ISSUE 3 │ VOL. 2 │FALL 2014

Docket Numbers at the Appellate Division, Second Department

CARMEN OTERO |  Appellate Consultant | PHP

When perfecting an appeal in the Appellate Division, First Department, the lower court index number is used to identify all of the documents filed. However, after filing a notice of appeal to be perfected at the Appellate Division, Second Department, a docket number will be issued. Each Order/Judgment, together with their respective notice(s) of appeal, will carry a specific docket number. In the event that one finds oneself appealing from multiple Orders and/or a Judgment being perfected in a single Record, the Second Department will still assign each Order/Judgment (with respective Notices of Appeal) a different docket number.

In the past, a docket number was issued promptly after the filing of the notice of appeal. If an Appellant was required to perfect an appeal before a docket number could be issued, the clerk of the Second Department would simply issue a docket number at the time of filing of the Record/Appendix and Brief. However, due to a large increase of appeals being filed at the Second Department, this is no longer the case. Currently, it can take several months for a docket number to be issued after the notice of appeal is filed.

In view of the fact that a docket number is required for all appeals perfected at the Second Department, problems can arise whenever an Appellant must perfect an appeal expeditiously. At present, in order to obtain a docket number quickly, the Appellant must bring a copy of the stamped “filed” notice of appeal, Order/Judgment being appealed and the RADI form to the Second Department. The Court will issue a docket number the next day and the Appellant will be able to label their Record/Appendix and Brief accordingly.

The Court considers this accelerated approach of receiving a docket number to be a method that is only carried out under extreme circumstances. As a result, the clerks will make a note in their system that a docket number has been issued in this manner and expect to see the appeal served and filed within the next two or three days. It is best not to go through this process uncertain of whether or not you will be filing without ado, to then find yourself perfecting the appeal months down the road. This exclusive request should be made prudently and judiciously as one never wants to run the risk of displeasing the Court.

Complying with the Ever-Expanding and Changing Clerks’ Requirements

Executive Vice President of Sales | PHP

Students enter law school and spend three years venturing to learn theories behind cases, statutes, regulations, ordinances, etc. They debate, reason and argue as to the legitimacy of Court rules and Judges’ rulings. After passing the Bar Exam, they discover a new reality: no matter how well they did in Civil or Criminal Procedure as a first year law student, there is one law that reigns supreme – Clerk’s Law.

This holds true at all stages of the judiciary, but in particular, at the appellate level. And for good reason too. While the rules of appellate procedure delineate a multitude of requirements, they do not (and cannot) cover every contingency.

Attorneys who do not file many appeals and/or do not follow the appellate courts closely may have difficulty staying current with the ever-changing Clerks’ Requirements. The last thing you want to have happen, after spending all of your time and resources ensuring you have a winning legal argument, is to have your brief rejected because you were not aware of a particular requirement.

Being employed by a vendor specializing in the appellate field (an appellate services provider, to be precise), I may be biased in my beliefs. However, nearly all appellate attorneys or appellate counsel enjoy and benefit from working with experienced appellate consultants. Given that appellate service providers serve many attorneys on a daily basis, they typically have the most current knowledge of the appellate landscape. An experienced appellate consultant can guide you through the sometimes unexpected requirements of the various clerks of the Courts.

Many clients do not think about hiring or consulting an appellate services provider until right before perfecting an appeal. Sometimes that is too late. Bear in mind that many critical deadlines occur soon after the entry of a final judgment or appealable order. It is wise to consult an appellate services provider soon after learning of an appealable order or judgment. In addition to expert appellate consultants and paralegals confirming that all appellate documents are in compliance with the rules and internal operating procedures of the appellate courts, they alert you of time-sensitive deadlines, help you meet them, and prepare all forms necessary for the service and filing of your appeal.

Orders to Show Cause v. Emergency Applications

JOHN MCGORTY | Executive Vice President of Business Development | PHP

How does one seek emergency relief from the Appellate Division? There are essentially two different procedures to follow in the New York State Appellate Division, First and Second Departments depending on where you are seeking relief.

The procedure in the Second Department is the more commonly known practice of filing an Order to Show Cause (“OTSC”). It is important to remember that an OTSC must be filed in person. There have been instances in which the motions clerk wants to ask questions or obtain information regarding the OTSC, and therefore the attorney who has drafted the papers, or someone with intimate knowledge of the case, must be present. Opposing counsel will then have the right to file opposition papers, and with permission from the Court, a reply may be filed. In general,when filing any motion you will need to serve one (1) copy and file one (1) copy along with a $45 filing fee. In this case, service of the papers would happen after giving opposing counsel 24 hours notice prior to filing the papers in the Second Department.  

The First Department has done away with the foregoing procedure and replaced it with an emergency application, which also needs to be filed in person. Prior to filing the application, the requester should notify opposing counsel at least 24 hours in advance, giving the adversary an opportunity to appear at the time the application is filed. The motions clerk will hear an explanation of the circumstances surrounding the emergency application. The Judge will usually render a decision immediately following a meeting with the clerk.

The general rule of thumb for the OTSC or emergency application is that the decision on either will be decided at a time appropriate to the circumstances and timing surrounding the request for relief.

How to Handle Illegible Lower Court Documents When Perfecting an Appeal at the First and Second Departments

MARK VIRAG | Senior Appellate Consultant | PHP

There may be an occasion when preparing a Record on Appeal or Appendix that a document is illegible and therefore unhelpful to your appeal. The easy answer is to locate legible documents that came before the lower court that are identical to the illegible document. However, if this is not possible then we must proceed further.

At the Appellate Division, First Department, reason and practicability appear to be the rule. It would appear that, without the court’s permission, you may retype the illegible document(s) or the illegible portions and attach the retyped, legible version to the illegible originals. In addition, a certification must be attached to the retyped legible page stating that this is a retyped version of the illegible document for the purposes of clarification. However, if you are concerned that your adversary will raise objections and dispute the contents of the retyped page you may, with the court’s permission, submit retyped legible documents under separate cover with a stipulation attached signed by the parties to the appeal.

However, at the Appellate Division, Second Department, the solution is less straightforward. The Second Department wants the documents exactly as they were submitted to the lower court – legible or illegible. The only possible option is for the party possessing illegible documents to proceed by motion to the Second Department requesting that legible documents accompany the illegible documents. If the motion is denied then the illegible documents must be submitted.

Petition for Writ of Certiorari: Booklet Format; 8 1/2 by 11-Inch Paper Format or 6 1/8 x 9 1/4 Format

MARIA ANDRADES | Senior Appellate Consultant | PHP

Simply because one did not have poor person relief granted in the lower courts, does not necessarily mean that one cannot apply for similar relief at the Supreme Court of the United States level.

Filing an appeal to the Supreme Court of the United States may not be as complicated or as expensive as one might think. Every document filed with the Court shall be prepared in 6 1/8 x 9 1/4-inch booklet format using a standard typesetting process, except where permission is granted, pursuant to Rule 33, to submit a document on 8 1/2 x 11-inch paper.

Even if one did not file in forma pauperis in the court of original instance, the Supreme Court will accept the filing of the Petition for Writ of Certiorari in an 8 1/2 x 11-inch Paper Format, together with a motion and an Affidavit of Declaration in Support of a Motion for Leave to File in Forma Pauperis. In that instance, only 10 copies of the Petition need be filed, as opposed to 40 copies of the 6 1/8 x 9 1/4 format.