ISSUE 2 │ VOL. 4 │ SUMMER 2016
The September Term in the Appellate Division, First Department
ERIC J. KUPERMAN | Executive Vice President of Sales | PHP
JOHN MCGORTY | Executive Vice President of Business Development | PHP
As you are probably aware, the upcoming September Term is the first AD1 Term filing deadline since the June Term. Since no appeals are heard or submitted 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, every Record and Brief filed during the break period from March 22 through July 11 is (in theory) calendared for the September Term.
In reality, of course, the September Term has a finite amount of space on the calendar for appeals to be heard, just like every other Term. Thus, it is inevitable that a number of appeals filed for the September Term may ultimately be bounced by AD1 to the October Term. This will mean that you might not have your appeal decided until the end of the year (or perhaps even the beginning of 2017). It is prudent, therefore, to file sooner rather than later for the September Term. By filing before the July 11 deadline, you will be providing more time for the Respondent to put in an opposing brief (the Respondent’s Brief deadline is August 10), but you are also reducing the likelihood that your appeal will be bounced to the October Term.
Of course, there is no guarantee that the appeal will not be bounced even if you file prior to July 11. But some feel that it is worth a shot.
The Appendix Method at the Appellate Division,Third and Fourth Departments
Senior Appellate Consultant | PHP
In essence, an Appendix is an abbreviated Record on Appeal. When a trial goes on for weeks but only a portion of the transcript is pertinent to the appeal, an Appendix can be filed in order to eliminate the additional documents that could possibly dilute the Appellant’s argument. Our clients will often choose to file an Appendix instead of the traditional Record on Appeal for this reason or simply because the Appendix method is usually more cost-effective.
When an Appellant files an Appendix with the Appellate Division, First or Second Department, these Courts require that the lower Court file be subpoenaed to the Appellate Division. Once the subpoena is so-ordered by the Appellate Division and filed with the county Court, it is the lower Court clerk’s responsibility to transmit the documents to the Appellate Division.
However, when an Appellant perfects an appeal on the Appendix method in the Appellate Division, Third or Fourth Department, these Courts require that one copy of the Record on Appeal be served and filed in addition to the Appendix. This means that after compiling the Appendix documents, numbering the pages, creating headnotes and an Appendix table of contents, the Appellant must repeat these steps for a Record on Appeal, including even those documents which the Appellant elected to exclude from the Appendix. According to the rules of appellate practice for the Third and Fourth Departments, the Appellant is required to serve and file a single copy of the full Record on Appeal in addition to filing 10 copies (and serving 2) of the Appendix.
If you are filing an Appendix in either the Third or Fourth Department in order to save money, you might be cutting off your nose to spite your face. Unless the anticipated Record on Appeal would be exceedingly large, it usually is more efficient in AD3 and AD4 to simply compile a Record on Appeal instead of serving and filing both an Appendix and a Record.
Sending Your Record on Appeal to an Appellate Services Provider: Achieving Efficiency via Client Web Portals
ERIC J. KUPERMAN ESQ. | Executive Vice President of Sales| PHP
New York State’s Appellate Courts have always maintained strict requirements with which attorneys must comply when they perfect appeals. Among them is the requirement that a Record on Appeal or Appendix be filed with the Court where the appeal is to be heard. This constitutes a compilation of the documents (motions, pleadings, exhibits, transcripts, etc.) which were considered by the lower Court’s Judge in rendering the Order that is the subject of the appeal.
That process has historically been completed by the attorney providing hard copies of the above-mentioned documents to an appellate service provider (hereinafter “ASP”) so that the Record may be prepared in compliance with the rules of the Appellate Courts. Logistically, however, this requires documents to be physically delivered to the ASP, whether personally or via overnight mail. For attorneys who do not wish to give up their originals, someone in the law firm must go through the record page by page and create a duplicate copy.
Enter the era of the web portal. It is increasingly common for law firms to maintain scanned (or converted) PDFs of all documents utilized in litigation; especially for matters electronically filed in the lower Courts. That means that if a case goes to appeal, they already have an electronic copy ready to go. Even just a few years ago, a CD would be burned and delivered to the ASP. Today, web portals (provided at industry-leading ASPs) are emerging as an alternative to traditional document-sharing methods, and they are clearly the optimum delivery method from the perspective of both the law firms/attorneys and the ASPs.
Such platforms enable attorneys to upload documents in a matter of minutes and for the ASP to download them and begin its work. There is no concern that a file is too large and might not make it through an email filter; size does not matter. All that matters is that the attorney has saved time and resources on his/her end, and that the ASP has gained precious hours and even days in preparing the Record proof for its client. This is particularly crucial when there is a fast-approaching appellate deadline to be met. For attorneys, it’s all about efficient use of time, and sharing/delivering documents via web portal helps them to achieve maximum efficiency.
Moreover, some of the more advanced ASPs, such as PrintingHouse Press, offer additional comprehensive functionality in their web portals that enable attorneys to track the status of their appeals, including up-to-the-minute service and filing confirmation, and notice of oral argument and decision dates—all through the attorney’s desktop or mobile device and on a moment’s notice.
What are Forms A, B, C and D at the 2CA?
PAUL LAMAR | Executive Vice President of Appellate Services | PHP
When appealing a case in the Second Circuit, the Appellant must upload two forms to the Second Circuit’s ECF (electronic case filing) system prior to providing a scheduling notification pertaining to the appeal. Which two forms are required will depend on whether the case is civil or criminal.
For Civil Cases: Forms C and D
In civil cases, the Appellant must upload Forms C and D to the ECF system.
Form C: Civil Appeal Pre-Argument Statement. This gives a brief description of the appeal (e.g., caption of the case, contact information for the parties’ attorneys, disposition of the district Court and the nature of the case, to name a few items). This form must also be served on all parties.
Form D: Civil Appeal Transcript Information. This tells the Second Circuit whether or not a transcript is being ordered, and if not, the reason why. The Appellant also needs to provide a description, including dates of the proceedings for the transcripts required.
Forms C and D must be uploaded within 14 days after the Notice of Appeal has been uploaded. For a simple rundown of how to appeal civil cases at the Second Circuit, click here. You can download both forms from PrintingHouse Press’s website at https://phpny.com/federal-courts.
For Criminal Cases: Forms A and B
When appealing a criminal case in the Second Circuit, the Appellant needs to upload Forms A and B to the ECF system instead of Forms C and D.
Form A: Criminal Notice of Appeal. This lists the caption of the case, what the appeal concerns, whether the defendant was found guilty by plea or trial, the dates of the offense and sentence, bail/jail disposition, and so on.
Form B: Criminal Appeal Transcript Information. This form lists the caption of the case, docket number, and counsel’s name and contact information. Primarily, the document is used to determine whether a transcript needs to be ordered or is readily available. The transcript can be pre-trial proceedings, trial transcripts, sentencing transcripts or post-trial proceedings.
Form A must be filed with the District Court within 14 days of entry of the Judgement or Order being appealed. Form B must be uploaded within 14 days of the date the Notice of Appeal was filed. For a simple description of how to appeal criminal cases at the Second Circuit, click here.
Certified Questions from the Second Circuit Court of Appeals to the New York State Court of Appeals
JIM COONAN | Director of Appellate Services | PHP
Whenever it appears to the Supreme Court of the United States, any United States Court of Appeals, or a court of last resort of any other state that determinative questions of New York law are involved in a case pending before that court for which no controlling precedent of the [New York State] Court of Appeals exists, the court may certify the dispositive questions of law to the [New York State] Court of Appeals.
Rules of Ct of Appeals [22 NYCRR], § 500.27 (a)
There is confusion about the form a certified question from the Second Circuit Court of Appeals (2CA) to the New York State Court of Appeals (NYSCA) should take. Attorneys have been under the impression that they should take the Joint Appendix or Appendix that was filed in the Second Circuit and simply re-file it with a different caption for New York State’s highest court.
This is incorrect. A certified question should mirror the form of an appeal being filed with the NYSCA that was previously heard at the Appellate Division level. Headings and page numbers should be on the top of each document and must match the entries in the table of contents. The cover should conform to all the requirements of the NYSCA, not the Second Circuit requirements. The accompanying briefs should also comply with the NYSCA rules.
The one benefit of filing a certified question with the NYSCA, as opposed to an appeal from a decision of the Appellate Division, is that there is no filing fee.
For more information regarding certified questions, please proceed to the NYSCA Rules.