DON’T SELL YOUR CLIENTS SHORT

ERIC J. KUPERMAN | Executive Vice President of Appellate Services | PHP

When it comes to hiring an Appellate Services Provider, there is no substitute for experience.

Would you take a flight on a new airline you’d never heard of? Would you let your children drive a car that had never been market tested? Would you entrust your litigation files to a law firm without any litigation experience? Would you let a medical resident perform open heart surgery on your relative? And would you do any of the foregoing even if the price were cheap and, therefore, ostensibly “right?”

The answer is a resounding “no!” And yet some pop-up services, purporting to have attorneys’ best interests at heart, cannot possibly bring the experience, dedication, access to resources and general know-how that PHP offers to its clients. Attorneys invest countless hours and thousands of dollars into their caseloads. They go to great lengths and unimaginable expense to ensure that they have procured the best experts, the top-of-the-line doctors, engineers, investigators, court reporters and other specialists necessary to facilitate great results in the halls of justice.

Why on earth would any attorney handling an appeal on the very same case decide anything less is acceptable when it comes to appellate services? It just doesn’t make sense! The appeal is often the last attempt to obtain a good result for one’s client. Don’t hire a fly-by-night operation purporting to offer remote paralegal services having no proven record. Hiring outside contractors without experience with the New York Courts is shortsighted and your clients won’t be happy with a few dollars of savings on the front end if their cases aren’t properly handled on the back end.

An attorney who wants to present his or her best to the Appellate Division should feel comfortable knowing that the appeal is in good hands. There can be no substitute for the experience that PHP brings to the table.

Choose PHP-a leader in Appellate Services, and recognized by attorneys and Court personnel as such, for over four decades.

HOW IS THE ARGUING ATTORNEY CHANGED IN THE
APPELLATE DIVISION FIRST AND SECOND DEPARTMENTS?

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.

WHAT IS THE PROCEDURE FOR WITHDRAWING AN APPEAL?

VICTORIA RAMOS | Appellate Consultant |PHP

There are many instances where attorneys may find that they no longer need to perfect an appeal. One of the most common instances is settlement, when the parties to the appeal reach an agreement and settle the case. Another instance is a favorable decision on a subsequent motion to reargue.

If you file a Notice of Appeal with the Appellate Division and decide not to perfect the appeal, the Court requires that you formally withdraw the appeal. The procedure for withdrawing an appeal in the Appellate Divisions is to file a letter addressed to the Clerk of the Court, copying all parties to the appeal and informing them that you are withdrawing the appeal.

Most of the appeals in the Appellate Division are required to be e-filed at the appellate level. If the appeal you are withdrawing is required to be e-filed at the appellate level, the letter is filed electronically with the Court via the New York State Court’s Electronic Filing (NYSCEF) system. If the case is not required to be e-filed, the letter is emailed to the Clerk’s Office and is not required to be filed electronically on the NYSCEF system. A copy of the letter withdrawing the appeal must be emailed to all the parties involved in the appeal.

HOW IS A BRIEF FORMATTED IN EITHER THE APPELLATE TERM, FIRST DEPARTMENT OR THE APPELLATE DIVISION, FIRST DEPARTMENT.

JOSEPH ALVAREZ | Senior Paralegal | PHP

Whether preparing an appellate brief for the Appellate Division, First Department (AD1) or the Appellate Term, First Department (AT1), the contents of the brief are set in stone. Specifically, regardless of the court, a brief should include the following: “Table of Contents”, “Questions Presented”, “Statement of the Case”, “Statement of Facts” and “Legal Argument”. Briefs being filed in either court may also include an optional “Preliminary Statement” or “Conclusion”. However, that’s where the similarities end — a brief being filed with AD1 must include a “Table of Authorities” and “Printing Specifications Statement” (word count), and an Appellant(s)’ opening brief must also include a “5531 Statement”.

Text formatting requirements are also substantially different between the two courts. Briefs being filed with AD1 must use fonts from the serif family (e.g., Times New Roman, Courier New, etc.), and depending on the chosen font (proportionally spaced vs. monospaced), the font sizes must be either 14-point with 12-point footnotes or 12-point with 10-point footnotes, respectively. AT1, on the other hand, does not have any font requirements and any font type or size may be used so long as the text is legible. There are also differences in how emphasis may be shown as AD1 briefs are not permitted to include bold or all-caps.

 However, when formatting paragraph spacing, both courts require that briefs be double-spaced with the exception of headings, indented quotes and footnotes, which may be single-spaced.

The last set of formatting requirements are specific to the word/page limits of briefs. Opening briefs being filed with AD1 are limited to 14,000 words, whereas AT1 opening briefs cannot exceed 50 pages. Reply briefs being filed in AD1 are limited to 7,000 words and AT1 reply briefs are limited to 20 pages.

Lastly, when printing hardcopies of briefs in either court, the following guidelines apply: briefs should be printed on 8.5” x 11” paper with 1” margins on all sides, pages must be sequentially numbered, and briefs must be bound on the left side with a brief cover.

WHEN AND HOW TO GO ON A 6×9 FORMAT OR IS FORMA PAUPERIS BETTER?

PAUL LAMAR | Executive Vice President of Appellate Services | PHP

In most cases in the United States Supreme Court, every document filed 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.