How Long Does an Appeal Take?
“How long does an appeal take?” The question isn’t easy to answer, because appeals vary considerably. But in a “standard” civil appeal in Florida, we estimate the process generally takes between 10 and 15 months. Here’s a breakdown of Florida’s appeal timeline.
Day 1 to 30 – The Notice of Appeal
Generally, the appellant needs to file a notice of appeal within 30 days of the order that’s going up on appeal. If this deadline is missed, the appellate court won’t have jurisdiction. Calculating this can be difficult, because there are certain motions that “toll” or pause the 30 day timeline, but only if the order is final. Determining whether an order is final, and therefore whether post-order motions will “toll” the time can be tricky, even for experienced attorneys.
Day 50 – The Record on Appeal and Transcripts
Within 50 days of the notice of appeal, the clerk of the lower court will create an index for the record on appeal. The record contains the bulk of the filings below, and it’s the only evidence, besides transcripts, that the appellate court will consider in the appeal. Once the index is paid for, the record on appeal (a large PDF) is transmitted to the appellate court.
The transcript can be filed below and included with (or in) the record on appeal. Sometimes transcripts are provided to the appellate court independently, by the appellant or appellee.
Day 70 to 240 – The Briefing
Within 70 days of the notice of appeal, the initial brief is due. The initial brief is the appellant’s argument for why the lower court erred, and this takes the bulk of an appellate attorney’s time during the appeal. To learn more about the briefing process, and why it’s so important, you can read about the steps of the appeal process here.
The deadline for the initial brief is often extended—because of a delayed record or transcript, or competing deadlines. The courts allow for 90-120 days of agreed extensions for the initial brief, regardless of whether the opposing side agrees.
Within 30 days of the initial brief, the answer brief is due. This brief is likewise often delayed, especially if the appellee (the party defending) is in no rush to get a decision that could overturn the appealed order.
The final brief, the appellant’s reply brief, is due 30 days after the answer brief. Appellate courts are much stricter about this deadline.
After Briefing – The Appeal is “Perfected” and Assigned to a Panel
After the appeal is “perfected,” meaning the reply brief is filed, the appeal is assigned to a panel of three judges. One of those judges is given the case, and one of those judge’s clerks will likely write a memorandum advising the judge of the merits of the appeal.
Every judge’s chambers runs at its own speed, and judges do not necessarily control their own workload. Some judges are quick, and others are slower. The same goes for appellate law clerks. After the appeal is perfected, it may take anywhere between two and twelve months—on average—to have your appeal decided.
After Perfection – PCAs, Opinions, Concurrences, and Dissents
The amount of time it takes a panel to decide your case is often (but not always) an indication of whether the panel is writing an opinion or is simply affirming the case.
The most common outcome of appeals is the word “Affirmed” without any explanation, or sometimes just a citation to a case, known as a “per curiam affirmance” or PCA. This occurs in nearly 80% of cases. These cases are also disposed of the most quickly. If your case is decided two or three months after it’s perfected, it shouldn’t surprise you to get a PCA. To dramatically reduce the chances of getting “PCA’d,” people serious about obtaining a reversal hire appellate counsel.
The second most common outcome of appeals is a unanimous reversal. Because a reversal requires an opinion, and because opinions are written, these decisions take longer—a lot longer. If your case has been perfected for eight months, it wouldn’t be unreasonable to start hoping for a reversal.
That being said, the third most common outcome of appeals is a unanimous affirmance, with a written opinion. This happens the the trial court finds your appeal did not require reversal, but the issues were deserving of written consideration. Often that means there was an error, but it was harmless, or Florida Supreme Court precedent required affirmance, or that the case was a close call.
Finally, the case may result in a written majority, with a concurrence and/or a dissent. These opinions take the longest, because the judges often reference each other’s opinions. That means the opinions change in response additional changes, until the dust settles. This can take many months, sometimes more than a year.
After the Opinion Issues
Depending on the outcome of the appeal—reversal, affirmance, or PCA—different options are available to the losing party. If the case is reversed or affirmed with a written opinion, the losing party can request a rehearing within 15 days. If the case is PCA’d, the losing party can request a written opinion—although this is rarely if ever successful.
Finally, depending on the nature of the opinion, the losing party may appeal to the Florida Supreme Court, thus starting the appeal timeline all over again. However, this is rare, because unlike the district courts of appeal (which consider all appeals from final orders), the Florida Supreme Court has limited and discretionary jurisdiction—meaning you can’t appeal as of right.
Conclusion
So how long does an appeal take? The answer of course is “it depends.” If you’re considering appealing or are facing an appeal, please feel free to reach out to us for a consultation: you can call us at (689) 259-5010, or contact us through our website.