ISSUE 3 │ VOL. 8 │FALL 2020
MARIA DECARO-ALI | Director of Marketing | PHP
When filing an appellate brief in the Appellate Division, there are certain guidelines to which attorneys must adhere. Those familiar with the rules in one court must not assume that they will be the same in another. In fact, there are differences and, in each case, the rules of the court to which the appeal is taken should be consulted. In this article, we will discuss what is required to be included in your AD1 and AD2 appellate brief and provide practical pointers.
All appellate briefs being filed in the Appellate Division, First and Second Department must contain, in the following order, (1) a table of contents with a list of point headings as well as a table of authorities cited; (2) a statement of questions presented, not exceeding two pages, followed immediately with proposed answers to those questions; (3) a concise statement of the nature of the case and of the facts supported by citations to either the Record on Appeal or Appendix; (4) your legal argument, which shall be divided into points with appropriate page headings; and (5) your conclusion, a statement certifying compliance with printing requirements (Printing Specifications Statement) and a statement pursuant to CPLR 5531.
As noted previously, each court has a different set of rules that are expected to be followed. For that reason is it recommended to work with an appellate services provider that will review each brief to ensure compliance with the aforementioned requirements. Dealing with any potential issues prior to serving and filing your brief in court will reduce the chances of rejection.
M. CARMEN OTERO | Senior Appellate Consultant | PHP
The time to perfect an appeal in a Family Court matter in the Appellate Division Second Department follows the same timeline as for civil appeals. The court will allow you six months from the date reflected on the Notice of Appeal filed with the lower court. Since Family Court Appeals do not require a Record to be filed, your Brief, and Transcript if applicable, can be served on the last day on all opposing counsel.
The Appellate Division, Second Department, however, requires the appeal to be filed timely on the exact day in which your six months expire. If you feel you cannot meet the deadline, you may want to request an extension of time prior to the existing due date. This may be addressed by simply writing a letter to the court seeking such relief.
How to properly format a rule-compliant Brief in the Second Circuit?
PAUL LAMAR | Executive Vice President of Appellate Services | PHP
One of the most important steps when perfecting a successful appeal is preparing a persuasive brief. Various hours spent reviewing court documents, preforming legal research and developing a compelling, persuasive argument could be considered wasted in a brief that is not properly formatted and is subsequently rejected by the court when filed. Specifically, the Second Circuit Court of Appeals has set forth local rules and requirements for appellate briefs, including page limitations and other rules regarding margins, spacing, and the like in an attempt to simplify the procedure when filing a brief.
The Federal Rules of Appellate Procedure (FRAP) govern the appellate process but the local rules of each of the 13 federal circuit courts may modify or add to the requirements of the FRAP. When formatting a brief in the Second Circuit attorneys should expect to follow Local Rule 32.1.
When preparing the cover, be sure the title appearing on the front includes the name of the party or parties for whom the brief is filed. The docket number of the case must also appear on the front cover with a typeface of at least one inch high. For the Brief itself, the pages must contain sequential numbering. A Filing User must adjust the PDF of the brief to recognize the Filing User’s sequential numbering scheme in the PDF’s page search field.
For both the Appellant’s and Appellee’s Briefs, word limitations are strictly enforced and briefs cannot exceed the 14,000 word limit. Reply Briefs cannot exceed the 7,000 word limit. The color of the Appellant’s Brief is blue while the Appellee’s Brief is red and the Reply is gray. In all cases, a party must submit six paper copies of each brief to the Second Circuit.
Attorneys must sign a certificate of compliance confirming that the submitted brief follows these requirements. You can count on PHP to review client briefs and ensure proper and timely service and filing. A little attention to basic format requirements will result in a successfully perfected appeal.
WHAT ARE THE CONSEQUENCES IF COUNSEL FOR A RESPONDENT DOES NOT ENTER THE INITIAL INFORMATION REQUIRED UNDER SECTION 1245.3(D)?
ERIC J. KUPERMAN, ESQ. | Executive Vice President of Sales | PHP
With the onset of electronic filing in the Appellate Division during the course of the past year, very specific rules regarding preliminary efiling requirements in the Appellate Division have been promulgated. Specifically, section 1245.3(a) requires the appellant to initialize his Notice of Appeal within 14 days of the Notice of Appeal being filed via NYSCEF in the Supreme Court. Thereafter, Section 1245.3(d) of the Appellate Division Rules requires the following “Within 20 days of service of the notification of the case or docket number as required… counsel of record to each other party to the matter, unless an exempt attorney, shall: (1) register or confirm registration as an authorized e-filer with NYSCEF; and (2) enter electronically in NYSCEF such contact information and additional information as the court may require.”
By registering as a Respondent in the case, the attorney has essentially ensured that any and all future filings via NYSCEF will generate an email notification to that attorney. If Counsel fails to register as a Respondent, on the other hand, he will be unaware of (ie: receive no email notification) of any filing made in the case. Therefore it is incumbent upon the Respondent to register within those 20 days. Of course, ultimately, when it comes time for the Respondent to file his brief, he will only be able to do so if he is registered.
Of course, there are circumstances under which Counsel may neglect or forget to register within those first 20 days. The Court will permit late registration beyond the 20 days, but it is critical to realize that if the Appellant perfects on day 21 or beyond (after the appellant has been notified the Case Number), Appellant has no obligation to serve hard copies of the Record and Brief on the Respondent. (Conversely, if Appellant perfects within the 20 days and Respondent has not yet registered, Appellant is required to serve Respondent with hard copies of the Record and Brief).
It is certainly possible that at some point the Appellate Division will strictly enforce this 20-day requirement. As soon as you receive the Notification of Case Number from the Appellant, it is strongly advisable to complete your registration as the Respondent in the case.
What is the procedure for withdrawing an Appeal in the NYS Appellate Division First and Second Departments?
JOHN MCGORTY | EVP of Business Development | PHP
The manner in which you are required to effectively withdraw an appeal relates to whether or not the appeal has been perfected. If the appeal has been briefed, either partially or fully, and perhaps, you are just waiting on a calendar date to argue/submit the appeal, the parties are required to file an executed stipulation agreeing to withdraw the appeal. For instance, the parties involved in an ongoing appeal have agreed to settle the matter. In this case, if any brief has been filed, the Court will only accept a stipulation to withdraw the appeal.
In an alternative scenario, if the appeal hasn’t been perfected, and the associated opening brief hasn’t been filed, the appellant may simply file a letter application seeking to withdraw the appeal.
Regardless of the circumstances and form necessary to withdraw the appeal, make sure you list the docket number assigned by the appellate court, date the Order appealed from was entered and the date listed on the Notice of Appeal. Providing such information will avoid the possibility of disposal of an associated appeal.