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; Part II focused on the Appellate Division, Fourth Department. In this article, we will go over some of the unwritten rules of the Appellate Division, Third Department. For the purposes of preparing this article, we had a discussion with Tasia Federov, Court Clerk Specialist at the Appellate Division, Third Department. Ms. Federov recommends raising any questions pertaining to the rules, written or unwritten, to the clerk’s office prior to filing your record or brief. Some of these points may seem fundamental, but, make no mistake, these guidelines are vital additions to your submission.
*Brief Requirements: While the form and content requirements for briefs are listed in the Appellate Division Rules (see Section 800.8), the Third Department does have preferences regarding format that do not appear in the rules. The Court prefers briefs to be prepared in Times New Roman 14 point. Briefs should be double-spaced, except for headings, and include a Table of Authorities. The Court also prefers that briefs be single-sided. The reasoning behind this, Ms. Federov said, is so the justices can take notes on the reverse pages.
*Addendum versus Appendix: While the Third Department will allow unreported decisions to be attached to the brief, they require the attached decision be referred to as an addendum rather than an appendix or exhibit. Additionally, the unreported decision should be cited in a footnote or noted in the Table of Contents. The notation or footnote should reference that the decision is being attached to the brief for the convenience of the Court.
*Contents of the Record on Appeal: Section 800.5(a) of the Appellate Division Rules pertains to the form and content of a record on appeal or review. Section 800.5(a)(4) references that the judgment roll should be included in the record. While it is not mentioned specifically, it is required that the initial pleadings be included in the record on appeal. It is always necessary to include the summons, complaint and answer, as well as bills of particulars. Ms. Federov mentioned this is a problem that does arise with appeals filed in the Third Department.
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.