Practice Tips And Commentary From The Bench: New York Appellate Division, First Department Justices Shed Light On What Appeals To Them

Vince Wiscovitch, Esq. On June 1, 2015, the New York State Bar Association co-sponsored a continuing legal education program entitled Meet the Justices of the Appellate Division, First Department at the majestic courthouse. The discussion was moderated by three prominent appellate attorneys. The Honorable Luis A. Gonzalez, Presiding Justice led the panel of Associate Justices in answering questions about general practice in the Appellate Division, First Department; brief writing; and oral arguments before the Court. The Clerk of the Court, Susana Molina Rojas, also shared her insight on various topics. To say the program was enlightening would be a gross understatement. The information provided was invaluable to anyone who engages in appellate practice. As a bonus, the audience got to see the justices in a light entirely different than their usual imposing selves. Make no mistake, their presence, as authoritative jurists, was clear. But, many of them revealed a more personable side and established that they are just like most of the people who enter their courtroom – very hardworking men and women passionate about the law and achieving justice.

The New York State Bar Association invited Counsel Press to attend the program in a press capacity. Counsel Press’ Appellate Counsel Vincent J. Wiscovitch, Esq. and Associate Kersuze Morancy, Esq. attended on behalf of the company. We found the program to be impressive and extremely informative. We are happy to offer some of the practical details the justices offered. For those of you that did not have the opportunity to attend the course, we implore you to take advantage if the program is offered again in the future.

Here are some tidbits of wisdom imparted by the panel. We hope you find them useful.

Attorneys’ Role in Appeals

P.J. Gonzalez:
- Attorney must be an advocate for their client, but also have a sense of objectivity.
- Give the Court credit for having street smarts. The members have lived full lives and have a vast knowledge base.
- If you strike that delicate balance between advocate and objectivity, the Court will give you credit and often the benefit of the doubt.

J. Richter:
- If there is a split in the Appellate Divisions or jurisdictions, be sure to tell the Court whether you are propounding a majority rule or minority position. Be candid and honest.

J. Friedman:
- Decisions from other departments or jurisdictions are persuasive when there is no First Department authority.
- Similarly, policy arguments are warranted and welcomed in the absence of precedent.

Brief Writing: Most Common Mistakes

J. Friedman:
- Leaving a point that supports your position out of the brief.
- Failing to respond to a point made by an adversary.

J. Acosta: - Writing a lengthy brief without citing precedent.

J. Richter:
- Weak point headings that don’t specifically identify issues for the Court.

J. Feinman:
- Point headings that fail to provide a roadmap to the conclusions you want the Court to draw.
- Questions presented that don’t state the issues.

How to Write a Better Brief

J. Friedman:
- Prefers a concise “Nature of the Case” or “Statement of Facts” section. This section is more important to him than “Questions Presented.”

J. Renwick:
- Craft the “Questions Presented” in the best way possible.
- Do not write run-on “Questions Presented.” Break them down. Make them concise.
- “Questions Presented” should give an idea of what the brief is about.

J. Acosta:
- How the issues are framed gives an overview of the case. He views the “Questions Presented” first before reading anything else.

P.J. Gonzalez:
- Substantial quotes from the record on appeal are helpful.

J. Kapnick:
- It can be helpful to have relevant portions of dialog from a trial right in the beginning in the brief in the “Statement of the Case.”

J. Moskowitz:
- It is better to quote statements from a contract and legal arguments rather than paraphrase them.
- When respondents follow the same point headings as appellants, it allows the Court to go back and forth between the briefs.

Rules Are Made To Be Followed (Even If The Justices May Prefer Otherwise)

The justices were asked about various rules governing appellate practice. They discussed them and, in some instances, offered improvements that they believed would help the system. Their responses were interesting and insightful, yet deferential to existing processes.

J. Acosta:
- It would be helpful to the judges in certain circumstances if attorneys were allowed to include relevant pages from the record on appeal in their briefs, but the rules prohibit it.

J. Moskowitz:
- There are no addenda allowed at the end of the brief or in the middle. You can’t get around that, even where it would be useful.

J. Clark:
- Rarely can the Court expand the record on appeal in a criminal matter.
- They can’t judge the sentence in a vacuum. Although they can adjust sentences, they are careful in doing so and give credence to the trial judge. At the same time, they try to view the defendant as a person.

J. Feinman:
- It is up to the attorneys to make sure the Court has access to the pre-sentence report.

J. Renwick:
- Attorneys and the Court need to be limited by the record on appeal.

P.J. Gonzalez:
- The rules allow for a reply brief. Not writing one is a huge mistake. If you get the last word, use it!

Why You Will Not Find Out Your Panel Earlier Than 3 PM on the Day Preceding Argument

J. Friedman:
- There’s been a long-standing practice of publicizing the panel that will be sitting at 3 PM the day before; “none of us see a reason to change that.”

P.J. Gonzalez
- It’s better for attorneys not to know what panel is hearing their case any earlier than 3 PM the day before to limit distractions. “If it ain’t broke, don’t fix it.”

J. Andrias:
- We usually each only sit once a week. If you wanted to, you can probably get some type of indication who will be on your panel.

Oral Argument

Arguably, the hottest topic addressed by the panelists involved the value of presenting an oral argument for an appeal. Nearly all of the justices weighed in on the issue. They explained that after the calendar is called is when the judges know, for the first time, who the reporting judge will be for each of the cases. Every justice is expected to be able to report on any one of the 21 or so cases on the calendar for the day. The reporting judge has to present to the other four what they want to do with their case and defend their position. Thus, the judges have to prepare for every case equally, meaning they come to court with questions.

Uncharacteristically, the entire Court was unanimous in agreeing that: YES, oral argument is important! The justices also provided valuable tips on how to present an oral argument before them.

J. Andrias:
- It is borderline malpractice for an appellant not to ask for and then show up for oral argument.

J. Clark:
- There are times I need to hear the oral argument. I have questions.

J. Moskowitz:
- Oral argument is extremely important. If there is anything you can do to get here for argument, do it.
- If we have questions after reading the briefs and record, we need them answered.
- Always start your argument with the most important issue first. Grab us!

J. Renwick:
- There are times when judges have a view going into the argument and often keep it. But, there are a sufficient number of times when the bench will get up and leave and collectively say: “Wow – that changed my mind. I wasn’t thinking that way.” (N.B. – Don’t ask the Court to quantify that number of times.)

J. Feinman:
- Would like to see more Family Court cases argued. He cannot understand why the parties don’t regularly request time for argument.

J. Richter:
- If you’ve made the trip down to the courthouse, you may as well make your argument. She cannot understand why attorneys show up and then waive their argument at the calendar call, content to rest on their brief(s).

J. Kapnick:
- There are too many times when oral argument is on the calendar and attorneys don’t show up or decide at the last minute to submit. This leaves the judges with a blank on the questions they have.

J. Acosta:
- Always answer the judge’s question. You don’t know if it was asked purposely to help persuade his or her colleagues to their way of thinking.
- Don’t get offended if we don’t want to hear your whole recitation. We have identified the questions that we need to address in your case.
- If you go two minutes without a question being asked from the bench, you can stop. We’ve already asked whatever it is we’re interested in.

P.J. Gonzalez:
- The Court has identified issues and the justices have immersed themselves in your case. Trust them. That’s why they limit your argument to five minutes opening and two minutes rebuttal, or even five and one.
- The panel won’t lock you into five and one or five and two though. Many times, attorneys speak for 10 and five. The Court won’t stop you in mid-sentence or mid-idea. Many times, the judges will keep you up there. They have questions they want answered.
- We have identified the questions we want to ask – what we need to decide your case.

The Court also believes that it is important to reserve one-to-three minutes for rebuttal. But, use it for what it is meant to be. Do not rehash your opening argument. Only address statements made by your adversary. You don’t get rebuttal time if you don’t reserve it. You can always waive it if you feel it is unnecessary after hearing your adversary’s argument.


P.J. Gonzalez:
- The Court needs to be reasonable in granting or denying a motion for enlargement. But, we can’t just rubber stamp it. We must be presented with a compelling reason.

J. Richter:
- If you know you are going to want a stay pending the appeal, do not wait to make your motion. If you act promptly, you have a better chance of getting what you seek.
- You must explain to the Court – did you make the request to the lower court? Did your adversary have to hire an expert in the underlying action? Is the appeal going to impact the entire case or just a portion?
- There are legal issues for the Court to consider and practical considerations. Timeliness matters.

Leave to Appeal

The panel explained that their main reasons for granting leave to appeal to the New York Court of Appeals included the following:
- Disputes between the departments
- Novel issues of law
- Overriding public importance
- Very important legal or social issues

The panel also stated that they are not apt to grant leave merely because there has been a final determination in the case. The judges feel that the Court of Appeals can determine if they want to take those cases.

The Future of Appeals in the First Department

Susana Molina Rojas was asked about the future of electronic filing in the Court. The Clerk was blunt in explaining that the current system is a burden on the Court, its employees and the entire system. They accept the filing of a record and briefs digitally, but they need to convert it to make it available for the judges. Ms. Rojas declared, “The First Department is ready for e-filing!” They are just waiting for the OCA (Office of Court Administration) to issue the command and make them part of the NYSCEF (New York State Courts Electronic Filing) system. She doesn’t know when it is going to happen, but is certain that the First Department will be the pilot appellate court. Ms. Rojas anticipates that the Court will not be able to go totally digital though. She expects that some paper will still need to be filed, similar to the United States Court of Appeals for the Second Circuit. Justice Feinman concurred and pined for the future of electronic filing and PDFs that will eliminate the problem of judges carrying around a large record on appeal.

We’d love to hear from you if you have any questions or comments about appellate practice in the Appellate Division, First Department... or any other court for that matter.

Counsel Press looks forward to continuing our relationship with the New York State Bar Association, including sponsoring their appellate events and presenting our appellate CLE courses.

Tagged: New York State Appellate Division First Department, Appellate Practice, Oral Argument, Litigation, CP Legal Research Group