ISSUE 4 │ VOL. 9 │FALL 2021

You’ve Filed a Notice of Appeal on a Civil Matter in the Court of Appeals Second Circuit, Now What?

Carmen Otero | Senior Appellate Consultant | PHP

There are several forms required to be filed with the Second Circuit before an appeal is perfected. Most importantly, they need to be filed within a certain time frame. Once the Notice of Appeal is entered in the district court, the case will be sent to the Second Circuit and a docket number will be assigned. After the docket number has been assigned, within 14 days from receiving the court’s docketing notice, three forms/documents must be e-filed with the Second Circuit through PACER.

First, all parties must file an Acknowledgment and Notice of Appearance form. Second, a Form C must be filed, which is a Pre-Argument Statement providing a summary of the case. Third, the appellant must either order the transcript of proceedings in connection with the appeal or otherwise file a certificate, with the circuit clerk, stating that no transcripts will be ordered. Whether or not transcripts need to be ordered, the appellant must complete and file the Civil Appeal Transcript Information known as Form D.

Last, within 14 days of the appellant receiving the complete transcript, or from the date Form D was filed, the appellant must notify the court of their intentions to file and provide a specific date. There is no form for this step. Simply write a letter to the court, include the case name and docket number, and e-file timely. The targeted date cannot exceed more than 91 days from the date when the Notice of Appeal was filed. Failure to notifying the Second Circuit clerk will result in the court choosing a date for the appellant to perfect by. This may leave counsel with less time to prepare and perfect their Appendix and Brief.

What are the Consequences for Co-Appellants or Cross-Appellants Not Consulting When Perfecting an Appeal Utilizing a Joint Record?

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

When an Order is being appealed by multiple appellants, whether they are co-appellants (ie: united in interest) or cross-appellants (ie: where the appellants on appeal by and between them), the Practice Rules of the Appellate Division, §1250.9(f) dictates that a Joint Record or Joint Appendix is to be filed together with the various briefs of the parties. The Appellate Division essentially wants all parties appealing a particular Order to come to terms on the contents of the Record and include all documents giving rise to the Order being appealed as well as the respective Notices of Appeal in the Joint Record. This is done in an effort to maximize judicial economy and efficiency and avoid having a situation where multiple appellants file separate Records, each containing much of the same documentation. Moreover, the Court’s rule also intends to reduce the respective costs of the parties by ordering that the parties filing the Joint Record “shall share equally the cost of that record or appendix.” (§1250.9(f)(2)).

Typically, the contents of a Joint Record on Appeal are quite straight forward. To wit, they include the Notices of Appeal, the Order being appealed and the various motion practice which gave rise to the Order being appealed. If an appeal from a trial, the trial transcript (signed), any exhibits that were admitted into evidence as well as pre/post-trial motion practice giving rise to the final Judgment. That being said, though there is generally nothing to dispute with respect to the contents of the Joint Record, from a practical perspective, it is always better to err on the side of caution and confirm with the other appellants that which is to be included in the Joint Record. By doing so, the parties are all apprised of the fact that a Joint Record is being prepared for everyone’s sake and that the costs of doing so are to be shared equally. If one party proceeds with the Joint Record (without the other side’s knowledge), even if all of the documents are included within the Joint Record, the party not consulted may take the position that since he was not consulted, he will not pay for his share of the Joint Record production. While this position is untenable and will ultimately be corrected via motion practice at the Appellate Division (compelling the unwilling party to pay for his share of the Joint Record), by consulting with all appellants at the outset of production of the Joint Record, one can avoid motion practice by confirming that all appellants are in agreement with respect to the contents of the Joint Record.

What Should be Included in an Appellant’s Brief?

Maria DeCaro-Ali | Director of Marketing | PHP

When fling 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.