Appellate Courts - Rules and Structure

Different courts have different rules on appeal. Some are complex and inconsistent; others are simple and straightforward. This discussion describes some of these rules, their origins, and problems associated with them.

Date sent: 16 Sep 97

We have four departments of the Appellate Division in New York and one Court of Appeals. One of these five courts will dismiss for failure to file a jurisdictional statement within a few days of the notice of appeal. One will grant oral argument only if it is requested on a separate piece of paper. One will not do anything (other than dismiss for failure to perfect) until a request for Appellate Division Intervention is filed. One those not require a responsive brief until the appellant demands it. Several of these Courts rerquire pre-argument statements with the notice of appeal, but the format for each is differrent. Some permit their pre-argument statements to be used as a substitute for the statement required by statute and some do not.

I once sat on a bar association committee that asked the four Appellate Divisions to at least number their rules similarly, so it would be easier to spot peculiarities of local practice, but nothing came of it.

We also have other appellate courts, inferior to these five, in some parts of the state.

Other courts have appellate jurisdiction in some counties, but not in others. In one county there is an internal diferrence between the eastern and western parts of the county.

Is there anywhere else in the country with such fragmented rules of appellate practice?

Date sent: Mon, 22 Sep 97

I was astounded by the description of the fragmented New York appellate practice. It seems that the only advantage of such an arcane set of procedural hurdles is docket control, to wash out appeals that might demand some court time by eliminating them through procedural traps.

Washington State has a Supreme Court and a Court of Appeals. The appellate court is divided into three divisions, each having jurisdiction over specific counties. We have one unified set of Rules of Appellate Procedure, adopted in 1976, governing procedure in the three divisions and the Supreme Court. The Supreme Court adopts all court rules and relies heavily on input from the Wash. St. Bar Ass'n. (We have a unified bar in Washington State.)

Our appellate rules are excellent and are directed at deciding cases on the merits rather than on procedural grounds. Rule of Appellate Procedure 1.2 provides, "These rules will be liberally interpreted to promote justice and facilitate the decision of cases on the merits. Cases and issues will not be determined on the basis of compliance or noncompliance with these rules except in compelling circumstances where justice demands [with the exception of timeliness requirements for filing notices of appeal or petitions for review]."

Date sent: Mon, 22 Sep 97

Docket control is hardly the intent or the result. One of my favorite rules is the NY App Div First Dep't rule on when the appellant's brief is due. It sets a very short time after the record is filed, but another rule basically says that the brief will be accepted as long as it is filed within 9 months. Other Appellate Division departments have their own, varying deadlines.

Some of the rules common to all of the departments are pretty interesting also. One of the more unusual procedures is that for review of administrative decisions and, particularly, review of decisions of the body that handles employment and other discrimination claims [for which there is a slightly different procedure than that applicable to other administrative appeals]. Review is obtained by filing a petition in the trial court, whose sole function is to transfer the matter to the Appellate Division unless there are certain questions of law. This usually unnecessary step can take months.

Date sent: Tue, 23 Sep 97

One of my favorite New York rules is the one for requesting oral argument in the NY First Dept. Appellate Division. Unlike every other court in NYS in which oral argument is requested on the front cover of the brief, in the first department, the appellant must confer with the respondent and request oral argument for both of them the day after the respondent's brief is due on a sewparate form.

The conflicting rules in the First Department on when a brief is due have the following history. Traditionally NY appellate courts had unrealistically short deadlines for perfecting appeals adopted before the dawn of modrern civil and criminal procedure. These rules did not take into account the delay in getting transcvripts and became dead letter, since they were only enforced by the respondent moving for a dismissal followed by a Court order directing a brief by a day certain. To address this problem the First and Second Departments adopted deadlines (nine months in the First Department, originally a complex system and later six months in the Second Department) beyond which the Clerk cannot accept a brief without a Court order

Date sent: Thu, 25 Sep 97

[E]very set of procedural rules starts out with Rule 1, "These rules will be applied liberally to promote fairness and do substantial justice, etc., etc." Rarely does one see a case actually citing such a Rule 1.

But there are good reasons for making everyone play by the same set of rules, and if you don't, you can't complain when one of the refs tosses you out of the game. Some may seem silly, but it seems to me that the silly ones are generally the reaction of a court exasperated with repeated infractions of, or end runs around, the rules of procedure that were originally supposed to be fairly simple.

Date sent: Tue, 30 Sep 97

My comments about Washington State's rules were not intended to suggest that our judges never enforce technical requirements or that it is a novel idea to decide cases on the merits rather than on technicalities. Rather, I think that we are dealing with a continuum here, running from the sporting theory of justice at one end to a total refusal to enforce any procedural requirement at the other. My reaction to the description of New York appellate practice was that seemed rather far down toward the sporting theory of justice.

I agree with the observation that has previously been made that some of these rules reflect the idiosyncrasies of individual judges and an unwillingness to adopt a consistent state-wide practice. I guess that is all right so long as it works. But the problem is that our courts don't exist for the benefit of the judges, or even for the benefit of the lawyers. They exist to peacefully resolve disputes between parties. When a court rejects an appeal because of some procedural misstep by a lawyer, a litigant loses a case for reasons unrelated to the underlying merits. Sometimes that is unavoidable, but I think this sanction should be reserved for the most egregious cases. A set of court rules that is designed around this central goal of deciding cases on the merits helps to keep both the lawyers and court on the right track.

Date sent: Thu, 25 Sep 97

A Rule I type rule is typically included in all sets of procedural rules. Usually, the rule sits unused and hardly ever read. However, in a somewhat notable case decided by the 7th Circuit, the Court affirmed the District Court's granting of our motion which was brought pursuant to Rule 1. There, we had already been awarded partial summary judgment on certain elements of damages available under a contract. The plaintiff persisted in claiming a huge entitlement to damages and named a number of "experts." Rather that take the time and endure the expense of expert discovery and trial, we moved for judgment, under Rule 1, against ourselves for the total amount we could owe. (ie, we gave up all set-offs) The District Court granted the motion and the 7th Circuit affirmed in a written 1992 opinion. Imagine the stir in the courtroom when we stated at a crowded motion call that we were seeking judgment against ourselves. Since that time, we have used Rule 1 or its counterparts to get courts to do things not specifically provided for. In short, it is like a writ of charity. Tactically, it places the opposing counsel in the position of saying why something that is portrayed as "securing the just speedy and inexpensive determination" of the action as being bad.

Date sent: Thu, 25 Sep 97

In Hawaii our federal magistrates are quite active and generally have final say in resolving discovery disputes (based on the article three judges' deferential review). One of our magistrates uses Rule 1 to resolve the conflict that arises when a party seeks to use a subpoena to obtain documents from the opposing party rather than a request for production. The Magistrate reasons that a request for production is less expensive than a subpoena and therefore is preferred based on Rule 1. Not necessarily the reasoning I would use, but another example of Rule 1 in action.

Date sent: Tue, 30 Sep 97

I do not think that New York appellate practice is that filled with the danger of loosing rights because of procedural errors.

Today, any appellate lawyer in New York should be aware that in most courts he has a deadline for filing his record and brief and that the appeal can easily be dismissed for not meeting it and not asking for an extension in advance. The more frequent consequences of not being aware of the peculiar rules of an individual court are things like loss of the right to argue orally, having papers returned with a note to include some additional paper unkonown to any other court, etc.

Historically New York was suspicious of a centralized judiciary. The four Appellate Divisions predate the Court of Appeals. They also predate something called the "Commission on Appeals" which was an attempt (in the 1840s, as best I can remember) to get some statewide uniformity in the law without a statewide appellate court. For a century and more the Court of Appeals had almost nothing to do with admission to practice or attornet discipline and it still plays an extremely minor roile in this. Throughout most of the history of New York law, there were no statemide rules of court except the basic procedural matters in the Field Code, CPA, CPLR etc. The limitations on the jurisdiction of the Court of Appeals are strictly adhered to by it as a matter of Constitutional Law, while the four Appellate Divisions have pretty close to general jurisdiction to hear everything.

The one exception to a distrust of centralization has always been and still is in death penalty cases. Current rules for death penalty cases adopted by the Court of Appeals give it a broader authority to stay executions than they are given by statute. This is so out of character for that Court that I can only assume that it is because it has always had jurisdiction in death penalty cases that was atypical and complete.

Date sent: Tue, 30 Sep 97

As a New Jersey attorney who has worked on a few appeals in New York [and so approached the New York rules as a relative novice], I agree with these comments. The New York rules are different, both from the federal model followed in most states and among the different appellate departments in New York. Also, the purpose of some of the rules is not always easy to see. But the rules themselves are readily available and not difficult.

The above discussion was taken from the Appellate Law Discussion list and edited.

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