PRESENTED BY: Sponsored by: The Appellate Process at the New York - - PowerPoint PPT Presentation

▶
presented by sponsored by the appellate process at the
SMART_READER_LITE
LIVE PREVIEW

PRESENTED BY: Sponsored by: The Appellate Process at the New York - - PowerPoint PPT Presentation

May 09, 2023 133 likes •639 views

PRESENTED BY: Sponsored by: The Appellate Process at the New York State Appellate Division Perfecting Civil Appeals in the New York State Appellate Division, First and Second Departments Presented by: Eric J. Kuperman Esq., John McGorty and

slide-1
SLIDE 1

PRESENTED BY: Sponsored by:

slide-2
SLIDE 2

The Appellate Process at the New York State Appellate Division

Perfecting Civil Appeals in the New York State Appellate Division, First and Second Departments

10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 | www.phpny.com

Presented by: Eric J. Kuperman Esq., John McGorty and Stephen Preziosi, Esq.

slide-3
SLIDE 3
  • I. Understand How and When to File a Notice of Appeal
  • II. Know What to Include in the Record on Appeal
  • III. Grasp What to Include in the Appellate Brief
  • IV. Present Oral Argument

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

3

Learning Objectives

slide-4
SLIDE 4

I. Service with Notice of Entry a. 30 days from date the Order is served with Notice of Entry by hand

  • b. 35 days from date the Order is served with Notice of

Entry by mail II. Jurisdictional requirement

III. Timing for Filing Notice of Cross-Appeal – CPLR § 5513(c)

The Greater of:

a. 10 days from date of primary Notice of Appeal b. 30 days from Order with Notice of Entry

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

4

Timing for Filing Notice of Appeal – CPLR § 5513(a)

slide-5
SLIDE 5

AD1

a. Pre-Argument Statement b. Notice of Appeal c. Order appealing from w/ Notice of Entry d. Original Affidavit of Service e. $65 check payable to County Clerk

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

AD2

a. RADI form b. Notice of Appeal c. Order appealing from w/ Notice of Entry d. Original Affidavit of Service e. $65 check payable to County Clerk

5

Filing Notice of Appeal

slide-6
SLIDE 6

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

New York State Counties First Department Second Department

slide-7
SLIDE 7

5

Pre-Argument Statement

slide-8
SLIDE 8

6

RADI Form

slide-9
SLIDE 9

7

RADI Form

slide-10
SLIDE 10

I. Appellate Division, First Department

a. Term Calendar

  • Filing dates falling within 9 months of date on Notice of

Appeal (§600.11 (a)(3))

  • Request for Argument Forms; stipulations to adjourn

8

Time to Perfect Appeal

slide-11
SLIDE 11

I. Appellate Division, First Department (cont’d)

b. 30-day rule (§600.5(d))

  • Not followed
  • Respondent moves for relief
  • Conditional grant of the relief
  • Ordered on for specific term

c. Multiple appellants

  • “First in time” perfects first
  • Must consult otherwise
  • Co-Appellants: must perfect for the same Term (though not necessarily
  • n the same day)

II. Appellate Division, Second Department

a. 6 months from date on Notice of Appeal (§670.8(e) (1)) b. Multiple appellants–race to perfect

  • Co-Appellants: must perfect on the same day

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

9

Time to Perfect Appeal

slide-12
SLIDE 12

10

Hand Delivery Overnight Delivery Regular Mail Delivery Re Respondent Brief 30 Days from date served 31 Days from date served 35 Days from date served Re Reply Brief 10 Days from date served 11 Days from date served 15 Days from date served

II. Appellate Division, Second Department (cont’d)

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

Time to Perfect Appeal

slide-13
SLIDE 13

I. What to Include a. Trial

  • Pleadings
  • Transcripts and exhibits admitted into evidence (transcripts must

be settled)

  • Notice(s) of Appeal
  • Order or Judgment being appealed
  • Post-Trial Motions

b. Motion

  • Motion papers for and against
  • All attached affirmations and exhibits
  • Replies
  • Notice(s) of Appeal
  • Order or Judgment being appealed

c. Memoranda of Law d. Pre-Argument Statement (AD1) / 5531 Statement (AD2) e. 2105 Certification (AD1 & AD2)

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

11

Record on Appeal

slide-14
SLIDE 14

12

5531 Statement

slide-15
SLIDE 15

13

2105 Certification

slide-16
SLIDE 16

I. What to Include

a. What appellant plans to cite to

  • b. What appellant can reasonably anticipate

respondent will cite to c. Must make good faith effort

II. Subpoena Lower Court File (AD1 & AD2)

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

14

Appendix

slide-17
SLIDE 17

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

I. Color Documents a. AD1

  • May use black and white

b. AD2

  • If in color in the lower court, must be in color in Record/Appendix unless

unavailable

II. Illegible Documents a. AD1

  • May be retyped
  • Include behind illegible document clearly marked as retyped

b. AD2

  • May not be retyped; document must be included exactly as it appeared in

the lower court

15

Record on Appeal/Appendix

slide-18
SLIDE 18

III. How to handle documents outside the scope of the Record/Appendix

  • a. Motion to enlarge scope of Record/Appendix
  • Must be necessary to determination
  • Rarely granted
  • b. Discuss in Brief
  • Footnote with explanation
  • Bring copies to oral argument

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

16

Record on Appeal/Appendix

slide-19
SLIDE 19

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

I. If appellant omitted too many documents in Record on Appeal or Appendix II. If Record on Appeal or Appendix is incomplete

  • a. If just a few pages missing, “tip-in” method
  • b. Supplemental Record
  • Stipulation or Motion
  • c. Respondent Appendix

17

Motion to Strike

slide-20
SLIDE 20

I. What to Include

a. Table of Contents b. Table of Authorities (only AD1) c. Preliminary Statement d. Questions Presented e. Statement of Facts f. Argument g. Conclusion h. Printing Specifications Statement (AD1) / Certificate of Compliance (AD2)

II. Appellant, Cross-Appellant and Co-Appellant Briefs

a. Pre-Argument Statement – Appellate Division, 1st Department b. 5531 Statement – Appellate Division, 2nd Department

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

18

Brief – Appellate Division, 1st and 2nd Departments

slide-21
SLIDE 21
  • III. Formatting

a. Mono-spaced v. Proportionally Spaced font, examples

  • f which are:
  • 12pt Courier New or 14pt Times New Roman

b. Footnotes no smaller than 10pt Courier New or 12pt Times New Roman c. Double spaced d. 1 inch margins all around e. No bo bold or FULLY CAPITALIZED words except in point headings f. Underline and Italics acceptable if used sparingly

19

Brief – Appellate Division, 1st and 2ndDepartments

slide-22
SLIDE 22
  • IV. Length and Certification Requirements
  • a. AD1
  • Appellant/Respondent Brief
  • 14,000 words
  • Must not exceed 70 pages
  • Printing Specifications Statement
  • Reply Brief
  • 7,000 words
  • Must not exceed 35 pages
  • Printing Specifications Statement

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

20

Brief – Appellate Division, First Department

slide-23
SLIDE 23

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

21

Brief – Appellate Division, First Department

slide-24
SLIDE 24

V. Length and Certification Requirements

  • a. AD2
  • Appellant/Respondent Brief
  • 14,000 words
  • Must not exceed 70 pages
  • Certificate of Compliance
  • Reply Brief
  • 7,000 words
  • Must not exceed 35 pages
  • Certificate of Compliance

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

22

Brief – Appellate Division, Second Department

slide-25
SLIDE 25

23

Brief – Appellate Division, Second Department

slide-26
SLIDE 26

I. Appellate Division, First Department

a. Paper service and filing

  • File 8, serve 2

b. Electronic service and filing

  • Over 10MB on a CD
  • Under 10MB by e-mail

c. $315 filing fee payable to Appellate Division

II. Appellate Division, Second Department

a. Paper service and filing

  • File 9, serve 2

b. $315 filing fee payable to Appellate Division

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

24

Perfecting the Appeal

slide-27
SLIDE 27

I. Appellate Division, First Department

a. “To be argued by” on brief cover plus Request for Oral Argument Form b. Request for Oral Argument Form submitted no later than the day after Respondent’s Briefs are due c. If two parties, then the standard is 15 minutes each. If multiple parties, then the break down should be itemized.

II. Appellate Division, Second Department

a. “To be argued by” on brief cover b. Time requested on brief cover

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

25

Oral Argument

slide-28
SLIDE 28

26

Request for Oral Argument Form

slide-29
SLIDE 29

29

Top 16 List For More Effective Brief Writing

  • 1. Tell the judges what you want.
  • 2. Persuade, Persuade, Persuade: in every part of the brief

– facts, argument, etc.

  • 3. Put your best foot forward: strongest arguments go

first.

  • 4. Elements of Style: spelling counts, use spell check, proof

read, punctuation errors not acceptable.

  • 5. Use a format that is easy to follow: IRAC – CRAC –

ICRAC.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-30
SLIDE 30

30

Top 16 List For More Effective Brief Writing

  • 6. Use headings, subheadings and more subheadings.
  • 7. Use paragraph breaks: avoid pages with no

paragraph breaks – reading is a visual experience.

  • 8. No more than 25 words per sentence.
  • 9. Vary your sentence structure to make reading more

interesting.

  • 10. Be concise: less is more in legal brief writing.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-31
SLIDE 31

31

Top 16 List For More Effective Brief Writing

  • 11. Small words are better than big words: don’t give the judges a

vocabulary lesson.

  • 12. The Road To Hell Is Paved With Adverbs: adverbs rob you of

the better verb, the more descriptive method of writing.

– Adverbs generally end in –ly: badly, quickly, – Use better verbs:

  • Don’t use the verb “to be” if you can avoid it; excise there is, there was, there are, there were.
  • 13. Active Voice is better than passive:

ACTIVE: I have a dream. PASSIVE: A dream was had by me. ACTIVE: Just do it. PASSIVE: It should just be done. ACTIVE: I shot the Sherriff. PASSIVE: The Sherriff was shot by me. ACTIVE: I got them moves like Jagger. PASSIVE: The Jaggermoves I have got. ACTIVE: Just say no. PASSIVE: No should just be said.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-32
SLIDE 32

32

Top 16 List For More Effective Brief Writing

  • 14. Don’t Avoid The Bad Stuff: don’t let a judge read

the bad facts in your opponents brief for the first time. If there are bad facts, you must address them and explain them – put it in the middle where it won’t stand out.

  • 15. Consult Local Rules: content, font, margins, word

count, deadlines.

  • 16. Never use critical or disparaging language to

describe opposing counsel.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-33
SLIDE 33

33

Statement Of Facts: What’s The Big Deal

  • 1. Always Include A Statement Of Facts.
  • 2. The Most Important Part Of The Brief: first

impressions formed, first opportunity to persuade.

  • 3. Give Statement Of Facts A Title/Heading To

Distinguish It From Legal Argument: Statement of Facts,

Relevant Facts And Circumstances.

  • 4. 95% Of Questions At Oral Argument Deal With Facts

Of Your Case.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-34
SLIDE 34

34

Writing The Statement Of Facts: Opportunity For Persuasion

  • 1. The Statement Of Facts Is Never, Never, Never

Neutral (Although It Must Appear To Be So): you must always write persuasively – think structure,

  • rder, headings, include, exclude.
  • 2. Write The Statement Of Facts Last: you don’t know

what facts are important until you know what legal arguments you’ll make.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-35
SLIDE 35

35

Writing The Statement Of Facts: Opportunity For Persuasion

  • 3. Don’t Write The Facts Chronologically, Unless It’s To Your

Advantage: few stories (novels, movies, etc.) begin at the

  • beginning. Start at the place in the story that is most persuasive

to your argument. Backtrack later; first and last is most memorable.

  • 4. Use Headings And Subheadings: create a roadmap for the

reader, guide them through the facts from your perspective.

  • 5. Don’t Make Arguments In The Statement Of Facts: write the

facts only, but in a way that allows the reader to come to their

  • wn (your) conclusions.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-36
SLIDE 36

36

Writing The Statement Of Facts: Opportunity For Persuasion

  • 6. Use Dialogue from the Trial or Hearings: using dialogue

brings your story and the characters to life, indent, single space, put it in italics.

The Court: The application for mistrial is denied. Defense Counsel: But your Honor, the entire jury fainted when the evidence was presented.

  • 7. Write Your Best Facts Only Once: repetition does not equal
  • persuasion. Repeating your best facts diminishes their impact.

Write it great; write it once.

  • 8. Deal With The Bad Facts: put the bad facts in context that is

least harmful to your client. Don’t let the judge read the bad stuff for the first time in your opponent’s brief.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-37
SLIDE 37

37

Writing The Statement Of Facts: Opportunity For Persuasion

  • 9. Do Not Use Footnotes In A Brief: if it’s important, put

it in; if it’s not important, leave it out.

  • 10. What Didn’t Happen May Be Just As Important:

including facts that didn’t occur can sometimes have an important impact on your story. The case of the burglary where the dogs in the house didn’t bark. No

  • ne testified that the dogs didn’t bark, but the fact was

important: they didn’t bark because they knew the burglar – the next door neighbor.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-38
SLIDE 38

38

Making It Memorable: Use Literary Techniques In Brief Writing

  • 1. Memorable Is Persuasive: the better you create an

image in the reader’s mind, the more memorable your writing. The more memorable your writing, the more persuasive your brief.

  • 2. Read, Read, Read: be the literary thief in the night.

If something you read strikes you, ask yourself why it is memorable, persuasive, interesting. Then, adopt that technique.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-39
SLIDE 39

39

Making It Memorable: Use Literary Techniques In Brief Writing

  • 3. Use Your Common Senses: paint the picture you

want the reader to have in mind.

A. Smell it like it is: of all the senses smell has the strongest psychological effect. It evokes memories and triggers associations in the reader’s mind and subconscious. Describe a smell and pull the reader into your story by creating images. B. Sounds Exciting!: sounds create atmosphere and image. Whatever your character is doing, there is a sound associated with that. Use this to make your story more vivid and memorable.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-40
SLIDE 40

40

Making It Memorable: Use Literary Techniques In Brief Writing

  • C. Light Up Your Scenes: make the story clearer, insert a

sentence about where the light comes from. Gives the reader a clear picture about time of day, your client’s perspective, and place (sunlight, candles, light bulb, neon lights, fire, window, table lamp).

  • D. Colors Make The Picture: colors paint pictures, evoke images,

create memorable scenes. Use descriptive colors: rose-red, banana-yellow, chocolate-brown.

  • E. Talk About The Weather: everyone can identify with the
  • weather. Create the necessary image with the weather: sunny,

rainy, cloudy, foggy, etc.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-41
SLIDE 41

41

Making It Memorable: Use Literary Techniques In Brief Writing

  • F. Use Perspective Or Point Of View: tell the story from

your client’s perspective. Or through whose eyes, ears and thoughts do you want the judge to experience the

  • story. Perspective deals with his/her job, education,

gender, hobbies, interests, age, physicality. Walking down the street the architect sees the building design, the lawyer sees the slippery sidewalk, the animal lover sees the dog run in the park. Ask your client what they see and how they see it.

  • G. Passage Of Time: keep the reader informed about time

and its passage. Use dates, change of weather, change from light to dark. If the time changes, change the image in the reader’s mind.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-42
SLIDE 42

42

Oral Argument Top 14 List

1. Prepare, Prepare, Prepare: know your case better than the judges, both the facts and the law. 2. Tell The Judges What You Want: applies to both brief and oral argument. 3. Don’t Give The Judges A Speech: be prepared for an interactive session. 4. Open With A Headline: give the judges a takeaway phrase – be prepared to state your case in one sentence. 5. Every Question Is A Gift: every question the judges ask is an

  • pportunity to persuade; it reveals to you what they are thinking

and where they perceive the weaknesses in your brief.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-43
SLIDE 43

43

Oral Argument Top 14 List

  • 6. Make Use Of The Non-Lawyers : Develop Your Take-Away

Phrase With Someone That Isn’t A Lawyer. The Simpler The Better.

  • 7. Answer Questions With A Yes Or No: you can follow it up

with Yes, because…or No, because. Every question by a judge must have a clear answer.

  • 8. Don’t Tell The Judge His/Her Question Is Not The Issue Or

Not Important: if the person deciding your case asks the question, it’s important.

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

slide-44
SLIDE 44

44

Oral Argument Top 14 List

  • 9. Know The Difference Between A Panel Of Judges And A Jury: passionate, emotional

arguments are usually not appropriate in an appellate court. The Judges are concerned with applying the law to your facts.

  • 10. Most Questions By The Appellate Division Deal With The Facts Of Your Case: the

judges know the law, you should know the facts of your case better than anyone in the room.

  • 11. Be Ready For The Softball Question: judges use oral argument to convince their

colleagues on the bench. If you get a question that is in complete accord with your argument the judge is giving you floor time. Take it; make the most of it.

  • 12. Always Ask For Rebuttal Time: First Department has it, Second Doesn’t.
  • 13. Be Your Client’s Best Advocate: say for your client what they cannot say for
  • themselves. Be the greatest advocate for their position.
  • 14. One Page At The Podium: do not bring briefs and appendices to the podium, you

won’t have time to refer to them. One page to outline the arguments, quote a statute (if important), one sentence case summary if the case is central to your legal argument.

slide-45
SLIDE 45

I. AD1 – allowed requests

a. Perfecting the appeal

  • Only by Motion

b. Respondent’s Briefs and Reply Briefs

  • Stipulation
  • Emergency Application

II. AD2 – allowed requests

a. Letter b. Motion

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

27

Enlargements of Time

slide-46
SLIDE 46

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

I. Determining appellate designation II. Briefing schedule

  • III. How to navigate Terms in AD1 with multiple

appellants

28

Multiple Appellants

9 Days December 27th *Since it’s a Sunday, the deadline is now December 28th

slide-47
SLIDE 47

I. As of right II. Motion for leave to the Court of Appeals filed in the Appellate Division

a. AD1 & AD2

  • Timing – Motion to reargue/Motion for leave in the

alternative

b. What to include

  • III. Motion for leave to the Court of Appeals filed in the

Court of Appeals

a. Timing b. What to include

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

29

Appeal to the Court of Appeals

slide-48
SLIDE 48

I. Appeal as of right

  • a. Notice of Appeal in court of original instance with

Notice of Entry, filing fee and Affidavit of Service

  • b. Preliminary Appeal Statement

c. Scheduling Order from New York State Court of Appeals

  • d. Record/Appendix & Brief

II. Motion for Leave Granted - All the same except for filing a Notice of Appeal

PrintingHousePress | 10 East 39th Street, 7th Floor, New York, NY 10016 | Tel: 212.719.0990 | www.phpny.com

30

New York State Court of Appeals

slide-49
SLIDE 49

PrintingHouse Press

10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 | Fax: 212.398.9253 | www.phpny.com

Eric J. Kuperman, Esq.

Executive Vice President of Sales Tel: 212.575.4933 ekuperman@phpny.com

John McGorty

Senior Appellate Consultant Tel: 212.624.9983 jmcgorty@phpny.com

39

Contact Us