ISSUE 4 │ VOL. 1 │WINTER 2013
2013 Year In Review: That’s a Wrap!
JOHN FARRELL | President | PHP
Our Year in Review is a snapshot of 2013, highlighting significant accomplishments that have contributed to our ongoing success. At PrintingHouse Press, we strive to continuously reinvent ourselves by frequently introducing new tools for our clients and for the appellate industry at large, and by staying ahead of the technology curve. As industry leaders, we are proud to set the standard.
Over the past decade, PrintingHouse Press has ascended in the appellate services industry from number six to number one in total appeals filed. We have built our reputation as the innovator in the appellate industry on the backs of willing, tireless and committed professionals. We have big ambitions, but more importantly – our clients have great expectations of us. Therefore, it is important to reflect on this past year to ensure that we are staying true to our business commitments while making our vision a reality.
In January 2013, we introduced the PHP-NYSCA Brief Repository – a free and fully searchable online database encompassing all New York State Court of Appeals briefs filed for the 2012 Term and later. We also created our LinkedIn discussion board – Appellate Lawyer PREParation – and released four editions of the PrintingHouse Press newsletter, which carries the same name as the discussion board and provides guidance on complex appellate court procedures.
We expanded our social media presence to include Twitter and presented our first CLE course, “Appellate Process at the New York State Appellate Division, First and Second Departments.” The course was filmed and produced by Lawline.com, a Division of FurtherEd, and focused on how to perfect civil appeals in the New York State Appellate Division, First and Second Departments. Throughout the year we increased our staff, guaranteeing an unmatched level of speed and accuracy in meeting our clients’ every need as well as the increased filing regiments of the Courts. We continue to embrace technology within the appellate services industry, and strive to utilize it to your, our clients’, benefit so that we remain your “go to” appellate services provider.
PrintingHouse Press remains committed to delivering the highest standards of excellence in the appellate services industry, all with accountability, humor and pride. It is our bedrock. We have several new initiatives ready to launch in the first quarter of 2014 and we could not have invested in the development of this technology without your business. We thank you for your loyalty.
As we leave behind 2013, we are excited for the future and will continue to keep you first and foremost as our number one priority. We look forward to strengthening our relationship with you in the coming year.
Appropriate Methods of Amending One’s Appellate Filings (Supplemental Records/Appendices v. Tip-Ins)
ERIC J. KUPERMAN ESQ. | Executive Vice President of Sales | PHP
In both Appellate Division, First and Second Departments, one may perfect an appeal utilizing either a Record on Appeal or an Appendix. When an Appellant files/serves an Appendix, the Respondent may file a Respondent’s Appendix as of right. The reason may be that the Appellant failed to include certain documents which the Respondent deems to be relevant to the appeal and which were, in fact,considered by the Trial Court Judge.
In the case of a Record on Appeal, however, if the Respondent believes that documentswere omitted by the Appellant, the options are more limited. If he brings it to theAppellant’s attention and the Appellant consents, the parties may stipulate to filinga Supplemental Record. If the Appellant refuses to consent, since a Record on Appeal is presumably complete in the eyes of the Court, the Respondent will be forced tofile a motion for permission to file a Supplemental Record. If granted by the Appellate Division, the Respondent may file a Supplemental Record. If denied, no Supplemental Record may be filed.
It should be noted that in instances where only a few pages were omitted from a Record on Appeal or Appendix, if the parties agree, the Appellant may “Tip-In” the appropriate pages to the previously filed Record. In this case, the Appellant’s printer would physically travel to AD1 or AD2 and insert the appropriate pages into the Record or Appendix along with a revised Table of Contents identifying the changes. Of course, the adversary is served with the pages being tipped into the previously filed Record. This is an extremely low-cost and expeditious solution which is oft used if the quantity of pages to be added does not warrant a Supplemental Record.
The bottom line is that both the Court and the parties to the appeal want a complete picture to be painted for the Appellate Division so that the Court may properly consider the arguments and the facts on appeal. To that end, very often, as long as the parties are on the same page, amending and/or supplementing one’s Record/Appendix can be a smooth process
Time to Perfect an Appeal in the Appellate Division First Department: 30 Days or Nine Months?
JONATHAN WALLACH | Senior Appellate Consultant | PHP
Pursuant to section 600.5(d) of the New York State Rules of Court, the record on appeal must be filed 30 days after the filing of the notice of appeal. However, pursuant to section 600.11(a)(3) of the same rules: “The clerk will place no civil appeal or cause on the calendar where the necessary papers and briefs are not offered for filing within nine months of the date of the notice of appeal from the judgment or order appealed from. . .”
On my first day on this job almost ten years ago, I read and re-read these two sections, flipping back and forth, attempting to understand how they could co-exist in a way that made sense. Does one have 30-days or nine months to perfect his or her appeal? On a good day, I will receive half a dozen phone calls demanding an answer to this question. On other days, I calm down nervous attorneys who insist their record on appeal must be filed within 30 days of filing their notice of appeal or disaster will ensue.
While nobody seems to be able to explain the reason for the contradictory rules, the court’s reasoning becomes clear when you examine their practical effects and how the two rules operate in conjunction. It is generally accepted that an appellant has nine months to perfect an appeal at the First Department. The appellant selects one of the calendar dates set forth on the First Department term calendar to perfect the appeal or he/she waits until the last day of the nine months. However, every once in awhile, the respondent moves to dismiss the appeal when the record on appeal is not filed within 30 days of the date the notice of appeal is filed as set forth in rule 600.5.
Unless there are other issues at stake, the response to this motion is to cite rule 600.11 and its nine month provision. The result is always the same: the court will conditionally grant the motion to dismiss the appeal unless the appellant perfects by a specific term deadline, usually way in advance of the expiration of the nine months.
Thus, it appears that the 30-day provision found in rule 600.5 remains on the books to allow the respondent to speed things up should he or she desire or require a quick resolution to the appeal.
Requesting Oral Argument in the New York State Appellate Division
MARIA ANDRADES | Senior Appellate Consultant | PHP
The method for requesting oral argument varies in the appellate courts across New York State. Some courts require the time to be proposed on the brief covers while others require submitting a specific request form to the clerk. Regardless of the method used, however, there is always a limit as to how much time each party may request.
In the Appellate Division, First Department (hereafter AD1), an Oral Argument Request form must be submitted on behalf
of all parties involved in the appeal in order to obtain argument time. Indicating on the cover that you will be arguing the case is insufficient. Your appeal will be scheduled for submission if the form is not filed in a timely manner. Pursuant to 600.11(f) of the rules of the First Department, the parties should confer and agree on the amount of time that will be requested for all parties; bearing in mind that a combined total of no more than 30 minutes is allowed for all the parties. If more than 30 minutes is necessary to give each party the opportunity to argue its point, a letter of explanation must be submitted to AD1. The Appellant usually files the Oral Argument Request form, but there is no rule which prohibits the Respondent from doing so.
In the Appellate Division, Second, Third and Fourth Departments, the responsibility for requesting argument time falls on each individual party filing a brief with the Court. The brief covers must contain the amount of time being requested. As with AD1, no more than a total of 30 minutes is allowed for argument time. The only exception is in the Third Department when the appeal is taken: (a) from a judgment; (b) in an action on submitted facts; or (c) in a special proceeding transferred submitted facts; or (c) in a special proceeding transferred or instituted in the Third Department. In these instances, each party is permitted 30 minutes of argument time. The Court of Appeals of the State of New York also allows 30 minutes per side for arguing.
In all New York State appellate courts, no more than one attorney is heard for each brief filed unless the Court grants permission (upon application prior to the argument date) allowing more than one attorney to argue. Moreover, if no time is requested, even if the cover reflects to be argued by, no time will be granted and the appeal will be decided exclusively on the filed documents.