ITEM 14J | GETTING STARTED IN WRITING THE PRO SE BRIEF
To write the pro se brief, a parent should first read the entire the record on appeal from the trial court case, including all the legal documents that were filed, and the transcripts from the hearings and trial, if any. When writing the pro se brief, a parent should not rely just on his or her memory of what happened in the trial court. The appellate court will only consider the facts that appear in the record on appeal, which will contain the documents, pleadings, motions, hearing/trial transcripts, and like documents, from the proceedings in the trial court. Notes taken while reading the record may assist a parent in later citing the correct page number for the document and testimony when referring to the record in the brief.
Second, a parent should decide what the issues are to be raised and argued in the brief by thinking about what occurred during the proceedings. Did the trial attorney make a motion or an objection that the trial court ruled against? Did the trial attorney state that something would happen and it did not? What arguments were made by the attorneys for the Department and/or Guardian ad Litem? Did the trial judge fail to allow or exclude certain evidence, and/or fail to make findings to support its decision?
Third, a parent should consider whether the record is missing any documents or transcripts needed to present the issues to be raised on appeal. Sometimes a hearing transcript, a motion, or some other document which was filed in the trial court and is needed for the appeal may get left out of the appellate record. If that happens, then the party wanting to include the document may need to file a motion to supplement the record under Florida Rule of Appellate Procedure 9.200(f). The motion to supplement is discussed in more detail in Chapter 3 on Pulling Together the Record on Appeal. The motion briefly explains what document or transcript is missing and why it is needed. The appellate court will issue an order granting or denying the motion to supplement. If granted, the appellate court will indicate the time to have the documents filed. The appellate court will send a copy of its order to the lower tribunal clerk, who should file the documents. However, it remains the appealing party’s responsibility to be sure the missing documents are filed within the allowed time. If the missing documents are not filed, that party should ask for an extension of time in the appellate court and contact the lower tribunal court clerk. If the missing document is a hearing or trial transcript, the party will file a motion to transcribe in the trial court so that an order can be entered directing the court reporter to transcribe the hearing or trial.
Fourth, the parent does legal research to find case law and statutes that support his or her argument. Sometimes the legal research will show that an issue is not a valid one. On the other hand, the legal research might show that there is an issue to raise that the parent had not thought of by him or herself. Most law schools and courts have law libraries where any parent can do legal research. Public libraries also often have computers with internet access, where a parent could conduct legal research on the internet.
Fifth, the party appealing determines the standard of review for each issue being raised on appeal. The relevant case law will often explain what standard of review should be applied for the type of error being discussed. There are several different standards of review. For example, if the trial court applied the wrong law, then the appellate court applies the “de novo” standard. A court’s interpretation of a statute is an example of a legal issue subject to the de novo review standard. When the de novo standard is applied, the appellate court is not bound by what the lower tribunal court ruled and it considers the issue anew. In other instances, the trial court has discretion to make a ruling. Its decisions to admit evidence or continue a case are discretionary rulings. These discretionary rulings will be reviewed under the “abuse of discretion” standard. To prove that the trial court abused its discretion, it must be shown that no reasonable judge would have made the same ruling. A third standard of review is whether there is competent substantial evidence to support the court’s factual findings. It requires that there be some evidence in the record to support the court’s findings. The fact that a parent believes the evidence he or she presented is more believable than the evidence the petitioner (Department or other) presented is not a basis for reversing the order.
Next, the parent drafting the brief should make an outline of the argument sections of his or her brief. That outline lists the issues the pro se parent intends to raise and the standards of review for each of those issues. The parent makes notes about the facts that support these arguments that will be included in the brief. The parent makes similar notes about the case law and statutes that support the argument. This outline will help organize the arguments and present it to the appellate court in a clear and concise manner when writing the brief. In deciding what issues to raise in the pro se brief, a parent should remember the role and limitations on the functions of the court of appeal. The court of appeal will not reweigh the evidence that the trial court heard and received into the record. If the record includes evidence presented in accordance with the rules of evidence and the trial court applied the correct law, the dependency or termination order will not be reversed.
You might need to reference it during your pursuit of justice.
For instance, you might need to examine this handbook in order to protect yourself from judges/lawyers/organizations who break the law (see this example of a Florida judge who outright committed perjury).
Nevertheless – and as always – please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
