And that's just that figures is pulled out of, you know, one year so it can vary, but I think it's pretty close. I haven't seen the the number go down as low as 70.

Jeff Lewis  9:26 
Lindsay, you and Tim are super active on LinkedIn, I get on there once a week to read and you two are really active. How do you find the time to write and to spend time doing not just a post of your cat but really substantive helpful advice on LinkedIn?

Lindsey Lawton  9:42

Well, I have kind of a topic that I post about, and it's a topic that I'm very familiar with. As you both know, it's typically I post little grammar tips. And so the one way that I find the time is that I'm writing about something that I already know, and don't typically have to go and do any research to write and My post I keep very short, I kind of keep in mind that LinkedIn, even though it's professional, it's social media. So I kind of have my social media persona on there, where I'm just sort of speaking off the cuff about a topic. I know, pretty briefly, it still can take a lot of time, though, because especially when you get into discussions with people underneath your posts or underneath their posts, so you do have to be careful not to let it suck you in and use all your time as social media tends to do.

Jeff Lewis  10:27
She's looking at you, Tim, in terms of all your comments, she's looking right at you

Lindsey Lawton  10:31 
know, I appreciate all the comments keep on going. But I go through phases where I'm posting more or something else depending on what's going on. Interesting. Because I usually don't like sit back and write spend a bunch of time writing the original post.

Tim Kowal  10:43 
That's right. Yeah. When you write something that you know about, and especially if it's something that you love, then it makes it easier and more fun and enjoyable to do. Do you ever feel self conscious? Lindsay writing grammar tips? Do you find yourself when you're writing the grammar tips that Oh, my God, I hope I don't have a subject verb disagreement in this post somewhere and all the my audience of grammar nerds are going to pounce on me.

Lindsey Lawton  11:06 
Definitely. It's not uncommon that there is a mistake that I find after I hit post. Sometimes people pointed out to me, and sometimes I catch it before anyone points it out. But it's a little tricky, because the algorithm experts on LinkedIn say you're not supposed to edit for a certain amount of time if you want your post to have any reach. So I didn't know about that one. Yeah, sometimes I sit there, let the mistake be there. But yeah, people understand that it's just a mistake and not reflective of my knowledge of grammar.

Tim Kowal  11:37 
Yeah. Now, can you share with us maybe one or two of your grammar tips, maybe ones that you've shared on LinkedIn, or ones that you've not shared? Maybe some that you feel? Are the top grammar tips, or the top faux pas that attorneys make regularly? Something that you could share with our audience today?

Lindsey Lawton  11:55
Yes, yeah, I have two favorites, I guess. The first is I'm giving you some permission. And the second is, I'm telling you something not to do. So the permission is you have permission to use the word that a lot of people want to strike the word that in writing as much as possible. I don't really know where this advice to strike the word of that originated from, I can tell you that in all of my education, like in writing, as an English major, no professor ever told me to strike the word that and it was after I became a lawyer of a fellow like law student was editing my work one day, and she wanted to take out the word that and I had never heard that before. Since then, I have seen that it's kind of this common editing approach. But a lot of times the word that is important to clear meaning of your sentence. And so I would say err on the side of keeping the word that in, don't take it out unless you have some good reason. Other than that, someone told you the word that is excessive. If it sounds natural, keep it in. The second one is lawyers tend to misuse the phrase as such. So a lot of times people will use as such to be a synonym, therefore or thus. But it's really not as such as a phrase with a pronoun in it, the pronoun is the word such. And such has to refer back to a noun that you already said in the sentence. It is not just a synonym for this and therefore, so be careful with that one.

Tim Kowal  13:17 
Interesting, I hadn't thought about it. I don't like that phrase. So I just I stopped using it a while back, you made me think of another phrase that we use almost unthinkingly that is a verb. And so as such, it has to agree in view, whether it's singular or plural with the the noun that it's referring to. So when he ends up saying The reasons are as follows reasons is plural follows is a singular. So you should say the reasons are as follow. Although that sounds really weird to me. And that violates my first rule of grammar, which is if it sounds stupid, it's not English. So I'm left with just leaving all these disagreeing subject verb clauses in there using as follows When it refers to a plural noun.

Lindsey Lawton  14:02 
It's funny, you bring that up, because I have the same thought as you on that, at some point, I started changing as follows To as follow. And then someone told me I was wrong. And I don't know who's right. But I switched back, I always just say as follows. And I just take the as follows as referring to this big chunk of language, and not as to the individual reasons.

Tim Kowal  14:21
Yeah, you can almost hyphenate as follows. It's become a term of art. Yeah. list starts now. That's basically what it means now. Okay, well, let's get to business and talk about some comparisons between Florida Rules of Civil Procedure and California Rules of Civil Procedure. We've talked with guests from Illinois and Utah. And, you know, Lindsey, you're really the one that kind of kicked this off in my mind. Is this being an interesting comparison to make when you told me that in Florida, the appellant doesn't have a right to a reasoned opinion on an affirmance and I thought, well, by God, that's awful. You poor Floridian appellants who don't get a reasoned opinion just a summary affirmed. And I thought gosh ought to take a break from my soapbox and give the rules of appellate procedure writers in California a little bit of an easier time because at least we get a reasoned opinion in all of our references. So I wanted to ask you some other questions and see where things come down in California versus Florida. And one issue that I like to explore is the question of who sets the rules of civil procedure? The court rules in Florida? Is it the legislature or is it the Supreme Court? Or is it some mix of both?

Lindsey Lawton  15:33 
It is the Supreme Court? How is it in California,

Tim Kowal  15:36 
we have a statute Code of Civil Procedures is set by the legislature. We also have the rules of court, which are set by the Judicial Council, which is under the Supreme Court, but they may not conflict with the Code of Civil Procedure. If there's any statute on point, the rules of court may only elaborate but not contradict.

Jeff Lewis  15:55 
So it's the state legislature that tells us we have to do a meet confer before we file the demurrer or all those other procedural rules and not the courts. It's the Yeah, it's the state.

Lindsey Lawton  16:06
Wow. Yeah, I was really surprised to see that.

Tim Kowal  16:09 
Well, and that's how it works in Utah as well. We talked with John Neilson, about that. That turned into another question. The biggest practical difference that I know about that may be a result of the legislature versus the Supreme Court, deciding the rules of civil procedure are may be answered when I asked you this next question, are court reporters required is a reporter's transcript required for an appeal? Do you have to have a court reporter at the proceeding taking down a simultaneous transcript? Or can in Florida Can you have electronic recordings of a proceeding that can be transcribed later to be used as the appellate record?

Lindsey Lawton  16:48 
You can have electronic recordings? I say that because I think in certain proceedings, like some criminal proceedings, and maybe a few others, I don't want to name them out. In case I'm wrong. There is a digital recording that can be transcribed. But in just regular civil cases, the court doesn't provide a reporter or a digital recording, you have to arrange for your court reporter

Tim Kowal  17:12 

in Florida, is there a crisis of a shortage of court reporters? Do you have that problem like we have in California, and in many other states?

Lindsey Lawton  17:20 
I have not yet encountered it. But I've been hearing that it is affecting Florida to you.

Tim Kowal  17:25 
So in what ways? Is it affecting Florida? Because if I understood, right, you don't normally have to have a court reporter present in order to make an appellate record because it's still digitally recorded?

Lindsey Lawton  17:36 
Oh, well, in most cases, it's not digitally recorded. So in civil cases, you definitely have to arrange for your court reporters to come to the hearing, or the trial, to be clear. And I'm just saying that there are a few types of cases where there are digital recordings made. But I would never rely on that without checking with the court to make sure that's going to be the case, because it's very important to an appeal, to have a transcript, whether it's something transcribed from the digital recording, or from a live court reporter who was sitting there. And as far as like I say, I've heard I've been hearing just probably on LinkedIn and from others that there's generally a court reporter shortage in the country. I haven't talked to any attorneys who told me that they couldn't find a court reporter for their proceedings. But I did Google it to see if it's affecting Florida, and I just saw an article online saying that it is but I have no personal experience to know for sure.

Tim Kowal  18:25
Yeah. Yeah. The background in California is that there's a statute that provides for court reporters, it doesn't forbid at least doesn't expressly forbid the use of electronic recording. And so the legislature created a pilot program back in the 90s. But when it sunsetted, by that time, the court reporters Union had gotten wind of it and shut it down. The Judicial Council decided, well, the electronic recording is a good idea. It's important to for access to justice at everyone have access to a court reporter to a an appellate transcript. And so they provided for the use of electronic recordings, and then one of our District Court of Appeals decided that conflicts with the statute so that Judicial Council rule of court has to be struck down. And so that's where we have been for the last 25 years or close to 30 years. I think we're a verbatim court reporter transcript is the only game in town effectively for making an appellate record. And there have been numerous efforts by the legislature to create another route for using electronic record, but they have all fallen upon the same fate. Let me ask you about horizontal starry decisis. We've talked about that on the podcast, one of our District Court of Appeals can just thumb its nose and another District Court of Appeal does not have to follow the holdings even though they're directly on point. What say you in Florida, do you have horizontal starry decisis where all the district court of appeals are considered to be one court that to follow each other to be consistent?

Lindsey Lawton  19:53
We have six district courts of appeal that was recently changed in Florida we used to have five now as of January 1 of this year, we have six and they are all independent and can disagree with one another.

Tim Kowal  20:03

So Florida is similar to California in that regard. What about in California, the First District Court of Appeal could thumb its nose at its own opinion from yesterday morning and decide to go the complete opposite way on the same point of law. What about in Florida? Does the same District Court of Appeal have to follow its own prior holdings?

Lindsey Lawton  20:23 
Eighth, so the District Courts of Appeal sit in three judge panels to make their decisions. And so a generally so a panel does have to follow the precedent of the of its own district. But the court can go on bunk and reverse its precedent.

Tim Kowal  20:39 
Okay, so that's very much like the federal method of taking these things, taking the prior decisions on bonk and reverse it, if it wants to reverse itself. But a three judge panel cannot do it on its own. Correct. Okay. Interesting. So that makes Florida State appellate system very similar to the 11th circuit and the other I assume all federal circuits work a similar way. I only know the ninth circuit to be sure, but I assume the 11th circuit in the other circuits work similarly. Now I wanted to ask you about the other soapbox that I like to get on most often about unpublished opinions in California. The minority of our District Court of Appeal, opinions are published, the vast majority are in the subterranean body of law, unpublished opinions. They're all they're accessible on Westlaw or Lexus or on our podcast sponsor case text, the best of them all. They're all there. You can find them just as easily. They appear in searches just as often as published decisions do but they're unpublished you cannot cite them for any reason I was about to say cite to them. But I know Lindsey says you should not say cite to you cite a case. You cannot cite an unpublished opinion for any reason, technically, not even to the Supreme Court does show that there is a split of of decisions, even though that rule is flouted with regularity. How does it work in the Florida State system? Are there unpublished opinions?

Lindsey Lawton  21:57 
There are not typically unpublished opinions of the Florida appellate courts, every opinion deciding a case in Florida gets published, you know, the orders that they may issue along the way aren't necessarily published. Occasionally, the court will issue an unpublished order that might have some substance. There's no prohibition on citing it. But I mean, as you say, it's not precedent, if it's unpublished. If you do cite it, you're not going to get in trouble. That sounds like you might get in trouble in California, you cite and unpublished opinion.

Tim Kowal  22:25 
Yeah. Yeah. You can get in trouble there. Have we seen any cases of litigants getting sanction, Jeff?

Jeff Lewis  22:30 

Not for that alone. But usually the same kind of litigant who cites an unpublished decision might I don't know, not have an appellate record, not make points in a headache, commit all sorts of other fatal appellate since?

Tim Kowal  22:43 
Right? If you were to cite only unpublished opinions for an authority, then I think it'd be a very good chance that the court would deem that argument to have been forfeited. Yeah, yeah.

Lindsey Lawton  22:54 
What if there's no appellate decision on point,

Jeff Lewis  22:56 
then congratulations, you're about to make new law. But you can't cite unpublished

Tim Kowal  23:01 
you still can't that's a good reason to look out for any unpublished opinions that raise issues or decide issues of law that haven't been taken up before. And any person doesn't have to be one of the parties, any person can make a request for publication in the Court of Appeal. So I've done that personally, a couple of times in the last year, I think two out of three of my requests have had been granted. So it can be frustrating to see issues that have never come up before and then they're disposed of in an unpublished decision. Right? Well, let's talk about written opinions. Now. Lindsay, we have in California a right to a written opinion on appeal. And I know Florida does not give litigants a right to reasoned opinion when it affirms. Can you tell us about that? How frustrating is that? How difficult are the conversations with your client? When you go back and say I'm sorry, we put up our best fight this really great argument that I thought would win over the court. The court didn't buy it, because and then you can't finish that sentence. The court felt about your slam dunk argument.

Lindsey Lawton  24:03 
Yeah, it is frustrating as an advocate and it is certainly disheartening as an advocate and for the client, what we call it we call it a PCA stands for per curiam affirmed, which a PCA is a decision with no explanation affirming. And so you know, you hit the nail on the head, it's it can be frustrating for both the attorneys and the clients. Personally, I know that when the PCA is issued, that a lot of work went on behind the scenes to reach that result. But it still can be very unsatisfying for the clients. And it is even as an advocate, often I'm wondering, what was I want the explanation? What was there a second part of your question?

Tim Kowal  24:43 
Yeah. Well, what about in cases where there are cases that I've argued that I've seen opinions on where there are technical defects and the appellants arguments say that there's a defect in the whether it's not an appealable order or was an untimely appeal or an issue was waived or forfeited by by the attorney, and yet the arguments are still good. And even if they're not so great, sometimes the panel just decides, you know what, I don't want to set up a malpractice trap for this poor attorney. So we're gonna go on, excuse me and say that despite this issue, even on the merits, we would have affirmed and then explain why they rejected the appellate arguments on the merits. You don't get that happening as often in Florida, you might be left with a client asking the attorney Well, do you think this is because you screwed up at the trial, and you didn't preserve the issue correctly? And then is that to create a malpractice problem? Wouldn't it be nicer for that reason to have more reasoned opinions on differences?

Lindsey Lawton  25:37 

That's a good point. I think a lot of appeals probably come down to lack of preservation. But then I've seen written opinions that go into well, this was not preserved, like you say, we would affirm anyway. I don't know that the clients are looking at it from that perspective, blaming the attorneys. But yeah, that is one reason that it would be nice. So there could be some certainty there. But I guess that's something that would be fleshed out later in a malpractice suit if unfortunately, that happened.

Tim Kowal  26:01 
Yeah. And Jeff, did I remember correctly that John Nielsen from Utah told us that they often do not have reasoned opinions on affirmance? Is that many of them? That's right, I

Jeff Lewis  26:10 
think he did say that.

Tim Kowal  26:11 
Okay. Let's talk about some briefing Follies. Jeff. You know, Jeff, and I were just talking a moment ago about how in California, there are a lot of ways that you can lose arguments. For example, if you don't put a key argument under its own heading in the brief, the Court of Appeal could decide that now you've buried this argument, so we didn't have to reach it, or if it's not accompanied by citations to authority. Now you got me selfconscious. Lindsay, because before taping, you said you should say citing cite the case, not cite to the case. If you don't cite to authority, or to the record, you will have deemed to have forfeited those issues. Do you have similar kinds of trap doors in briefing in Florida?

Lindsey Lawton  26:53 
Yeah, I mean, I don't know that I would call them trap doors. But we do have an appellate rule that says, let's see, it lists out the contents of your brief and one of them is, well, I'm looking at it as a table of contents, listen to sections of the brief, including headings, and subheadings that identify the issues presented for review. I've seen cases and opinion and I should have gathered grab the site before the podcast, but it didn't. But I've seen opinions that talk about sorry, you know, the part of the rule I'm really thinking about is later. Well, the rule talks about organizing your issues clearly and cogently. And more than that I've seen appellate opinions that would say an issue was sort of just alluded to or just hit very perfunctorily. And that's not sufficient to raise an issue for appellate review. And I guess I would say it's not I wouldn't consider it a trapdoor because I think someone writing a brief should know that you have to flush an issue out and make an effort to persuade the court rather than just, you know, name the issue until the court figure it out.

Tim Kowal  27:47 
Yeah, yeah. As the appellate attorney, I decide, look, I want to argue issues a and b, you know, these are the issues that you're likely to win on. Within the trial attorneys still says, Yeah, but got, you know, W X, Y and Z were really great issues. And I don't think they're so great. But the trial attorney says they go in there. And so I might just throw them in at the end, the kitchen sink argument. And I've done that did that years ago in the courtroom, I won on issues a and b. And then the court went ahead and said, issues W XYZ, we're not fleshed out enough didn't have separate headers. So we're, we're deeming them waived. They would have been useful to me, but I think they would have lost anyway. Yeah, lesson learned. I have seen that happen. Yeah. Let's talk a little bit about summary judgment procedure. We've talked about on the podcast that if you're opposing a motion for summary judgment on the grounds that you need more discovery in California, you must file a motion under our Code of Civil Procedure section 437. CS, subsection H, you have to file this motion explains why why you'd be able to show a tribal issue of fact, if only you had this discovery and explain why you haven't done the discovery until now. Are there something similar to that? Or are there other tricks or traps be aware of in Florida motion for summary judgment procedure?

Lindsey Lawton  29:01 
I think there may be a lot of traps in the summary judgment procedure in Florida simply because the Florida Supreme Court adopted the federal summary judgment standard just a couple of years ago. And so the all the requirements under that rule are being flushed out in Florida still, we do have rule 1.5 10 D. Again, that's modeled after the Florida up to the federal rule. And it says if a non movement shows by affidavit or declaration that pre specified reasons, it cannot present facts essential to justify its opposition. The court may differ considering the motion or deny it allow time to obtain affidavits or declarations to take discovery or issue any other appropriate order. And so there's a question as to whether this is the only way to get a continuance of summary judgment decision. What constitutes an affidavit or declaration? Do you need to file a separate motion? Or can you make the showing required under the rule in your response? So I think these are things that We're figuring out in Florida right now.

Tim Kowal  30:02 
Yeah, that's a good question. And I think when you read that Florida rule, it does sound from what I recall almost identical that affidavit or declaration. And it was not clear to me last time I read, rule 54, whether you could just file a declaration the day before the hearing or the day of the hearing for that matter, and say, Look, I complied with the rule. I need more discovery, you have to continue or deny the motion? Or does it have to be in a notice motion or an ex parte application? That's a good open question. I don't know if that's been resolved under Federal Rules of Civil Procedure 54, either. But

Lindsey Lawton  30:34 
I'm not reading the rule of saying it requires a separate motion. I know that in the 11th circuit, you don't even necessarily have to provide an affidavit or something under penalty of perjury. If you're an attorney making the representation to the court. The 11th circuit says an attorney is an officer of the court if you're telling the court reasons that you need more time, then that ought to be good enough.

Tim Kowal  30:54 
Yeah. Let's talk about oral argument in our respective appellate courts in California. litigants have a right to oral argument, some Court of Appeal jurists wish that litigants would waive that right more often. But there are different schools of thought of whether you should waive it. I think I've come to the side that says you probably should never waive it after talking to one retired Court of Appeal justice who said I always got a little bit of a weird feeling whenever a party waived a right to oral argument it I wondered if it meant they didn't feel that strongly about their arguments. So if there's a chance that's ever going to be the thought reading through the mind of one of my panelists, I'm sure not going to waive oral argument again. What about in Florida? Lindsay, is there a right to oral argument in the Court of Appeal?

Lindsey Lawton  31:35
No, there's no right in the District Courts of Appeal, you generally have to request it, if you're gonna get it. The appellate court can order oral argument on its own motion. But very rarely does that happen in the District Courts of Appeal? It happens regularly in the Florida Supreme Court, but in the DC A's. You need to ask for it. And you need to ask for it. Not within your brief, but you need to file a separate request for olare as its own distinct document. And I believe that's due after the reply brief. It is and yeah, but you don't have a right. And I've heard the same type of thought that you express hearing from a judge that there are some judges out there who have said you don't request oral argument. It's not a waiver issue. But if you don't request oral argument, then they question whether you have a good case. I've heard I've heard a lot of judges say the opposite that it makes no difference. Err on the side of asking for oral argument. Yeah.

Tim Kowal  32:23
I wonder if this is a universal feeling as well that do oral arguments change the outcome? Have you ever come out of an oral argument thinking? Gosh, you know, based on the questions and the responses to my brilliant answers from the panel, that I think they're really going my way now. They started kind of hostile to me. But by the end, I had the meeting out of my hand. Do you ever, ever get that idea that you've oral argument really turned the tide of your case?

Lindsey Lawton  32:45 
I wouldn't say no, I don't think so. Because I usually think my briefs are strong enough that that going into it? Well, they probably weren't convinced by my briefs right, at oral argument, sometimes look back and say, Oh, I should have answered that question a little better. You know, I finally had said this the exact use of magic words differently, that maybe they would see the case differently. But in reality, my experience tells me that I don't think oral argument makes a big difference. Typically,

Tim Kowal  33:10 
I think that's that may be close to a universal feeling. I think it's it's sometimes more for the benefit of the client than for the Court of Appeal. And it may be good for the attorney's ego as well. And it might not be too dissimilar from the ceremony of reading jury instructions. It's something that is important to the process. But does it really make a difference to anything? Well, let's talk about on a similar note to what you just said, Lindsay, about oral argument. And sometimes you wonder coming out of an oral argument. Gosh, maybe I could have answered this question a little bit differently. Sometimes Court of Appeals in California will issue focus letters, letters to the council that say at oral argument, the panel is interested in hearing more discussion on this specific issue. Be prepared to discuss that or they will publish or deliver a tentative opinion. So you can see exactly where the Court of Appeal is going in its reasoning. Does that happen in Florida? And what's your reaction and the reaction of the bar to those types of maneuvers?

Lindsey Lawton  34:06 
Focus orders do happen? Not that often. But I think they're kind of a relatively new thing. And so we're obvious naturally, we're starting to see them more. I think it's a great idea for the courts to issue focus orders. It just for obvious reasons, that helps the appellants and the athletes get prepared to know what the court actually wants to hear about, which I think would make for a more productive discussion. Now, I have not seen a court in Florida issue a tentative opinion that that would be neat. I like the idea, but I don't think it's likely to happen. Does that happen very often, in your jurisdiction?

Tim Kowal  34:41 
Not often just remember which districts do it.

Jeff Lewis  34:44 
Yeah, there's one division and the second district and then there's a one division down in the fourth district that does tentatives where you can actually in the fourth Appellate District, the division two you can actually get the full opinion fully baked. And yeah, but it's the minority position. Most of the courts let you just come in and guess what's on the justices mind?

Tim Kowal  35:03 
Yeah, I think the court,

Lindsey Lawton  35:05 
I was just I was thinking I would think by the time a panel wrote an opinion, they would probably be ready to dispense with the oral argument. And I don't know.

Tim Kowal  35:14
I'm told there's two main reasons why courts don't do more tentative opinions. One is the authoring justice. If something does prove incorrect, as at oral argument, if one of the main points are refuted at oral argument, explain why the justice was incorrect, then that could result in a bruised ego. And so there is a reservation against doing that and exposing at that point in Kohut analysis, the attorneys to be picked apart is maybe not something that the justices are accustomed to, in that enjoy doing. And then the other reason would be the reason most often given, like you said, in Florida, Lindsay, still something of a recent development in the appellate courts. And so at anytime there is an appellate Conference featuring an appellate justice, you can bet that one of the questions they're going to be asked is, why aren't you doing more focus letters and tentative opinions. And the reason that that's most often given that I think is the best one, when we get these focus letters or the tentative opinions, the attorneys come in, and they're certainly very well prepped on those issues, but almost to a detriment, because they're so laser focused on those issues that we kind of miss would normally come in not knowing what we're thinking what issues were honed in on, they would come with the broader, more holistic view of the case, kind of give us a roadmap, set the tone, introduce the parties a little bit, kind of taking another run at teeing up the case for us and giving us a new lens through which to see the case, when we give him a focus letter. They're coming in. They're just you're ramping this issue right down our throat. And not to say they're not great arguments, but we're missing the bigger picture that we would have gotten if we hadn't issued that tentative opinion or focus letter. That makes sense. Any other common traps that you see in Florida civil procedure, appellate procedure, are there rules of procedure in Florida that you think are pretty good, and that other jurisdictions to consider adopting them? And you had mentioned earlier about something about the requirement of requesting findings of fact? Yeah,

Lindsey Lawton  37:06 

yeah. The reason you tripped me up is because you said are pretty good. And I think other jurisdictions should follow them. I'm not so sure about that. But there is a recent there has been a recent amendment to the Florida Rules of Civil Procedure. I'm going to pull up the language here. So there's a new rule it's Well, it's an amendment to rule 1.530. That says to preserve for appeal a challenge to the sufficiency of a trial court's findings in the final judgment, you must raise that issue and a motion for rehearing before this rule amendment, I think, three or four, the district court kind of already had that rule, they would often find things not preserved for failing to, or I say things, they would often find issues about insufficient findings of fact, Unpreserved, because it wasn't raised in the in a motion for rehearing. Now. That's the rule across all the districts in Florida by virtue of this rule change. So I don't know if it's a great rule or not, you know, obviously, the Florida Supreme Court thought it was, but several of the district thought so ahead of time, but it certainly could be a trap, if anyone's unaware of that, of that rule change. And the way that it comes up a lot of times is in, for example, in family law cases, there are judicial opinions that say a court must make Express findings on various factors that the court had to consider for child custody issues or equitable distribution, things like that. And so if your only issue that you're arguing on appeal is that the trial court did not make sufficient findings on those factors, then you're not going to be able to raise that unless you preserve it with a motion for rehearing.

Tim Kowal  38:32 

That sounds similar to some of our procedures in California about statements of decision, they're called after a bench trial, you don't get a verdict, obviously. So if you want to know what the Fact Finder thought about issues, you have to request that the judge issue a statement of decision, if the judge doesn't issue findings on the shoes that were important to you, you have to specifically request findings on those issues and object that they were not made. And if you don't do any of that there's like a two or three step process. If you miss any part of that process, you're deemed to have waived a right to a finding on that issue. And then you're up against the doctrine of implied findings, that anything, any old thing that can be used for him that judgment will be inferred against you. And then substantial evidence it and as long as it's backed by substantial evidence, which is almost synonymous with any evidence, then it's going to be affirmed.

Lindsey Lawton  39:19 

Oh, that's interesting. So in Florida, we have a similar rule, but there's kind of an asterisk that I'd add to it. So it's in Florida. There's the rule that if the trial court reached the right result for any reason, then the appellate court will affirm we have a little nickname for it called the tipsy coachmen doctrine, which comes from a poem. You've heard of this.

Tim Kowal  39:37 
I remember reading about it on your LinkedIn I think, Oh, really? Okay.

Lindsey Lawton  39:40
So it comes from a poem about a coachman, which is, you know, the driver of a horse drawn carriage who is apparently drunk, but gets to where he's going anyway. So, for whatever reason, the appellate courts have nicknamed this doctrine after that poem, but they the caveat that I'm not sure is the rule of law. are debates I'm in California, based on what you just said is if the application of his doctrine would require the appellate court to make a finding a fact that the trial court did not make, then the appellate court won't apply it.

Tim Kowal  40:11 
I like the name tipsy coachmen doctrine better than the boring old implied findings doctrine. A little more

Jeff Lewis  40:17 
catchy, or chemistry, isn't it? Yeah, the

Lindsey Lawton  40:21 
implied findings, maybe that's a little different of a thing, because I know, for example, if the appellate court is reviewing, you know, decision on a motion to suppress and the court didn't make Express findings, the court is going to assume that the court made findings in support made the requisite findings, even though it didn't say them expressly.

Tim Kowal  40:37 
All right, well, now Jeff has to ask you a set of the hardest questions of the mall. So I'm going to hand you over.

Jeff Lewis  40:44
Okay. And, you know, first I guess, a trigger warning for our audience if the word that offends or triggers you in a sentence, I'm about to use the word twice. So here we go. This is the time for our patented copyrights segment of the show that answers the most pressing questions that Vex appellate nerds around the world, the dreaded lightning round are looking for short responses of one sentence or less. Let's see how far we could go here. Font preference and tree schoolbook Garamond or something else?

Lindsey Lawton  41:11 

Something else? Why don't you want me to say something else?

Jeff Lewis  41:14 
Don't say times new roman Roman, don't say Times New Roman.

Lindsey Lawton  41:17

I kind of want to say that I actually liked that better. But in our courts, I know it's supposed to be going fast in our appellate courts, we have to use Arial or Bookman old style now. So I would be partial to those.

Jeff Lewis  41:30
Okay, well, that's a new entry. Okay, after a period two spaces are one,

Lindsey Lawton  41:37 
definitely one. All right, fantastic. pled or pleaded. pled

Jeff Lewis  41:44
fantastic. And when you're doing the major argument headings for your briefs, all caps initial caps are set, in this case, initial caps. All right. And as a bonus sub question when you're doing initial caps do capitalize every word or just those that are four letters or more which letters see which words to capitalize

Lindsey Lawton  42:01 
just those that are four letters or more. I don't know that I've ever thought about it as four letters or more. But I do think of it as kind of the rule taught back in maybe elementary school about when you capitalize things, words in the title of a book. So you wouldn't have capitalized a or the or similar words.

Tim Kowal  42:16 
What about a verb like is, is only a two letter word, but it's a verb.

Lindsey Lawton  42:21 
Okay, question. I would probably struggle with that one on a case by case basis.

Jeff Lewis  42:26 
You have to phone a friend for that one. Okay. I think you did fairly well. You stumbled a bit on the font question. We'll give you you know, nine out of 10 on that one. gratulations. on surviving the lightning round, we'll send you a mug as a thank you for appearing on the podcast and surviving the table.

Tim Kowal  42:40 
What are the round? Now that I got into fisticuffs? Almost with John Nielson? About possessives possessors of words ending in S. So the example I used was how do you make a possessive of the word Congress? Is it Congress apostrophe or Congress? Apostrophe S?

Lindsey Lawton  42:58 

I would put that apostrophe s on there. Yes.

Tim Kowal  43:01 
Thank you. I'm gonna tell John.

Jeff Lewis  43:03
Yeah, you could say, Lindsey, don't cite to Lindsey. But you could cite Lindsey for that proposition.

Tim Kowal  43:11 
That's that's the takeaway. Yeah. All right. All right. I think that's gonna wrap up this episode. Again, we want to thank case text for sponsoring the podcast each week. We include links to cases we discussed, we use case text for that. listeners of the podcast can find a 25% discount available to them if they sign up at casetext.com/calp desk. That's casetext.com/calp.

Jeff Lewis  43:37 

Yeah, if you have suggestions for future episodes, or if the word that offends you, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  43:49 

Thanks again to Lindsay law and for joining us.

Lindsey Lawton  43:51 

Thank you for having me.

Announcer  43:53 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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