Appellate practice.

On the surface, appellate practice seems to be a straightforward practice requiring knowledge of the Florida Rules of Appellate Procedure and the federal appellate rules. When you look at the mosaic of authorities, however, it becomes much more complex. A Florida Bar Journal article put it directly: "[T]he transition of a case to and from the appellate court can quickly become a series of stumbling blocks." (1) The author elaborates: "Successfully getting a case to the appellate court begins by knowing how the case will proceed once it gets there." (2) In addition, successful appellate practice requires specialized oral and written advocacy skills.

Appellate certification provides a ready tool to enhance the practitioner's ability to successfully navigate the review of lower court decisions and to set the specialist apart from the rest. Florida Bar members who are involved substantially in appellate work should consider appellate certification. (3)

The advanced knowledge, skill level, and professionalism that certification is intended to identify and encourage should be the goal of every appellate lawyer. Increasingly, trial lawyers who need appellate specialists brought into complex civil and criminal litigation cases early on are seeing the advantages to using board certified appellate specialists for this purpose. Clients who are referred by their lawyers to board certified appellate lawyers are reassured that competent and quality representation will be obtained. One civil appellate lawyer in Texas put it this way: "I have been board certified in civil appellate law here in Texas for several years. Yes, clients care. Yes, referring trial lawyers care. My opinion is that here in Texas, it would be extremely difficult to build and sustain a solo appellate practice without being board certified."

Clients paying for representation have a significant interest in objective measurement of skills and a better way to identify the best lawyer for the job. The value of certification to the government practitioner is evidenced by the Florida attorney general's commitment to board certification and policy of providing salary enhancement for board certified assistant attorneys general.

Certification means that a lawyer has made a commitment to a specialty area, including meeting and maintaining enhanced CLE requirements and intensive peer review. Certification assures clients, referring attorneys, and the judiciary that the attorney who is board certified has an advanced skill level and cares enough to seek recognition of that fact through an objective, professional process. Peer review involves input from other appellate lawyers and judges. Apparently, many judges do not understand that the peer review (including judicial evaluations) is completely confidential. Some judges, just as the attorneys, may not wish to complete a reference on an applicant unless it is positive. Peer review, however, only works if the reviewers are willing to provide candid, objective input. Thus, it is doubly important for judges to respond to The Florida Bar's requests for evaluation of appellate certification candidates. One negative review is not disqualifying; however, critical comments do prompt the certification committee to further assess an applicant's substantial involvement and competence in appellate practice, as well as the applicant's character, ethics, and reputation for professionalism, through the solicitation of additional reference statements.

Board certified appellate specialists are now being recognized through judicial appointments. In July 2002 Governor Jeb Bush appointed the first Florida Supreme Court Justice certified in appellate law, Justice Raoul G. Cantero III. The governor also appointed in December 2002, to the Third District Court of Appeal, Judge Linda Ann Jones Wells, who is board certified in appellate practice. Judge Patricia Joan Kelly, who was appointed by the governor to the Second District Court of Appeal in 2001, became certified in appellate practice in 1998. Judge Kathryn Senecal Pecko, a member of the charter group of those certified in appellate practice in 1994, was reappointed a judge of compensation claims by Governor Bush in 2001. The governor appointed Judge Mark R. Wolfe, who became certified in appellate practice in 1996, a Hillsborough County circuit court judge on February 2, 2000. Certification shows judicial nominating commissions and the governor that the applicant is committed to excellence and has achieved objective standards and peer recognition in a specialized area.

Judicial acceptance of appellate practice certification is evidenced by the significant participation of members of the judiciary in founding and guiding the growth of this area of certification. Judge Winifred J. Sharp, who was appointed to the initial Appellate Practice Certification Committee, is a member of the Fifth District Court of Appeal. The committee is most fortunate to have Judge James R. Jorgenson of the Third District Court of Appeal among its members. Finally, special recognition should be given to Arthur J. England, John R. Beranek, and Daniel S. Pearson, who are former members of the judiciary and were also the charter members of the Appellate Practice Certification Committee. Certification would not have become a reality without the contribution of these and other charter members of the inaugural committee.

Presently, the Appellate Practice Certification Committee is overseeing administration of the area examination, which includes the members' construction of the test, grading of that exam, and approval of initial applicant and recertification petitions. The committee has pledged to continue to perfect the certification process by reviewing the grading criteria, reexamining the testing and grading process, and facilitating the review for the lawyers and judges who are asked to comment on the proficiency of candidates both because an applicant has listed them as a reference and through blind references requested by the committee. The committee invites members of the Appellate Practice Section, of which committee member Angela Flowers is chair, and other interested members of The Florida Bar to apply for appellate certification to achieve the benchmark recognition of professionalism that certification will bring.

At the core of certification is the enhanced confidence that comes with having passed a higher standard of excellence. This self-assurance can provide the extra resource that is so often needed in dealing with appeals, especially when the client is seeking to overturn an adverse ruling below. The benefits of certification are worth serious consideration today. Won't you step up to the challenge?

(1) Charles Tyler Cone, Five Easy Pieces: Advice for Getting Your Case to the Appellate Court (and Back Again) Intact, 76 FLA. B.J. 88 (June 2002).

(2) Id. at 88.

(3) "Substantial Involvement" is further defined in Rule 6-13.3, Minimum Standards (Rules Regulating the Florida Bar).

E. Jonathan Whitney serves as chair of the Appellate Practice Certification Committee and was board certified in the first class in 1994.