Proceedings in appellate courts are very different from those in trial courts, and each one of the appellate courts has their own set of rules and internal operating procedures. If you do not follow the rules carefully, you may lose the chance to have your appeal considered. In addition to what is stated in rule books, each court has a set of unwritten rules or “clerk’s law.” Sometimes, these are requirements and sometimes, just court preferences. These court-specific common practices can only be gleaned through experience, frequent communications with the clerks and through processing multiple filings in a particular court.
The role of Counsel Press’ appellate counsel and appellate paralegals is to advise and shield our clients from all potential pitfalls. Part I of this article covered the procedures of the Appellate Division, First Department and Appellate Division, Second Department. In this article, we will go over some of the unwritten rules of the Appellate Division, Fourth Department. Some of these points may seem fundamental, but, make no mistake, these guidelines are vital additions to your submission.
*Order Settling Record: While the rules state that either an original stipulation certifying the record on appeal or an original order settling the record be included in the record on appeal, in essence, the original order is kept on file at the county of original jurisdiction. For this reason, when filing your record on appeal, the Court will accept a certified copy of the order. This will satisfy the rule requirement.
*Appendix Method in Civil Appeals – Inadequate Appendix: If a party is proceeding via the appendix method, the rules dictate the appropriate process to be followed. They do not, however, mention that the Court can determine the appendix is inadequate. In the event that your appendix is determined to be inadequate, the clerk may do one of the following: they may reject the appendix and can even dismiss the appeal, they may also permit the Respondent to prepare a Respondent’s Appendix and seek costs or the Court can even order the Appellant to print the balance of the entire record.
*Contents of the Record on Appeal: While the Court designates the contents of the record on appeal (see 1000.4(2)), they will deem what the parties stipulate to as being the complete record. For example, if memoranda are included in a stipulated record, the Court will accept the record as perfected. This also applies when there is an order settling the record. Any documents outlined in the order can be included.
*Brief – Addenda: The Court encourages parties to attach unpublished decisions to their brief. They may also attach any document or photograph, provided that it is in the record on appeal. It is acceptable, as well, for color photographs to be included in the body of a brief.
*Appropriate Color Cover for Respondent-Cross-Appellant Briefs: While the rules state that an Appellant’s Brief should be blue and a Respondent’s Brief should be red, the rules do not dictate the correct color for the cover of a Respondent-Cross-Appellant Brief. The appropriate color for such a brief is red.
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.