Appeals, Extraordinary Writs and Exceptions
Florida’s Courts of Appeal have jurisdiction over final orders and certain extraordinary matters where an incorrect ruling by a court cannot wait to be addressed even though there is more to be done in a case. In certain cases where the case was referred to a general magistrate for hearing, a form of appeal referred to as “exceptions” exists where you can request the circuit court judge to review the findings of fact and recommendations of a general magistrate.
Kofsky Law Office provides comprehensive, high quality appellate services and litigation support services to trial lawyers and their clients. Martin Kofsky is an accomplished trial lawyer with significant appellate experience. After graduating first in his law school class, Mr. Kofsky clerked for the Fourth District Court of Appeal. In the years since, Mr. Kofsky has served as a corporate general counsel for a large health insurance company and litigated on behalf of hundreds of clients in corporate, health care, family law, business and civil litigation. Having worked with large multi-national firms and smaller boutique firms before opening his own form 20 years ago, Kofsky Law Office has the depth and breadth of experience you need in courts throughout the State of Florida and the Eleventh Circuit Court of Appeal.
The Appellate Process
Broadly speaking, the appellate process concerns matters where you believe a trial court has made an error and ruled incorrectly. Most appeals concern the review of rulings by a trial court judge but related proceedings concerning the exception process after proposed findings of fact and conclusions of law are rendered by a general magistrate.
My decades of experience as practicing trial and appellate lawyer having represented clients in a broad range of family law and civil matters, we maximize the likelihood of a positive outcome on appeal. Appeals concern the review of errors made by a lower tribunal making the record created by during the trial the cornerstone of most successful appeals. Appellate courts review the record of proceedings in the court below making the preservation of issues and the record of all proceedings important to positive appellate proceedings.
We do not limit the areas of law in which we provide appellate services, we concentrate our appellate work in family law matters that include:
- Dissolution of marriage
- Relocation cases
- Equitable Distribution
- Child contact restrictions
- Imputation of Income
- Child Support
- Modification of timesharing
- Modification of parental responsibility
- Parental Responsibility
- Modification of Alimony
In addition to providing appellate representation, I also consult during litigation to help your litigation team identify and preserve issues for the appellate court. As consulting counsel, I can assist self-represented parties to conduct their proceedings to preserve issues for appeal and, possibly, improve your outcome in the trial court.
Florida Extraordinary Writs
Writs are a form of “extraordinary” relief where an appellate court is asked to make a ruling when a direct appeal is not available. There are four commonly used forms of extraordinary writs.
Writ of Certiorari
A writ of certiorari is most commonly used to address actions taken by a lower tribunal that exceeds its authority or otherwise departs from the essential requirements of law and is available when no other legal remedy exists. Departure from the essential requirements of law means there is a violation of a clearly established principle of law including controlling case law, rules of court, statutes and constitutional law. A Writ of Certiorari is proper only where the error complained of will cause the petitioner irreparable harm throughout the remainder of the proceedings. Discovery disputes in civil proceedings are often the subject of certiorari proceedings. An emergency motion to stay the case in the lower court is often filed asking the lower court to pause the lower court proceedings while the certiorari petition is pending.
Writ of Mandamus
A Writ of Mandamus is used when a lower tribunal judge or other official refuses or fails to perform a duty that they are required by law to perform. If issued, the writ of mandamus forces the lower tribunal, or another government officer, to perform an official duty. To obtain a Writ of Mandamus you: (i) must have a clear legal right to have the judge or other officer perform a specific act or duty; (ii) the lower tribunal judge or other government officer must have a clear duty to perform the action; and (iii) you must have no other adequate remedy at law. Although not an exhaustive list, writs of Mandamus are commonly used where a lower court fails to rule on a motion in a timely manner, to compel a lower court to hear a case that was erroneously dismissed, to compel a public official to issue a license after the applicant met all of the applicable requirements, to compel the release of records after a public records request.
Writ of Habeas Corpus
This writ is used to obtain the release of a person who is being illegally detained. Use of this writ is far less common in Florida than it is in federal courts, but it serves an important purpose.
It can only be used when resolution would mean the detainee is subject to release or imposition of a different sentence. While the person must be in “custody,” this includes probation – the writ can be issued to free someone from an illegal term of probation, even if the person is not incarcerated.
The writ can also be used to challenge an order denying, setting, or increasing a defendant’s bail or bond and is also available to force the release of a person otherwise involuntarily detained in a mental health or substance abuse treatment facility.
Family law cases often span many years. Modification actions to increase or decrease child support and alimony, to modify timesharing, modify parental responsibility and relocate are common in Florida family law cases. In some jurisdictions, cases ae referred to general magistrates before final judgment is entered.
General Magistrates are not judges and make recommended findings of fact and conclusions of law subject to final approval by the judge. The general magistrate will conduct hearings just as the judge would but after issuing their recommendations, the parties have a period of ten (10) days from the date of the recommendations to object by filing detailed exceptions to the report. A hearing will be held by the judge to rule on the exceptions filed.
Preparing your exceptions is similar to an appeal. The trial judge will not hear your case again but will consider inly the record of the proceedings before the general magistrate. Similar to an appeal, the trial judge will determine whether there were any errors committed by the general magistrate and rule on them accordingly.
Kofsky Law Office can work with you to analyze the proceedings before the general magistrate, develop or amend your exceptions and present argument before the trial judge on the merits of your exceptions to optimize the outcomes from your case.