Demystifying Legal Research and the Appeals Process with NLG Family Law Associate Attorney Tia Rowe
NLG Family Law associate attorney Tia Rowe joins Pete to talk about two important topics to help those going through a divorce – legal research and the appeals process.
Legal Research
What should you expect from the research effort? Why is research important? Tia fills Pete in on why this is a valuable part of every case, where lawyers search, how they stay current, and more. They also talk about the difference between case law and statutes, and how case laws sometimes are just bad.
The Appeals Process
What does it mean to appeal your divorce? Why might you do that? How does the appeals process differ from the first proceeding? It’s not for everyone or every divorce, but there are times when it makes sense. Tia discusses these situations with Pete.
Links & Notes
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Pete Wright:
Hello everybody and welcome to How to Split a Toaster, a divorce podcast about saving your relationship from True Story FM. I'm Pete Wright and we are still in the midst of our summer of fun. What are we doing in our summer of fun? We're introducing you to some other people besides Seth. That's right. He's still gone.
We have a wonderful stand-in that I'm thrilled to introduce you all to today. Tia Rowe has been practicing law in the Tampa Bay area since 2019 and she's here to talk to us about legal research and the appeals process. That Tia, welcome to the Toaster.
Tia Rowe:
Thank you so much for having me.
Pete Wright:
Okay, so we're talking about, I want to start with research and I think there's a way we can pivot this into the appeals process because your experience is all across the board, but I think we can tie these things together. The first thing's first, when you're talking about divorce cases, what can clients expect from the legal research effort? What do you do to support clients on the research side?
Tia Rowe:
So that that's going to depend on what issues they bring to us. If it's just a standard, easy-peasy, we've done this a million times kind of thing, we're probably not going to do a lot of case law research because we know the case law already. We know the statutes, we know the best interest of the child. I don't need to research the best interest of the child. I know the statute, I'm going to Google it, pull it up real quick. Easy. If you've got a more intense issue or more unique issue, then that's where the case law and statutory research comes in and that's when Seth will come into my office and say, "I need case law research." And so that's where I start to dig in.
Pete Wright:
So when you say case law research, what does that look like? What are the sources you're going through to actually figure all this stuff out?
Tia Rowe:
Basically, in our legal system, there's two types of authorities that a judge looks at. They look at case law, which comes from cases in front of judges and specifically in the appeals courts and in the Florida Supreme Court, United States Supreme Court. And then there's statutes, so when you say, oh, my ex-husband broke the law because he got a DUI. He's breaking a statutory law. There's case law, but we're looking at the statute.
Pete Wright:
Yeah. That defines something that is like pre-written law, like you can't run red lights.
Tia Rowe:
Exactly. The legislature writes those.
Pete Wright:
Okay.
Tia Rowe:
So that's when you hear a law that's going to be statutory law. Case law is something called precedent, which basically says the court has seen this issue before, this is how the court has ruled and they're likely to rule again in that same way. And so you kind of want to gather as much case law as you can that address your facts or don't, but you can analogize and then you say, look, Judge, all these appeals courts and all these other courts have seen this exact same thing, they've ruled in this way, therefore you should too.
Pete Wright:
Okay, Tia, so if I've learned anything from Seth, it's that he always comes with this air of having seen it all. And I'm wondering if you can shed a little light on the noted or perceived unoriginality of case law. Are you constantly discovering new precedent to cite or are divorce cases is pretty similar?
Tia Rowe:
Oh no, constantly new stuff. Because so much in divorce law is fact specific. I mean, look at the best interest of the child. That's 20 fact issues that you're looking at. So the court will go through and list these facts and then you're like, okay, my facts are similar but not quite the same. Can I bridge that gap? Can I convince a judge that we're the same enough for this to work for me or different enough that I don't get screwed over by this case law that exists? So it's really fact specific.
Pete Wright:
Okay. So you said you you're going to look up Google, you're going to look up statutes in Google, right? I feel like I could do that.
Tia Rowe:
Only because I know what websites to Google.
Pete Wright:
Okay.
Tia Rowe:
So basically there's like legal versions of Google. The big ones are Westlaw and LexiNexis, but I don't think they sponsor this, so we're not going to use them by name too often.
Pete Wright:
Okay, that's fine.
Tia Rowe:
And so that's really where you go more for case law. You can do statutory work there. Sometimes if I'm researching a statute and I want to know the history of it, I'll go to one of those databases and do that. But Online Sunshine is the Florida legislature statute. So if anyone wanted to look up the best interest factors for the child, you can Google Online Sunshine and the statute number. And then the Florida Family Laws of Procedure, Rules of procedure, sorry, it's like eight words and I constantly [inaudible 00:05:07] them in my head.
Pete Wright:
Often not in the same order. Yeah.
Tia Rowe:
Yeah. I mean they are on Google, but I can Google them in any order and get my same results.
Pete Wright:
Google?
Tia Rowe:
Right? Google knows what I'm looking for. And so that'll have the rules of procedure and from the Florida bar website. And so you can Google that. Also, very interestingly, Google has an option called Google Scholar and then you can select a button called Case Law and you can actually do case law research. The problem is you don't know if that case law is still good law.
Pete Wright:
What determines whether it's good law?
Tia Rowe:
Whether or not a judge has said this is no longer what we want to do. It's not good law. So basically every so often, judges will... specifically the Florida Supreme Court, but sometimes appeals courts will get a case and they're like, I know we've done it this way for 20 years, but that just doesn't seem to apply and we shouldn't be doing that. Let's not do that anymore. And so that original case and all the cases that relied on that original case are all considered bad law now because it's no longer the law.
Pete Wright:
Wow. Does that impact cases that are settled and done? People have moved on from their divorces and everything, those are settled up. But recent cases, is there ever a situation where bad law comes into play and while you're in litigation on something that you already thought was settled?
Tia Rowe:
Only if the litigation is currently ongoing. So say your divorce was finalized back in 2010, but then someone files a supplemental petition and very recently either the statute changed or the case law changed. Now you have an avenue to argue that the case law should apply or that it shouldn't apply and we should look back at the time that the parties were originally divorced.
Pete Wright:
How often does this kind of thing happen?
Tia Rowe:
Not very often.
Pete Wright:
Okay.
Tia Rowe:
Because there's a lot of value in precedent, which is that history of case law kind of following the same vein, whether for better or worse, if there's really bad case law out there, but no one's ever overturned it, you're stuck with bad case law. If it's really good case law, you hope no one ever overturns it and you're like, this is great, this is how it should be working. But it's up to the judges.
Pete Wright:
Maybe this is a little, we'll call it a sidebar.
Tia Rowe:
Yeah.
Pete Wright:
Do you ever run into cases where it's possible to use a case that would actually test bad case law?
Tia Rowe:
That's actually a really, really good question. So I have two answers. Personally me, I have run into cases like that because I used to work at the appeals court. And so parties will take facts that they think will move the needle in the legal world and bring it to the appeals court and say, look at these facts, they're atrocious. This law needs to change, so on and so forth. But in divorce law, typically that's at the trial level and trial court judges are not making case law. You have to bring it up to the appeals court before it can become this precedent in case law that we're talking about. So say you have really, really persuasive facts on bad case law. In order to change that case law, you know you have to go to the appeals level. And at that point, you're years in.
Pete Wright:
Yeah, you're going to have to get through the entire proceeding, right? In order to...
Tia Rowe:
Yeah, you have to go through the trial, you have to then appeal it, hope that the appeals court decides to look at this case law. Because, having worked in the appeals court, they'll look at the facts and if the facts don't necessarily apply, they can always say, this isn't the question before us. We don't even have to discuss that bad case law. They won't say it's bad case law, but they'll be like, we don't have to even discuss X V Y, not an issue. And then you've spent time and money and nothing has changed.
Pete Wright:
Okay. So I imagine, everything I've learned about the law that I haven't learned from Seth, I've learned from movies. And so I imagine giant movie moments, like the case is ongoing and Seth is making his case in front of the jury and at the very last minute you rush in waving a document or an iPad or something, and may it please the court. How often do you find that you actually are able to conjure up the kind of research that's going to really sway the case?
Tia Rowe:
More often than I would expect, actually. So when I'm doing case law research, I like to look at the most recent case law. One, because it's going to cite good case law and it's also going to have the most up-to-date case law. And two, that's where the changes are going to come. So if there's a 2023 case and it's saying, forget best interest of the child, we're going to go in the best interest of the parents. Like, oh my gosh, that is completely life changing for anyone going through the court process. And side note, that's not what any of the case law says. Please don't freak out. It's best interest of the child. But that 2023 case is now going to control. And if that's what we needed, absolutely.
So more often than I would expect, and also because I find those cases really fun, when you find the ones that are like, why did we do it like this for 50 years? It should be this way. And then you're like, oh my God, the drama, what happened behind the scenes to get us here? Because you don't know, you're just reading the opinion. And then I build the whole drama and soap opera in my head. It's fine.
Pete Wright:
Yeah, of course, it's fine. That's what motivates you to keep going. And that actually leads us to our sort of mid-session break here. I want to hear a little bit about how you fell in love with research and the law and what got you here, Tia Rowe.
Tia Rowe:
Oh gosh, this is a nerdy story. Super nerdy.
Pete Wright:
You found a home.
Tia Rowe:
Basically in law school there's kind of two paths you can take. You can either do mock trial and trial prep or you can do journals, which is going to be research and writing. So I went the research and writing route because I'd been a philosophy major, writing was in my wheelhouse. So I was on an international law review, I ended up publishing in that journal as well. And I spent a lot of time just doing research on interesting and kind of weird law. And I mean, if you look at culture society, there's this backbone of the legal system that kind of controls in the background. Unless you're a lawyer or in the legal system, you're not really thinking about the law and how it dictates our lives, but it's there. So that kind of got me curious of how the sausage is made, as I think the phrase.
Pete Wright:
Well, as I'm hearing you talk about it, why do I feel chills running up my spine? I am suddenly so paranoid right now. You just made me so paranoid. Why am I afraid to look outside?
Tia Rowe:
It's okay.
Pete Wright:
Yeah.
Tia Rowe:
Someone might be walking. It's fine.
Pete Wright:
Someone might be walking, it may or may not be legal. That's what we're talking about. All right.
Tia Rowe:
Exactly. And so I really enjoyed doing that in law school, but graduating, I was like, all right, let's see what job you get. Can't really be too choosy on a first job. Thankfully, my first job ended up being at the Second District Court of Appeals for the state of Florida, which is here in Tampa. And that's all research and writing. I'm working for a judge, I'm working for the court. I don't have clients. I'm not representing anyone in court. I'm just researching and writing. And so I did that for, I think it was about two years. Yeah. I learned a lot of really, really good tips and tricks in that role. And so it's like a hunt for me to find the case law that works best for our clients.
Pete Wright:
Okay. So that actually is a perfect transition for you to educate us a little bit about the appeals process and what that looks like. We've talked about it a little bit here in there on the show with Seth, but I'm hoping you can teach us what it means to appeal your case, specifically appeal a divorce, why might you want to do that? And then how does it work?
Tia Rowe:
In Florida, anyone can appeal a final decision. I'm not going to say final judgment because specifically in family law, that is a very specific piece of paper and things might still happen after that.
In the appeals world, the case basically has to be... Okay, rewind slightly. There's always a caveat with everything that I'm about to say because appeals applies to every single type of law.
Pete Wright:
Yes.
Tia Rowe:
Criminal, family, mortgage, administrative, HOA, everything. So generally speaking, to get to an appeal, your case has to be finalized. The court doesn't want there to be motions sitting there while they're trying to figure out this issue and you're still fighting about that issue. It's messy. And as I'm sure many of your listeners know, court cases take a while and so they want things to be finalized.
Again, typically you can appeal non-final orders, but that's a much, much harder and higher standard to get into the appeals court. So we'll just go generally, you got a divorce, final judgment, everything's done. So you might want to appeal if the decision didn't go your way and you think that the judge is wrong. So say that we have amazing case law, like you should not be paying alimony. All of the case law says you should not be paying alimony. The statute, a little fuzzy, but the case law says no alimony. Judge looks at the case and says, "All right, you're going to pay 10 grand a month on alimony. Final decision, I'm done. Best of luck guys."
Pete Wright:
So now the judgment itself is in question.
Tia Rowe:
Yeah. So the appellate court is looking at whether the trial judge got it right or got it wrong. They're not looking at if you are unhappy. I mean, if the trial judge got it right, the trial judge got it right and sucks to suck.
Pete Wright:
That's going on a T-shirt, by the way. It sucks to suck.
Tia Rowe:
Sucks to suck. It's just sometimes how the law work.
Pete Wright:
Okay. So in that regard, let's just say I am getting a divorce. I don't have much involvement in the appeals process. I can say I'm dissatisfied, I think the judge was wrong. But that's the end of my ability to participate, apart from paying the bills for my attorney.
Tia Rowe:
Yeah, So your attorneys are going to file a notice of appeal, the other side has some time to respond. And basically what your lawyers are going to do is they're going to start writing briefs, which are just essentially essays about the facts, the law, why the judge got it right or wrong and submit it to the court.
Pete Wright:
This is what I think ties it, this is my loose attempt at a segue from legal research. Do you have the opportunity to add new research, new material to the appeal?
Tia Rowe:
Yes, actually, you do. So you can say, hey, look at this case that just came out. It should apply here. Is that going to be persuasive? Not always.
Pete Wright:
But what would the judge say if you were to say, hey look, we forgot this case. We're trying to make this right. We have this other case from 1975, and it should also count. Do you ever find yourself in a position to say, hey, we need a do-over. The appeal is not a do-over, is what I'm trying to get to.
Tia Rowe:
No, the appeal is not a do-over unless the trial court needs that do-over. So if the trial court messes up and ignores a case from 1975 that everyone knows, everyone knows it's in the best interest of the children, and the trial judge is like, "I don't know, this isn't the best interest of mom." The appeals court's going to say, "No, do it over. You messed up. Send it back." Send it back, look at this. They sometimes give the trial court instructions like, Hey, when you look at this again, make sure you look at alimony or make sure you look at X, Y, Z. They're much more polite about it. So yeah, but you don't necessarily as an attorney be like, oh, oopsy-daisy, this would've gone one way and it should have gone one way, but I didn't make the right argument. Unless it's like criminal, but family law, not necessarily.
Pete Wright:
You're not going to run into that. Yeah.
Tia Rowe:
Not necessarily. There's always the, you know...
Pete Wright:
Yeah. Talk to me about jurisdiction. How do you handle jurisdiction. Is there a specific appeals court for your county? What do you need to think about?
Tia Rowe:
So you don't really have much choice in that. So the state of Florida actually, a brand new district court of appeals, just, I guess you could say opened. It was started by the legislature, so I think it's now the sixth, but basically it just depends on what county your trial court was in and it automatically goes to whichever district court of appeal that county is in. So Tampa's in the second district.
Pete Wright:
And so in the second district, it's just going to be whatever judge draws the straw to get your case.
Tia Rowe:
It's actually a panel of three judges. They'll be a lead judge and then two other judges on the case. And so you'll see opinions that's authored by one judge, and then other ones either concur a dissent, or it'll just be something called per curium. Two words, P-E-R, space, C-U-R-I-U-M. Oh my gosh, I haven't actually had to spell it out in many years.
Pete Wright:
You drop Latin on the show and try to spell it. That's an alpha move.
Tia Rowe:
I know.
Pete Wright:
What does it mean?
Tia Rowe:
So basically it means that all three judges have just agreed and no one feels strongly enough that they need to take the lead in writing it or write a concurrence or write a dissent. It's kind of just like a, yeah, we're all good with this. And so it just means all three agreed enough that no one felt that they really especially had to put their name on it, typically.
Pete Wright:
Oh, I see.
Tia Rowe:
There's other strategies behind the scenes for choosing it. But typically that's the kind of stuff.
Pete Wright:
If they put their name on it, what if you end up with two judges who agree and one who doesn't, there's an opinion.
Tia Rowe:
Yes. Say you have judges, I don't know, Rowe. Well, there is actually a Judge Rowe, no relation.
Pete Wright:
Okay.
Tia Rowe:
Rowe, Nelson and what's your last name, Pete? Wright?
Pete Wright:
Wright.
Tia Rowe:
Wright.
Pete Wright:
Yes.
Tia Rowe:
Okay. So we're all three on a panel. You absolutely are like, yes, we need to overturn this. This is crap law. No more. And then Seth is like, yeah, I guess I agree with you, Pete. Sounds good. And I'm like, no, Pete, you're completely wrong. What kind of freaking nonsense is that? You're probably going to write the opinion. Seth is going to be like, yeah, sure, I'll sign my name. And I'm going to write the dissent being like, no, Pete's out of his mind. I don't know why he's saying any of this. Totally wrong. But because you have two judges and I'm only one, your opinion gets to be the majority and yours is the good law. I'm just saying my opinion.
Pete Wright:
Snap. Okay. Nice drama. I like that. Yeah. I would never.
Tia Rowe:
I'm just stirring the pot a little for when Seth gets back.
Pete Wright:
Right, right. That's perfect. No, well done. It's fascinating. The whole process is fascinating to me. Like did I interrupt you? I feel like I hijacked you when you were walking through the process. Is there anything else we need to know? If I'm considering, if I'm frustrated with how the trial went and I want to push for an appeal, anything else I need to know as somebody going through the process?
Tia Rowe:
Just a little bit. So there's something called oral arguments and they are by choice, basically. Every so often the court will say, I want oral arguments on this, but otherwise the party gets to choose. I'd say more than half of appeals are just on the written briefs. No one does oral argument. You just submit your essays and hope for the best. So really in the appeals, the client is even less involved because you're not even going to court. Your attorney's putting in their brief and waiting to see what the court decides.
Pete Wright:
Wow. Hands off.
Tia Rowe:
And then if you're unhappy with your appeal, then you appeal it to the Florida Supreme Court and they have the choice whether or not to take the case.
Pete Wright:
Yeah. And what I mean, I don't know, it feels to me like it would take an order of magnitude kind of shake up in the law to get a divorce case to a Supreme Court state level.
Tia Rowe:
You're not wrong.
Pete Wright:
Yeah. Okay.
Tia Rowe:
Yeah.
Pete Wright:
So if you're thinking you want to fight all the way to the Supreme Court for your divorce, just saying.
Tia Rowe:
I wish you the best of luck finding an attorney who will bring your case to the Florida Supreme Court.
Pete Wright:
Diplomatically put.
Tia Rowe:
And look you in the eyes and say, "Yes, we will do this."
Pete Wright:
Well, Tia, this has been a treat. It's so nice to talk with you about what you do and about how you do it and educate us all a little bit in the process. Super, super useful stuff. Thank you for being here.
Tia Rowe:
Yeah, thank you so much for having me. I think I mentioned before we started recording that I've done this a lot, but haven't necessarily discussed it a lot, so it's been fun to kind of talk through the process from an outside perspective.
Pete Wright:
Well, fun for me too, for sure. Tia Rowe, thank you so much for hanging out and thank you everybody for hanging out with us as we continue our journey through the summer of fun right here on the Toaster. Don't forget, you can ask us a question howtosplitatoaster.com. There's a big button that says, submit a question. And now Tia's been on the show, so you can ask Tia a question and we'll ask Tia back to talk about the answers. You don't even have to ask just Seth, I mean, we're just freed in so many ways. It's really, really lovely. Thank you everybody for downloading and listening to the show on behalf of Tia Rowe, and he's always here, Seth Nelson, America's favorite divorce attorney, even when he's not here. I'm Pete Wright. We'll see you next week right here on How to Split a Toaster, a divorce podcast about saving your relationships.
Outro:
Seth Nelson is an attorney with NLG Divorce and 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 and Family Law. Seth Nelson is licensed to practice law in Florida.
