PRESENTED BY: Sponsored by:

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

Learning Objectives 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 3

Timing for Filing Notice of Appeal CPLR 5513(a) I. Service with Notice of Entry a. 30 days from date the Order is served with Notice of Entry by hand II. III. b. 35 days from date the Order is served with Notice of Entry by mail Jurisdictional requirement 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 4

Filing Notice of Appeal 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 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 5

New York State Counties Second Department First Department PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com

Pre-Argument Statement 5

RADI Form 6

RADI Form 7

Time to Perfect Appeal 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 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 on 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 9

Time to Perfect Appeal II. Appellate Division, Second Department (cont d) Hand Delivery Overnight Delivery Regular Mail Delivery Respondent Brief 30 Days from date served 31 Days from date served 35 Days from date served Reply Brief 10 Days from date served 11 Days from date served 15 Days from date served PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 10

Record on Appeal 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) PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 11

5531 Statement 12

2105 Certification 13

Appendix 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) PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 14

Record on Appeal/Appendix 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 15

Record on Appeal/Appendix 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 16

Motion to Strike 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 17

Brief Appellate Division, 1 st and 2 nd Departments 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, 1 st Department b. 5531 Statement Appellate Division, 2 nd Department PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 18

Brief Appellate Division, 1 st and 2 nd Departments III. Formatting a. Mono-spaced v. Proportionally Spaced font, examples of 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 bold or FULLY CAPITALIZED words except in point headings f. Underline and Italics acceptable if used sparingly 19

Brief Appellate Division, First Department 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 20

Brief Appellate Division, First Department PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 21

Brief Appellate Division, Second Department 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 22

Brief Appellate Division, Second Department 23

Perfecting the Appeal 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 24

Oral Argument 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 25

Request for Oral Argument Form 26

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 29

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 30

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 31

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 32

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 33

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, order, 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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 34

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 own (your) conclusions. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 35

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 36

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 one 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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 37

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 38

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

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 40

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 41

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 opportunity to persuade; it reveals to you what they are thinking and where they perceive the weaknesses in your brief. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 42

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. PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 43

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. 44

Enlargements of Time 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 27

Multiple Appellants I. Determining appellate designation II. Briefing schedule III. How to navigate Terms in AD1 with multiple appellants 9 Days December 27th *Since it s a Sunday, the deadline is now December 28th PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 28

Appeal to the Court of Appeals 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 29

New York State Court of Appeals 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 PrintingHouse Press 10 East 39th Street, 7th Floor, New York, NY 10016 Tel: 212.719.0990 www.phpny.com 30

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