MARK VIRAG | Senior Appellate Consultant | PHP
Oral argument may be requested in both the Appellate Division, First and Second Departments (AD1 and AD2). They each have their own protocol when the arguing attorney on the Appellate brief cover will not argue the appeal and is requesting another counsel within the firm to argue in his/her place.
When requesting a different counsel to argue in AD1 from the one stated on the cover, one must file a Notice of Appearance. The Notice of Appearance is electronically filed with AD1 via the New York State Court’s Electronic Filing (NYSCEF) system. On the day of oral argument, the arguing attorney must also bring a copy of the Notice of Appearance. The Notice of Appearance is electronically filed after the case is calendared for argument—and original counsel will not be able to argue. You may obtain a copy of the fillable form of the Notice of Appearance on the Court’s website.
AD2 has a more relaxed approach as to who, in the end, will argue the appeal before them. In AD2, you must email the Court a letter—copying all parties—advising that new counsel will appear for oral argument. The letter is emailed to the Clerk’s Office at AD2-ClerksOffice@nycourts.gov and is not required to be filed electronically on the NYSCEF system.