ISSUE 2 │ VOL. 1 │ SUMMER 2013
WORD COUNT CERTIFICATION REQUIREMENT: HOW TO COMPUTE AND WHAT TO INCLUDE
JONATHAN WALLACH ESQ. | Senior Appellate Consultant | PHP
The Appellate Divisions – First and Second Departments – require that a word count be computed and included at the end of every brief. The First Department limits Appellant’s and Respondent’s briefs to 14,000 words or 70 pages, and Reply Briefs to 7,000 words or 35 pages. The Second Department limits Appellant’s and Respondent’s Briefs to 14,000 words. The rules are somewhat vague as to which words must be included in the word count with the rules stating simply that it must be calculated by the word processing system used to prepare the brief. This leads to confusion and anxiety, especially when an attorney is bumping up against the word limit.
However, if one reviews the actual word count requirements, the First Department’s rule states: “The calculation of the length of a brief shall not include pages containing the table of contents, tables of citations, and any authorized addendum containing statutes, rules, regulations, etc.” [600.10(d)(1)(i)]. In its counterpart, the Second Department’s rule states that the length of the brief shall be calculated “…exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc.” [670.10.3].
Accordingly, I advise my clients to omit the cover, table of contents, table of authorities, and signature block from the calculation. However, I tell them to include everything else – including the questions presented, point headings, footnotes, and conclusion. I have not seen a brief which followed these guidelines rejected by either court (or any other court, state or federal, for that matter).
Most current word processing programs will typically calculate the total number of words in a document, including footnotes. For other programs, you must first select the text you want to include and find the appropriate word count function. The process tends to be straightforward and is easily accomplished in Microsoft Word and WordPerfect.
NEW YTHE SEPTEMBER TERM IN THE APPELLATE DIVISION FIRST DEPARTMENT: WHAT’S THE BIG DEAL?
ERIC J. KUPERMAN, ESQ.
Executive Vice President of Sales | PHP
As you are probably aware, the upcoming September Term is the first AD1 Term filing deadline since the June Term. Essentially, the significance of the September Term lies simply in the fact that since there are no appeals heard or submitted (Terms) during July or August, the September Term tends to quickly become overloaded. The reason for the filing crunch is that those who missed filing for the June Term, as well as those appeals which were deferred by AD1 from the June Term, are all vying for a spot on the September Term calendar. In other words, every Record and Brief which is filed between March 19 and July 8, 2013 (the “Break Period”) are all (in theory) calendared for the September Term.
Of course, in reality, the September Term, as is true in every other Term, has a limited amount of slots on the calendar for appeals to be heard. Thus, it is inevitable that a number of appeals filed for the September Term may in fact ultimately be deferred by AD1 to the October Term. This in turn, will mean that you might not have your appeal decided until the end of the year (or perhaps not until the beginning of 2014). It is prudent, therefore, to file sooner rather than later in the September Term and not necessarily wait until the July 8, 2013 deadline. Although you are providing more time for the Respondent to put in an opposing brief (the Respondent’s Brief deadline is August 7, 2013), you are reducing the likelihood that your appeal will be bounced to the October Term.
It should be noted, of course, that there is no guarantee that the appeal will not be deferred even if you do file prior to July 8, 2013. But some feel that it is worth a shot to file in advance of the July 8, 2013 deadline to secure a slot on the September Term.
PERFECTING YOUR APPEAL: HOW TO SELECT AN APPELLATE PRINTER
JOHN FARRELL | President | PHP
Appeal Process: Overview
There are many schools of thought when it comes to choosing an appellate printer to assist you with the preparation and printing of your Records on Appeal and Briefs. These can range from knowledge to responsiveness to manpower to technology, just to name a few – and then of course, there are always cost-benefit analyses which are of great concern to both the firm and their clients.
Some attorneys mistakenly assume that utilizing the services of an appellate printer will add to the cost of perfecting an appeal. However, it is a strongly held belief within the appellate industry that the purported savings experienced by printing internally are actually lost elsewhere. Specifically, in-house printing effectively dilutes personnel resources within the law firm, leading to fewer billable hours and fewer resources available to be utilized in the successful operation of a law practice. Whether to outsource your appellate printing needs at all, in lieu of preparing the record in-house, is also a decision that could depend on certain internal factors of a law firm. These factors include the volume of appellate work, professional resources within the firm, printing capacity, or the financial standing of a firm’s clients. At the same time nearly all experienced appellate attorneys or appellate counsel enjoy and benefit from long-term relationships with experienced appellate printers. Nevertheless, since choosing an appellate printer is the central topic of this article, let’s point to some key benefits an industry leading appellate printer can offer you, while highlighting along the way why it’s best to outsource your appeal. To simplify the process, let’s consider five factors in choosing an appellate printer:
1. Knowledge and Expertise
First and foremost, prior to selecting an appellate printer, organizing the documents that constitute your record on appeal can be as labor-intensive and time-consuming as preparing the appellate brief itself. There are many requirements that you must be aware of for compliance with complex rules and rigorous styling standards of each appellate court. A common question that arises is, “What are the documents that comprise the record on appeal?” Simply stated, include in your record on appeal all the documents the judge considered when rendering the decision. In fact, the majority of the time these documents are listed in the Order being appealed. However, Records on Appeal are limited to matters of fact, not matters of law.
Expert appellate consultants and paralegals can save attorneys hours of relatively ministerial work, and ultimately reduce the cost of the appeal. When selecting an appellate printer, knowledge and expertise are of paramount concern. For example, the majority of appeals in New York’s Appellate Divisions are taken on the fully reproduced record. However, there are certain instances in which the appeal should be taken on the Appendix method. Under the Appendix method, only the parts of the underlying record essential in considering the questions involved of both appellant and respondent are reproduced. If an appellate consultant is advising you to file via the Appendix method, then they certainly are looking out for you (and your client) and have your best financial interests at heart.
Still, while law firms are more cost conscious than ever when performing research on an appellate printer, attorneys most often request cost estimates from numerous companies and pick the least expensive one. However, given the complexity of the appellate process, selecting an appellate printer based on a bargain basement price may not be a sound practice. Though no appellate printer can ensure the successful outcome of an appeal, a reputable and experienced one will guide you through the process so as to avoid procedural pitfalls and unnecessary expense. Like anything else, if price is your barometer, then you may be dealing with a printer that offers cut rate service as well.
As mentioned earlier, the appellate process is a labyrinth of procedural requirements which vary from court to court. Distinguishing the correct font, point size, margin requirements, brief cover color, record contents, header alignment, or CPLR forms are just a few of the intricacies that a knowledgeable appellate printer will bring to your attention to ensure your appeal will not be rejected at the courthouse steps before it even makes its way to the Bench. Moreover, in addition to expert appellate consultants and paralegals confirming that all appellate documents are in compliance with the rules and internal operating procedures of the appellate courts, they will alert you to time sensitive deadlines, help you meet them, and prepare all forms necessary for the service and filing of your appeal.
When considering whether to use an appellate printer, it makes good business sense to research the company and the qualification of its staff. Some things to consider are the years of experience in the industry, professional background, knowledge of local rules, reputation, and location. It is a practical and important exercise to visit a company’s website, and perhaps its social media web pages, as well as request client references. An appellate website should not be a venue for self-serving grand proclamations of a company. Instead, It should serve as a reference point for you, the appellate practitioner, and offer an abundance of information on court rules, regulations, calendars, quick reference charts, forms and FAQ sections.
2. Responsiveness and Attitude
As a guideline, prior to sending your appeal to an appellate printer for the first time, it is essential that you contact one of their appellate consultants or paralegals to discuss your specific needs and outline your immediate questions and concerns. A knowledgeable and responsive appellate printing representative will be glad to provide complimentary procedural guides and checklists from select appellate courts.
Regardless of your practice specialty, an attorney working on an appeal with a seasoned appellate printer will benefit immeasurably from the experience. A designated appellate consultant or paralegal who serves as the relationship manager between an attorney and the appellate printer will offer expertise while providing timely and attentive feedback to all questions and issues. They will guide you through the entire appellate process. No appeal is too small and no question irrelevant.
Prior to selecting an appellate printer, it is recommended that you request samples of their work. You will then be able to make an accurate assessment on the quality of its work product. If you wait until you receive your advance copy of the record, and your proof is sent riddled with mistakes and does not make a professional appearance, it may be too late.
The reproduction, binding and final presentation of the appellate documents embody the very essence of the best appellate printers. A professional appellate printer will employ leading technology and possess high-speed digital capabilities, while being able to produce appellate documents with the highest printing quality. Will the quality of the printed record and brief guarantee success in the appeal? Unfortunately no. However, during oral argument, if the pages of the record on appeal or brief become dislodged from the binding while the Appellate Judge is perusing the documents, an opportunity to leave an initial positive impression will have been lost. Unspoken but undeniable is the fact that documents which are presented to the court and have the appearance of being prepared professionally show a certain respect to the court which is appreciated by judges and clerks.
Aside from the aforementioned printing capabilities, as part of its production arsenal, an industry leading appellate printer will consistently monitor the latest technological advancements within the appellate courts. It will embrace electronic filing within the industry, and deliver innovative solutions that address the needs of its clients. A premier appellate printer will offer client web-portals that allow 24/7 online access to attorneys’ appellate documents and enable attorneys to track the status of their appeals – including up to the minute service and filing confirmation, oral argument and decision dates – all through the client’s desktop and on a moment’s notice.
5. Company Size and Location
Bigger does not necessarily mean better, nor does it guarantee quality – and smaller does not translate to less capable. It is not uncommon that as an appellate printer’s client base grows, providing customer support becomes more challenging. If an attorney’s appellate practice is not high in volume, larger vendors may consider this client’s business a lower priority. With a smaller appellate printer, the size of the company may determine its ability to invest in staff and technology, leading to a direct impact not only on knowledge and expertise, but on the quality of the appellate document production. So if size and location are important factors to you, then what follows should be taken into consideration.
Inquire as to how late the appellate printer can accept your brief for service and filing on your deadline day. If you are told no later than 10:00 a.m., then chances are they may not have the production capacity or staffing resources to guarantee your brief for service and filing. If on the other hand, your printer tells you no later than 3:00 p.m., the appellate printer has the wherewithal to work under very tight deadlines. Make inquiries of the printers’ ability to turn around a record on appeal proof in 24 hours. More than likely, you may pay a priority, but if it can be done, then you have selected an appellate printer that can fluidly reapportion work in-house and accommodate any expedited scheduling. Check to make sure you have the option of receiving not only a hard copy of your advance proof, but also the ability to electronically download a .pdf from your printer’s web portal. You never know when you are going to be pulled away from the office and need instantaneous access to an electronic version.
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.
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 we here at PrintingHouse Press file 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 in whatever court the filing is taking place.
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 faster and easier, only the OCR version will be searchable by the user.