The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)
Chief Judge Janet DiFiore’s Excellence Initiative has properly provided notice to the members of the New York State Judiciary that the fundamental and primary goal of our system is to fairly and efficiently dispose of the matters that are brought before our courts. Past administrations have undertaken grand initiatives to put their mark on the court system, but this administration recognizes that unless the court system is efficiently performing its core functions, other attempted improvements cannot fully succeed.
The Excellence Initiative involves a detailed and comprehensive evaluation of current processes and procedures in order to determine what is working well and what needs to be improved. Enhanced productivity and day-to-day efficiencies in the operation of the various courts will be key.
The purpose of this essay is to consider how the operations of the Appellate Division, First Department, may be streamlined and improved upon to better accommodate the chief judge’s goals.
First, it is no secret that through the years, our court has been plagued, episodically, with sometimes extensive delays in the preparation and ultimate release of decisions. Aside from the effect that delay in any particular case may have, multiple delays have an impact on the public perception of our court, and may affect the calendaring of new appeals.
To remedy these delays, I have previously recommended and written about a goals and standards rule for our court. Essentially, that proposal suggests time limits for the preparation of writings, such as a requirement that initial writings be circulated within 60 days of argument or submission, with opposing writings due 30 days after that. It also included provision for enforcement mechanisms to be made available to the presiding justice, such as giving the presiding justice the authority to reassign the writing if the assigned justice fails to abide by the rule’s time limits. It further proposes a time frame within which justices must vote on circulated writings, to avoid delays caused by non-writing justices holding the appeal for an extended period (“What a Standards and Goals Rule for Appellate Court Would Look Like,” NYLJ, Aug. 30, 2013; “Thoughts on Standards and Goals for the First Department,” NYLJ, July 15, 2013).
I would also recommend that we begin to collect internal data regarding how our signed writings fare in the Court of Appeals. There is some indication that this statistic was of interest in the recent round of certification applications of Supreme Court justices already designated to the Appellate Division. Are some on our bench more susceptible to reversal than others? If the reversals involve unchartered areas of the law, there is little to be concerned about; if, on the other hand the reversals involve a miscalculation of the existing law, perhaps a sharper watch ought to be kept on those sort of writings. Reversals are disruptive to a system that values predictability and productivity because reversal often means that the matter must be done over. Trial judges are called to account for their appellate record; it is not unreasonable for intermediate appellate court judges to be similarly accountable.
Some Other Suggestions:
A large number of the decisions we review from the trial courts are well-reasoned, factually complete and correct on the law. It is unnecessary to produce either signed writings or memoranda decisions in connection with those appeals. Instead, to avoid unnecessary delays in getting such decisions out to the bar, I would suggest that we more often consider using dispositions such as “affirmed for the reasons stated …” or “affirmed on the opinion of Judge X.” Such dispositions, used appropriately, also provide appropriate recognition of the careful work of trial judges.
I also think that we need to speed up our editing procedures for signed writings. There is far too much delay between the day the bench finalizes a vote and the time the writing is placed on our list.
In the interest of efficiency, I recommend that serious injury cases be transferred to the Civil Court, reviewable by Appellate Term (“Ten Ways to Improve the First Department,” NYLJ, Oct. 3, 2014).
I also think that efficiency might be enhanced if we consider experimenting with the use of specialized benches, such as a specialized bench for such discrete areas as commercial appeals, matrimonial and family law appeals, etc. (see “Ten Ways”). It is commonplace at the Manhattan Supreme Court to be exposed to many different specialized parts that seem to function efficiently. Specialized parts are common in other court venues as well. Why shouldn’t our court experiment with specialized benches to see if their use promotes efficiency?
Finally, a broad evaluation process should be undertaken to review our work generally. Our written work should be part of that review. Our appellate opinions must be understandable by lay readers if we are to achieve the transparency that is a component of our work. How that is done should be open to discussion. Perhaps we can establish a review committee ourselves, utilizing the services of not only certain judges presiding on the bench, but retired colleagues as well as prominent practitioners and law professors. Such a task force might also be involved in an observational review of the members of this court. (see Post-Conference Report, National Conference on Evaluating Appellate Judges: Preserving Integrity, Maintaining Accountability, iaals.du.edu/sites/default/files/documents/publications/post-conf_report_final.pdf [accessed 12/19/16]). How we respond at argument, issues of demeanor and preparedness and conduct during oral argument could be observed and judges would be entitled to feedback. Naturally, a lack of questioning would have to be understood as not being a lack of preparedness since we would not want to encourage judges to speak just for the sake of speaking. Such an evaluation process would, I suggest, improve the quality of our work product.
We need to embrace the self-critical analysis proposed by the chief judge in her Excellence Initiative. Performance is important and where it can be measured and quantified, it ought to be. The next leader of our court, with the cooperation of its members and the input and direction of the chief judge, should confront these performance and management issues. The chief judge’s management proposals speak directly to our core mission as a court and my suggestions are a small effort to engage a dialogue regarding how to best implement these proposals.