Friday, August 28, 2009

Law Journal Supplement on Appeals

The August 31 edition of the New York Law Journal will contain a special supplement reviewing New York appellate court rulings over the past year, and addressing matters of appellate practice.

My contribution is an article on raising on appeal matters which were not preserved for appellate review in the trial court. While preservation of error is generally an essential ingredient of a successful civil or criminal appeal, the article discusses situations in which appeals courts will consider matters which have not been preserved for appellate review.

Attorney Fees: Judges Immune from Suit for Decision Regarding Amount of Compensation to be Awarded to Appointed Counsel

Pursuant to New York County Law art. 18-b, §§ 722 and 722-a to 722-f, a municipality is required to compensate court-appointed counsel for providing representation to indigents in criminal cases and Family Court matters. The amount of compensation in each case is determined by the trial judge, subject to review by a supervising administrative judge for an abuse of discretion.

In Bliven v. Hunt the United States Court of Appeals for the Second Circuit ruled today that Family Court judges are immune from federal suit for the decisions they make regarding the compensation an appointed attorney is to receive for a particular case. The Court concluded that the determination of what is a reasonable fee in a particular case is not, for purposes of immunity, an administrative act. It is part of the judicial function to which immunity attaches. See decision here.

Thursday, August 27, 2009

Back from Vacation: Legal Travels

Wherever my wife Jacqueline and I travel we make it a point to set aside time to see courthouses or other sites of legal interest in the region we are visiting. We just spent 12 days in Virginia, a state with a rich legal heritage.

Standing amid the skyscrapers in downtown Richmond is the John Marshall House, home of the Chief Justice from 1790 until his death in 1835. The house and its original furnishings are very well maintained. While I, of course, associate Marshall with Marbury v. Madison and "judicial review," the visit to the house brought out his domestic side: he owned slaves, he and his wife had 10 children, and his favorite drink was Port.

A few blocks away is the Virginia State Capitol, designed by Thomas Jefferson. In one of its chambers, Marshall presided over the 1807 treason trial of Aaron Burr, former Vice-President of the United States. Marshall's interpretation of the treason provision of Article III, Section 3, of the Constitution is of enormous importance. Burr was acquitted.

Directly across the street from the Capitol is the Lewis F. Powell, Jr. United States Courthouse, home of the United States Court of Appeals for the Fourth Circuit. The courthouse has stood at its present location since 1858. In this building in 1866 a grand jury indicted Jefferson Davis, president of the Confederacy, for treason. On another side of the Capitol is an imposing granite building which looks like a bank. It turned out to be the Supreme Court of Virginia. We learned that the building once housed the Federal Reserve, which explains its stolid appearance.

An hour's drive from Richmond is Colonial Williamsburg. This was the capital of Virginia until 1780 when the capital was moved to Richmond out of the fear that Williamsburg was too vulnerable to British attack. In one wing of the the beautifully restored Capitol building is the chamber where the colony's highest court sat. A short distance away is the 18th century courthouse. Actual trials reenacted in the courthouse make three points: slaves who were witnesses to an event could not testify against a white person; persons with an interest in the case, such as the plaintiff and the defendant, could not testify in their own behalf; and freedom of religion in the colony did not include the right to be a practicing Catholic.

Also in Williamsburg is the College of William and Mary. Founded in 1693, it is the second oldest college in the United States, and the law school at the College is said to be the oldest in the country. The first professor of law in the United States, George Wythe, was appointed at the College in 1779. Wythe was a signer of the Declaration of Independence.

Finally, after crossing Chesapeake Bay to Virginia's eastern shore, we stopped for lunch in Eastville (population 203) where we discovered an 18th century village green surrounded by the courthouse, debtor's prison, a row of houses still used as attorneys' offices, and the local inn. It turns out that Eastville has been the County Seat of Northampton County since 1680, and it claims to have the oldest continuous county court records in the United States. In August 1776, the Declaration of Independence was read from the courthouse steps.

Tuesday, August 11, 2009

Arguing Another Attorney's Appeal

Last week I discussed a case in the United States Court of Appeals for the Second Circuit in which I appeared at oral argument for the appellees although I did not write their brief and did not know anything about the case until I was asked to appear for the argument.

Attorney David M. Gottlieb sent a thoughtful comment in which he wonders whether there is a trend towards attorneys appearing only for the oral argument, and he asks why do attorneys who write the brief request that another attorney orally argue the case.

I do not know whether the appearance of attorneys only for oral argument occurs more often today than five or ten years ago. I intend to conduct an informal survey.

As for why lawyers ask other lawyers to argue the case: several years ago an attorney told me that while he loved to do research and to write appellate briefs, he became too nervous at oral argument so he asked other lawyers to argue his cases. This probably applies to other attorneys as well.

It also happens that the lawyer who appeared at the trial also writes the appellate brief, and something he did (or did not do) at the trial becomes an important matter on appeal. It may be awkward for the lawyer to appear at oral argument and defend his own action (or inaction). He may be concerned that his argument will smack too much of self-justification, and detract from the client's cause. He, therefore, has another attorney argue the case.

But whatever the reason, what emerges is the importance attorneys attach to oral argument. I disagree with lawyers who forego legal argument. Oral argument is the only time in the appellate process when an attorney can answer the questions which are on a judge's mind. After reading the briefs and pertinent parts of the record, appellate judges obviously go on the bench inclined to decide the case a particular way. Different appellate judges have told me that oral argument changes their mind from 5% to 15% of the time. That is not an opportunity any attorney should pass up.

Wednesday, August 5, 2009

My Argument in the Second Circuit

Yesterday I appeared at oral argument in the United States Court of Appeals for the Second Circuit on behalf of three law firms which are appellees in an appeal which seeks to have the firms pay the legal fees of an adverse party. The three firms brought me into the case solely for the oral argument.

The three firms--two from Florida and one from New York--represent a car dealer who sued General Motors and the General Motors Acceptance Corporation in the United States District Court for the Eastern District of New York. The suit alleged fraud, breach of fiduciary duty, and related claims. The District Judge granted GMAC's motion for summary judgment, and the Second Circuit later reversed a $2.3 million jury verdict against GM.

GMAC then moved pursuant to 28 U.S.C. § 1927 to sanction the law firms for bringing a frivolous suit by imposing on the firms GMAC's legal bills which exceed $600,000. The touchstone of § 1927 is bad faith litigation. The District Judge denied the motion for sanctions and GMAC appealed to the Second Circuit.

What made the case interesting for me is that I did not write the appellees' brief and I did not know anything about the case until the three firms asked me to appear for oral argument. The briefs and joint appendix are about 1800 pages long. While I have argued many appeals, it was an unusual experience for me to take on an appeal just for the oral argument: the appellees' brief was excellent, but I had to shape the oral argument along lines I would be comfortable presenting to the court. The firms say they are pleased with the result. Now let's see what the judges say!