WHAT ARE THE BENEFITS OF E-FILING DOCUMENTS? CAN CONFIDENTIAL DOCUMENTS BE SEEN ONLINE?

VICTORIA RAMOS| Executive Vice President of Appellate Services | PHP

There are two approaches to handling duplicative documents when preparing a Record on Appeal or an Appendix for the New York State Appellate Division, First through Fourth Departments. The decision is normally left up to the attorney perfecting the appeal and/or the attorney’s client.

If cost is an issue, most attorneys prefer not to have duplicative documents reproduced throughout the entire Record or Appendix. Depending on how many documents are duplicated, their length and how often they reappear, repeating them each time can significantly increase both the length of the Record or Appendix and the cost of printing it.

The practical way around this costly repetition is to replace the repeated document with a single inserted page, explaining where the duplicative document already appears. For example, suppose the “Affirmation of Richard Jones, dated May 1, 2015” initially appears in the Record/Appendix from pages 50 to 75, then is included twice later, reappearing from pages 225 to 250 and 500 to 525. Each repetition can be replaced by a single page denoting:

Affirmation of Richard Jones, dated May 1, 2015
(Reproduced Herein at pages 50 to 75)

In this example, you would eliminate nearly 50 pages from the Record or Appendix. In fact, since the Court requires a minimum of ten copies of the Record or Appendix for service and filing, you would eventually eliminate around 500 pages. As you can see, in this instance, the printing cost would be greatly reduced.

On the other hand, when cost is not an issue, the duplicative documents can be reproduced in their entirety throughout the Record or Appendix. Several PrintingHouse Press clients feel that the inclusion of these documents throughout the Record or Appendix adds convenience to the review process.

ARE CO-/CROSS-APPELLANTS REQUIRED TO SHARE IN THE COSTS OF A JOINT RECORD IN AD3 AND AD4?

KEVIN MOMOT | Senior Appellate consultant | PHP

Whether involving a cross-appeal (appellants’ interests are adverse to each other) or a concurrent appeal (appeals taken separately but not adverse to each other) from a single order or judgment, Statewide Appellate Practice Rule 1250.9(f) specifies that a Joint Record or Appendix should be prepared. Parties must consult to determine the contents of the Record/Appendix and costs for preparing/filing shall be shared equally.

Specifically, Rule 1250(f)(1)(ii) addresses the cost sharing requirement for cross-appeals, and Rule 1250(f)(2) requires the same for a concurrent appeal from a single order or judgment. Both the Third and Fourth Depts. do not have any rule that differentiates or contradicts this cost sharing requirement (see Third Dept. Rules of Practice Part 850 and Fourth Dept. Rules of Practice Part 1000, respectively).

WHAT IS THE PROCEDURE OF FILING AN OVERSIZED BRIEF IN AD1 AND AD2?

JOHN MCGORTY | Executive Vice President of Business Development | PHP

Prior to your deadline to file, you must file a letter application seeking permission to file an oversized brief. For the court to make a determination, a draft copy of the proposed brief must be attached to the application. In most cases, the Appellate Division is going to deny such an application and ask that the filer stay within the parameters set forth by the court. There are instances where permission to file an oversized brief has been authorized, because there are multiple parties involved in the matter. In such cases, there are typically multiple appellants filing opening briefs where a respondent’s application to file an oversized brief could be granted, due to opposing various parties and issues all in one brief. Keep in mind, if your application is granted, you must then file the exact brief approved by the clerk’s office.

Regardless of the circumstances surrounding the request, the applicant will most likely see a decision within a day or two of submission.

TIME LIMITS ON PERFECTING ONE’S APPEAL IN THE APPELLATE TERM FIRST DEPARTMENT.

PAUL LAMAR | Executive Vice President of Appellate Services | PHP

Unlike the Appellate Division First through Fourth Divisions and including the Appellate Term-Second Department there is no real expiration date from when an Appellant and/or Appellants file a Notice of Appeal for the Appellate Term-First Department. In the other courts mentioned above, the Appellant has 6 months from the date listed on the Notice of Appeal to file their Record and/or Joint Record on Appeal and Brief. Since the Notice of Appeal is only filed in the lower court for Appellate Term-First Department appeals, the court is unaware of the appeal until a Clerk’s Return form the lower court is obtained.

The use of the “Clerk’s Return” is particular to the practice in the Appellate Term courts. It is necessary because in civil cases the Appellate Term does not have the notice of the appeal until it receives the Clerk’s Return or a party makes a motion directly to the court. The clerk of the lower court assembles and forwards the Return to the Appellate Term. Appended to the executed Clerk’s Return are the notice of appeal; the order or judgment appealed from; and the opinion of the court, if any; all of the pleadings and relevant papers in the courts file; the transcripts, if any, duly settled; and exhibits, if any.

Once the appellant files the notice of appeal, he should order a transcript, if the trial or hearing was held on the record. Within ten days after the transcript fees are paid, the stenographer is to provide the transcript to the lower court clerk, who then notifies the appellant that the transcript may be “settled”. A transcript is settled when both parties have had an opportunity to review the transcript and submit objections. The trial judge will endorse the objections on the Clerk’s Return or the parties can stipulate that the transcript is correct. When no testimony is taken, the Clerk’s Return is prepared upon the filing of the notice of appeal.

The Clerk’s Return was designed to speed up the appellate process from the lower courts, but often the practice falls short. The difficulty in obtaining transcripts leads to delay. Moreover, the time constraints for the perfection of the appeal are not compelling until after the Clerk’s Return is filed. The First Department technically requires the appellant to arrange for filing of the Clerk’s Return within 30 days of filing the notice of appeal. Nevertheless, this rule is usually not enforced, given the unavoidable delay inherent in obtaining the transcript from court reporter.