New York Appellate Practice: The “Clerk’s Law” or a Dozen Unwritten Rules You Should Know (Part I: Appellate Division, First Department and Appellate Division, Second Department)

Mariana Braylovskiy You’ve read the rules, and you’ve read them once more. You’ve followed them while preparing your brief and submitted it to your appellate services team for final processing. Unexpectedly, you are informed that changes are required to ensure that your brief is accepted for filing. You wonder, “How could this happen?” You’re certain that you didn’t overlook any details while reading the rules. The reason is that each court has a set of unwritten rules or “clerk’s law.” These court-specific common practices can only be gleaned through experience, frequent communication with the clerks and through processing multiple filings in a particular court.

The role of Counsel Press’ appellate paralegals is to advise and shield our clients from all potential pitfalls. In this article, I'll go over some of the unwritten rules of the Appellate Division, First Department and Appellate Division, Second Department. Some of these points may seem fundamental, but, make no mistake, these guidelines are vital additions to your submission.

Appellate Division, First Department:

Bullet Points – only four-to-five of these are permitted in all briefs submitted for filing.
Printing Specifications Statement – no signature is required.
Filing Fee Check – the court will not accept a check made payable to the “clerk” of the court. Only checks made payable to the “Appellate Division First Department” are accepted.
Request for Oral Argument Form – counsel is required to file this form. Simply listing the name of the arguing attorney (for either side) on the brief cover is not sufficient. An original signature is not required for filing.
Stipulation to file a Supplemental Record – only one original signature is required.
Pre-Argument Statement – this statement can be used in lieu of the CPLR § 5531 statement. Rule 600.10(b)(1)(ii) requires inclusion of the statement pursuant to CPLR § 5531 in the record, but parties may utilize the Pre-Argument Statement instead.

Appellate Division, Second Department:

Docket Numbers – every order under appeal is assigned a separate docket number.
Photographs in the Record/Appendix – these must be reproduced in color or the Appellate Division will require a letter to explain how these documents were originally presented to the lower court.
Condensed Transcripts in the Record/Appendix – these are not allowed, even if the transcript was presented in a condensed format in the lower court.
On cross-appeal – the Appellant-Respondent’s Reply Brief can be 14,000 words without need to request permission to file an oversized brief.
Briefs filed in criminal matters – no signature is required.
Appellate designations in the caption – these have to match the appellate designations listed in RADI form or the court will require a letter explaining the discrepancies.

There are many other unwritten rules that counsel should be cognizant of. We will continue publishing the “unwritten rules” series and will be covering other New York appellate courts, as well.

Counsel Press’ award-winning team is always ready to share its knowledge and expert advice with you. The biggest advantage of utilizing Counsel Press is peace of mind – there is no substitute for knowing that your filing will be completed correctly the first time, every time.

Tagged: New York State Appellate Division First Department, New York State Appellate Division Second Department, Appellate Practice, Appellate Procedure, Appellate Services


 
 

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