Page 11 - Court of Appeal and Appellate Practice

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Court of Appeals and Appellate Practice | MONDAY, AUGUST 25, 2014 | S11

If the court’s questioning of the appellant’s precedents have no life of their own; they man has a complete overview of the case. presiding to the assembled lawyers at the cal-

attorney during his presentation raises a seri- ride on the backs of the facts. Precedents are An issue that often confronts the brief endar call that they could be conident that
ous question as to the court’s acceptance of his persuasive only if the facts supporting them writer is an opposing brief replete with mis- the bench is familiar with the facts and issues
argument or has completely undermined the are similar to those of the case at issue. As statements and inaccuracies of the record. presented by each of the cases on the calen-
argument, a simple recognition of the court’s former Chief Judge Judith Kaye has noted: These misstatements are best responded dar, appellate lawyers will sometimes insist
grasp and understanding of the issues, stated I continue to believe that composing the to together and not in discrete portions of on a lengthy recitation of the facts as though
in a complimentary fashion, should sufice fact statement requires the greatest skill.
the brief. That way, the opposition’s case is the bench is a stranger to the case. Using
as the respondent’s argument, coupled with It is the brief writer’s irst opportunity shown for what it is: a case lacking merit. It valuable argument time on such an exercise
a brief statement as to why the case should to relate the case to the judge, and is also has the advantage of disposing of all the is wasteful. Of course, if a reading of a por-
be afirmed and perhaps a stated willingness never neutral though it must appear inaccuracies together in the same discussion,
tion of the testimony or record is crucial for

by counsel for the respondent to respond scrupulously so. Each fact recited in a rather than piecemeal.
emphasis or clariication or to resolve a hotly
to any questions the bench might have.
brief should advance the legal argument After watching appellate lawyers practic-
contested issue, doing so is quite appropriate.
Address Adverse Precedent Squarely. In you plan to make; in its totality the fact ing their craft for 30 years, I am left with the Respect of Our Home Leads to Respect
preparing for oral argument, counsel should statement should condition the reader impression that the best appellate advocates of Yours. As anyone familiar with an appel-
be prepared to deal with precedents that are to feel that justice is on your side. Even are those who make their arguments in the late calendar knows, judicial time spent on
adverse to his client’s position. It goes with- in a court of law like ours, no judge votes simplest and clearest of language, who have the bench is a precious commodity. For that
out saying that he should never ignore these easily against the just result. Above all, the knack of getting to the heart of the matter reason, appellate courts attempt to keep
precedents. Ignoring them is never a solution; your facts must be accurate, correctly quickly, who answer the judges’ questions meticulous control of their calendar time.

it will not make them go away. Advocacy of portraying and citing the record.7
promptly and directly and have a thorough Often, on the call of the calendar, lawyers
this kind is not only highly unprofessional,4 It bears noting that each and every factual knowledge of the record and who know not are beseeched to yield some of their argu-
but may also constitute a violation of New assertion in the statement of facts should only when a point has been made but also ment time, given the judges’ familiarity with
York’s Rules of Professional Conduct.5 Coun- be followed by a citation of the place in the when it has registered. Perhaps, though, their the facts and the issues of each case and the
sel, of course, may attempt to distinguish the record where support for the statement can greatest asset is the credibility they bring to length of the calendar. In the First Department,
adverse precedent or even, if he argues in an be found. In reciting the facts counsel must any case in which they appear.
the justice presiding will also explain that the
appellate court that established the precedent be unwaveringly fair. No less than counsel’s light on the podium facing the lawyer as he
and which, by virtue thereof, would have the credibility, so important to the success of argues will light up two minutes before his
power to overturn its own precedents, urge the argument, is at stake.
Ways to Lose Your Argument
argument is to conclude as a warning and

that it be overruled, but he may not ignore it.
CPLR 5528(a)(2) requires that the appel- Love Thyself Above All Others. In recount- will be followed by a red light signaling the
It also behooves a lawyer preparing an lant’s brief contain “a concise statement, ing my experiences as an appellate judge for expiration of the lawyer’s time for argument.
appellate argument to take advantage of the not exceeding two pages, of the questions 30 years, I am reminded not only of the attri- Most lawyers will, if needed to conclude their
opportunity to participate in a moot court. involved without names, dates, amounts or butes that I admired most in an appellate argument, ask the court’s indulgence for an
Probably no other method of preparation for particulars, with each question numbered, advocate but also those traits that I disliked. additional minute or two to wrap up their
oral argument is as valuable. It presents an set forth separately and followed immediately One of the more pronounced misjudgments argument. The request is invariably granted.
opportunity for counsel to be questioned by by the answer, if any, of the court from which
made by counsel in arguing an appeal is
My pet peeve was always with the lawyer,
lawyers who have read the briefs and are never a neophyte, who,
familiar with the case and the issues. Such an talking through the red light

exercise will not only imbue him with coni- Rather than a recitation of the facts or the procedural history
without so much as a “by
dence when confronted with questions at the your leave,” would continue
actual argument but also allow him to make of the case or of misstatements in the adversary’s brief, the opening should
his argument and thereby
a smoother and more cohesive presentation challenge the justice presid-
of his case.
be a few sentences that immediately arrest the attention of the court ing to cut him off. I always
Know the Judges. Of course, it is also help- found it hard to accept such
ful to know the identity of the judges before as to why the reversal or modiication sought is required.
a display of bad manners,
whom you will argue. If your argument is and, when presiding, like

before the Court of Appeals, absent a recu- others of my colleagues,
sal, the seven judges of the court will sit. The would not tolerate it.
Appellate Division has rotating benches. In the the appeal is taken.” The questions should becoming so carried away by his argument Please Do Not String the Court Along.
First Department, the names of the justices be stated clearly and framed in terms of the as to forget momentarily the venue in which Finally, I have never understood the appar-
sitting on the panel are identiied in the New facts of the case on appeal without unneces- he is arguing and to treat the appellate tri- ently incurable habit of endless string citing,
York Law Journal on the day of the argument. sary detail. They should go to the core of the bunal as though it were a jury sitting as the especially with respect to the well accepted
However, their names can be obtained the case with the purpose of leading the court trier of the facts. Such an argument is easily legal principle as to the propriety of which
day before by calling the clerk’s ofice after to the answer the draftsman intends. The recognized. It is long on emotion but short there could be no challenge.
3 p.m. or checking the court’s website. In the questions presented should be consistent on the law and controlling precedent.
Needless to say, much of what I have writ-

Second Department, the identity of the bench- with the required point headings that follow Reading May Be Fundamental—Reading ten here relects just a plain application of
es is published in the New York Law Journal in the argument section of the brief, which Aloud Is Not. Another failing I have witnessed common sense. Still, I harbor the hope that
approximately two to three weeks before the should be in the same order as the questions is the lawyer who reads his entire argument. these thoughts and suggestions prove helpful.
argument and on its website at the same time. presented and be afirmative statements in Nothing will turn a court to total boredom •
In the Third Department, the names of the answer to each question presented.
quicker than the spectacle of a lawyer, gazing ••••••••••••••••••••••••••••
sitting justices can be obtained by calling the CPLR 5528(a)(4) requires that the argu- down at his brief or prepared notes, intently 1. In preparing this article, the author is indebted to
clerk’s ofice approximately 24 hours before ment “be divided into points by appropriate parroting its words in a dull, lifeless mono- the treatise, New York Appellate Practice, (Lexis Nexis
argument, or checking online. In the Fourth headings distinctively printed.” Thought- tone, without pause or passion. Most of the Matthew Bender), A. Vincent Buzard, Author, Thomas R.
Department the names are available on the ful draftsmanship is the key to fashioning times that I sat on a bench hearing such an Newman, Original Author, for its invaluable insight.
2.MatterofGonzalezv.StateLiq.Auth.,30N.Y.2d108(1972). 3. People v. James, 81 A.D.2d 22 (1981).
morning of the scheduled argument.
point headings, which should weave the argument, the judges had no questions of 4. See In Matter of Department of Education v. Brust,
Know the CPLR on a Brief’s Require- essential facts together with the governing the lawyer, which I always construed as a 2009 NY Oath Lexis 334.
ments. Although a lawyer should not encum- legal principles. And, of course, in writing a total failure of argument. Part and parcel 5. See 22 NYCRR Part 1200. Rule 3.3(a)(2) states: “A
ber his oral argument with a lengthy state- brief, counsel should always begin with the of any appellate argument should be the lawyer shall not knowingly fail to disclose to the tribu-
ment of the facts, a strong statement of the strongest argument, lest the judge reading lawyer’s effort to convince the court of the nal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not
facts is a critical component of any appellate the brief, already unimpressed by the previ- rectitude of his cause by the ardor and zeal disclosed by opposing counsel.’ Comment 4 to Rule 3.3
brief. In fact, CPLR 5528(a)(3) requires that ous weaker arguments, comes to the conclu- of his argument, an element totally lacking states, in part: “[L]egal argument based on a knowingly
an appellant’s brief contain “a concise state- sion that the entire case is meritless. Since in an argument consisting solely of a reading false representation of law constitutes dishonesty to-
ward the tribunal. Paragraph (a)(2) requires an advocate to disclose directly adverse and controlling legal author-
ment of the nature of the case and of the the purpose of point headings is to provide of the brief. That is not to say that a lawyer ity that is known to the lawyer and that has not been
facts which should be known to determine a guide for the judges and not to guide the should rely on memory rather than reading disclosed by the opposing party.”
the questions involved, with supporting drafting lawyer through his argument, I have an important quote from a case, especially 6. “[A] counterstatement of the nature and facts of the
references to papers in the appendix.”6 The always been of the view that point headings where accuracy is essential.
case shall be included only if the respondent disagrees
importance of the statement of facts in an are better left for selection after the argument Anything but the Facts, Please. Similarly, with the statement of the appellant.” (CPLR 5528[b].)
7. New York Appellate Practice, supra, p. 7-24, citing
appellate brief cannot be understated. Legal
is written and decided upon when the drafts-
despite the repeated reminders by the justice
(NYSBA 1995).