ISSUE 2 │ VOL. 3 │ SUMMER 2015
Deferred Appendices at the Second Circuit
PAUL LAMAR | Executive Vice President of Appellate Services | PHP
When filing an appeal in the United States Court of Appeals for the Second Circuit, most Appellants file an Appendix to accompany their Appellant’s Brief. The Appendix includes the documents to be cited to by all the parties in their Briefs.
However, local rule 30(c) of the Second Circuit provides that parties may file a Deferred Appendix as provided in FRAP 30(c), if the parties stipulate, or if the Court’s own Motion directs. This method eliminates the need to ascertain in advance which documents the parties will need to cite to. The Deferred Appendix is normally used in instances when the parties cannot decide which documents will be contained in the Appendix until they have written their Briefs. Some law firms also use this method as a cost-cutting measure because it limits the number of pages reproduced in the Appendix to those truly necessary for the arguments in the Briefs.
In instances when a Deferred Appendix is to be filed, the Appellant and Appellee file page-proof Briefs with citations directly to the Record documents listed on the lower Court’s Docket Sheet. Once the page-proof Reply Brief is filed by the Appellant, the Deferred Appendix will need to be filed within seven days, containing all the documents cited to in all the page-proof Briefs. Fourteen days after the filing of the Deferred Appendix, the final-form Briefs are filed with citations to the Appendix, replacing the Record citations that were in the page-proof Briefs.
To sum up, when filing a Deferred Appendix, please keep in mind that two Briefs are required to be filed by each party: page-proof and final-form. The page-proof Brief contains citations to the Record, and the final-form Brief contains citations to the Appendix.
New York State, Appellate Division: CPLR § 2105 v. CPLR § 5532
ERIC J. KUPERMAN, ESQ.
Executive Vice President of Sales | PHP
The most frequent method of certifying that a Record on Appeal is accurate for the Appellate Division is the execution of a Statement Pursuant to CPLR § 2105. This essentially notifies the Appellate Division that the documents contained within the Record on Appeal have been compared by the signing attorney to the original documents in the lower Court’s file, and have been found to be true and complete copies of said originals. This is the last page of the Record on Appeal. The First, Second and Third Departments will not accept a Record on Appeal without it.
Alternatively, the parties may also execute a Stipulation Pursuant to CPLR § 5532, which states that the documents included in the printed volume do in fact constitute the entire Record on Appeal. Frankly, there is no reason to execute a § 5532 Stipulation when a § 2105 will do. Why burden yourself with having to obtain consent from all counsel appearing in an action when it’s not necessary? A § 2105 will almost always do the trick.
However, the Appellate Division, Fourth Department presents the one exception to the rule, to wit, the § 5532
Stipulation is mandatory. If you try to file a Record with a § 2105 instead of a § 5532, the Record will be summarily rejected. This means that long in advance of the deadline to file, it behooves the attorneys involved to ensure that they are on the same page and to assemble what they know to be the entire Record on Appeal. Absent the inclusion of the § 5532, AD4 will reject the Record on Appeal at the time of attempted filing.
AD1 No Longer Accepting Motions to Enlarge the Time to File Respondent Briefs—Only Emergency Applications
JOHN MCGORTY | Executive Vice President of Business Development | PHP
Traditionally, the First Department has allowed Respondents to file a motion to enlarge the time to file a Respondent’s Brief if they cannot obtain a stipulation to adjourn. Recently, however, the Court has not accepted such motions, but instead has directed Respondents to seek emergency relief on application.
The most obvious explanation behind the change in procedure is quite simple. The normal course of motion practice, and ultimately obtaining a decision, is time-consuming. Essentially, by filing a motion to enlarge, you are adjourning the appeal. It typically takes about four to six weeks for the Court to decide a motion. Therefore, by the time it takes the Court to rule, you are already way beyond the current deadline within the Term for which you are noted.
You must now notify all parties with an appellate designation 24 hours prior to filing an emergency application in person at the Court. This will allow opposing parties to appear before the motions clerk and state their objections. Otherwise, you bring copies of your supporting papers and submit the emergency application in the same manner you would file an Order to Show Cause. The clerk will allow for opposing parties to submit papers, and decide on the application relative to the circumstances surrounding the request.
How to obtain extensions of time for filing Records and RespONDENT Briefs in AD3 & AD4
MARK VIRAG | Senior Appellate Consultant | PHP
Below are guidelines regarding how to request an extension of time to perfect an appeal or file a Respondent’s Brief in the Appellate Division, Third and Fourth Departments.
Perfecting an Appeal – Third and Fourth Departments.
When seeking additional time to perfect an appeal in either of these departments, the Appellant must file a Motion prior to the expiration of the nine-month deadline with a supporting Affidavit stating the merits of the case and demonstrating a reasonable excuse for the delay. The supporting Affidavit should also state the time in which the Appellant intends to perfect the appeal. The Motion and the supporting papers need to be served upon all parties.
Filing a Respondent’s Brief – Third Department.
When requesting extra time to serve and file a Respondent’s Brief in the Third Department, the Respondent may simply call the Court to request up to 30 additional days. Any time after the 30 days must be agreed upon with the adversary. In that case, the Respondent would then write a letter to the Court, copying all parties involved.
Filing a Respondent’s Brief – Fourth Department.
In order to request an extension of time to file a Respondent’s Brief in the Fourth Department, the Respondent must serve and file a Motion with a supporting Affidavit stating the reasons for the request prior to the filing deadline.
The September Term in the Appellate Division, First Department
ERIC J. KUPERMAN ESQ. | Executive Vice President of Sales | PHP
JOHN MCGORTY | Executive Vice President of Business Development | PHP
As you are probably aware, the filing deadline for the upcoming September Term in AD1 is July 13th. The September Term is the first AD1 Term since June. Since there are no appeals heard or submitted (Terms) during July or August, the September Term tends to quickly become overloaded with appellate filings. Attorneys who missed filing for the June Term, as well as those whose appeals were bounced by AD1 from the June Term, are all vying for a spot on the September Term calendar. In other words, all the Records and Briefs filed during the “break period” between March 24th and July 13th are theoretically calendared for the September Term.
In reality, the September Term has a finite amount of space on the calendar for appeals to be heard, just like any other Term. Thus it is inevitable that a number of appeals filed for the September Term will be bounced by AD1 to the October Term. This means that your appeal might not be decided until the end of the year, or perhaps even the beginning of 2016. It is prudent, therefore, to file sooner rather than later for the September Term and not necessarily wait until the July 13th deadline. By filing early, you will be providing more time for the Respondent to put in an opposing Brief (the Respondent’s Brief deadline is August 12th), but you’re also reducing the likelihood that your appeal will be bounced to the October Term.
Of course, your appeal may be bounced even if you do file prior to July 13th; there’s no guarantee. But some feel that it is worth a shot.