ISSUE 4 │ VOL. 2 │WINTER 2014

Argument or Submission? Which Makes the Better Case For Your Client


 Executive Vice President of Business Development | PHP


Executive Vice President of Sales| PHP

Typically, attorneys request oral argument time for their appeals (as opposed to filing on submission) in the Appellate Division, First and Second Departments.

The First Department identifies “enumerated” appeals in § 600.4(a). These appeals are entitled to argument time as long as the parties consult, determine how many minutes each side will request and then submit a Request for Oral Argument form. All other appeals under § 600.4(b) are identified as “non-enumerated.” Non-enumerated appeals are not entitled to argument. On occasion, a party may write a letter to the Court explaining that, even though it is a non-enumerated appeal, argument is warranted for a particular reason. In these instances, the First Department may agree to grant argument on a case-by-case basis.

In the Second Department, it is simply a matter of reserving the desired number of minutes on the top right-hand side of the brief cover. Attorneys also have the option of writing “submitted by” (in place of “to be argued by”) at the top of the brief cover. In this instance, when the case is calendared, the Second Department will take the case on submission without argument.


Typically, an appeal involving two adversaries will result in each side reserving 15 minutes of argument time. Of course, on the date of argument, depending on the extent of the docket, the Presiding Judge will usually run down the docket of cases to be argued and ask that each side reduce its requested amount of time.

As to whether an attorney is better off arguing or submitting, there are different thoughts on the matter. Some say that the Court will likely make its decision on the papers submitted. Others posit that argument provides the opportunity to emphasize a particular point or argument made in his/her brief. The bottom line is this: it is better to preserve the right to argue your appeal when possible. Then, if the attorney elects not to argue, he/she may always rest on the papers filed and submit without argument. But even if one does not wish to add anything orally to that which has been written in the appellate brief, appearing before the Court for argument offers the panel the opportunity to ask any questions it may have based upon the written submission. And if that is the one thing that winds up swinging the vote, then that makes a strong case for requesting argument.

Filing an Appendix at the New York State Appellate Division

PAUL LAMAR Executive Vice President of Appellate Services | PHP

When is the right time for an attorney perfecting an appeal to consider using the limited “Appendix” method instead of filing a complete record on appeal?

In the Appellate Division, Appellants have a choice of filing a Record on Appeal or an Appendix. An Appendix, to put it simply, is a “lighter” version of the full Record. There are several reasons that an attorney would prefer to file an Appendix as opposed to a Record on Appeal. The predominant one being the desire to limit the costs of the appeal.

A Record on Appeal consists of all documents filed at the lower Court level, which led to the Order/Judgment being appealed. A Record on Appeal would consist of all Motion papers for each party, the attached affirmations and exhibits and any replies that were filed. Also included is the Notice of Appeal and Order being appealed. A Record on Appeal arising from a trial verdict would consist of the trial transcript, pleadings, any exhibits admitted into evidence and of course the Notice of Appeal and Order/Judgment being appealed. Most attorneys prefer to utilize the full Record since it gives the Appellate Division Justices immediate access to the documents that were reviewed by the lower Court Judge.

The Appendix method normally consists solely of the documents to which each party would be citing in their respective Briefs. The Appendix method can lead to the exclusion of hundreds of documents that each party may deem unnecessary since they are irrelevant to their arguments. The Appellant may feel that this is the best way to go when a cap on costs is involved.

When the Appendix method is used in the First or Second Departments, it is required that the documents in the lower Court be subpoenaed to the Appellate Division in order for the Court to have access to the full Record. This ensures that the Justices will be able to review documents that were omitted from the Appendix if necessary. The Court will not accept an Appendix for filing unless there is proof that the lower Court documents have been subpoenaed. When the Appendix method is used in the Third and Fourth Departments, the Appellant is required to provide one copy of the Record on Appeal and serve/file it with the Appendix copies.

When choosing to use the Appendix method, one must be careful when omitting documents. The Appellant must ensure that the Appendix includes the documents that will be cited to in his/her Brief and should also include the documents the Respondent(s) will need to cite to in its Brief. In most cases, based on the arguments involved, the Appellant can usually determine the documents required by the Respondent(s). When a good faith effort has been made by the Appellant, but some of the Respondent’s documents have still been omitted from the Appendix, a Respondent’s Appendix can be filed as of right. If a good faith effort was not made, then the Respondent can move to strike.

New York State Appellate Division First Department: Are Photographs Permitted to be Included in a Brief?

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

I was recently asked by a client whether the Appellate Division, First Department would permit him to include a photograph within the text of his brief. Specifically, he wanted to “paint a picture” of a scene which was completely relevant rather than just describe the scene as it occurred. Intuitively, why not? If a picture is, in fact, worth 1,000 words, it might do well to reduce the length of his brief so that it would fall well within the parameters and guidelines set forth by the Appellate Division, First Department. Moreover, it might make the Court’s job easier in deciphering the details elicited by Counsel.

That said, take heed. The Appellate Division, First Department will not, in fact, accept such a filing. One may certainly reference a photograph that is included in the Record on Appeal/Appendix that was filed with the brief. However, including a photograph as an embedded image within the brief will result in its categorical rejection by the Court. If one does not wish to picture an angry client blasting his/her attorney as to why a brief was rejected, then keep photos out of your briefs.

Certified Questions from the Second Circuit Court of Appeals to the New York State Court of Appeals

JIM COONAN | Director of Appellate Services | PHP

“Whenever it appears to the Supreme Court of the United States, any United States Court of Appeals, or a court of last resort of any other state that determinative questions of New York law are involved in a case pending before that court for which no controlling precedent of the [New York State] Court of Appeals exists, the court may certify the dispositive questions of law to the [New York State] Court of Appeals.”

There is confusion about the form a certified question from the Second Circuit Court of Appeals to the New York State Court of Appeals (NYSCA) should take. Attorneys have been under the impression that they should take the Joint Appendix or Appendix that was filed in the Second Circuit and simply re-file it with a different caption for New York State’s highest court.

This is incorrect. A certified question should mirror the form of an appeal being filed with the NYSCA that was previously heard at the Appellate Division level. Headings and page numbers should be on the top of each document and must match the entries in the table of contents. The cover should conform to all of the requirements of the NYSCA, not the Second Circuit requirements. The accompanying briefs should also comply with the NYSCA rules. The one benefit of filing a certified question with the NYSCA, as opposed to an appeal from a decision of the Appellate Division, is that there is no filing fee.