Thursday, December 31, 2009

2009: Waiting for 2010

As I look back on 2009 I realize that I will not know the results of many of my appellate efforts until 2010.

Unlike trial attorneys who quickly learn the result of their labors when the verdict is announced, appellate lawyers often will not know the outcome of an appeal until many months after the case has been argued. An appellate decision is the collective effort of a panel of judges. Drafting the opinion, and getting all the judges to agree, can take time. And if there is a dissenting opinion, the process can take even longer.

In a number of instances, therefore, my clients and I must wait until 2010 for the outcome of appeals I argued in 2009. In March I appeared before the Appellate Division on behalf of a company unhappy with the way in which the lower court addressed a fee award made by arbitrators to the company's attorneys pursuant to the fee arbitration program established under the Rules of the Chief Administrator of the Courts. See, Rules of the Chief Administrator § 137.0 et seq. In the company's view, the lower court made additions to the fee award which are not authorized by New York law.

In August, I argued before the United States Court of Appeals for the Second Circuit on behalf of a group of law firms that the District Judge correctly ruled that the firms, which did not prevail in their suit against the defendant corporation, did not engage in bad faith litigation and, therefore, should not be required to pay the defendant's substantial legal fees.

I am also waiting for (a) the result of an appeal from the Surrogate's Court which maintains that the Surrogate erroneously ruled that a husband is not disqualified from taking his spousal share of his wife's estate although he abandoned her 32 years before her death; (b) the result of an appeal which maintains that after a judge has recused himself from a case he cannot later sua sponte reenter the case; and (c) the result of an Article 78 proceeding in the Appellate Division.

One wait has turned out well. My application for leave to appeal to the New York Court of Appeals in a criminal case, pending since July, was granted this month. Once a case is accepted for review by the Court of Appeals, it will move along pretty quickly. I, therefore, feel confident I will not have to wait until 2011 for a decision.

Happy New Year to all.

Monday, December 14, 2009

A Busy December

While an appellate practice is generally more "relaxed" than a trial lawyer's practice because deadlines are more spaced apart in appellate courts, December has been more hectic for me than usual.

First, on December 2nd I argued a very interesting civil appeal before the Appellate Term, Second Department: after a judge has recused himself from a case, and another judge is presiding over the matter, can the first judge sua sponte "revoke" his recusal and direct that a trial proceed before him?

There is little case law in New York or elsewhere on the issue (probably because few judges try to undo a recusal), but the general rule is that after a judge has recused himself he no longer has any authority to do anything further in the case. That is what I argued, and now I await the appellate determination.

Second, on December 3rd I chaired the New York State Bar Association's all-day appellate practice CLE in Manhattan. About 120 lawyers attended. By all accounts it was very well received, with some attorneys telling me it was the best CLE program they had ever attended!

Third, on December 4th I appeared in Supreme Court, Kings County, for an extended oral argument of a motion pursuant to Criminal Procedure Law Article 440 which is related to a homicide appeal I am handling.

Fourth, on December 7th I filed a brief with the Appellate Division, First Department, which raises the question of whether attorney's "fees on fees" can be awarded under a judicial stipulation of settlement which provides for attorney's fees, but does not expressly provide for "fees on fees"?

Fifth, on December 17th I will appear before the Appellate Division, First Department, for oral argument of an Article 78 proceeding.

Busy, yes. But fortunately each case is unique, and each case raises absorbing appellate issues.