Issue 1 │ Vol. 12 │Spring 2024

SERVING THE NEEDS OF APPELLATE LAWYERS

HOW TO PREPARE FOR ORAL ARGUMENT

ERIC J. KUPERMAN, ESQ. | Executive Vice President of Sales | PHP

To effectively prepare for oral argument at the Appellate Division, numerous factors and considerations must be taken into account. Of course, those arguing an appeal must know the Appellate Division is typically a “hot bench.” This means that counsel should be prepared to be peppered by the panel with questions and inquiries into the intricacies of the appeal. They should not be expecting to show up with a prepared speech to give. It is likely that within seconds of introducing oneself to the panel and indicating whom you represent, the Bench will spring forth with detailed questions as to the facts of the case, the applicable law and problems which present themselves to both Appellant’s and Respondent’s counsel.

All of this said, one should be prepared with a clear introduction, a statement of the issues, your arguments and a firm conclusion. However, you must be prepared to address the questions as they come from the Court. And very often, those questions can come in rapid succession from the panel.

You may presume when going into argument that all of the briefs submitted by counsel for all parties have been fully read, digested and considered by the panel hearing argument. Thus, there is generally no reason to start from scratch and explain the genesis of the case. Rather, one should focus on the strengths of one’s case at the outset and make the strongest arguments available. It is also advisable to anticipate questions based on the weaknesses presented by your case and be prepared to address those issues concisely and succinctly. You should be aware that although one may have requested 10 or 15 minutes of argument time, invariably, the Appellate Division will cut that time down dramatically and you will have only a few minutes to make your salient points to the Court.

For those who are before the Appellate Division regularly, they are accustomed to the process and procedure on the date of argument. For everyone else, it would be wise to sit in on oral argument in the weeks prior to your case being scheduled just to get accustomed to the environment. In addition, many find it helpful to assemble a “mock” bench before whom you can argue during practice sessions. In that way, you may be better equipped to handle objections to your positions taken in your brief. It will also enable you to maintain your composure when the time for argument is at hand. The bottom line is that preparation is key and will be the difference between an effective and ineffective experience before the Appellate Division.

INITIATING A NOTICE OF APPEAL IN THE NEW YORK COURT SYSTEM

MARIA ANDRADES | Operations Manager | PHP

Initiating a Notice of Appeal in the New York court system requires careful attention to electronic filing rules, specifically outlined in §1245.3 of the joint rules of the Appellate Division. This rule reflects the shift towards electronic filing, placing a significant responsibility on lawyers representing the appellant or petitioner. Within 14 days of filing a notice of appeal or the court’s order granting leave to appeal or transferring a matter, attorneys must complete two critical steps.

First, they need to register or confirm their registration as authorized e-filers through NYSCEF (New York State Courts Electronic Filing system). Second, lawyers must input crucial case and party information into NYSCEF and e-file necessary documents following the court’s guidelines. Adhering to these electronic filing procedures within the specified timeframe is more than just a procedural requirement; it’s an essential tool for making the appeals process smoother. This underscores the growing importance of embracing technology in the legal field.

It’s crucial to note that the failure to register the notice of appeal on time, as emphasized in §1245.3, can lead to serious consequences. Missing the registration deadline complicates requests for additional time or withdrawal of the appeal. This step isn’t merely a formality; it plays a vital role in ensuring a streamlined and efficient legal journey. Therefore, timely registration isn’t just a rule to follow—it’s a safeguard against potential complications in the appellate process.

WHEN AND HOW TO PROCEED ON A 6×9 FORMAT OR IS IN FORMA PAUPRIS BETTER?

PAUL LAMAR | Executive Vice President of Appellate Services | PHP

In most cases in the United States Supreme Court, every document fled with the Court shall be prepared in a 6 1/8- by 9 1/4-inch booklet format using a standard typesetting process to produce text printed in typographic characters. The most common fonts used are New Century Schoolbook or Century Schoolbook using a 12-point type with 2 point or more leading between lines. If footnotes are to be included they must be prepared in 10-point type with 2 point or more leading between lines. Since this can be an arduous task for some attorneys, they may look to an appellate printer to have a typesetter handle the preparation of the document.

A party seeking to proceed in forma pauperis “poor person relief” shall file a motion for leave to do so, together with the party’s notarized affidavit or declaration (in compliance with 28 U. S. C. § 1746) in the form prescribed by the Federal Rules of Appellate Procedure, Form 4. The motion shall state whether leave to proceed in forma pauperis was sought in any other court and, if so, whether leave was granted. If the court below appointed counsel for an indigent party, no affidavit or declaration is required, but the motion shall cite the provision of law under which counsel was appointed, or a copy of the order of appointment shall be appended to the motion.

A large majority of documents, i.e. Petition for Writ of Certiorari, Petition For Writ of Mandamus, Briefs, Opposition Briefs, etc., are prepared in the 6 1/8 by 9 ¼ inch booklet. The court does allow documents in 8 ½ x 11 format when the Motion to file In Forma Pauperis is approved. This is normally reserved for a party and/or parties who are not capable of bearing the expense of a document prepared in the 6 1/8 x 9 ¼ booklet form.

I WANT TO FILE AN INTERIM RELIEF APPLICATION IN AD1. WILL THE COURT PERMIT THE INITIAL SUBMISSION TO BE FILED AND SERVED IN HARD COPY?

VICTORIA RAMOS | Sales Consultant | PHP

Interim relief applications must be filed with the Appellate Division First Department when seeking specific relief from the Court that cannot be requested via stipulation, letter application, or a standalone motion. If you must file such an application, you may wonder what the requirements are for serving and filing the application with the Court. Applications for interim relief and the accompanying motion papers must be electronically filed on the appellate docket under the applicable case number. If there is full participation on the appellate docket or more than 20-days have elapsed since the notification of case number was served, you are not required to serve a hard copy on opposing counsel. All parties will receive an electronic notification of the filing from the NYSCEF system if they’ve recorded their representation. If any party has not recorded their representation on the docket after 20-days from the date the notification of case number was served, the Court considers those parties served via NYSCEF. However, they will not receive notifications of filings from NYSCEF. If you would like, you may serve opposing counsel with a courtesy copy— but it is not required.

There are, however, a few circumstances where the initial submission is not e-filed on the appellate docket. If you are filing the application in an original proceeding, the application must be served in hard copy and filed via the digital submissions AD1 portal. If you are a self-represented litigant, you are exempt from e-filing and must serve and file the initial submission in hard copy. The Court will allow self-represented litigants to participate in e-filing voluntarily. If you are a self-represented litigant— who decided to participate in e-filing voluntarily— your application must be e-filed on the appellate docket.

While hard copy service is not required— in all circumstances— the Court is now enforcing rule 1250.4(b)(2) for interim relief. This rule requires that your affirmation in support indicates that you have given your adversary notice of the day and time when you are filing the application. Your affirmation must also state the manner in which the notice was given. The interim application form will also have a section where you must indicate if you have notified your adversary and if they have consented. All in all, interim relief applications can be tricky. If you have any further questions regarding the procedure for filing an interim application, feel free to contact me directly. I will be happy to walk you through the process.

ARE CO/CROSS-APPELLANTS REQUIRED TO SHARE IN THE COSTS OF A JOINT RECORD/APPENDIX IN AD3 AND AD4?

KEVIN MOMOT | Senior Sales Consultant | PHP

Whether involving a cross-appeal (appellants’ interests are adverse to each other) or a concurrent appeal (appeals taken separately but not adverse to each other) from a single order or judgment, Statewide Appellate Practice Rule 1250.9(f) specifies that a Joint Record or Appendix should be prepared. Parties must consult to determine the contents of the Record/Appendix and costs for preparing/filing shall be shared equally.

Specifically, Rule 1250(f)(1)(ii) addresses the cost sharing requirement for cross-appeals, noting:
(ii) The appealing parties shall file a joint record or joint appendix certified as provided in section 1250.7(g) of this Part and shall share equally the cost of that record or appendix; (emphasis added).

Rule 1250(f)(2) requires the same for a concurrent appeal from a single order or judgment, stating:
(2) Concurrent appeals from a single order or judgment. In concurrent appeals, the appellants shall perfect the appeals together, without motion, in the period measured from the date of the latest notice of appeal. The appellants shall file a joint record or joint appendix certified as provided in section 1250.7(g) of this Part and shall share equally the cost of that record or appendix. (Emphasis added).

Both the Third and Fourth Depts. do not have any rule that differentiates or contradicts this cost sharing requirement (see Third Dept. Rules of Practice Part 850 and Fourth Dept. Rules of Practice Part 1000, respectively). It is important for the appellants to confer with each other to determine and agree to the contents of the Joint Record/Appendix (and discuss costs to prepare it). Most appellate services providers can create separate invoicing for each appellant for their share to prepare/file the Joint Record or Appendix. If a party has filed a Notice of Appeal but is not going forward, it should be formally withdrawn – the Notice of Appeal will be excluded and the Record/Appendix will no longer be joint.