Welcome To Abstract Appeal

Blog Pages

  Home Page
  About Abstract Appeal

  Terri Schiavo Info:
    Terri Schiavo Infopage
    2003 Schiavo Posts
    2004 Schiavo Posts
    2005 Schiavo Posts
    Pop Schiavo Posts




Subject Sources
  Florida Supreme Court
     First DCA
     Second DCA
     Third DCA
     Fourth DCA
     Fifth DCA
  11th Cir Ct of Appeals


Source Resources
  Fla Sup Ct Dockets
  Fla DCA Dockets
  Fla DCA Map
  11th Cir En Banc Issues


Useful Org Sites
  Fla Bar
  Fla Bar App Section
  Council of App Lawyers


Useful Law Sites
  Fla Constitution
  Fla Statutes
  Fla Admin Code
  Fla Att'y Gen Opinions
  Fla Legislature
  Fla Governor
  Fla Attorneys


Useful Docs

  Fla R Appellate Pro
  Fla R Civil Pro
  Fla R Criminal Pro
  Fla R Jud Admin
  Fla Fam Law R Pro
  Fla Probate R
  Fla Small Claims R
  Fla Traffic Ct R
  Fla Small Claims R
  R Reg Fla Bar

  11th Cir LR/FRCP/IOP

  ND Fla Local Rules
  MD Fla Local Rules
  SD Fla Local Rules

 Filing Instr/IOPs:
  Fla Sup Ct Filing Instr.
  Fla Sup Ct IOP
  First DCA Att'y Notice
  Second DCA Att'y Notice
  Second DCA IOP
  Third DCA Att'y Notice
  Fourth DCA Att'y Notice
  Fourth DCA IOP
  Fifth DCA Att'y Notice

  11th Cir LR/FRCP/IOP
  11th Cir Filing Instr
  11th Cir Civ App Stmt
  11th Cir Appearance

 Jury Instructions:
  11th Cir Civ Jury Instr
  11th Cir Crim Jury Instr



Any Remark Found On Abstract Appeal Should Be Attributed Solely To Its Author




Atom Feed

Subscribe through My Yahoo

Subscribe in NewsGator Online


Abstract Appeal

Blog Somebody!


Thursday, May 14, 2009
Second District: Certiorari and Discovery Denials
Civil practitioners, add this decision from the Second District to the growing pile of modern appellate cases that utilize certiorari to review and quash a trial court order denying discovery.

Certiorari in the discovery context has long centered on "cat out of the bag" orders that require discovery to be exchanged. Once out, the proverbial cat is simply not going back into the bag, and any harm would be irreparable and should be addressed before it occurs.

Historically, we have seen rather few decisions granting certiorari petitions where a trial court refused to compel the exchange of discovery. A discovery denial may be right or wrong on its merits, but it does not cause information to be exchanged that cannot be unexchanged, and so theoretically its harm is just as correctable post-trial as it is pre-trial. So the case law told us.

Recently, however, Florida's appellate courts seem more receptive than ever to the notion that certiorari may appropriately be used to quash an order denying discovery. The Second District's recent opinion states:
Certiorari is rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal.
* * *
However, when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.
(citations and footnote omitted).

Has there really been a change of course here, and if so, have courts merely changed their minds on whether the harm of discovery denied can be irreparable?

I suggest the answer to the first question is yes and the second is no, and that what is really at work involves both efficiency and integrity. More on that at another time. Meanwhile, trial lawyers, keep your appellate kin close, because a certiorari petition may be just a discovery denial away.

Second District: School Employees
Government employment can lead to some legal peculiarities, such as how employees may receive immunity from the use of statements made under threat of adverse employment action for the failure to answer questions, thus leading to an employee's obligation to answer without Fifth Amendment protection.

Such lofty notions were at issue in this decision, but the Second District avoided entangling itself in them and resolved the case by deciding whether competent evidence supported a school board's decision to terminate a teacher.

Second District: Sentencing
Sentencing fans -- you're out there, I know -- can have much fun with this decision from the Second District.

The court spends some time on a subject it knows much about (whether a sentence is an illegal one under rule 3.800(a)), a subject it newly encounters (whether an illegal but fully served state sentence's effect on a federal sentence can be corrected by a state court habeas corpus proceeding), and a subject it candidly admits not knowing how to resolve (whether a mechanism exists in federal court to alter a federal sentence being presently served where that sentence may have been predicated on a prior, illegal state court sentence).

The court also suggested that the public defender's office need not have been appointed to bring the appeal in this post-conviction case.

Friday, May 08, 2009
Supreme Path on Children's Behalf
This week proved to be a briefwriting bonanza for me, and the fun kept me away from here and discussing this week's big news out of Florida -- the U.S. Supreme Court's order granting review of the First District's decisions in Graham v. State and Sullivan v. State.

Of course, now that the nation and even the world are interested in these cases, we can stop referring to "State" and start referring to "Florida." The high court will consider Graham v. Florida and Sullivan v. Florida this next term.

The question presented in Graham is:
Whether the Eighth Amendment's ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide.
The questions presented in Sullivan are:
1. Does imposition of a life-without-parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?

2. Given the extreme rarity of a life imprisonment without parole sentence imposed on a 13-year-old child for a non-homicide and the unavailability of substantive review in any other federal court, should this Court grant review of a recently evolved Eighth Amendment claim where the state court has refused to do so?
In short, both cases confront whether minors may be sentenced to life in prison without parole for a crime other than homicide.

Notably, the Sullivan decision was a per curiam affirmance, though Graham preceded it by a few months and so presumably the First District considered the issue settled. The case stems from post-conviction proceedings and the district court did not grant oral argument.

Graham, on the other hand, was a unanimously decided twenty-plus-page decision, and the First District held an oral argument. You can watch that argument here.

Graham is represented in this case by Jacksonville's Bryan Gowdy and John Mills. Bryan argued the case in the First District.

Congratulations to Bryan and John for getting this case to the high court. Perhaps Florida's Solicitor General's office will appear on the state's behalf.

These will be exciting cases to watch in the coming term. Given the breadth of interests implicated -- children, the Eighth Amendment, life sentences, international law, and The Convention on the Rights of the Child -- we can expect a cast of characters to weigh in on the issues as these cases move forward.

Friday, May 01, 2009
Law Day
Today is Law Day. To help promote it, I had the good fortune to speak last week to two history classes at a local high school. I always enjoy speaking with students about the law -- they pay attention and always have terrifically interesting questions about how the law can impact their lives. I do my best to answer, but sometimes the questions are awkward and make you wonder how youthful these youths really are.

For instance, one student last week essentially asked: "If you're from another country -- say, France -- and you commit a terrible crime there and then come to America, what will they do to you?" Another asked something like, "If there's a warrant to arrest someone in Florida but the person moves to Georgia and no one there arrests him, can you get the Georgia police in trouble?" I hope the students were making these situations up, but I doubt it.

Speaking of students, a few years ago I told a story here about a Law Day-related oral argument I once had. Long-time visitors to Abstract Appeal may recall it, but I will retell it anyway. Here goes:

I will not mention the year or the court, but this story involves one of Florida's district courts of appeal. Each year, the district courts hold oral arguments in each of their respective circuits. Typically, oral arguments away from a district's seat take place in county or circuit court buildings, and sometimes the district courts liven things up a bit by inviting local school children to attend the session. That is especially true around Law Day. By inviting local students to attend an "away" session, the district court can visit a circuit, bring the public into the courtroom, and promote Law Day. Everyone wins.

Well, not everyone. Picture me in early May in one of Florida's beautiful rural courthouses. The weather was perfect. The courthouse was majestic. I stood before a panel of district court judges to deliver an oral argument, flanked by a gaggle of school children no doubt eager to hear about my interesting case. Factually, it was an interesting case, which is why it was selected for the event, and I was asked in advance if I would not mind waiting around afterwards to answer any questions the students might ask.

The appellant's argument had been unremarkable. The panel was rather quiet, asking very few questions. When you represent the appellee in that situation, you hope the judges are being pensive or are tired -- and not that they are waiting to unleash a fury on you when it is your turn to argue. My turn came and I began to defend the trial court's eminently correct rulings. I was immediately hit with a hostile question. And another. And another. Most were from one judge who made clear that he did not agree with me or my client, notwithstanding the sincerity behind my arguments. A couple of times, the judge shook his head and just said he saw things differently than the trial court and I saw them. It was 20 minutes of back and forth. Given that he was the judge, his forth was a lot more powerful than my back.

At the end of the oral argument, the court asked the school children if they had any questions. They were probably in the third or fourth grade. A young man had a question. He stood up, looked right at the judge who had hammered me and said, "Do you always make up your mind before you get here?"

I tried to hold back a smile.


Needless to say, I lost that appeal, but I still smile when I think about that question.

If you follow national legal news, you probably learned from items like this one about Mark Levy's apparent suicide yesterday morning. Mark headed up the appellate group at Kilpatrick Stockton in Washington D.C.

I did not know Mark well but I was part of the planning committee that created the first two installments of the Eleventh Circuit Appellate Practice Institute, and Mark joined us for the Atlanta program in both 2006 and 2008. He spoke on class action appeals as part of the civil program in 2006 and on briefwriting in 2008.

One night during the 2006 program, I hitched a ride with him to dinner at the Highland Tap. I was planning a D.C. trip at the time and he was filled with suggestions and tales of the town. He struck me as both gentleman and scholar. If you attended either program, perhaps you recall him.

Discussions On Abstract Appeal Are (At Best) Academic and Are Not Legal Advice. Consult an Attorney in Your Jurisdiction if You Require Legal Advice.

Abstract Guests

Abstract Hits


Abstract Appeal

July 2003
August 2003
September 2003
October 2003
November 2003
December 2003
January 2004
February 2004
March 2004
April 2004
May 2004
June 2004
July 2004
August 2004
September 2004
October 2004
November 2004
December 2004
January 2005
February 2005
March 2005
April 2005
May 2005
June 2005
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May 2006
June 2006
July 2006
August 2006
September 2006
October 2006
November 2006
January 2007
February 2007
March 2007
April 2007
May 2007
June 2007
July 2007
August 2007
September 2007
October 2007
June 2008
July 2008
August 2008
October 2008
March 2009
April 2009
May 2009
June 2009

Didn't I Once Read…?

Abstract Appeal



- by state -

Ariz Fam Law Blog
Razorback Lawyer
Cal Election Law
Cal Yankee
Criminal Appeal
The SoCal Law Blog
The UCL Practitioner
Connecticut Law Blog
Delaware Law Office
Abstract Appeal
The 13th Juror
Boating Safety Law
Fla Arbitration Law
Fla Asset Protection Blog
Fla Bankruptcy Blog
Fla Injury Law Blog
Fla Land Law
Fla Mediator Blog
Fla Probate Lit
Fla Venture Blog
Orlando Family Lawyer
Per Curiam
SD Fla
Atlanta Inj & Civ Lit Blog
A Georgia Lawyer
Indiana Law Blog
La-Legal Annotated
Naked Ownership
Maine Divorce Blog
Show Me Blawgs
Husker Blawgs
New Hamp Law Blog
New Jersey Family Law
New Jersey Law Blog
New York Civil Law
NC Divorce Blog
OK Blawg
SC Appellate Law
SC Family Law Blog
SC Trial Law Blog
Day On Torts
Tex Estate & Probate Law
State of the Bee Hive
SW Virginia Law Blog
Brian Peterson
Wis Pers Inj Lawyers

- by federal court -

Supreme Court Blog
Criminal Appeal
Direct Appeal
Abstract Appeal

The 10b-5 Daily
ACS Blog
Alt Med Law Blog
App Law & Practice
Bag and Baggage
Becker-Posner Blog
Election Law
Employment Blawg
Ernie the Attorney
How Appealing
Inter Alia
The Legal Reader
Lawrence Lessig
May It Please The Court
Minor Wisdom
On Appeal
Out-of-the-Box Lawyering
Point Of Law
Real Lawyers:Have Blogs
Southern Appeal
Statutory Construct Zone
Underneath Their Robes
Where's T. McGee?
The Volokh Conspiracy

? law blogs #
« ? Tampa Bay Blogs # »

Alachua Politix
Bark Bark Woof Woof
Blunted On Reality
Fla Blog
Fla News
Fla Politics
Fla politiX
Interbay Superstar
Kim's Point of View
Lines in the Sand
Ocean Guy
The Orange Grove
Political Bloviation
Seminole Heights
Side Salad
South of the Suwannee
Sharp As A Marble
Space Coast Web
Sticks of Fire
Tampa Book Buzz
Tampa Film Fan

want a blog added?