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Langham: Reweighing Evidence and Appellate Review

By David Langham

Thursday, November 9, 2017 | 868 | 0 | min read

Courts hear cases and issue decisions. In appellate parlance, the review may come by appeal or by writ, recently featured in Writ Protection as Opposed to Appeal.

Judge David Langham

Judge David Langham

Many times, an appellate court will rule without explanation, referred to as a per curium actions. They come in two main varieties: the per curium affirmed (PCA), which essentially means "the court will not reverse the trial judge and will not explain why," and the per curium denied (PCD), essentially "the court will not grant relief and will not say why."

Lawyers find both of these frustrating. They are the legal profession's equivalent of when your mom explained you could not do as you wanted, "because I said so." As you may recall, no amount of "but why" ever garnered further explanation.

That is not always true in appellate work. Sometimes a motion for rehearing (the same three appellate judges hear the case again) or a motion for rehearing en banc (the whole appellate court hears the case) will afford a second chance to explain perspectives and to perhaps change the result. Even when the result is not different, one might at least get an explanation (or better explanation) of the "why" of the decision.

Sometimes when the court issues a PCA or PCD decision, one of the judges will nonetheless write a concurring opinion. This is a "comment" by that judge, not an opinion of the court. It is important to remember that when an appellate court issues an opinion, that interpretation of the law governs all of the trial courts within that appellate court's jurisdiction. 

That means a decision by the Florida 1st District Court of Appeal (DCA) is what lawyers call "mandatory" authority for all of the Florida circuit and county courts from Alabama to Jacksonville, and south to Gainesville.

The jurisdictional territory of the 1st District is very large. In addition, the 1st DCA has jurisdiction over all workers' compensation appeals in Florida, from Key West to Jacksonville, to Pensacola and all points in between. 

But a concurring opinion on a PCA or PCD is not controlling. It may be persuasive — that is, it might persuade a trial judge to rule in a certain manner. But the trial judge does not have to follow the concurrence. 

Recently, in Rodriguez v. IPC International, the 1st District issued a PCD, dismissing a petition for extraordinary relief, called "certiorari." In this case, the court noted that the petition was seeking extraordinary relief — that is, the intervention of the appellate court immediately, before there is a trial and a final decision by the trial judge.

If every preliminary decision of every trial judge could be appealed, we would need many more appellate judges and courts. So in order to be entitled to this certiorari review before a final outcome, the petitioner has to demonstrate "irreparable harm." That means that the situation is one that will not be capable of repair or remedy after the trial and the final decision. 

In Rodriguez, the court dismissed because the petition did not demonstrate "the irreparable harm necessary for certiorari review." 

But Judge Wetherell wrote in Rodriguez to explain his agreement with that decision and to note that he would have denied relief on other grounds. He concluded that the trial judge in this matter "applied the correct law and reasonably based" her conclusions on evidence that was presented. He noted that since there was evidence to support her decision, this petition for extraordinary relief was, from his perspective, "nothing more than a thinly veiled request for this court to reweigh the evidence presented to the JCC."

Generally speaking, appellate courts do not weigh (or re-weigh) evidence. They are not courts of "second chance," but courts of "error" — that is, they are charged with making sure that sound legal interpretation is made by trial judges. They are not courts that re-hear or re-weigh evidence, generally speaking. The rule that is oft-quoted is one of "competent substantial evidence." This was explained to me years ago as follows: 

An accident occurs at an intersection. One hundred witnesses say the light was green, and a video seems to also support that. Only one witness says that the light was red. That one witness had been drinking on the day of the accident and was not wearing his prescription eye glasses. The trial court (judge or jury) could nonetheless choose to believe the one witness and disbelieve the 100 others. In the appellate court review, the existence of the one witness, despite his drinking, glasses and overwhelming contrary evidence, would be still be 'competent substantial evidence,' and the appellate court would affirm the trial judge or court's decision to rely upon the one witness."

Which witnesses are credible or believable is a decision for trial courts, not appellate courts. Trial judges should explain why particular testimony or evidence is accepted or rejected, but that is their role.

Judge Wetherell noted that the Rodriguez petition essentially invited the appellate court to abandon this appropriate role and to undertake the role of the trial court. That, he noted, is "not the proper function of this court, particularly in an extraordinary writ proceeding." Judge Wetherell's opinion in Rodriguez is a comment, not binding authority. 

But there is ample authority supporting that this reweighing of evidence is not the appellate court's role. In Florida workers' compensation proceedings, the Florida Supreme Court has succinctly held this up in Croft v. Pinkerton-Hayes Lumber Co. (1980). The Florida 1st District explained this again in Punsky v. Clay County Sheriff's Office (2009). Just last spring, the court reiterated this premise yet again in City of Jacksonville v. Ratliff (2017).

An appellate court's role is not to reweigh the evidence, but to review decisions for error.

In Ratliff, the court reminded that this "competent substantial evidence" standard does not change "merely based on the fact that expert testimony was submitted via deposition, so the JCC was in no better place than this court to rule on credibility."

In other words, just because the appellate court "could" effectively reweigh the evidence, that does not mean that the appellate court "should." Ratliff demonstrates, in fact, that there is perhaps no probability that the appellate court "would" in a given circumstance. 

Though the concurring opinion comment in Rodriguez does not make that the law, being perhaps persuasive, the decisions in Croft, Punsky and Ratliff, among others, do. 

Judge Wetherell's concurring opinion in Rodriguez provides some guidance into the "why" that writ was denied. It also provides some reminders on the standard of "irreparable harm" that is required for extraordinary relief.

More importantly, though, the decision reinforces that appellate courts are not a "second chance" to try the case. The chance to present evidence, impeach evidence and argue the case is at the trial. Lawyers and parties should remember that, and when trial day comes, bring the "A" game.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.


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