This year's annual report on the impact of the major rulings from the Court of Appeals concentrates on the areas of civil practice, criminal practice and insurance law. These articles are a complement to the New York Law Journal's thorough coverage of the Court through daily news articles and expert analysis in columns throughout the year.
We have added a new feature to the section—advice for appellate practitioners on preparing briefs and presenting oral arguments.
We hope you will find in this approach a useful balance of substantive law articles that analyze developments and explain trends, and practical tips. We welcome your feedback.
- The Editors
Photos: The historic tenure of Judith S. Kaye as Chief Judge of the State of New York came to an end in the middle of the Court's 2008-2009 term. Jonathan Lippman was sworn in soon thereafter. Top: New York Court of Appeals Chief Judge Jonathan Lippman takes his oath of office on Feb. 25. Left: Chief Judge Lippman embraces former Chief Judge Kaye after his swearing-in. Below: The judges of the Court, seated, from left: Carmen Beauchamp Ciparick, Chief Judge Jonathan Lippman and Victoria A. Graffeo, and standing, from left: Theodore T. Jones, Robert S. Smith, Susan Phillips Read and Eugene F. Pigott.
The 10 Most Common Mistakes in Writing an Appellate Brief
Harry Steinberg, a partner at Lester Schwab Katz & Dwyer, writes: They say that the most durable lessons you learn are the ones you learn the hard way. As someone who has been writing appellate briefs for some 20 years, I've learned many lessons the hard way - from my own mistakes. But some of the best lessons I have learned are from the mistakes my adversaries have made and continue to make. Some of the most common errors have been so deeply bred into us by law school, custom and tradition and the senior lawyers who have trained us that we either do not notice them or do not regard them as errors. But the judges who read our briefs do notice them and when you make one or more of these errors, your brief is less effective. Ask any judge.
Appellate Court Consideration of Unpreserved Error and Matters Not in the Record
Norman A. Olch, a New York City practitioner, writes: It is axiomatic in civil and criminal cases that legal issues, facts, and objections not raised in the trial court will not be considered by an appellate court. Faced with the strict rule of preservation, can appellant's counsel legitimately raise on appeal matters not preserved or raised in the lower court? In at least nine situations, the answer is yes.
What Judges Want and Expect From Appellate Advocates
Victor Olds, an adjunct professor of appellate advocacy at Brooklyn Law School and the managing director and general counsel of Bedford-Stuyvesant Legal Services, writes: Every appellate practitioner knows that the success or failure of an appeal depends upon a number of important factors, among them a correct understanding and application of the substantive and procedural law involved, and an ability to advocate one's position persuasively to the reviewing court. Many of the skills associated with these factors are acquired in law school clinical settings, through CLE courses, and by trial and error resulting from years of handling appeals. While these are all useful methods of instruction, another valuable insight into effective appellate advocacy - indeed, perhaps among the most useful - is simply to consult the people ultimately charged with deciding the appeals.
Decisions Include Negligence, Enforcement of Judgments, Fee Splitting
Patrick M. Connors, a professor of law at Albany Law School, Virtually every year the Court of Appeals hands down a number of important decisions in the field of New York Practice and Procedure. This year was no exception, demonstrating that this is a subject that never rests. This piece discusses some of the most important decisions of the last term.
Not Many Fireworks During a Workmanlike Term
Paul Shechtman, a partner at Stillman, Friedman & Shechtman and an adjunct professor at Columbia Law School, writes: With the meaning of "depraved indifference" resolved and no Crawford decision on the docket for the first time in recent years, the 2008-2009 term of the New York Court of Appeals was short on fireworks. Only one case, People v. Weaver, attracted the interest of the mainstream media. Otherwise, the Court resolved 66 criminal cases in a workmanlike fashion, deciding 55 cases unanimously
Rulings Hold Practical Importance for Carriers and Policyholders
Evan H. Krinick, a partner with Uniondale's Rivkin Radler, writes: The past term's insurance law decisions can be divided into two general categories: one group of cases resolving notice and disclaimer disputes, and another involving a wide range of issues under different insurance policies. Interestingly, each present member of the Court authored at least one of the decisions, with Judge Robert S. Smith authoring three. There was a dissent in only one of the Court's major insurance rulings, but all of the cases will likely have a great deal of practical importance for both insurance carriers and policyholders.
