In memory of

JAMES FRANCIS COONAN

April 30, 1960 – April 4, 2021

James Francis Coonan, III (Jim) passed on Sunday morning, April 4, 2021 at his home in East Norwalk, CT. Born in Staten Island, he was the son of James F. Jr. and Joan Hernandez Coonan.

Jim was a 35+ year veteran of the appellate printing industry. In his spare time, when his son Sam was younger, he loved coaching baseball. Golf and baseball were two of his all time favorites.

Our Spring 2021 newsletter is dedicated to Jim and includes only articles penned by Jim. He was a beloved colleague who we lost too soon and will be sorely missed.

A tribute to our friend,

JIM COONAN

It is with a heavy heart we announce that our longtime friend and colleague Jim Coonan suddenly passed away on Sunday, April 4, 2021.

Jim, a 35+ year veteran of the appellate printing industry arrived at PHP in April, 2002. He brought with him a savant’s knowledge of the rules, procedures and general ins and outs of the appellate printing business. He assisted his clients with thousands of appeals, and was always
adamant that his clients’ filings comply with all appellate rules and regulations. He would go above and beyond to provide extensive editing and preparation of his clients’ legal briefs. It was a wonder to behold.

But that was just the business side of Jim. He was oh so much more than that.

If you knew Jim like we all knew Jim, he was at any time gregarious, explosive, charismatic, complicated, steadfast, contrary, sympathetic, intense, generous, attentive, passionate – just to name a few qualities. And in his own uniqueness he sometimes displayed all of them on a given day.

He was a life force in the office. From the moment the elevator door opened in the morning, Jim would be in your doorway with his jacket still on and coffee in hand calling out a hearty good morning and then maybe regaling you with his ever eventful trip on the Metro-North, or the fight he witnessed on the corner of 39th street or the down on his luck guy he bought breakfast for at the coffee cart. He would make his rounds through the office into the production department and then back to his desk to start his day. Sometimes it would take him ten minutes to get there and sometimes forty. But when he sat down he was ready to work – and work he did.

He would feverishly attack several briefs at once and you could easily hear him outside of his office talking on the phone with clients as he worked. They were all so reliant on him and many simply in awe of his knowledge. But he was more than just a fountain of knowledge to his clients. He was a very good friend to so many of them. Accolades have been coming in fast and furious:

“Jim and I spoke an average of three or four times a week. While almost all were business calls, we spent far more time talking about the Mets, Rangers and our families than about business.”

“I knew and worked with Jim for over 35 years. He was not only a terrific professional – the best in the business in my view – but one of the sweetest human beings on the planet.”

“Jim helped with every brief I’ve worked on for nearly twenty years; but far more importantly, he was a rock and a friend beyond any measure, whose inevitable first words upon hearing of trouble were always, how can I help? What can I do? Or, best of all, I’m on my way. I will miss his steady hand, his calm guidance and advice and his warm and loving friendship forever.”

That was Jim and the accolades could continue to fill pages and pages.

And what a story teller he was. Jim could converse on any topic and had a story for everything. He could burst in to start the day and tell you a tale of the night before or something that happened on the early commute. But he wouldn’t tell one person, he’d track down everyone in the company and tell us one by one. You would hear him coming your way and right before he started up again, it was not unusual to hear, “Hey Jim, I heard you tell that story four times already. I think I’m already up to speed.” Jim would let out a good laugh and then force feed the story on you anyway. You simply couldn’t restrain him.

We had his number around here though. If you had the floor and were telling your own story, you could just tell by the gleam in Jim’s eye that before you were done, he was all ready to one up your story with one of his own. He couldn’t help himself and we had more laughs throughout the years over those idiosyncrasies in Jim than you could count. Oh God, we will miss those stories.

His passion for life was always on display but never more than when he was talking of Sam. His office was a shrine to Sam and his pictures lined the walls and shelves. For nineteen years Jim reveled in telling stories of Sam. From the vacations they took, to his exploits on the ball field, from entering kindergarten all the way to college. We felt like we all went to school with Sam. And as we all say around here, we think we know more about Sam than even Sam knows about Sam. Jim was Sam’s rock and Sam was Jim’s pride and joy. Our hearts all feel the tremendous depths of Sam’s loss.

We are all still struggling to come to terms with the sudden and inexplicable loss of Jim. We weren’t ready, as we are sure no one was. Within Jim’s office and always at his reach, was a small mass card. It was a remembrance of Jim’s father whom he lost in 2004. His relationship with his father was a mirror image of the one Jim had with Sam. It was a bond that couldn’t be broken. A quote on the back of the card from the anonymous passage reads:

“I could not stay another day, to laugh, to love, to work, or play. Tasks left undone must stay that way, I found that peace at close of day. If my parting left a void, then fill it with remembered joy. A friendship shared, a laugh, a kiss, ah yes, these things I too will miss.”

It’s a bit ironic that the passage chosen for Jim’s Dad is so equally relevant with Jim’s passing. The similarities are striking and each word speaks to our devastating loss.

We will remember Jim as an orb of energy that continually sped around the office engaging colleagues all day long. We are already missing the daily tours as he would head out to get lunch each day asking every single one of us, “Can I get you anything?” Every . . . single . . . day . . .without . . . fail. His thoughtfulness and generosity knew no bounds.

Jim, please know your spirit will never cease to exist here at PHP. You will remain within our hearts and these walls forever. You were the best of souls and we were all honored to be your friend. We know you are already looking down upon us and we will continue to tell your stories and enjoy laughs at your expense. Though you will no longer be able to one up us again, we promise to keep that memory of you alive forever. Godspeed Jim. You were one of a kind and you were loved.

Your Family at PHP

CERTIFIED QUESTIONS FROM THE SECOND CIRCUIT COURT OF APPEALS TO THE NEW YORK STATE COURT OF APPEALS

JIM COONAN
Director of Appellate Services | PHP

“Whenever it appears to the Supreme Court of the United States, any United States Court of Appeals, or a court of last resort of any other state that determinative questions of New York law are involved in a case pending before that court for which no controlling precedent of the [New York State] Court of Appeals exists, the court may certify the dispositive questions of law to the [New York State] Court of Appeals.”

There is confusion about the form a certified question from the Second Circuit Court of Appeals to the New York State Court of Appeals (NYSCA) should take. Attorneys have been under the impression that they should take the Joint Appendix or Appendix that was filed in the Second Circuit and simply re-file it with a different caption for New York State’s highest court.

This is incorrect. A certified question should mirror the form of an appeal being filed with the NYSCA that was previously heard at the Appellate Division level. Headings and page numbers should be on the top of each document and must match the entries in the table of contents. The cover should conform to all the requirements of the NYSCA, not the Second Circuit requirements. The accompanying briefs should also comply with the NYSCA rules.

The one benefit of filing a certified question with the NYSCA, as opposed to an appeal from a decision of the Appellate Division, is that there is no filing fee.

PROPER MOTION PRACTICE TECHNIQUES FOR THE NEW YORK APPELLATE DIVISION AND THE NYSCA

JIM COONAN | Director of Appellate Services | PHP

The single greatest difference between the Appellate Division and the NYS Court of Appeals motion practice is that Appellate Division motions are submitted on a serve one/file one basis under a legal back, whereas Court of Appeals motions are submitted in brief form, serving two and filing seven. However, during Covid, Appellate Division motion practice for matters that are filed via NYSCEF require that the motions also be filed via NYSCEF. Non-NYSCEF appeals require the motion to be filed via court portal and served in hard copy. The Court of Appeals requires both hard copy and e-filing. Service requirements are calculated in the same manner, with eight days’ notice required if service is by hand and thirteen days required if service is by mail. Overnight service adds one day to the by-hand service requirement.

Motions in both the Appellate Division and the NYS Court of Appeals are returnable must be made returnable for a Monday, and the return date should be as close to 14 days from service as practicable. All motions regarding Appellate Division Orders must be served within thirty days (plus five if served by mail) of the date on the face of the notice of entry of the motion’s subject order.

Appeal as of right, or not – what to do?

JIM COONAN
Director of Appellate Services | PHP

A client recently came to me regarding a decision from the trial court remanding an Article 78 Proceeding to a government agency, which was not appealable as of right; however, the judgment-form decision that came down was. He wondered if he should make a motion for leave to appeal to the Appellate Division or file a notice of appeal. The judgment had been served with notice of entry so his thirty days were running out on both of his options.

The Appellate Division routinely denies requests for relief where there is a right to do so in the first place. If my client were to make a motion for permission to appeal, but he already had a right to appeal, the court could deny the request outright and he would be beyond the thirty day time limit. If he filed only a notice of appeal and it turned out he had no right to appeal, then he would also be out of time to make a motion if they dismissed the appeal for failure to get the court’s permission.

After consulting the clerks of both the First and Second Departments, I found the answer: file both the motion and the notice of appeal, but make clear in your motion papers that you have done so and explain the reasons why.

Appellate Practice: Are oral Argument Transcripts of the Underlying Motion being Appealed Appropriate for Inclusion in a Record on Appeal?

JIM COONAN
Director of Appellate Services | PHP

Oral argument transcripts (when available) should always be included in any record on appeal submitted to an appellate court. Arguments held before the lower court give the appellate court an invaluable insight into the reasoning employed in reaching the decision and order appealed from. There is often give and take between the attorneys and the lower court justice over points of fact and law, which are important to take into consideration on the appellate level.

A transcribed lower court argument also removes any doubt on the appellate level as to whether or not the lower court justice misapprehended any arguments before him/her. In the case of complicated and extensive motion practice, it can give the appellate court a clearer and more concise idea of the process employed by the lower court in reaching its decision. It also provides a mapping of the relief sought and the opposition thereto.

Positions stated in the transcribed argument would now be considered factual parts of the record on appeal and must be included. Also, any decisions stated by the lower court justice on the record would carry the same weight as a written memorandum of opinion and can be considered in the same manner by an appellate court.

What are the Benefits of OCR PDF Electronic Copies versus Scanned PDF Electronic Copies?

JIM COONAN | Director of Appellate Services | PHP

Optical Character Recognition (OCR)
OCR PDF copies are electronic conversions of scanned images of printed text into encoded text. These texts can be electronically searched and stored more compactly (though the quality of the OCR is often dependent on the quality of the scanned image).

Portable Document Format (PDF)
Basic PDF files come in two primary formats – non-linear (not “optimized”) and linear (“optimized”). Non-linear files consume less disk space than linear files, but are slower to access. Linear files can be read in a Web browser plug-in without waiting for the entire file to download, since they are written to disk in a linear (as in page order) fashion.

Since Federal and State Appellate Courts now file electronic documents, it only makes sense to file OCR PDF copies. These document types are the only way to comply with the text- searchable requirements of most appellate courts. A scanned PDF version, while viewable, cannot be searched, and will not comply.

As PrintingHouse Press files many electronic copies with NY Appellate and Federal Courts nationwide, a common problem has arisen with these filings. After a searchable, OCR- compliant PDF document is produced, it cannot be altered in any way prior to filing. A scanning of the document and production of a “new” PDF copy for filing causes the document to lose all of its text-searchable characteristics, and will cause rejection by the clerk of the particular court in which the brief is being filed.

Basically, the difference here is that the OCR PDF copy can be used in a more functional way than a standard PDF copy. While both allow large tracts to be electronically moved more efficiently, only the OCR version will be searchable by the user.