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.

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