On November 6, the New York County Lawyers Association administered an excellent eight credit CLE program entitled, “The Experts’ Guide to Appellate Practice.” At this program, accomplished appellate practitioners, clerks of the Appellate Division, First and Second Departments, and a distinguished array of New York State judges provided around 90 attendees with much more than just the nuts and bolts of appellate practice.

Many of the panelists shared their significant experience with appeals in New York State courts. Attorney Dolores Gebhardt provided the audience with an overview of the fundamentals of appellate practice. Attorney William Buckley discussed the nuances of appellate motion practice. The Program Chair, Elliott Scheinberg, helped attendees to understand real and potential pitfalls in appellate practice. He told the audience that the “linchpin” of all appeals is appellate preservation.

Many attendees were very interested to hear from the clerks of the Court. Ms. Susanna Rojas, Clerk of the Court for the Appellate Division, First Department and Ms. Aprilanne Agostino, Clerk of the Court for the Appellate Division, Second Department each provided participants with detailed descriptions of the expectations and requirements of the various courts. As the First Department and Second Department have significant differences in their rules, the clerks’ insights were invaluable. For instance, one striking contrast is that while the Appellate Division, First Department has been consistently adhering to its term calendar system to keep the court up-to-date, Ms. Agostino advised that recently it has taken approximately one year after briefing for cases to reach oral argument in the Appellate Division, Second Department.

The true highlight of the program was the amount of time dedicated to participants by active judges. Guest Speaker Judge Sheila Abdus-Salaam of the New York Court of Appeals provided a very detailed and illuminating contrast of her experience on the benches of the Appellate Division, First Department and the New York Court of Appeals. She offered the audience practical tips, such as candor with the bench when one does not know the answer to a judge’s question during oral arguments, and helpful insights regarding the differences in how criminal and civil leave applications are handled by the New York Court of Appeals. This smoothly transitioned into Attorney’s Stuart M. Cohen presentation on practice in the Court of Appeals.

Probably, the most enlightening part of the day came at the end: a panel of active Appellate Division, First and Second Department judges. Just after stepping off the bench, Second Department Judge Robert J. Miller enlightened the audience with the details of what an appellate judge’s caseload entails in his court, and provided useful tips on how best to present your case to busy judges. He recommended avoiding frivolous appeals and being sharp in argument and briefs. According to Judge Miller, “The shorter brief and the best points are the pathway to winning.” Judge Miller also explained the role of dissent in his court. According to Judge Miller, dissents are most likely to appear in cases with cultural importance where the issues are “larger than the litigants.” He also suggested that motions for leave to appeal to the Court of Appeals are more likely to be granted in cases in which an Appellate Division judge has issued a dissent.

Judge Judith Gische of the Appellate Division, First Department helped the audience to understand how motions are considered in the First Department. She advised participants that although decisions on motions may contain few words, much consideration, review and labor goes into each one. She also suggested that rulings on motions should not be considered indicative of how the Court will rule on future similar motions in other cases or what the Appellate Division, First Department is inclined to do with the merits of the case. Judge Gische reminded practitioners to make sure their motion papers have “teeth” and include legal standards for the Court to consider, whether the practitioner is the movant or opposing the motion.

Judge John W. Sweeny, Jr., also of the Appellate Division, First Department, discussed oral argument in detail. He emphasized the importance of being “passionately dispassionate” in an oral argument and maintaining one’s composure and outward signs of respect for the Court. Practical tips, which were provided by Judge Sweeny, included the importance of introducing yourself to the panel, never speaking over a judge, finishing when one’s time is up, and ensuring that pro hac vice counsel are well-versed in the Court’s practices and rules.

Judge Leonard B. Austin of the Appellate Division, Second Department provided insight into how to address a panel during oral argument. He reminded participants that the Court generally knows the case as well as the attorneys arguing it, and, sometimes, even better.

All in all, the New York County Lawyers Association organized an exciting and educational day for New York appellate practitioners. Counsel Press was proud to sponsor and be a part of this worthwhile event. Counsel Press’ Appellate Counsel Jacquelyn Mouquin, Esq. and Vincent Wiscovitch, Esq. and Associate Kersuze Morancy, Esq. attended on behalf of the company, met with the speakers and appellate practitioners, answered numerous questions on rules and procedures of the appellate courts and had many interesting discussions on current appellate matters and issues.

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

Tagged: Appellate Practice, Oral Argument, Appellate Services, Appellate Procedure, New York State Appellate Division First Department, New York State Appellate Division Second Department, New York State Court of Appeals