ISSUE 2 │ VOL. 6 │ SUMMER 2018

HOW TO CHANGE THE ARGUING ATTORNEY IN THE APPELLATE DIVISION FIRST AND SECOND DEPARTMENTS

MARK VIRAG |
Senior Appellate Consultant | PHP

Oral argument may be requested in both AD1 and AD2. They each have their own method of requesting time. Similarly, each have their own protocol when the arguing attorney is not able to argue the appeal and is requesting another counsel to argue in his/her place.

When requesting a different counsel to argue in the Appellate Division, First Department from the one stated on the cover, one must submit a letter to the Court stating the name of the attorney who will now be arguing the appeal. The name of the new counsel arguing the matter must be placed on each copy of the brief(s) that have been filed with the Court. This should be done as soon as it is clear that the original counsel will not be able to argue the case, but the Court will allow you to make the change up until thirty (30) minutes before oral argument is to be heard.

The Second Department has a more relaxed approach as to who, in the end, will argue the appeal before them. In AD2, you may send them a letter advising that new counsel will appear for oral argument, if time permits. Otherwise, this Court will allow new counsel to argue the appeal as long as he/she advises the Court on the day of oral argument prior to the commencement of the calendar call.

Appellate Division Second Department: Multiple appellants?
A briefing schedule can simplify, but is not critical.

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

In the Second Department, the deadlines by which attorneys must file are governed by the date on which the previous filer has filed and served, as well as by the manner of that service – e.g. efile, regular mail, personal service, etc. (For instance, if served by regular mail, the next opposing brief receives an additional five days to file and serve his brief on top of the statutorily permitted time. For purposes of this posting, all time limits are computed based on personal service and/or efiling.)

Accordingly, once Notices of Appeal are filed, appellate designations are determined and the primary appellant has filed and served his/her brief, the balance of the briefs to be filed with respect to the appeal will fall naturally into place depending on those designations and the dates and methods of service of the immediately preceding brief.

To the extent multiple appellants are Co-Appellants in the Second Department (i.e. they are completely aligned in interest), they must file their briefs on the same day. Thereafter, the Respondent(s) would file 30 days later and the Co-appellants would file Reply Briefs simultaneously 10 days later.

If, however, the multiple appellants (at least two) are Cross-Appellants (i.e. they are adverse in interest), the timing of filing and service changes. The Appellant- Respondent (the filer of the first Notice of Appeal) and Respondent-Appellant (the filer of the second Notice of Appeal) file as if they were Appellant and Respondent, the difference being that the Respondent-Appellant will be entitled to the last word in his Reply Brief (in further support of his/her Cross-Appeal).

The waters get muddy, however, where there are two or more Cross-Appellants (i.e. Appellant-Respondent and Respondent-Appellant) and at least one Respondent who is adverse to both the Appellant-Respondent and Respondent-Appellant. While a briefing schedule might clarify the timing of the filings for the parties involved, the Second Department will be well aware of the appellate designations of the parties based upon the first filing and the RADI as well as the respective deadlines by which briefs must be filed. To wit, the Respondent would wait to file and serve a Respondent’s Brief until after both the Appellant-Respondent and Respondent-Appellant have filed. The Respondent-Appellant’s brief will have been in opposition to the Appellant-Respondent’s brief as well as in support of its own cross-appeal.

The Respondent then receives 30 days from service of the Respondent-Appellant’s Brief (i.e. 60 days after the Appellant-Respondent filed the opening brief in the appeal). Thereafter, the Appellant-Respondent would file a Reply Brief (in further support of its original brief and in opposition to the Respondent-Appellant’s Cross-Appeal). Finally, the Respondent-Appellant would then file the final Reply Brief (in further support of his/her cross-appeal) in the sequence within 10 days of the Respondent-Appellant’s Reply Brief.

Complicated? Yes. But the timing and brief deadline requirements in the Second Department obviate the need for a briefing schedule. As a caveat, although a briefing schedule is not a necessity, it behooves a Respondent to confer with the multiple appellants to ensure that his/her Respondent’s Brief is not filed prematurely. The Respondent only has one bite at the apple. Surely you would not want to file a Respondent’s Brief after receiving the first Appellant’s Brief only to be served thereafter with a Cross-Appellant’s Brief, to which you would no longer be entitled to respond.

APPELLATE DIVISION, SECOND DEPARTMENT: WHEN MUST COLOR PHOTOS BE INCLUDED IN A RECORD ON APPEAL?

JOHN MCGORTY | Executive Vice President of Business Development | PHP

On a weekly basis, we are confronted with questions surrounding rules and procedures relating to the inclusion of color photos in a Record on Appeal. The rule is quite simple here: if the photos were filed in the lower Court in color, then the Second Department requires them to be filed in color as well. However, there are instances when these photos are no longer available. In these cases, a simple letter stating that the photos are no longer available must be presented at the time the Record on Appeal and Appellant’s Brief are filed. Even if black and white photos were filed in the lower Court, the Appellant must provide a letter stating that no color photos exist or that color photos were not filed in the Court below.

Prior to perfecting an appeal in the Second Department where color photos have been filed in the Court below, it is always best to contact opposing counsel to try and obtain the color versions. In an ongoing appeal, the Respondent came to me after having been served with a Record on Appeal that did not contain the color version of the exhibits he had filed with the Court below. In order to allow the Appellant to remove the black and white photos and replace them with the color version, this appeal had to be adjourned for 60 days from the date the Respondent’s Brief was originally due. Furthermore, the cost associated with amending the Record, or filing a Supplemental Record, will fall back on the Appellant. Therefore, it is best to address and resolve any potential issue with respect to color photos prior to perfecting the appeal.

*Note: The First Department does not require color photos regardless of whether they were filed in color in the Court below.

Are oral argument transcripts of the underlying motion being
appealed appropriate for inclusion in a Record on Appeal?

JIM COONAN | Senior Appellate Consultant | PHP

Oral argument transcripts (when available) should always be included in any record on appeal submitted to an appellate court. Arguments held before the lower court give the appellate court an invaluable insight into the reasoning employed in reaching the decision and order appealed from. There is often give and take between the attorneys and the lower court justice over points of fact and law, which are important to take into consideration on the appellate level.

A transcribed lower court argument also removes any doubt on the appellate level as to whether or not the lower court justice misapprehended any arguments before him/her. In the case of complicated and extensive motion practice, it can give the appellate court a clearer and more concise idea of the process employed by the lower court in reaching its decision. It also provides a mapping of the relief sought and the opposition thereto.

Positions stated in the transcribed argument would now be considered factual parts of the record on appeal and must be included. Also any decisions stated by the lower court justice on the record would carry the same weight as a written
memorandum of opinion and can be considered in the same manner by an appellate court.

New Practice Rules of the Appellate Division

The Appellate Division, First and Second Departments require that a word count certification be included at the end of every brief filed. Along with the word count of the brief, these certification pages include the type of font used, the size of the aforementioned font and the line spacing, which should always be double.

In both the First Department (Printing Specifications Statement pursuant to 22 NYCRR § 600.10(d)(1)(v)) and the Second Department (Certificate of Compliance pursuant to 22 NYCRR § 670.10.3(f)), Appellant and Respondent Briefs are limited to 14,000 words and 70 pages and the Reply Brief is limited to 7,000 words and 35 pages.

Neither the Table of Contents/Authorities nor the signature block at the end of the brief need be included in the word count. It is, however, imperative that the footnotes be included when calculating the word count. One should therefore ensure that the word processing program being utilized has accounted for footnotes to avoid the last minute pressure of having to deal with eliminating text from an oversized brief the day the brief is due.