ISSUE 3 │ VOL. 6 │Fall 2018

Eric J. Kuperman, Esq. | Executive Vice President of Sales | PHP

From time to time, attorneys choose not to include physical copies of exhibits in motion papers filed in the Supreme Court. Rather than include voluminous medical records with thousands of pages, for instance, an attorney might attach a CD with bulk documents as an exhibit to their motion papers .

So, what will the Record look like when perfecting an appeal at the Appellate Division?

Unfortunately, the Appellate Division will not allow an Appellant to simply file large motions on a CD. If a full Record is required, the documents must be printed and filed as volumes of bound books. Moreover, if the matter is a NYSCEF (efiled) matter, the electronic Record must be prepared incorporating the complete set of documents rather than just one notation with a reference to the CD. With the Appellate Division still requiring numerous hard copies of the Record to be filed (and sometimes served if the case is not a NYSCEF case), this method can prove to be quite costly.

The Appellant may, however, file/serve an Appendix. An Appendix might include only those documents to which the Appellant is citing in the brief (as well as those to which one anticipates the Respondent will cite), thus reducing costs dramatically. In the above example, if not necessary or germane to the appeal, the Appellant could omit the bulk exhibits altogether (as long as said omission does not compromise the Appellant’s, position on the appeal).

1 Please note that not all of the county courts allow motion papers to be filed on a CD. Be sure to check with the specific court in order to ensure that it will accept this method.

 

Notice:

Pursuant to the Second Department’s E-Filing Technical Guidelines, all digital copies of briefs must contain bookmarks to the authorities cited in the brief. Clicking on a case listed in the Table of Authorities should take the reader to a copy of the case being cited ,which is to be included at the end of the brief.

Please note that hard copies of the brief should not include copies of the cited authorities; this rule pertains to the digital copy only.

Technical Guidelines:

Attachment A to the Electronic Filing Rules of the Appellate Division (22 NYCRR Part 1245) contains a list of formatting requirements for documents electronically filed. In addition to those requirements, the Second Department offers the following guidelines, which should be followed to the extent practicable.

Bookmarking in Briefs:

All electronically-filed briefs should contain bookmarks to the authorities cited in those briefs. Those bookmarks should take the reader to a copy of the cited authority, that is, the case, statute or rule, which will be part of the brief submitted. Those authorities are not considered to be part of the formal record on appeal.

Bookmarking in Motions:

All electronically-filed motions, and papers filed in opposition or relation to motions, should be filed in one PDF document, which shall contain bookmarks linking each separate document contained therein.

Resolution:

To ensure the highest quality resolution, filers should, when practicable, use documents which are exported or electronically converted from word processed documents, rather than scanned documents. When such conversion is not possible, documents shall be scanned at 300 dots per inch (DPI) resolution and in black and white only, unless color is required to protect the evidentiary value of the document.

PDF Size:

Appellate Division e-filing rules require that electronically filed PDFs not exceed 100MB in size. All PDFs should be reduced and optimized, using file compression software, before they are e-filed, to ensure that the smallest sized PDFs possible are filed.

Hard Copy Filings:

In addition to submitting electronic filings, authorized e-filers shall submit hard copy filings as follows: (1) an original plus five copies of appellate briefs, records, and appendices (see 22 NYCRR 1245.6[a][1][i]), and (2) the original papers filed in original proceedings and in connection with motion practice (see 22 NYCRR 1245.6[a][1][ii]).

Entry of Initial Information:

Pursuant to section 1245.3(a) of the Electronic Filing Rules of the Second Department, counsel for the appellant or the petitioner, unless an exempt attorney, shall, within the designated time period, register or confirm registration as an authorized e-filer with NYSCEF, follow the prompts to enter the required information in the NYSCEF system, and electronically file such documents “as the court shall require” (22 NYCRR 1245.3[a][2]). The Second Department requires the electronic filing of the notice of appeal, with proof of filing, the order or judgment appealed from, and an informational statement. The Court is in the process of designing an informational statement which is user-friendly and meets e-filer’s needs. Until that form is finalized and posted on our website, filing of a completed Request for Appellate Division Intervention will serve to meet the requirements of this rule.

For More Information Visit: http://www.courts.state.ny.us

 

Have you ever asked what documents should accompany a petition for writ of certiorari in an Appendix and in what order they should be presented?

The first documents to be included in the Appendix are the opinions, orders, findings of fact, and/or conclusions of law, whether written or orally given and transcribed, entered in conjunction with the judgment sought to be reviewed. The next document(s) you may want to include are any other relevant orders, opinions, findings of fact, and conclusions of law entered in the case. These may be findings of other courts or even administrative agencies, and may be included if reference to them is crucial to the review of the Petition.

Companion cases that you wish to include should contain the caption showing the name of the issuing court or agency, the title and number of the case, and the date of entry; any order on rehearing, including the caption showing the name of the issuing court, the title and number of the case, and the date of entry; the judgment sought to be reviewed if the date of its entry is different from the date of the related opinion or order that is at the beginning of the Appendix; and any other material the petitioner believes essential to understand the petition.

 

If what is being included in the Appendix is too lengthy, the Supreme Court will accept a separately bound volume or volumes with appropriate covers (rather than annexing the Appendix to the Petition itself). If, for whatever reason, the Appendix which you attempt to file is rejected (assuming that the Petition was timely filed) the Court will send you notice with the deficiencies and give you 60 days from the date of notice to correct the petition and resubmit same.

We will continue developing the “Supreme Court Rules” topic, and we will be posting the discussions in Appellate Lawyer PREParation group. If anyone is interested, please feel free to join via this link: http://tinyurl.com/bdhx9px

PAUL LAMAR | Executive Vice President of Appellate Services | PHP

The first step when filing a notice of appeal for an appeal which will be perfected at the Second Circuit is to file with the District Clerk. An appeal permitted by law as of right from a District Court to a Court of Appeals may be taken only by filing a notice of appeal with the District Clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the District Clerk with enough copies of the notice of appeal to enable the District Clerk to comply with Rule 3(d).

An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment.

When two or more parties are entitled to appeal from a District Court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant. When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the Court of Appeals. The notice of appeal must specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”. Also designate the judgment, order or part thereof being appealed from and name the court to which the appeal is taken.

The District Clerk must serve notice of the filing of a notice of appeal by mailing a copy to each party’s counsel of record — excluding the appellant’s — or, if a party is proceeding pro se, to the party’s last known address. When a defendant in a criminal case appeals, the District Clerk must also serve a copy of the notice of appeal on the defendant, either by personal service or by mail addressed to the defendant. The District Clerk must promptly send a copy of the notice of appeal and of the docket entries — and any later docket entries — to the clerk of the Court of Appeals named in the notice. The District Clerk must note, on each copy, the date when the notice of appeal was filed.

If a party to a civil action in the District Court files a notice of appeal electronically in accordance with the Federal Rules of Civil Procedure and the District Court’s local rules, the District Clerk may satisfy the service requirements of FRAP 3(d) as to a counseled party to the appeal by effecting service electronically.

Upon filing a notice of appeal, the appellant must pay the District Clerk all required fees. The District Clerk receives the appellate docket fee on behalf of the Court of Appeals.

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