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.