APPELLATE PRACTICE WESTERN NEW YORK. How To Take and Perfect Appeals

Transcription

1 APPELLATE PRACTICE WESTERN NEW YORK How To Take and Perfect Appeals

2 Presenter: Introduction Robert C. Brucato, Esq. Sr. Appellate Counsel Counsel Press: 75 years supporting attorneys in appellate practice 11 Federal Appellate Circuits and US Supreme Court 12 Offices Across the US (including five in New York State!) Best Appellate Printer & Best Appellate Services Provider in the New York Law Journal Reader Rankings for 7 consecutive years!

3 Thank You to the Bar Association of Erie County I would like to thank the Bar Association of Erie County and Mary Kohlbacher and Tim Murphy in particular for the opportunity to present this program.

4 Overview How to commence an appeal in NYS appellate courts How to perfect the appeal Brief writing requirements Rules regarding oral argument Brief Review of Fourth Department Motion Practice Appeals in the NYS Court of Appeals Appeals in the US Court of Appeals Second Circuit

5 YOU LOST!!! NOW WHAT???

6 Taking an Appeal NYS CPLR Articles 55 through 57 Individual appellate court rules NY Courts we will be primarily focusing on: New York Appellate Division Fourth Department (AD4) New York Appellate Division Third Department (AD3) New York Court of Appeals Fed FRAP and local circuit court rules United States Court of Appeals for the Second Circuit * Materials cover NY App. Div. First and Second Departments (AD1, AD2) as well as the New York Appellate Terms First and Second Departments

7 Taking an Appeal The Notice of Appeal Where to file? Office in which the order or judgment being appealed is kept. Usually the County Clerk s Office. (Exhibit 1 in materials contains a chart of what counties are in which departments) When to file? 30 day rule!! Mailbox rule applies to serving Notice of Entry Cross-Appeal (Exhibit 2 in materials contains a sample Notice of Appeal form)

8 Taking an Appeal The Notice of Appeal What to include with NOA? AD4: NOA Filing Fee ($65 - to clerk of the court of county where appeal is filed) Original and one copy gets filed Should file but not required: Copy of Order/Judgment Affidavit of Service

9 Taking an Appeal The Notice of Appeal What to include with NOA? AD3: NOA Pre-Calendar Statement with Attachments (copy of order or judgment appealed from, the opinion or decision, if any, and a copy of the notice of appeal or order granting leave to appeal) Affidavit of Service Filing Fee ($65 - to clerk of the court of county where appeal is filed) Must file original NOA, affidavit of service, and one copy of the Pre- Calendar Statement with Attachments

10 Perfecting the Appeal Time to Perfect For the First, Second, and Third Departments, time is measured from the date on the NOA, not when it is served or filed For the Fourth Department, however, time is measured from the date the notice of appeal is served. AD1: 30-day rule vs. 9 months; Term Calendar (2017 Term Calendar attached as Exhibit 6) AD2: 6 months AD3 and AD4: 60-day rule vs. 9 months

11 Time to Perfect Enlargements of Time AD3 and AD4 Appellant must make a motion on notice for an extension of time to perfect Respondent must also make a motion on notice for an extension of time to file a brief New Procedure for Third Department Revised Intra Office Policy Will now accept 3 week extensions beyond the deadline on that Perfecting the Appeal Respondent s Briefs by letter, but letter must confirm consent has been given by opposing counsel.

12 Perfecting the Appeal How to Perfect The Full Record Method Summary of contents: TOC CPLR 5531 Statement All documents considered by lower court Signed stipulation pursuant to CPLR 5532 for AD4 Certification by attorney CPLR 2105 (Exhibit 9) for AD3 or a signed stipulation pursuant to CPLR 5532 Rule on memoranda of law

13 Perfecting the Appeal How to Perfect The Appendix Method AD4 Still Required to prepare Record on Appeal Inadequate Appendix Appendix Method Other Departments

14 Perfecting the Appeal How to Perfect Transcripts Not necessary to settle transcripts at the AD4 AD3 requires it unless Record itself is stipulated to by parties Exhibits Printed Exhibits should be included in the record at the AD4 Oversize or Physical exhibits can be handed up to the AD4 at the time of filing Can demand exhibits from Respondents or Third Party

15 Perfecting the Appeal

16 AD4 Motion Practice Return Date is a Monday at 10:00 AM unless it is a holiday, then the return date is the next business day Proper Notice 8 days, 9 days, 13 days Necessary Papers: Notice of Motion, Supporting Affidavits, Proof of Service, NOA, Order/judgment appealed from $45 filing fee Original and one copy filed No oral argument

17 Specific Motions AD4 Motion Practice 60-day Rule Extension of Time to Perfect Vacate Dismissal Expedite Consolidation

18 Transferred Proceedings AD4: No Printed Record Record documents are transferred from the Clerk s office Briefs are required AD3: Record on Review is required Briefs are required Original Proceedings

19 New York Court of Appeals Appeals as of Right CPLR 5601 and ) Final determination from the Appellate Division with double dissent favoring Appellant 2) Final determination from the Appellate Division with substantial constitutional question 3) Appellate Division granting a new trial or hearing upon stipulation for judgment absolute 4) Matters satisfying (1) or (2) but for finality, and the Appellate Division has ruled on a previous appeal in the matter that directly affects the final determination

20 New York Court of Appeals Appeals by Permission CPLR ) Final determination from the Appellate Division that s not appealable as of right 2) Seeking review of the Appellate Division's prior non-final order after a final judgment Permission is by Motion for Leave 2 bites at the apple Timing As of right or by motion 30 days from service of the judgment or order being appealed with Notice of Entry Electronic Filings Court-PASS system New Page Limitations for Briefs

21 Second Circuit - Court of Appeals Civil vs. Criminal Differences in forms and some procedures Guidelines provided in Exhibits 22 and 23 Notice of Appeal Form filed in District Court within 30 days after entry of judgment or order being appealed (Samples in Exhibits 24 and 25) $ Docket Fee and $5.00 Processing Fee Clerk serves parties and Court of Appeals Other forms to be filed Acknowledgment of Notice of Appearance 14 days (Exhibit 26) Civil Pre-Argument Statement Form C 14 days (Exhibit 28) Transcript Information Civil Form D 14 days (Exhibit 29) Transcript Information Criminal Form B 14 days (Exhibit 30) WDNY Index to Record on Appeal 14 days

22 Second Circuit - Court of Appeals Briefing Schedule Appellant notifies COA in writing 14 days from receipt of last transcript or from filing Form D (Ready Date) Up to 91 days - Briefs and Joint Appendix Failure to request gets 40 days or 30 days for Appellee Court may assign to Expedited Appeals Calendar (XAC) giving 35 days Reply Briefs 14 days Joint Appendix Appellant identifies Parties agree Notification of contents should be sent within 14 days of Index being filed Appellant s responsibility Rule on Memorandum of Law Special Appendix Only if JA is more than 300 pages Orders, opinions, judgments being appealed Rules of law, statutes, etc. Appended to brief or bound separately

23 Second Circuit - Court of Appeals Briefs Comply with FRAP 28 and LR 28.1 lists elements Opening briefs 30 pages vs. 14,000 words or 1300 lines of type Font size: 14 pt Times New Roman (Proportional Font) 12 pt Courier (Mono-spaced Font) Reply briefs 15 pages vs. 7,000 words Oral Argument Request form by each party (Exhibit 31) 14 days from last Appellee s brief Costs Form provided with order (Exhibit 32) LR 39.1 allows for $.20 per page for up to 7 copies

24 Ethical Issues Duty not to take frivolous appeals Duty of Candor Duty to Cite Adverse Authority Duty of Competence

25 Ethical Issues Do not take frivolous appeals NY Rules of Profession Conduct & FRAP apply Discuss pros and cons with your client before filing a Notice of Appeal Explain relevant case law and role of the appellate court

26 Ethical Issues Duty of Candor: Do not make false statements or leave false statements uncorrected applies to all disclosures Disclose correct word count; filing an oversized brief without permission may be grounds for sanctions or dismissal (Exhibit 8)

27 Ethical Issues Duty to Cite Adverse Authority: Don't be this lawyer (Exhibit 2)

28 Ethical Issues Duty of Competence: Knowledge, skill, and preparation Rehashing trial court memoranda is not sufficient Follow the rules! Appeal dismissed for failure to perfect even though a motion for extension was pending (Exhibit 6) In 1596, a verbose attorney was penalized in a very public way for filing a lengthy brief (Exhibit 1)

29 Ethical Issues Duty of Competence: Don't neglect the case Withdraw an unperfected appeal or risk being barred from appealing subsequent orders/judgments as to the same legal questions (Exhibit 7) Don't wing it! Case dismissed with prejudice for failure to file an intelligible complaint, affirmed by appellate court (Exhibit 3)

30 Ethical Issues Duty of Competence: Ghost writing for pro se parties the jury is still out Some courts find this to be attorney misconduct (Exhibit 5) Ghost writing for fellow attorneys that s ok

31 Q & A QUESTIONS? Robert Brucato, Esq. Buffalo T E. rbrucato@counselpress.com