Demystifying Divorce Appeals: An Insider’s Guide from Judge Matt Lucas
Navigating the Appeals Process in Divorce with Judge Matt Lucas
For our final episode of the season, Seth Nelson and Pete Wright chat with Judge Matt Lucas, an appellate court judge from the Florida Second District Court of Appeals, about the mysterious appeals process in divorce cases. They aim to shed light on what an appeal is, what appellate judges do, and what happens behind the scenes at the appellate court.
This insightful episode covers the technical details of appeals and how they differ from the original divorce trial. Judge Lucas provides an inside look at this complex process from an experienced judge's perspective.
The discussion focuses on the mechanics of appeals - what grounds are needed to file one, the specific issues that can be appealed, the logistics of how appeals courts operate, and more.
Questions we answer in this episode:
What is an appeal and what does an appellate judge do?
What are the grounds for appealing a divorce judgment?
How long does an appeal take and what happens during the process?
Key Takeaways:
Appeals focus on alleged legal errors, not just unfavorable outcomes.
The appeals process involves new legal issues and standards of review.
Appeals require precise arguments about specific aspects of the lower court's ruling.
This episode offers rare insight into the mysterious appeals process direct from an appellate judge. Seth and Pete breakdown this complex topic in an accessible way, making it easy to understand for anyone going through a divorce. Listeners will learn what to expect during appeals and how to navigate them effectively.
Links & Notes
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Pete Wright:
Welcome to How to Split a Toaster: A Divorce Podcast About Saving Your Relationships, from TruStory FM. Today, all rise, the district court of the most honorable toaster is now in session.
Seth Nelson:
Welcome to the show, everybody. I'm Seth Nelson, and as always, I'm here with my good friend, Pete Wright. The appeal process in family court can be confusing and a bit mysterious. Today, we're going to shed some light on the process. What is an appeal? What does an appellate judge do? What lies behind the scenes in the appellate court? To help us out, we have Judge Matt Lucas, appellate court judge in the Florida's Second District Court of Appeals. Your Honor, Judge Lucas, welcome to the Toaster.
Judge Matt Lucas:
Thank you for having me. Great to be here.
Pete Wright:
Judge, really, great to meet you, to talk to you. I have so many questions. I understand you have a brief preamble before we ask the hard-hitting questions that this show is known for.
Judge Matt Lucas:
Before I get hit with cross-examination, just a quick mandatory disclaimer: I'm looking forward to today's discussion, but whatever is discussed today is just my personal views, just to talk with some good friends here about some legal issues. Nothing that I say constitutes legal advice, nor should it be construed as any reflection upon how either I or any of my colleagues on my court might rule on a particular judicial issue.
Seth Nelson:
That was a great show. All right, well, thanks for being here.
Judge Matt Lucas:
Thank you. It's a pleasure, gentlemen.
Pete Wright:
Seems like you've never said that before. Yeah, that was great. Yeah, awesome. My first hard-hitting question, how does it feel to be interviewed by a Golden Panther award-winning high school graduate?
Judge Matt Lucas:
Honestly, I was curled up earlier because I just did not feel worthy to be on this podcast. It is a source of constant irritation to me that Seth Nelson got a Golden Panther from H.B. Plant High School, and I never even got considered for a Golden Panther Award at H.B. Plant High School. But the past is past; there's nothing that can be done.
Seth Nelson:
Now, he's sitting on the Second District Court of Appeals and I call him, "Your Honor," so ...
Judge Matt Lucas:
Yeah. My, how the tables have turned.
Seth Nelson:
That's right. So Pete, at least I'd call it a draw.
Pete Wright:
People got to peak when they got to peak, Seth. Okay. We are here to discuss what is going on with the appeals process. What does it mean to go and appeal a family trial case, a divorce case? And it seems like a process that is shrouded in mystery, and so we want to clarify for folks who had a challenging divorce process. We thought who better to do it and give us the perspective of the appeals process than our now-appeals court judiciary correspondent, Judge Matt Lucas? So do you want to start, Judge, and tell us a little bit about the appeals court? What is it that you do?
Judge Matt Lucas:
A lot of folks like to use sports metaphors when describing what judges do. It's not a perfect analogy, not a perfect metaphor, but it's a good working one. And one of the ones that you may recall hearing from some prior jurists is the judge as umpire role, right, that their job is to call the balls and the strikes, apply the rules of the game, make sure that the rules are followed accurately.
If we work with that metaphor, we would call the trial judges like the umpire or the referees on the field, making the calls in real time during the trials. What appeals courts do is kind of like video replay, where you've got a call that is being challenged and you want an independent set of eyes to look over what the play was and to rule whether or not the umpire on the field got it right or whether there was ... I think they actually even have standards of review on some of these sporting events. Is there indisputable evidence that they got it wrong? And if so, then the call gets overturned. It's a rough comparison, but that's kind of what we're doing on the appeals court.
We, as one of the six district courts of appeal in Florida, are charged with reviewing what we call plenary appeals, that is any appeal from a trial pretty much of any kind ... If you don't like what happened, if you believe that the rulings were incorrect, that there was reversible error, you have a right to have that ruling, that trial, reviewed by one of the district courts of appeal, depending upon where you live. And we are charged with reviewing that appeal.
So that's what we do. It's basically ... if you want to think of it as sort of quality control/ working through legal disputes, but most of all, just simply getting a chance to have an independent set of eyes, set of judges, look over what happened in your case to make sure that the rulings and the legal issues that were decided were within the parameters of what the law allows.
Pete Wright:
Okay. So this is a question that has come up before, and just to clarify, you're not essentially looking at the whole case, right? You're looking at how the rulings were handed down in the lower court?
Judge Matt Lucas:
Kind of.
Pete Wright:
So you're the judge of the judge, or the judge of how the law was applied?
Seth Nelson:
Well, what I say on that, Your Honor, if I may ... See, I'm going to be very deferential, Pete.
Pete Wright:
You're so polite, it's nauseating.
Seth Nelson:
Yeah, it's a little different than normal.
Pete Wright:
Very out of character.
Seth Nelson:
So Pete, here's how I always explain it to a client: when we're going to trial, you don't get to appeal if you just don't like what the judge did, as in, he ruled against us, we lost. The legal analysis is, did the judge make a mistake?
Judge Matt Lucas:
Yeah, no, I think that's a good way of framing it. For 99% of cases, and for family law cases in particular, I can say all the time, we don't just simply take the trial transcript or what have you and just start plowing through it and say, "Okay, can I find a problem here? Can I find a problem?" Rather we leave it to the lawyers, or the litigants if they're representing themselves, to tell us what they believe the issues in the case are that need to be reviewed. And that's literally called what we call them, issues on appeal. And there might be one or two big ones. There might be 4, 5, 6, 7 issues. But we put it to the lawyers and to the parties to tell us, "What were the problems here with the legal rulings that were handed down in your case, that requires us to look at those rulings and look at the record that surrounds those rulings?"
Pete Wright:
When I look at a court ... when I imagine the court, I imagine the Supreme Court, right? I see all the ... Do you work with other people or other judges to evaluate these things, or do you have a docket of your own cases, so you're deciding alone how the law was sort of adjudicated?
Judge Matt Lucas:
That's a great question. So we, on the appeals court, and similar to the Supreme Court, we do work in groups on all cases. Now, at the district court of appeal level, it's a three-judge panel. There are presently 15 judges on my court, the Second District Court of Appeal. And we are randomly assigned in panels of three to the different cases. We review those cases each individually, and then come together and conference the cases to talk about what each judge thinks ought to happen in each of those cases. But it is always three judges that are reviewing the case. In rare exceptional cases, we go en banc, which is just a fancy term that means this is a case where something really big has happened, usually something along the line of where we might need to recede from one of our prior cases or where we've got a big conflict going on in the law, where all 15 judges will weigh in on a single case, but those don't come up very ... We get maybe one or two of those a year.
Seth Nelson:
And the hardest thing about the en banc hearing, Pete, imagine you got 15 judges, is where they decide to order lunch. It's unbelievably difficult.
Judge Matt Lucas:
Seth has seen behind the curtain. Opinions are very strong; weak opinions strongly held about lunch orders.
Pete Wright:
So you also said something a second ago that was a little bit triggering. You should know, I reached out to my colleagues and followers on the internet, on the platform Mastodon. And I told them, "I am having a conversation on a podcast with an appellate court judge. What questions would you like to know the answer to?" And most of my friends are buffoons, Judge. Most of them, I'm surprised they can actually read. But one of them said, "Is it possible to handle the appeals process myself?" And I thought that was really interesting, because my assumption was absolutely not. Somebody is going to be taking your case to the appeals court. But you can represent yourself before this panel of three judges?
Judge Matt Lucas:
Absolutely, absolutely. Yeah. No, we have pro se litigants. We actually provide on our court website a number of resources and materials including a section called Practice Pointers. The appellate section of the Florida bar put together a pro se handbook. I believe it's available on the Florida Bar's website, although I may be mistaken. It may be on the Florida Supreme Court's website. It's basically a handbook for folks that, for whatever reason ... maybe you can't afford a lawyer, maybe you just prefer to handle the appeal yourself. We allow it, we welcome it.
We do however subject pro se litigants to the same rules of the road that apply to lawyers. So there's a number of technical requirements that go into appellate advocacy, especially most of what we do is in writing, it's in brief writing. And there are a good number of requirements as to how ... We call them briefs, even though they're pretty long ... how these briefs are supposed to be structured, how a record is compiled, how you frame your arguments. So what I would say is you can absolutely represent yourself in an appeal. Would it be a good idea to talk to a lawyer that has appellate experience or can at least get up to speed on your appeal to help you with that? Yes, absolutely, because if you're not a lawyer, it's a ... even if you're a lawyer and you don't do many appeals, it's a challenging area. But for someone that does not regularly practice law, it can be tricky. It can be a challenge.
Seth Nelson:
And the thing about that, Pete, is I stress to my clients that an appeal is a whole new process. It's a whole new case. It's going to get a appellate case number. There are different timeframes. But the thing to understand is this is not a second bite at the apple. There is not a jury box or a witness stand in the appellate courtroom. You are only up there where you ... So if you're the appellant, that means you don't like what happened below; think ants, moving forward, walking. And the opposite side is the appellee: leave it alone.
So if you're the one saying there's been a mistake, you write your brief, you submit it timely, there's all these technical requirements, and then the appellee says ... they get to do a reply brief and say why they're wrong. And then you can do a response. And you can request that you get to go in front of the judges and argue your case, but they don't have to grant that request. So it could be all done on paper or you could be granted what's called oral argument, and that's what you see happen in the Supreme Court and at different appellate court levels. And you go to court and you start arguing your brief, but it's more of a conversation. The judges will interrupt you to ask you questions about the things that they are struggling with or need more clarification on, so they can make what they believe to be the right ruling.
Judge Matt Lucas:
Yeah, that's it in a nutshell. Just a little background about how we decide cases. Seth mentioned oral arguments versus deciding cases just on the briefs. In terms of volume, the vast majority of cases we're going to decide is just going to be on the briefs. It's just going to be based upon the written advocacy that appellants or petitioners, appellees and respondents, have provided us. And that's the vast majority of cases, compared to those where someone has requested oral argument.
Our court has traditionally been fairly liberal granting oral argument if somebody requests it. But just because of the mix of our caseload, we don't get a huge number of requests for oral arguments. Typically, when we do though, a typical oral argument docket that I'm going to have will be one or two criminal cases, a couple of civil cases. And I might get a family law case for oral argument every now and then. But most of the cases are just going to be decided on the briefs.
Pete Wright:
Can you talk a little bit about how, and maybe this is a question for you, Seth, but how you make that transition? Because if I remember right, Seth, you don't do appeals?
Seth Nelson:
We do very few in the office. We have a couple issues that we might appeal or defend on appeal, but I typically don't do appellate work. We usually farm it out. But we have some lawyers in our office that like doing it and love the research and writing, and so they would be bringing that up. So I will not mention in this podcast any cases that may or may not be appealed, because Judge Lucas may be assigned to that case and I wouldn't want him to have to recuse himself.
Pete Wright:
So from your perspective, Judge, when you get a case, is there ... I don't know, this is probably an unfair question. But you're getting a completely new case from a completely new attorney, and you're expected to ... Is there continuity of cases, right? The continuity of case; when somebody's upset about how it went, how impactful is it to have the original team involved in an appeal? Does that make sense? Am I even asking that right?
Judge Matt Lucas:
Very good question.
Seth Nelson:
That's a great question basically, is can a trial lawyer do an appellate case? Is it better to have a new set of eyes?
Judge Matt Lucas:
So in typical lawyerly fashion, I'll answer that by saying it depends. Here's what I've seen in the time that I've been ... So I've served as a trial judge previously, and I serve as an appellate judge now. When I was in private practice, I did a fair amount of trial work as a commercial litigator, but I also did a good amount of appellate work as well for the firm that I was at.
What I would say is that by virtue of being a good and talented trial lawyer, that does not necessarily translate into a good and talented appellate lawyer. The skills ... although they're both legal advocacy, the way you go about it is very different in appellate court. It's a different style of advocacy. The focus is completely different because when Seth takes a case to trial, he's got a judge, clean slate, where he's trying to persuade him or her as an initial determination, a whole bunch of facts, a whole bunch of legal issues that he wants decided in his client's favor. What he does in trying to persuade that judge is very different than what he would need to do to try to convince three judges that the trial judge that heard his case got it wrong on some legal issue.
Seth Nelson:
See here, Pete, here's what happened. He could have said that he got it right, which means I would've been defending, which means I would've won in the lower court. Judge Lucas is like, "Mr. Nelson just lost in the lower court."
Judge Matt Lucas:
Wow, that just slipped out too. My bad. Of course, if you got it right, as appellee, he would be trying to convince the panel.
Pete Wright:
It does beg the question though, how often do you overturn based on the law in an appeal? How bad are the lower courts? Is that another way to ask that question?
Judge Matt Lucas:
No, they are doing a great job. We are blessed with a very good trial bench in the Second District. I can't give you firm percentages, but I can tell you it's very infrequent.
Seth Nelson:
You want to be defending the ruling, not arguing the judge made a mistake, just the way the law is set up, Pete, because sometimes it's like, "Yeah, the lower court made a mistake. And by the way, Mr. Nelson, you invited that mistake by what you did in advocating." So when you invite the mistake, we're not going to hold that against the judge, right? Or the judge made a mistake, but it was something called harmless error, right?
Pete Wright:
It wouldn't change the outcome of the case?
Judge Matt Lucas:
Right.
Seth Nelson:
Exactly. The quarterback maybe was just outside of bounds and you pushed him a little bit, but he didn't fall, he didn't get hurt, right? Yeah, it was an error, it was a foul, but nothing really happened, so let's move on.
Judge Matt Lucas:
Or one we'll see sometimes where the appellate lawyer, or if it was the trial lawyer acting as appellate counsel, now that they're on appeal, they'll catch an issue. They'll do the research and they'll realize, "Oh gosh, this was an issue." And they'll brief it out. The problem is they never raised it to the trial judge. And so we have something in appellate land we call preservation of error. Did you preserve that issue? Did you give the trial Judge a chance to get it right? Did you bring it to his or her attention to make a ruling in the first instance? And if you didn't, for a great many issues, you're going to be foreclosed from being able to argue that on appeal.
But going back to your question, Pete, can trial lawyers be good appellate lawyers? They can if they can make that transition. And I will tell you, if they're able to make that transition and do effective appellate advocacy, sometimes they can actually have a little tiny advantage on an appellate lawyer because no one knows the record as well as the trial lawyer that argued it. So I'll tell you what I'll see frequently in oral arguments. I'll see the appellate lawyer who will get up to the podium and argue, but their trial counsel will be right at their right hand because they remember, they know exactly where to look if there's a question on the record that maybe the appellate lawyer doesn't recall.
Seth Nelson:
And Pete, let's be clear of what the record is. It's all the evidence that was submitted and accepted by the trial judge. It's the transcript of a hearing. So if you have a trial that goes for a full day, eight hours, that's a lot of testimony. And when you read a transcript, inevitably it's cold, it's hard, it's on a piece of paper or on a screen, and the emotion doesn't come through. And so you really, as a trial lawyer, when you're reading a transcript for appellate purposes, have to really hone in and, "This is what it says," as opposed to, "This is what I thought happened in court." It just translates differently.
Pete Wright:
I imagine if there is a criticism of the appeals process, it's that the idea that we're going into an appeal with a panel of three judges who are, let's say, potentially biased to protect the rulings of the lower court judge, that would be essentially the buffer to that criticism, that we're just going off the cold transcript, everything that was submitted as a document to the court, because otherwise I imagine that's an easy area for people to critique.
Judge Matt Lucas:
I can understand why folks who maybe aren't practicing lawyers or aren't familiar with the process might have that impression. Here's what I'll say, that I have written opinions reversing former colleagues of mine and gone out to lunch with them later, and that's just everyone understands ... trial judges understand, much like umpires on the field, understand part of the process, the legal process, that we promise to deliver, is that everyone gets this right of review, and that none of us are infallible. So there's always a chance. And trial judges recognize this all the time. There's always a chance that you just got something wrong or maybe you just misread something, or you weren't up to speed on an obscure facet of the law that just happened to bubble up in real time in your case. And you're right there as the trial judge, you have to make that call right there and then, call it a ball or strike. That's why the appellate court is there.
And then sometimes what will occasionally arise, there'll be a question about what the law is. There'll be an open question, like, "We don't have a settled ruling on this issue in Florida or in this district about how these cases or this particular issue is supposed to be decided." Trial judges understand 100%. Certainly I did when I was one, and my trial judge colleagues understand that they've got to do the best they can with that, but it's always subject to review. So we are always respectful to our brothers and sisters on the trial bench, but everyone understands that part of the process is we might say you got it wrong, and that happens every now and then.
Seth Nelson:
Trial judges hate it, Pete. They hate getting overturned. And from a litigation perspective, it's really hard to go back in front of that trial judge that I just appealed and I got their bosses to say they got it wrong.
Pete Wright:
Yeah. And that's actually one of the questions from one of my buffoon friends I mentioned earlier. What happens if I win on appeal? Does that mean I get a whole new trial or does the appeals court just order certain changes? Do they just make things happen?
Judge Matt Lucas:
We call that, in appellate practice or in the appellate process, we call that, "What do you do on remand?" Whenever a case goes from a trial court to an appellate court or returns from an appellate court to a trial court, we have an issue of, "All right, which court has jurisdiction?" When the appellate court takes jurisdiction on the case, at that point, there's very little that the trial judge can continue to do on that case. It's now in the appellate court's hands. There's still some things they can do, but the prior legal determinations that trial judge made, for the most part, those are set in stone. And so now it's up to the appellate court to review that. Once we finish that review, if we've issued an opinion, whether it's affirming, whether it's reversing in part, whether it's a complete reversal, then the question arises, "Okay, now what?" Great question. Interestingly enough, it's a question that a lot of-
Seth Nelson:
It's not an easy answer.
Judge Matt Lucas:
It's not an easy answer. No, it isn't. In fact, one of the lengthier opinions that I had to write dealt with, "What do you do on remand? Do you get a" ... Seth used the term, the second bite at the apple. Do you get an all new trial, or are you stuck with some of the rulings, but maybe just tweak a few things that the judge ... or does the judge get to redecide issues, but you're stuck with the prior record that was put before that trial judge? The answer to that, once again, I'm going to go back to the fallback, it depends. Lawyers, we put it on lawyers, they need to advocate what they believe ought to happen on remand.
Seth Nelson:
Right. So Pete, this is a big deal is that lawyers get wrong all the time. I start all of my arguments with, "Here's the problem, here's the rule or statute or case law that I think applies. Here's the solution. Here's what I want you to do." And appellate lawyers are supposed to do the same thing. They're supposed to go up to the appellate court and say, "The trial judge made this mistake and I want you to decide this. And you do not have to send it back to the trial judge, and here's why and here's the rule and here's the case law to support that." Or you say, "I need you to send it back down to the trial judge and I want you to order the trial judge to do X."
And sometimes when things come back down and now you're in front of the trial judge and you're reading the opinion of the appellate court, it might be unclear what they're instructing the trial judge to do. And you don't get to just call up the appellate court judge and says, "What do you mean by this?" You're stuck with that piece of paper. It's hard.
Judge Matt Lucas:
Yeah. Sometimes the answer is kind of self-evident. So for example, in a jury trial, for example, if a lawyer in a criminal case, if they mentioned that the criminal defendant refused to answer questions when he or she was taken into custody, it's a Fifth Amendment violation, they got that before the jury judge, we need a whole new trial. Well, what are you going to do on remand? In that case you want to order a new trial. But where it can get tricky is, for example, I'm hypothesizing here in a family law case, suppose you had a really long five-day ... Five day is still a pretty long trial, right, Seth?
Seth Nelson:
Yeah, pretty long.
Judge Matt Lucas:
Yeah. Let's say you had a five-day-long trial where there's a big dispute about equitable distribution and alimony. You're talking about assets, you're talking about debts. And at the end of all of that evidence, the trial judge issues a whole bunch of rulings, makes a bunch of findings. And it turns out that a couple of the marital properties maybe shouldn't have been valued what they were, or maybe something really wasn't marital property. So that's going to throw off all the equitable distribution. Question, does that mean that you need to have a whole new trial and put all of that evidence back before that judge and go through basically the very long process, the grinding, long process that everyone's already been through, or is it such that on remand you can just simply tell the judge, "Hey, if you're able to reconstruct from the record, but just follow these principles and recreate your equitable distribution scheme in line with what we're saying the law is," that might be sufficient. Or sometimes might even leave it to the trial judge a little bit. Sometimes occasionally we'll tell a trial judge, "If you need to order more proceedings, you can do so. But if you feel like you've got enough based upon the evidence that was presented," so-
Seth Nelson:
So Pete, what happens sometimes though is you're back in front of the trial judge. Let's say you've tried a five-day case. And the appellate court says they valued the house on the wrong date, they valued the business on the wrong date, and those are the only two mistakes the judge made. Well, the trial judge might have what's called a case management conference and get us all together and say, "Okay, these were the two problems. Are we going to reopen up everything or can we get an agreement that we're going to just try these two issues to save time and money?" And depending on how [inaudible 00:28:52] he might give argument on what did the appellate court tell him to do. You do want to try to streamline this, as we've talked over and over again a lot, that every penny you spend on a lawyer is another penny that you could have put towards settlement.
Pete Wright:
Well, this next question from the buffoons I think is actually a really interesting one, in the sort of guise of streamlining the process. If I appeal, will it automatically stay enforcement of the divorce judgment, or can enforcement continue while the appeal is pending? And I would add, who decides that if it's a decision? That sounds like a great question for a lawyer to answer.
Seth Nelson:
Let me go get the appellate lawyer over here. So you have to file a motion to stay with the trial court.
Pete Wright:
Oh, okay. All right. So that's all handled at the trial court level?
Seth Nelson:
Right. And then the judge doesn't stay it and then you're like, "I don't agree with that either, judge." And then you take it to the appellate lawyer. But that's why Judge Lucas was saying a lot of this is very technical. And there's timeframes associated with it.
Judge Matt Lucas:
We get a lot of motions to stay where they didn't file the motion before the trial court. And we've basically got a form order telling them, "No, you got to go back to the trial court and ask them to stay it first."
Pete Wright:
Okay. All right. I have a number of run through questions that actually indicate that my colleagues on the internet did not understand what an appeals judge does. However, I think they're great questions. And I think our audience might like to hear your perspective on these-
Seth Nelson:
I'm a little afraid now.
Pete Wright:
... if you will indulge me.
Judge Matt Lucas:
Of course.
Pete Wright:
Do you get offended if people appeal your rulings? And corollary, should I avoid making eye contact with you when my appeal is heard, if you made the original judgment? That seems like a rat's nest of questions, but interesting.
Judge Matt Lucas:
Okay, so let me take the second one first, because that's easier to do. If I was the trial judge, much as I would like to be on the panel that reviews my rulings when I was a trial judge, I don't get to. So for example, when I first got appointed to the Second District Court of Appeal, I was automatically recused from any case that anybody would take of any of my prior rulings. When I was a trial judge, if someone would tell me, "Hey," the lawyers would do this very respectfully, "But Judge, I need to put on this evidence in order to round out my record because I want to take this issue up on appeal," no offense taken whatsoever. Again, we all understand that's the process. You have a right to do that. And I at least would never take offense at somebody appealing me.
Seth Nelson:
Because you know what he's thinking? He's thinking, "Good luck, good luck. I got it right. Mr. Nelson, you can appeal all you want."
Pete Wright:
He just carries around a white marble and a black marble, because that's where we are right now.
Judge Matt Lucas:
Now in terms of where I'm at now, yeah, Pete, I can be appealed. So if I write an opinion and I get a colleague or two to join along in where I'm landing on a case, and somebody believes that it conflicts with another district court of appeals decision or it conflicts with a Florida Supreme Court decision, they have a right to put that before the Florida Supreme Court. And I've had a few cases where the Florida Supreme Court has graded my papers. So it's an ongoing process all the way on down the line. And no, I don't take any offense at that whatsoever.
In oral arguments, I encourage making eye contact, but that's just my personality. People that don't make eye contact with me make me a little bit nervous, so I like it when people are looking me in the eye. It's not like we're going into the octagon together. It's a very congenial, friendly, professional process.
Pete Wright:
Okay. In all candor, Judge, in your long career on the bench, have you ever wanted to appeal one of your own rulings?
Judge Matt Lucas:
Here's what I'll tell. I don't know if I'd appeal any of my rulings. There's an old saying, I may be in error, but I'm never in doubt. It's an old trial judge saying. I always like to think that I got it right.
Seth Nelson:
Let me share with this before Judge Lucas finishes his thought here. I've tried cases in front of Judge Lucas, just one or two in front of him when he was on the family law bench in Hillsborough County. And he would sit there during trial and be listening intently, making rulings on evidentiary issues, controlling the courtroom, and typing, typing and typing. And at the end of a full-day trial, Pete, we'd rest our cases, we'd make closing arguments, he would say, "It's under advisement," which means he's going to go think about it before he makes his final ruling. And then he says, "I'll be back in an hour." And he would go into chambers. We would all go stand in the hall or take a break or grab something to eat real quick, and come back. And he would pronounce his rulings, detailed, fact-based, applying the law, and have a final judgment written. This is very rare and extremely impressive.
Pete Wright:
Well, so on a personal level, I want to leap on that because I'm also kind of a productivity nerd, Judge. How do you do that? How do you keep all that stuff straight? You've got to have a system?
Judge Matt Lucas:
Well, when I was a family law judge, what Seth was describing was the process I liked to employ. That was more ... for me, it was kind of a survival mode. I had not done family law before I became a family law judge. And my first couple of weeks, I would try to just sort of hand write out notes like I would do in another division, and then maybe make a ruling. What I quickly realized was that the number of rulings that family law judges have to make compared to other divisions is just enormous. And the docket that they have, it's pretty heavy.
So you're going to have three, four trials in a week, and you're going to try to remember all of the details that happened and then reconstruct that in the judgment later. For me, I found it worked better, because I was a much faster typist than I am a writer, it would work much better for me to just simply be typing impressions, typing what my thoughts are on each of the witnesses, what the witnesses said in real time, while gauging whether I believed them or not, whether there were issues with what they were telling me, and then go back in my office and put it all together and think about it and try to put it in an semblance of an order. And that worked pretty well.
Family law judges really do ... I'll put this out there. In Florida especially, they have a challenging job. Not only is the subject matter of what's brought before them hard, I mean, you're seeing a lot of people on their worst day, but the legal requirements that Florida statutes impose on them in terms of the length and breadth of the rulings they have to make, it's unlike any other area of the law. So all family law judges have to provide detailed rulings when they have a trial.
Pete Wright:
What is the strangest thing you have seen someone appeal? And this has to come from someplace quite specific, like fighting over a cat or beanbag chair collection, for example. What's the strangest thing that has gotten an appeal to your court?
Judge Matt Lucas:
I haven't seen any particularly strange family law appeals. Usually the things that come up on appeal for family law, if they're going the full distance to write up briefs, it's going to be about kids or money, something along those lines. I do recall when I was a family law judge, probably the strangest piece of property that somebody was arguing over, it was strange. They had gone through this really lengthy mediation, this couple. They had worked out almost everything. But there were like seven items. At one point I remember asking them, because these seven items were just so eclectic and just random, I asked them, I was like, "Did you all basically just go a full day of mediation and you just ran out of gas, I mean, you just didn't have anything?" And they both nodded. They just said, "Yeah."
Pete Wright:
These were the last seven things on the list, and they just stopped?
Judge Matt Lucas:
These are the last seven [inaudible 00:37:40]. "We can't do this anymore. Can you please just value [inaudible 00:37:44]?" And one of them was a commemorative university ashtray that turned out to be broken.
Seth Nelson:
Well, that seems easy. They each get half. I mean, come on, Judge.
Pete Wright:
Fixed. Next.
Judge Matt Lucas:
Right. I do recall that one.
Pete Wright:
That's funny. Seth, what are we missing here? I mean, we have the luxury of having our fair judge here. Have we covered everything you feel like we need to cover about the appeals process?
Seth Nelson:
Yeah, I think the main thing that Judge Lucas has really brought a light to is that this isn't where you get to just go up and argue again. It's really very technical. It's really, did the judge at the lower court at the trial level make a mistake?
The one thing that I know he's aware of from doing appellate law is there's an interesting dynamic when I try a case, let's say, and I lose and my client wants to appeal. And I send it to very good appellate lawyers in town. And frankly, I think some of the lawyers I send to is some of the best in the state. And I tell them, "If I made a mistake that didn't preserve something for appeal or I didn't get the record straight or I didn't object properly, call me out on it. You're representing my client and your client. And if I'm to blame, that client deserves to know." So sometimes when you give it to a different lawyer, you run that risk. Obviously, if it was just you, you were going to be like, "Oh, I didn't make that mistake," or maybe you're not as forthcoming as you should be. So that's one aspect that I think is interesting in the appellate world.
The other aspect is there's just all different levels of deference that's given to the trial judge. It could be abuse of discretion, which means reasonable people can differ, maybe I differ on this record, but the trial judge got to make the first call, we're sticking with that call. Then there's de novo review, which means Judge Lucas and his colleagues can look at it brand new. They're just looking at the record like a review of a contract. What's on the paper is on the paper. And because they're the higher level judge, they can totally throw it out. So it's very technical. It's a very interesting area of the law.
And the last point that wasn't really brought up just a little bit, Judge Lucas, unlike at the trial level where the family law judge is in the family law for two or three years, doing those cases every single day, at the appellate level, Judge Lucas, correct me if I'm wrong, you could have a probate, a state and trust case one second, and the next one could be a criminal case, and the next one could be a family law case, and the next one could be a contract dispute.
Judge Matt Lucas:
Yep, yep. We all become general practitioners when we come on the appellate court. In terms of caseload, probably about 65% of our cases are criminal. So it's a little heavily skewed though to criminal law, but it is everything. It's like Seth said, we get probate, we get car crash cases, contract disputes, divorce cases, termination of parental rights cases, a lot of different kinds of criminal cases.
Seth Nelson:
Judge, how many cases do you have?
Judge Matt Lucas:
Right now, we're a little under 2,000 in terms of court-wide, court-wide. That's not how many I have personally.
Pete Wright:
Okay. All the air got sucked out of my chest just for a second there.
Seth Nelson:
Yeah, but do the math on that. 2,000, right? They have 15 judges. Now, they're in panels of three, right? But if you divide that by three, a third is going to ... because you need three judges, right, that's over 600 cases.
Judge Matt Lucas:
Yeah. And we're actually at a little bit of a lull with the less than 2,000. Usually it's closer into the 3,000 range, even the 4,000 range. We look at our case numbers over time. So that's actually even at a little bit of a lull, believe it or not. Although we are now starting to see an uptick. COVID kind of shut things down. And now that all the trial lawyers like Seth are getting their cases back on track and tried again, we're starting to see our appeals ticking up in response to that.
Seth Nelson:
Sure. So Judge, what's your favorite three letters in the alphabet?
Judge Matt Lucas:
PCA.
Seth Nelson:
I knew it.
Judge Matt Lucas:
It stands for per curiam affirmed, and that means that the trial judge got everything right and we don't need to say anymore.
Pete Wright:
Oh, I like that. So how long does it take you to ... well, I was going to say, how long does it take you to get there? But that's not really a question. About how long does it take you once a case ... once you say, "Okay, the floodgates are open. This particular case has hit the docket, we've got our three judges," how long does it take you to process a case?
Judge Matt Lucas:
So we work these things. We've got this down to like a machine almost in terms of cases come in, a notice of appeal is filed, case number gets assigned. Then there's a briefing schedule where the appellant is going to file the first initial brief. The appellee will file an answer brief. And the appellant then, if they wish, can file a reply brief in response to that answer brief. Those then get randomly ... they get randomly assigned to the different three-judge panels. We shepherd them into groups and decide a batch of them at a time. We call each one being a docket. We break them up into two kinds where there's oral argument or oral argument waived. A typical docket for oral arguments, we might decide four or five, at most six cases in a single sitting for oral argument. For oral argument waived, we'll typically have somewhere between 15, 20, 22 cases that we'll decide at a time.
In terms of length of time, it's a few months, because the briefing part by itself takes a few months. But then even after that, we've got to read all this stuff. We have to go through all the record. We have to make sure we're checking all the case citations, that the case law we're being told is what the parties report that it says. In terms of the decision-making process once all that's done, once all the briefing's done, once all the reading's done, once we've gone over the record, the decision-making process typically doesn't take terribly long. For most cases, the three judges on a panel, we're going to look at that and we're going to kind of land in the same place and say, "Yeah, this looks like it was done properly. There's no legal error here."
Occasionally, occasionally we'll get a case where we might have a split decision where one judge disagrees with one or two other judges on the panel, or where somebody just believes that we need to stake out new ground here. Those can end up taking a little time. So you might end up having to wait 9, 10, 11 months for your appeal to be decided if the panel is really struggling through. If there's an opinion to be written, that's going to also extend the length of time because every opinion that comes out of our court, not only does the authoring judge write it and his or her two colleagues have to sign off on it and agree with it, every judge in our court is going to see that opinion before it goes out the door. We release these in batches so that everybody can get a look at it to make sure, "All right, we're getting it right on these."
Seth Nelson:
And those are called slip opinions, Judge?
Judge Matt Lucas:
Slip opinion. Yeah, we say that, "The opinion's in slips," which means that it's been distributed to the entire court. All the judges and their staff attorneys are looking it over and making sure, "Yeah, this is a good work product for this court to release."
Seth Nelson:
And Pete, it's not uncommon for spouses of appellate court judges to tell their spouse, "You are no longer allowed to read slip opinions in bed."
Judge Matt Lucas:
Which happens.
Pete Wright:
A bit of a turf war, I imagine.
Seth Nelson:
But it's a lot. It's a lot.
Pete Wright:
It's incredible. Was this your career aspiration, Judge?
Judge Matt Lucas:
Actually, no. Ironically enough, if you would have asked me in law school, "What class did you hate the most," it was appellate advocacy. I hated that class. Total irony that I ended up here. But what I found was I ended up in private practice and I was one of those people that actually enjoyed doing the reading and the research and the writing. And so naturally my partners came to me and said, "Hey, great. You're now our appellate lawyer." So I kind of learned the process, found I enjoyed it. Basically, a lot of stars lined up in the right place and good opportunities opened up. And I've been very blessed to be in the position I'm in now, because to me, I've got the greatest legal job you can have. I love what I do.
Pete Wright:
Well, especially because you failed at ... the first rule of careerism is always suck at the job you don't want.
Judge Matt Lucas:
Right, right.
Seth Nelson:
Now, we would be remiss not to ask you, Judge, do you have a side gig? Do you ever write things other than appellate opinions?
Judge Matt Lucas:
Do I write [inaudible 00:47:05]? Yes. So I've got a habit that I haven't kicked yet. I really do love writing, not just about legal stuff, but I also got a little fiction gig on the side where I like to write speculative fiction novels. I've got a couple of small publishers that put them out. And that's a lot of fun. It's a great way to vent all of that creative juices that you just cannot put into a legal opinion, but you really want to. I've got a great outlet for that. And it's a lot cheaper than playing golf. So I've really enjoyed doing that over the past few years.
Seth Nelson:
I'm on Amazon, where do I go?
Judge Matt Lucas:
I go by my name, Matthew C. Lucas. If you look up author Matthew C. Lucas, I've got books out, Yonder and Far, The Mountain. Just got a new one, a novella out not too long ago called Look With Your Eyes, which is set in North Florida. So it's something I've been enjoying for over a decade now and have had a little bit of success at it. So that's a great outlet and a great hobby.
Seth Nelson:
His next book is hopefully going to come out, "Short Jewish bald lawyer actually wins a case." That's the title I'm looking for.
Judge Matt Lucas:
But it takes place at the end of time, so be patient.
Pete Wright:
Number one bestseller.
Seth Nelson:
New York Times, baby, here we come.
Judge Matt Lucas:
That's right, that's right.
Pete Wright:
Judge Lucas, thank you so much for doing this with us today. It's just a real treat to just sit down with you and pepper you with stupid questions.
Judge Matt Lucas:
It's been a real pleasure.
Pete Wright:
You answered these stupid questions with panache and grace, so we sure appreciate it.
Judge Matt Lucas:
They're great questions and I really appreciated getting to answer them and getting to spend time with you all and your audience.
Pete Wright:
And thank you everybody for downloading and listening to this show. We sure appreciate your time and your attention. If you have any questions, head over to HowtoSplitaToaster.com and click the, "Ask a question." And we will take your question and we'll put it in our next listener questions episode. I'm sure there's another one coming up at some point. The questions keep piling in.
So thank you everybody for doing this. On behalf of the Honorable Judge Matt Lucas and Seth Nelson, America's favorite divorce attorney, I'm Pete Wright. And we'll catch you next time right here on How to Split a Toaster: A Divorce Podcast About Saving Your Relationships.
Outro:
How to Split a Toaster is part of the TruStory FM podcast network, produced by Andy Nelson, music by T. Bless & the Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce & Family Law, with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce & Family Law. Seth Nelson is licensed to practice law in Florida.
