Rolando T. Acosta (NYLJ/Rick Kopstein)
On June 1, 2015, I and several colleagues participated in a program entitled “Meet the Justices of the Appellate Division, First Department,” sponsored by the Committee on Courts of Appellate Jurisdiction and the Committee on Continuing Legal Education of the New York State Bar Association, in collaboration with many other bar groups. The purpose of this program was to provide a forum for a frank discussion between members of our court and appellate practitioners regarding issues surrounding appellate practice. The lawyers were able to ask the judges pointed questions about effective brief writing, oral argument and raise other concerns and ideas. It was a rare opportunity for lawyers to explore the preferences and thoughts of appellate judges in a relatively informal setting.
It may have been even more beneficial for the justices. With only a little prodding, and by turning a careful ear to the questions coming from members of the bar, we were able to discern how our court is perceived by lawyers who appear before us. While lawyers may be hesitant to directly confront members of the judiciary with their complaints and concerns, programs that encourage and promote transparency in a professional, non-adversarial setting are ideally suited to encourage a frank exchange between judges and members of the bar.
This kind of frank exchange is especially important for appellate judges. Unlike trial judges, appellate judges are often somewhat cloistered and removed from the daily interactions with members of the bar. As trial judges, we were accustomed to daily interactions with lawyers—during case conferences, motion practice and trial work. Lawyers were in and out of our courtrooms on a daily basis, and as a consequence we got to know their concerns about our part’s practices, and about the way we went about our work; we would even occasionally be privy to their thoughts about some of our other colleagues and the way they ran their courtrooms.
There is very little of that at the Appellate Division. Other than the days when we sit on a panel to hear oral argument, or on days when we are assigned to decide applications for interim relief pending appeal, there is no interaction with lawyers during the working day. Even during oral argument, there is a greater degree of formality than in the trial courts. The lawyers are placed at a substantial distance from the bench and there are almost no informal exchanges, let alone discussion beyond the issues raised on appeal.
Moreover, there are no idle moments as there often are in the trial courts in the midst of a calendar conference, for example, or during a trial—time in which conversations may be had about the lawyers’ issues related to court practices. Even if those concerns are expressed elliptically, there is still an opportunity for them to be expressed in the trial court.
Not so in the Appellate Division, to the court’s detriment, as input from the bar can be a valuable resource for improving the functioning of the judiciary. So, we on the appellate court should make an extra effort to create opportunities to speak directly with practitioners about our court and how to improve it.
The June program provided me with a practical example of how, given the opportunity, practitioners can help our court identify problems we may be able to address. One such problem was raised at that program was the delays in publishing court writings. These delays can present a huge problem to practitioners, because their clients may be desperately awaiting relief or because circumstances may change significantly in the meantime. Therefore, it is incumbent on us at the Appellate Division to make an effort to ensure that our work product is produced with a high degree of efficiency.
One reason for delays is that older work can take a back seat to the more immediately pressing need to prepare for upcoming calendars—and those upcoming calendars just keep on coming. Another reason is that sometimes justices undertake to prepare more, and more lengthy, written work than can be accomplished within a reasonable time given the caseload.
Also, when a justice delays many months before preparing and circulating a writing, that delay will cause multiple additional delays, because when too much time has passed since the matter was heard, many of the other justices on that panel, upon belatedly receiving a writing, will be forced to divert some of their time to repeating their original preparations for the case, re-familiarizing themselves with the briefs and records and their own views of the issues. Of course, some of these delays are necessary, when cases present difficult issues that merit longer, more thoughtful opinions. Nonetheless, I have no doubt that many of our publishing delays can be avoided.
While delay can be handled by each justice individually, I believe that the best way to address the problem is with a team approach. For instance, it may also be useful for us to engage in some group discussion or training, perhaps with outside participation, about choosing when to prepare full writings and when to limit ourselves to brief memorandum decisions.
Learning when not to write can be a valuable tool. Or, perhaps, we should consider getting input as a group from workplace efficiency experts to help us find ways to manage our responsibilities and workload more productively and with less waste of time.
For example, an efficiency specialist may help us find ways to minimize the need to repeat previous preparation work upon receipt of a long-delayed writing—perhaps there are more effective methods for recalling our thoughts from months earlier, beyond the typical jotted notes that so seem like gibberish when we consult them four months later. However we approach our hurdles, it is clear to me that approaching them as a team can be the key to making real, lasting improvements in our court’s output.
The foregoing is just one example of how hearing lawyers’ expressed concerns can lead to valuable improvements in our court. That is why it is so important that we hold events that give lawyers the opportunity to provide us with their input.
Of course, to be successful, our programs must be of service to the lawyers. In the past we have held continuing legal education programs on topics like improved appellate advocacy, focusing on better brief writing and oral advocacy. Those types of instruction and direction are fine, but lawyers need more than that. Most of them probably already know, for example, that briefs can be too prolix, but the pressures of time and the unwillingness of clients to pay the cost of fine-tuning often prevent a better work product.
What we really need, and with far greater frequency, are bar association programs that allow for give-and-take between appellate judges and lawyers. Of course, it is reasonable to hope that appellate judges are available in the normal course of their professional lives for informal exchanges with practitioners, but as a practical matter, there is substantial difficulty in finding the opportunity to do so. At specialty bar association events, the cocktail hours are usually too loud and crowded to be conducive to in-depth discussion, and during the dinner hour, the appellate judges are usually herded onto a dais, cut off from communications with members of the bar—much like the physical arrangement in our courtroom.
That is why we at the Appellate Division must take the initiative to work with the various bar associations and their subcommittees, to create and schedule the types of events that will allow for an ongoing exchange of concerns and development of ideas. Perhaps, for example, we could have a series of breakfast or luncheon meetings, each sponsored by a different bar association subcommittee and focused on an area of interest to that subcommittee. Such events would go a long way to help foster better appellate advocacy and explore ways to improve the appellate practice experience.