The Appellate Division, First Department, at 27 Madison Ave.
The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)

While the Appellate Division, First Department, has generally operated well over the years, certain adjustments may not only save time, money and effort, but also improve the quality and efficiency of our work.

1. Stagger Oral Argument: All attorneys are required to be present for the 2 p.m. calendar call, and must wait until their case is reached. This often causes lawyers to bill clients for waiting time. We should consider implementing staggered calendars which have been adopted in some trial courts.

2. Use Digital Briefs and Records: At the First Department, we require any party perfecting or answering an appeal to file one text-searchable PDF copy of the documents via email,1 although we have not yet fully implemented electronic filing.2 The court has the capability of downloading those digital documents onto our computers. Therefore, the current procedure, by which court officers bring members of the bench hard copies of the briefs and records as each appeal is argued, should become obsolete. The justices could access the documents with laptops at the bench, saving much time and energy expended by our court officers.

3. Bail Pending Appeal: It has been this court’s policy for many decades to permit the defense, on an application for bail pending appeal under CPL 530.45, to select the individual justice before whom the application is to be made. I think this policy should be changed. Unless there is good reason, a party to any litigation should not be able to personally select the judge who will decide a matter. The statute merely authorizes that bail may be granted by “a justice of the Appellate Division;” there is nothing in that phrase requiring us to allow the movant to designate which justice hears the application.

In other contexts in which “a justice” is authorized to act (e.g. CPLR 5704[a]), applications are directed to whichever justice is handling that day’s interim applications. While it is appropriate to permit applicants to direct their application to a particular justice when it relates to a prior decision by this court, such as motions for a certificate granting leave to appeal to the Court of Appeals (CPL 460.20), no such rationale applies to bail applications.

4. Permit Oral Arguments in More Matters: We should permit oral argument of matters in which no argument has been allowed up to now. For instance, our court rule requires that “non-enumerated” appeals, a category composed primarily of interlocutory appeals (see 22 NYCRR 600.4[b]), be submitted without argument (22 NYCRR 600.11[f][3]). While, occasionally, the attorneys seek and obtain leave to argue, and even more occasionally, the court initiates arrangements to have a non-enumerated appeal orally argued, there are non-enumerated matters where oral argument could make a difference. I suggest that the prohibition against oral argument contained in 22 NYCRR § 600.11(f)(3) be modified to add the language “unless the court so directs.”

5. Adopt a Standard Protocol for Oral Argument Calendar: Attorneys request argument time when they file their briefs (see 22 NYCRR § 640.5(a),(b)). They are then required to file a joint time request with the court in which they are allowed to request a maximum of 15 minutes each (22 NYCRR § 600.11[f][1],[2]). At the start of each calendar call, the senior justice on that day’s panel will begin with the announcement that a total of five or six hours of argument time has been requested, and that when their case is called, counsel should reduce their time requests.

After that, no one can be sure how much time will be allotted to counsel since each Justice Presiding’s idiosyncratic ways of handling the calendar holds sway. Some justices give each attorney the specific amount requested; others rigidly inform counsel, no matter how complex the case is, that their time allotment is “5 and 2″ (for rebuttal), and this despite whatever the request is from counsel. Others will adhere to what looks like a rigid schedule, but allow argument to flow well beyond the red light.

I suggest we adopt a more consistent approach, by which attorneys are informed of their definite time parameters in advance of the day of argument. It also makes sense for members of the panel to be allowed some input into the time allotted to each appeal.

This procedure would not, of course, prevent the J.P. from exercising discretion during argument, whether by re-focusing argument when it stalls, or by allowing counsel some additional time when a justice’s extended questioning has forced counsel to use up all the argument time allotted.

6. Adopt a Standard Procedure for Disqualification: The rules of judicial disqualification3 are often invoked voluntarily by judges recusing themselves, but they may also serve as the basis for applications by parties asking for a judge’s recusal.

Such requests are procedurally straightforward in the trial-level courts, since counsel can make the application papers directly to the challenged judge; the same situation is more complicated when the matter is on appeal at the Appellate Division. First, the identities of the justices assigned to a panel are not disclosed until 3 p.m. the day before a sitting, so counsel on an appeal has little advance warning as to who will hear the appeal. Second, counsel will not be informed of whether a justice is voluntarily recusing him or herself until moments before argument begins.

So, the need for counsel to make an application often does not become apparent until at or after argument. It would be highly extraordinary for counsel to request the disqualification of one of the justices during argument. More typically, counsel will not have the opportunity until later, or the next day, to raise concerns.

Some attorneys may decide to do nothing, whether discouraged by the lack of a clear procedure, or figuring that one vote out of five will not tip the balance. Some attempt to handle the issue informally, by contacting the Clerk of the Court, who can, in turn, convey the attorney’s concerns to the justice. A formal motion is rare, which makes sense, since by the time such a motion is calendared and decided, the appeal could already be decided. I suggest that the Appellate Division should formally adopt a procedure to be employed in such circumstances. It could be as simple as a letter application, copied to the other parties, either submitted to the clerk or directly to the justice, similar to letter applications for leave to appeal to the Court of Appeals in criminal cases, which are single-judge applications sent directly to a judge of the attorney’s choice (usually a dissenting justice). Such a procedure would ensure that the concerns are heard timely while minimizing unnecessary work.

7. Allow En Banc Review: An idea I have raised before,4 which would admittedly necessitate legislative action and constitutional amendment, is to authorize the Appellate Division to conduct en banc rehearings. If a sufficient number of our justices concluded that such consideration was necessary to secure or maintain uniformity of the court’s decisions, or that the proceeding involved a question of exceptional importance, the entirety of the justices of the court could together rehear and decide an appeal.

8. Create Complex Commercial Appeals Benches: Another suggestion I have previously made is that we modify our handling of complex commercial cases initiated in the Commercial Division by creating specialized benches to hear such appeals, and by adopting new procedures to handle appeals of discovery disputes arising out of such cases.5

9. Expand Authority Under Article 78: I propose a legislative expansion of the Appellate Division’s authority to grant relief under CPLR Article 78.6 Due in part to the limited nature of the relief provided for in the statute, and in part to the even more limited construction given to the language of the statute by the Court of Appeals, there are times when the established limitations prevent the remedying of a agency determination that seems to us manifestly excessive or unjust. In addition, the extent of administrative miscarriages of justice may be attributable in part to the exponential increase in the sheer numbers of administrative agencies.

10. Eliminate ‘Serious Injury’ (No-Fault Threshold) Appeals: We are over-burdened with this species of appeal, that seek determination of whether the consequences of a motor vehicle accident get to be heard by a jury or decided by no-fault schedules. The answer depends on an analysis of whether the injury is a “serious injury” under current case law. Right now, we have one of the four court attorney supervisors dedicated to serious injury appeals. If we are to be a pre-eminent appellate court, and I think we should be, we need to focus more of our resources, both judicial and non-judicial, on other areas of law, such as complex commercial litigation.

I recommend that with appropriate legislation, serious injury challenges be transferred to the Civil Court, with review by Appellate Term, akin to the procedure under CPLR 325(d), whereby civil cases initiated in Supreme Court can be “knocked down” to the Civil Court and tried there, with the appeal going to the Appellate Term. This procedure, unlikely to win favor with the plaintiffs’ bar, would likely allow us to streamline our calendars and allocate our resources to more legally significant matters.

Endnotes:

1. See 22 NYCRR § 600.11

2. Luis Gonzalez, “From Experimental Program to Standard Method; E-Filing, NYLJ, January 22, 2013 at 9, col 1″

3. See Judiciary Law § 14; 22 NYCRR § 100.3(E)

4. See Saxe, “Perspective; En Banc Review In the Appellate Division, NYLJ, August 21, 2006 at 29, col 6.”

5. See Saxe, “Improving Appellate Review Of Commercial Division Litigation,” NYLJ, January 23, 2013 at 6, col 4.

6. See Saxe, “Article 78: Expand Appellate Divisions Authority,” NYLJ, June 12, 2006 at 34, col 3.