Thursday, December 30, 2010

End of the Year: No Top 10 from Me

    At the end of December it is fashionable to select the top events of the past year: the best sporting events of 2010, the best motion pictures, the most important political events, and the like.
    I will, however, avoid the temptation to select the top appellate decisions of 2010. The prospect of making such a selection is unwelcome: each jurisdiction across the United States has its own candidates, as does each area of law. A decision such as Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), which addresses campaign financing, has an obvious importance to all of us, but less well-known rulings may still be of enormous importance to particular groups in society or to a certain segment of the Bar. 
    In addition, the terms for appellate courts are often not coterminous with the calendar year. For example, the Term of the United States Supreme Court begins in October and generally concludes at the end of June the following year. The sitting of the New York Court of Appeals, the state's highest court, is similar.
    So rather than wade through many appellate rulings, I will simply say that the most important appellate event of 2010 was the appointment of Elena Kagan to the United States Supreme Court. Supreme Court appointments have a very long term effect, and that effect will be even more pronounced because of the ideological divide on the Court. Justice Sonia Sotomayor has been on the Court for about 16 months but already, as a recent New York Times article noted, her presence is felt. That article can be found here.
    It is, of course, far too soon to measure Justice Kagan's impact on the Court and, therefore, the nation. Because I believe it will be significant and long-term, it receives my vote for the top appellate event of 2010.       

Tuesday, December 14, 2010

A Tie Vote in the Supreme Court

    When Elena Kagan was nominated for the United States Supreme Court some opposed the nomination on the grounds that as a Justice she would be required to recuse herself from all the cases with which she had contact while serving as Solicitor General of the United States. This could lead, it was argued, to 4-4 ties in some of these cases. 
    At the time, and now, I considered such opposition as simply conservatives looking for some ground to oppose a liberal nominee. The other eight justices will not grant the writ of certiorari in most of the cases with which she may have contact as Solicitor General, and within a reasonable period of time there will simply be fewer and fewer cases reaching the Court with which she had any contact during her tenure as Solicitor General.
    When there is a tie vote in the Supreme Court the Court simply announces that the Court is evenly divided and affirms the lower court decision which is under review. The decision has no precedential value; the affirmance is issued to afford finality for the litigants in that particular case. 
    Yesterday in Costco Wholesale Corp. v. Omega, S.A., a copyright case, Justice Kagan did recuse herself and an evenly divided Court affirmed the decision of the United States Court of Appeals for the Ninth Circuit. As is usual in such cases the brief Per Curiam opinion does not identify which Justices were on which side of the 4-4 tie. The copyright and patent bar will undoubtedly be rife with speculation over how each Justice voted. The opinion can be found here
    While Justice Kagan has recused herself from other cases the Court has already heard this Term, the possibility of a rare tie vote is hardly grounds to deny a nominee a seat on the high court.

The New York Court of Appeals: the Court of Appeals released opinions in six cases today, all criminal cases. The cases address either the constitutionality of New York's procedure for determining whether a defendant is a persistent felony offender, or whether in a particular instance multiple sentences must run concurrently with each other or consecutively to each other. Taken together the six cases contain an almost dizzying lineup of judges on different sides of the issue. The cases can be found here.

Tuesday, October 12, 2010

The Law and Technology

    It is always fascinating to watch the law play catch-up with technological change.
   Under New York's Statute of Frauds a contract for the conveyance of real property is not enforceable unless it is in writing. General Obligations Law § 5-703. There is an extensive body of case law on what constitutes a "writing" which satisfies the Statute of Frauds.
    Last week the Appellate Division, First Department, addressed the question of whether an e-mail can constitute a writing which meets the requirements of the General Obligations Law. Justice David Friedman's careful analysis concludes that it can. I recommend the opinion as a good example of how courts seek to fit new technologies into existing law. The ruling, Naldi v. Grunberg, can be found here .  

Friday, October 1, 2010

Coming Up in the Supreme Court: Protests at Military Funerals

     The United States Supreme Court will hear oral arguments next week in eight cases which will address matters of bankruptcy, cross-examination at a criminal trial, federal sentencing, and the liability of prosecutors for failure to disclose exculpatory evidence to a defendant.
     The most interesting case for me will be Snyder v. Phelps which addresses protests at military funerals. 
     After Marine Lance Corporal Matthew A. Snyder was killed in Iraq his family arranged for a private Christian burial at a Catholic Church in Maryland.
     Reverend Fred W. Phelps, a pastor of a Baptist Church in Kansas, who has protested at other military funerals, decided to protest at the Snyder funeral. Phelps espouses the view that God hates America because it tolerates homosexuality, particularly in the armed services. 
     The day of the funeral Phelps, two of his daughters, and four of his grandchildren carried signs at a distance from the funeral with messages such as "Pope in Hell," "God Hates the USA," and "Thank God for dead soldiers." After the funeral, on his website, Phelps accused the Snyder family of teaching their son irreligious beliefs. 
     The soldier's father sued Phelps and his daughters for intentional infliction of emotional distress, intrusion into their private event, and conspiracy. A jury awarded him $5 million, but the United States Court of Appeals for the Fourth Circuit reversed the judgment, concluding that funeral protest speech is protected by the First Amendment. 
     The case raises fascinating issues such as a conflict between the First Amendment's freedom of speech and freedom of religion; whether the protection the Supreme Court has accorded speech directed at "public figures" should apply when, as here, the speech is directed at private individuals at a private funeral; and whether those attending a private funeral are a "captive audience" who should be accorded some protection against unwelcome speech by uninvited individuals.
     The case will be argued on Wednesday, October 6.      

Wednesday, September 29, 2010

The Summer Is Over

According to the calendar summer was over a week ago, but for me the summer came to an end yesterday when the United States Supreme Court announced that it had granted writs of certiorari in fourteen cases.

The summer is different for appellate lawyers and appellate court watchers. The Supreme Court takes a three month recess at the end of June, the New York Court of Appeals does not hear oral arguments in July and August, and in New York City the Appellate Divisions for the First and Second Departments also do not sit for oral arguments. 

Summer does begin to fade early in September when the Court of Appeals and the Appellate Divisions resume oral arguments, but for me the summer is over when the Supreme Court is back in session. The Court traditionally reconvenes the first Monday in October, but yesterday it jump started the new Term by issuing decisions on the many petitions awaiting its attention. 

On Monday, October 4, the Court will hear oral arguments in three cases, followed by three cases on Tuesday, and two on Wednesday. The summer is now officially over.

Wednesday, July 7, 2010

Update on Kagan Nomination

The hearings of the Senate Committee on the Judiciary into the nomination of Solicitor General Elena Kagan to the United States Supreme Court concluded on July 1. There is a consensus that nothing said at the hearings will derail her nomination.

The Senate committee is in recess this week. It will meet again on July 13. First on the agenda is the Kagan nomination. It is expected that the nomination will be voted out of committee and head for a vote by the full Senate.

Friday, June 25, 2010

Kagan Confirmation Hearings Begin Monday

On Monday, June 28, the Senate Committee on the Judiciary begins hearings into President Obama's nomination of Elena Kagan to sit on the United States Supreme Court.

The run-up to the hearings has brought no surprises or revelations which would derail the nomination, and even the expected Republican opposition has been rather muted.

It certainly appears that Kagan's ascension to the Court would not change voting patterns among the Justices, and if she votes as retiring Justice Stevens voted this year, the outcome of cases would be the same. I suspect the real fight will come when a vacancy among the conservative members of the Court arises, because replacing a conservative with a more liberal vote will change the direction of the Court.

Documentary material related to the nomination has been posted by the Judiciary Committee. It is available here.

Thursday, June 24, 2010

Who Can Appeal? Who is "Aggrieved"?

One of the fundamentals of appellate practice is the requirement that only an "aggrieved party" can appeal. CPLR § 5511.

What this has come to mean is that a party who has successfully obtained a judgment or order in his favor cannot appeal although he may disagree with the findings of fact made by the lower court, or with the rationale of the lower court's decision. Parochial Bus Systems, Inc. v. Board of Education of the City of New York, 60 N.Y.2d 539, 544-545 (1983).

There are exceptions to the rule as when, for example, a party secures a favorable judgment or order but the judgment or order does not grant him the "complete relief" he sought.

But when there are multiple parties on each side, or alleged joint tortfeasors, the concept of who is "aggrieved" becomes more complex and uncertain because, for example, relief granted to one party making a motion may adversely affect another party who was not involved in the specific motion.

The Appellate Division, Second Department, in a major opinion, Mixon v. TBV, Inc., has now sought to make sense of the aggrievement requirement and to reconcile various lines of authority addressing the issue. After a detailed review of the case law, the Court formulates this two-pronged definition of aggrievement for appellate purposes:

"First, a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part."

Because aggrievement is fundamental to appellate law, Mixon is essential reading. The ruling also contains a valuable discussion of the limitations imposed on an appellate court in granting relief to a party which has not appealed. The decision can be found here.

Tuesday, June 22, 2010

New Technology and the Constitution

The law often must play catch-up with technology, and in constitutional law this is probably no more apparent than in the continuing efforts of the United States Supreme Court to delineate what exactly the Fourth Amendment's prohibition against "unreasonable searches and seizures" is designed to protect.

Technology has enhanced the government's ability to intrude through wiretapping, eavesdropping, and other electronic means. In Olmstead v. United States, 277 U.S. 438 (1928), the Court, over Justice Brandeis' famous dissent, took the narrow approach that the Fourth Amendment only protects a person against searches or seizures of "material things"--his person, his house, his papers and effects--but not his words overheard on telephone wires outside his home. Eventually in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), the Court concluded that the Fourth Amendment does protect against the seizure of words by electronic means even when the government does not physically trespass or intrude on a person's private space.

But technology marches on, and in Kyllo v. United States, 533 U.S. 27 (2001), the Court had to address the Fourth Amendment implications of the government's warrantless use of thermal imaging devices outside a person's home to determine what is occurring inside the person's home.

Last week in City of Ontario, California v. Quon the Court addressed the Fourth Amendment in the context of another technological advance: text messaging. While the case raised the narrow issue of whether a police officer had any rights of privacy in the text messages sent and received on his alphanumeric pager issued by the police department, the Court recognized this new technology was forcing it to enter unchartered territory.

"The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." The very ubiquity of cell phone and text messages raises new and serious constitutional questions regarding privacy. Rather than sweeping pronouncements on privacy rights, "prudence counsels caution" by the Court until society's use of rapidly changing communications--and society's privacy expectations regarding those communications--become clearer.

Quon is an important statement on how an appellate court proceeds when it is asked to make policy determinations without knowing what technology will emerge and how society will use that technology. The subtext is that the Court understands new technology will emerge. The case can be found here.

Friday, June 4, 2010

Justice Souter on Constitutional Interpretation

Over the past few decades critics of the United States Supreme Court have complained of its purported "judicial activism"--ignoring the plain words of the Constitution, or established precedent, in order to arrive at decisions which reflect a predetermined policy judgment which is unpalatable to the critics.

The complaint was initially hurled at the Warren Court of the 1960s which not only broadened the reach of the Bill of Rights by imposing its requirements on the states, but which used remedies such as the exclusionary rule of evidence and the Miranda warnings to put teeth into the Court's rulings.

More recently, liberal critics have complained that the Roberts Court is guilty of conservative judicial activism--a complaint publicly echoed by President Obama.

In this context it is valuable to read the Harvard Commencement speech given on May 27 by retired Justice David H. Souter. Without naming Justice Scalia, the speech criticizes Justice Scalia's notion of "originalism"--that in deciding cases judges should simply look to the original intent of the framers of the Constitution. Justice Souter calls this the "fair reading model," and he dismisses it as "simplistic" because, in Justice Souter's view, the Constitution is comprised of often open-ended competing values which must then be accommodated by courts:

"The explicit terms of the Constitution...can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice."

Justice Souter's view that the Supreme Court must often choose "between one constitutional good and another one" explains many 5-4 votes on the Court which are often viewed as conservative-liberal splits: the legitimate need of society to gather evidence of criminality versus the right of the suspect to remain silent; the right to bear arms versus the right of society to protect its members from harm. Different "constitutional goods" are in conflict and the plain words of the Constitution do not resolve the conflict--judges must.

Justice Souter's speech reinforces the view that the values, predilections, and background of who sits on the Supreme Court do make an enormous difference in constitutional interpretation. With a Senate confirmation hearing to begin later this month, it is, therefore, fair to try to determine the values and predilections of Elena Kagan, because those values and predilections will make a difference.

The full text of Justice Souter's speech can be found here.

Friday, May 28, 2010

Justice Scalia: "Happy" Kagan Is Not a Judge

One of the criticisms of President Obama's nomination of Solicitor General Elena Kagan to the United States Supreme Court, particularly from conservative quarters, focuses on the nominee's lack of judicial experience.

I previously noted that I think the absence of judicial experience is not a drawback (May 11). ABC News reports that in a speech in Washington, Justice Antonin Scalia, a conservative hero, stated that he is "happy" that Kagan is not a judge. The ABC report can be found here.

Wednesday, May 26, 2010

Post-Judgment Interest in Diversity Actions

Under New York law interest on judgments secured in state court runs at the rate of 9% per annum. CPLR § 5004. But what is the rate of interest when a judgment is secured in a diversity action in a federal court located in New York? Ordinarily, interest on a federal judgment is based on the yield on a Treasury note, 28 U.S.C. § 1961(a), a rate which these days is considerably lower than 9%.

In FCS Advisors, Inc. v. Fair Finance Co., Inc., the plaintiff brought a diversity suit in the United States District Court for the Southern District of New York and was awarded summary judgment for $1.5 million. The District Judge awarded prejudgment interest at the New York rate of 9%. He also awarded post-judgment interest at the New York rate of 9%, and not at the lower federal rate, because the parties' contract had a choice-of-law provision that the contract would be governed by New York law.

The United States Court of Appeals for the Second Circuit reversed the award of post-judgment interest at the New York rate, and directed that the federal interest rate applies. The Circuit made several points.

First, in diversity actions state law governs the award of prejudgment interest.

Second, in diversity actions the federal rate applies to post-judgment interest.

Third, parties by contract can agree in "clear, unambiguous and unequivocal language" that a different rate of post-judgment interest will apply to federal judgments.

Fourth, the standard choice-of-law provision of a contract will not alter the federal rate of post-judgment interest because it does not contain "clear, unambiguous and unequivocal language" expressing an intent that a rate other than the federal rate will apply post-judgment. The parties must be more precise. The decision can be found here.

Friday, May 21, 2010

Kagan Confirmation Hearings to Begin

Patrick Leahy, chairman of the United States Senate Judiciary Committee, has announced that Committee hearings to consider the nomination of Solicitor General Elena Kagan to the United States Supreme Court will begin on June 28.

Senator Leahy's announcement noted that the Committee hearings last year on the nomination of Sonia Sotomayor began 48 days after the nomination was made by President Obama. The hearings on Elena Kagan will begin 49 days after the President's nomination. Senator Leahy's full statement can be found here.

The Senate Committee has also released the bipartisan questionnaire submitted to Solicitor General Kagan and her responses to the questionnaire. The questionnaire, and all the supplemental material transmitted to the Committee, can be found here.

Wednesday, May 19, 2010

"Meet the Justices": Appellate Division, Second Department

Yesterday afternoon I was a member of a three-lawyer panel which quizzed eight Justices of the Appellate Division, Second Department, on appellate practice as part of the "Meet the Justices" program sponsored by the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association. About 130 attorneys attended the two hour program which was held in the Second Department's courtroom in Brooklyn.

The questions covered a wide range of topics from brief writing and oral argument, to the internal operations of the Court. Depending on the year in question, the Second Department is either the busiest appellate court in the United States, or among the three busiest (the other two are in California and Texas). Of particular interest to me were the following points made by the judges.

First, all of the Justices present agreed with Presiding Justice A. Gail Prudenti that oral argument is important (a topic I have commented on before). A number of the Justices stated that while half of the cases are relatively easy to resolve, the other half are "close," and in these close cases oral argument is important in resolving the matter. There was agreement among the judges that no appellant should forego oral argument, and agreement that when an attorney does not appear for oral argument this sends a message to the Court that the attorney thinks little of his client's case.

The Justices also emphasized the importance of counsel's knowledge of the record at oral argument ("We should not know the record better than you do"). From personal observation I can confirm that the Justices on the Second Department come onto the bench with a thorough understanding of the record.

Second, with respect to brief writing, all of the Justices criticized the use of footnotes as a distraction ("If it is important enough to put it in the brief, it is important enough to put it in the body of the brief"). Because most cases are fact driven, a detailed statement of the facts is important, but they criticized the extended discussion of facts not relevant to the legal issues raised in the brief. They emphasized that an appellate brief is not a law review article, and that "string citations"--citing many cases for the same legal proposition--have no place in a brief. They all thought a brief should contain a preliminary statement setting out the "nub" of a party's contentions.

Third, and most interesting to me, was the acknowledgment that prior to oral argument Justices may discuss among themselves a case (or more) on the forthcoming calendar. I had seen an interview with Justice John Paul Stevens in which he stated that the Justices of the United States Supreme Court do not discuss cases prior to oral argument, and that the first sense he has of his colleagues' views comes at oral argument. That is not the practice in the Second Department.

Fourth, Presiding Justice Prudenti indicated that there is a greater willingness now than in the past for the Court to grant leave to appeal to the New York Court of Appeals in a civil case. The perception among members of the Bar is that the Appellate Divisions prefer to let the Court of Appeals determine its own calendar rather than have an Appellate Division send the high court a case. Justice Prudenti's remarks suggest that her Court may now be more open to a leave application.

Tuesday, May 11, 2010

A New Supreme Court Justice

President Obama's nomination of Elena Kagan to the United States Supreme Court has raised the complaint in some quarters that she is not qualified to sit on the Court because she has no judicial experience. The complaint is without merit.

A quick look back at the 20th century shows that the Supreme Court was the first judicial job for the most influential Justices: Louis Brandeis, Felix Frankfurther, William O. Douglas, Hugo Black, Robert Jackson, Earl Warren, and William Rehnquist immediately come to mind. While Benjamin Cardozo arrived at the Supreme Court after many years on the New York Court of Appeals, he began his tenure on the Court of Appeals after only a very brief stint on a Manhattan trial court.

The United States Supreme Court is a policy making body, and it does not appear that prior judicial experience makes one better equipped to set policy than being a former practicing lawyer (Brandeis), a former governor (Warren), a former law professor and chair of the Securities and Exchange Commission (Douglas), a former United States Senator (Black), or a former member of the Department of Justice (Rehnquist). The Supreme Court's recent decision in Citizen United v. Federal Election Commission which declined to limit corporate contributions to elections was a policy determination by five members of the Court on the reach of the First Amendment. The prior judicial experience of the five-person majority did not lead to the result; it was their policy predilections.

It can be helpful for one or more members of a high court to have had prior courtroom experience as a trial judge or a trial attorney. For example, Justice Sonia Sotomayor's experience as a United States District Court Judge is valuable in bringing to the Court an understanding of how particular procedural rulings will play out at the trial level. But I do not think her prior judicial experience necessarily makes her better equipped to address the broad constitutional policy questions with which the Supreme Court deals.

In sum, I am not fazed in the least about the absence of judicial experience in Elena Kagan's resumé.

Finally, much has been made of the fact that with the retirement of Justice Stevens (who attended Northwestern Law School), and the elevation of Kagan to the Court, all the Justices will have graduated from Harvard or Yale law schools. (While Justice Ginsburg did attend Harvard, she actually graduated from Columbia Law School.)

This just tells me that smart, ambitious people have a keen understanding of where political and legal power resides, a notion best captured by the title of the autobiography of westerner Justice Douglas, Go East, Young Man. I would be concerned if graduation from a small circle of schools was producing a single mold of thought, but it is not. The current Harvard and Yale graduates on the Court are on both sides of the ideological divide.

More interesting is that if Elena Kagan is confirmed there will be four New Yorkers on the Court: Chief Justice Roberts (Buffalo), Justice Ginsburg (Brooklyn), Justice Sotomayor (the Bronx), and Kagan (Manhattan). And while Justice Scalia was born in New Jersey, he was raised in Queens from the age of six. Maybe more important than law school is the New York water.

Tuesday, May 4, 2010

The Supreme Court, Architecture, and the Law

Yesterday the United States Supreme Court issued a statement that visitors to the Supreme Court Building in Washington will no longer be able to enter the building through the front entrance at the top of the stairs, although they will be able to exit the building through the front door. The statement indicates that the change has been made for security reasons.

In response, Justice Breyer issued a "Statement Concerning the Supreme Court's Front Entrance" in which Justice Ginsburg joined. Justice Breyer expresses "regret" at the closing of the Court's front entrance, and writes that the change defeats the vision that architect Cass Gilbert had for the building and the feeling he wanted to instill in visitors.

I recommend reading Justice Breyer's full statement. It reflects a sensitivity to a renowned architect's vision, and, more generally, the role that architecture plays in symbolizing what we expect from our halls of justice. The statement can be found here.

Tuesday, April 20, 2010

SEC v. Goldman Sachs: Read the Complaint

The big financial news the past few days has been the civil securities fraud suit filed by the Securities and Exchange Commission against Goldman Sachs in the United States District Court for the Southern District of New York.

The heart of a securities fraud suit is the claim that there was a "material" misstatement of fact or a "material" omission of fact. I have no opinion whether Goldman Sachs is liable, but I do think the press has made a simple situation appear to be oh-so-complicated.

The background is simple. In 2007 a hedge fund Paulson & Co. Inc. wanted to make a bet that the subprime residential mortgage market would collapse. It put together a portfolio of subprime residential mortgage market securities it believed would lose value and it asked Goldman Sachs to, in effect, find investors who would bet that the value of the securities would rise. The bet would be made by using a "synthetic collateralized debt obligation" (CDO)--the sophisticated financial instrument touted in the press.

The SEC claims that in marketing the bet Goldman Sachs did not disclose that Paulson was deeply involved in selecting the securities in the portfolio, and that Goldman took steps to conceal Paulson's involvement by having it appear that an impartial third party had independently selected the securities for the bet. The value of the portfolio did fall. Paulson made about $1 billion while those on the other side of the bet lost that amount.

Paulson's economic interests were, of course, adverse to those who would bet that the value of the securities would rise. In the SEC's view Goldman is guilty of a material omission of fact because it did not disclose to those betting the securities would rise that the portfolio was selected with the deep participation of the party who would bet that the value of the portfolio would decline. Whether Goldman was required to make this disclosure, and whether this failure to disclose is a material omission, will doubtless be the cause of multiple court filings by the SEC and Goldman's attorneys.

It has already been the source of endless press comment by academics and securities attorneys. But all the discussion regarding whether disclosure of the identity of the party on the other side of this "sophisticated" bet was required, has, in my opinion, obscured the SEC's second claim: Goldman affirmatively misled the parties by misstating Paulson's role in the transaction to suggest that Paulson had an economic interest in seeing the portfolio value rise.

Thus, for all the trumpeting in the press about an impenetrable, sophisticated transaction, in the end it boils down to a claim of a garden variety fraud: Goldman misstated the true nature of Paulson's involvement, thereby misleading those who bet the value of the securities would rise. Paragraphs 44 through 51 of the SEC complaint are, in my opinion, the practical heart of the matter. The complaint can be found here.

Goldman will undoubtedly deny it misled anyone. But it is one thing to argue to a jury that a party had no obligation to disclose certain information. It is an altogether different matter to acknowledge that one did say something, but it was not misleading. Juries understand the difference, and if the case goes to trial the outcome will turn on whether a jury believes Goldman affirmatively misled those who lost the bet.

Arguing Another Attorney's Appeal

Last month I reported that I had again orally argued an appeal in which I did not draft the briefs. In a serious personal injury matter, the defendant appealed the denial of summary judgment by Supreme Court, New York County.

Plaintiff's counsel asked me to appear for oral argument before the Appellate Division, First Department. I did so, and I am pleased to report that in Tomaino v. 209 East 84th Street Corp. the Appellate Division affirmed the denial of summary judgment. The opinion can be found here.

While there are those who may disagree, I continue to believe that oral argument is important. It is the only opportunity counsel has to answer questions judges may have after reading the briefs and the record. After reading the briefs judges go on the bench inclined to decide a case a particular way. Different appellate judges have told me that oral argument has changed their minds 5% to 15% of the time. This is not an opportunity to pass up.

Thursday, April 1, 2010

Supreme Court: Effective Assistance of Counsel and Deportation

In a much awaited decision, the United States Supreme Court ruled yesterday that the constitutional right to the effective assistance of counsel in criminal cases requires that defense counsel advise a noncitizen defendant that if he pleads guilty the plea carries the risk of deportation from the United States. The decision, Padilla v. Kentucky, can be found here.

In the past, many courts across the country had taken the view that because the deportation consequence of a guilty plea is a matter "collateral" and not directly related to the criminal case, defense counsel had no obligation to advise his client of the possibility, or in many instances, the certainty, of deportation.

Padilla concludes, however, that because deportation is an "integral part" of the penalty a defendant who pleads guilty faces, and because deportation is "intimately related to the criminal process,'' the collateral versus direct distinction is not appropriate in the deportation context.

Significantly, Padilla rejects the established New York view that because deportation is a "collateral" consequence of a guilty plea, defense counsel is under no obligation to inform the defendant of the possibility of deportation. That view, expressed in People v. Ford, 86 N.Y.2d 397 (1995), cannot survive Padilla. In my opinion, the Supreme Court has gotten it exactly right.

Wednesday, March 31, 2010

Filing a Timely Notice of Appeal

One of the fundamental rules of appellate practice is that the timely filing of a notice of appeal is a jurisdictional requirement: if the notice of appeal is filed late, an appellate court has no jurisdiction over the matter, and the appeal will be dismissed.

On Monday, the United States Court of Appeals for the Second Circuit reminded us of the basic rule when it dismissed the appeal in Napoli v. Town of New Windsor. The decision can be found here.

For appeals in the New York State courts the time to file the notice of appeal is laid out in CPLR § 5513. The time frame for appeals in federal court is stated in Rule 4 of the Federal Rules of Appellate Practice. Note that Rule 4(a) states the time for civil appeals, while Rule 4(b) states a different time for criminal appeals.

In federal court a problem arises when the a judgment is entered and later amended. Does the filing of an amended judgment reset the clock for filing the notice of appeal? See e.g., Rezzonico v. H & R Block, Inc., 182 F.2d 144 (2nd Cir. 1999).

In the Napoli decision on Monday, the Second Circuit stated that because rulings a district judge made after issuing an order subject to an interlocutory appeal did not reset the clock for appealing the order, the notice of appeal was late and the appeal would be dismissed.

Appeals should be decided on their merits: file a timely notice of appeal.

Second Circuit: N.Y. Persistent Felony Offender Law Unconstitutional

In a major ruling today, the Second Circuit has determined in Besser v. Walsh that New York's persistent felony offender law, N.Y. Penal Law § 70.10, violates a defendant's constitutional right to trial by jury by permitting a judge, rather than a jury, to make critical fact findings in violation of Blakely v. Washington, 542 U.S. 296 (2004). The decision can be found here.

Constitutional challenges to the statute have been repeatedly rejected by the New York State courts, including most recently by the New York Court of Appeals in People v. Quinones, 12 N.Y.3d 116 (2009). The Second Circuit ruling is a stunning rebuke of the state courts in a matter of critical importance to the state's criminal justice system. Because of the importance of the case to the State of New York, I anticipate that it will either seek en banc review in the Second Circuit, or file a certiorari petition in the Supreme Court.

Arguing Another Attorney's Appeal

Last August I discussed an appeal in the United States Court of Appeals for the Second Circuit which I orally argued for the appellees although I did not write the brief and I did not know anything about the case until appellees' counsel asked me to argue.

In response to some comments I explained that some lawyers are uncomfortable at oral argument so they prefer that someone else appear. In other instances the lawyer who appeared at the trial writes the appellate brief, and something he did (or did not do) at trial becomes an important matter on appeal. It may, therefore, be awkward for the lawyer to appear at oral argument and defend his own action (or inaction). He may also be concerned that his oral argument will smack too much of self-justification, and detract from the client's case. He, therefore, has another lawyer argue the case.

Earlier this month it happened again: a law firm which successfully represented a plaintiff in defeating a motion for summary judgment and then drafted the respondent's appellate brief, asked me to argue the case before the Appellate Division, First Department. It is an important case for the firm, and it opted for someone with considerable appellate experience.

I see a growing awareness that oral argument of an appeal is important. It 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 a 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.

Tuesday, March 16, 2010

Suggested Reading: Justice Stevens

United States Supreme Court watchers are in a flutter over rumors that Justice John Paul Stevens will retire at the end of the Court's current Term in June.

The Justice will be 90 years old in April, and the rumors began with reports that he hired only one law clerk for next year (the allotment for a retired Justice) instead of four (the allotment for sitting Justices). As the rumors persisted, short lists of potential nominees to the Court have circulated, as well as speculation on what effect, if any, his retirement will have on voting patterns on the Court.

The New Yorker magazine dated March 22, 2010, which is out this week, has a fine profile of the Justice, "After Stevens," by Jeffrey Toobin. The Justice tells Toobin that he will decide in April whether to retire. As for the number of law clerks: he has received assurances from three of his current four clerks that they will stay on for another year if he does not retire.

Most notable for baseball fans is that Justice Stevens' was at the famous 1932 game in which Bath Ruth is said to have pointed to center field and then hit a home run there. The Justice reports that he saw Ruth point. Is more proof needed than the testimony of a United States Supreme Court Justice?

Tuesday, March 2, 2010

Governor Paterson's Judicial Legacy

With Governor David Paterson's announcement that he will not seek reelection in the wake of claims that he was involved in efforts to persuade a woman not to press assault charges against one of the Governor's aides, it is worthwhile to take a step back from the political frenzy to examine the Governor's judicial legacy. The legacy is impressive.

First, there is the appointment of Jonathan Lippman as Chief Judge of the New York Court of Appeals to replace Chief Judge Judith Kaye. Shortly after the appointment, and soon after the new Chief Judge had participated in a few of the Court's rulings, I wrote in May, 2009, "The early signs suggest that he will be more liberal than Chief Judge Kaye, and not hesitant to dissent."

Time has borne out that early conclusion. A recent article in The New York Times, "Top Judge Sets Liberal Course for New York," provides a valuable analysis of Chief Judge Lippman's voting patterns over the past year in a wide range of civil and criminal cases. That article can be found here.

The Governor has also had a profound effect on the Appellate Division, First Department. Under the State Constitution positions on the Appellate Division are filled by a gubernatorial appointment from among persons elected to sit as trial judges on the state Supreme Court. By my count, Governor Paterson has made seven appointments to the First Department since April 2008. Anecdotal evidence from attorneys suggests that the First Department has become more liberal as a result of those appointments.

Tuesday, February 9, 2010

Two Appellate Wins in One Day

It is always nice to win an appeal, especially when representing the appellant. It is doubly nice to win two in one day.

First, the morning mail brought the news that I had prevailed in the Appellate Term, Second Department, in an unusual case, Sneddon v. Greene. In April, 2008, the trial judge had granted my motion that he recuse himself on the grounds there was an appearance he was not impartial. Four months later, however, the judge sua sponte vacated the order of recusal, put himself back in the case, and ordered a trial be held before him.

The Appellate Term granted my motion for a stay of the trial, and in the appellant's brief I argued that once the judge had recused himself he had no further jurisdiction or authority to participate in the case. The Appellate Term agreed.

There is little New York case law on the jurisdiction of a judge after he has recused himself. The Appellate Term decision in Sneddon v. Greene is in accord with the views of courts in other states which have addressed the question.

The second appellate success today came in the decision of the Appellate Division, First Department, regarding a fee dispute between attorney and client. I had been waiting for a ruling since I argued the case on March 10, 2009.

At the conclusion of a real estate transaction a law firm held in escrow approximately $310,000 which it claimed was the fee owed by the client. The client disputed the fee, and the matter went to arbitration under the Rules of the Chief Administrator of the Courts. See, 22 NYCRR § 137.0 et seq.

The arbitrators awarded the firm $280,000 without interest. But instead of paying itself the $280,000 from the escrow account and remitting the balance to the client, the firm persuaded Supreme Court, New York County, to grant it two years' interest on the fee award. It then entered judgment for the total amount, and with interest running on the judgment, the client was required to pay even more to satisfy the judgment.

I represented the appealing client, and the Appellate Division agreed that it was improper for a court to award the firm interest denied to it by the arbitrators. The Appellate Division also agreed that after the arbitrators' decision the firm should have paid itself the $280,000 from the funds in the escrow account and promptly remitted the balance to the client. Under the ruling the firm is directed to repay to the client, with interest, all sums received from the client above the $280,000 awarded by the arbitrators.

The Appellate Division ruling is also noteworthy because it cites provisions of the Rules of Professional Conduct to support its conclusion that the law firm acted improperly. The opinion offers useful guidance on the responsibility of attorneys involved in fee disputes with clients. The decision, Levin & Glasser v. Kenmore Property, LLC, can be found here.

It would be nice to say that having won two cases I can take the rest of the day off. But alas, there is always something else to do.

Friday, February 5, 2010

Interlocutory Appeals

Interlocutory appeals are a staple of civil appellate practice in the New York State courts. CPLR § 5701(a)(2)(v) gives a party the right to appeal to the Appellate Division from an interlocutory order which "affects a substantial right."

The New York courts have generously interpreted "affects a substantial right," so that there are few interlocutory orders which are not appealable as of right.

In the federal courts, however, there are few interlocutory appeals as of right. See, 28 U.S.C. § 1292(a). They must be authorized by a district judge. 28 U.S.C. § 1292(b). Litigants must, therefore, ordinarily await final judgment before raising on appeal a district judge ruling earlier in the case. There are two recent reminders of the limits on interlocutory appeals in federal courts.

In Mohawk Industries, Inc. v. Carpentier, ___ U.S. ___, 130 S.Ct. 599 (2009), the Supreme Court ruled that an immediate appeal would not be permitted from a disclosure order of a district judge which arguably impinged on the attorney-client privilege. This was the first full opinion written by Justice Sonia Sotomayor. The opinion can be found here.

Earlier this week in In re Zyprexa Products Liability Litigation the United States Court of Appeals for the Second Circuit restated the limited availability of interlocutory appeals in the federal courts. The decision can be found here.

Thursday, January 28, 2010

Appellate Practice: When is an Attorney "Aggrieved"?

One of the fundamentals of appellate practice is that only a party "aggrieved" by an order or judgment can appeal that determination. This is true in the federal courts, Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333 (1980)("only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom"), and it is true in the New York State courts. CPLR § 5511 (an "aggrieved party" may appeal).

There is a vast, and sometimes arcane, body of case law on who is an aggrieved party. Generally speaking, a party is aggrieved when he does not prevail, as when an order or judgment is entered against him, or his motion for affirmative relief is denied.

Can an attorney representing a party be aggrieved? The question arises, for example, when an attorney moves to have a court sanction opposing counsel for frivolous or improper conduct during the litigation. Suppose the judge denies the motion to sanction the attorney but in the course of his opinion he makes comments critical of the attorney. Can the attorney appeal the order which did not sanction him because he objects that the judge's critical comments are unjustified?

Today in Keach v. County of Schenectady the United States Court of Appeals for the Second Circuit concludes that the criticized but unsanctioned attorney is not an aggrieved party and, therefore, the appellate court has no jurisdiction to hear his appeal. The opinion can be found here.

For an attorney to be aggrieved for purposes of appeal, says the Second Circuit, the attorney must have suffered an adverse decision. Critical words alone are not reviewable by an appellate court. On the other hand, an attorney is an aggrieved party if he is sanctioned by the court, or the court makes specific findings that the attorney violated a rule of professional conduct, or a court refers the attorney's alleged misconduct to a disciplinary committee. "An appellate court can reverse an order imposing a sanction or making a finding that an attorney has violated a rule of professional conduct; it has no power to reverse a judge's poor opinion of the skill or trustworthiness of a lawyer who has appeared before him or her. "

Wednesday, January 27, 2010

Appellate Courts and Stare Decisis

The most difficult task facing any appellate attorney is convincing an appeals court to overrule its own precedent.

Because stare decisis has identifiable benefits it has a strong pull on appellate courts. The doctrine promotes political and social stability, adds certainty to commercial transactions, and fosters public confidence in the legal system by suggesting that the law does not change simply because some judges on an appellate court have been replaced by other judges.

But everyone agrees that precedent can be overruled. The question is when and for what reason. That is the rub. Courts, for example, are slow to overrule precedent in matters affecting real property and contracts so as not to unsettle long established legal relationships and expectations. On the other hand, it is argued that stare decisis should have less significance in constitutional law: because the Constitution is so difficult to amend the United States Supreme Court for all practical purposes has the final word on what the document means, and, therefore, the Court should be more amenable to rethinking some prior ill-considered or time worn decision.

Last week's Supreme Court ruling in Citizens Union v. Federal Election Commission brings all of this to mind. The five Justices in the majority not only overrule two of the Court's decisions, one from 1990 and the other from 2003. They also reject the distinction the Court and the Congress have drawn for a century between speech by a natural person and speech by a corporation, and discard Congressional restrictions on corporate financial contributions to candidates for public office. What effect this will have on political campaigns will be the subject of debate well into the future.

For appellate attorneys, however, the concurring opinion of Chief Justice Roberts, and the dissenting opinion of Justice Stevens, are required reading. Part Two of each opinion is devoted to an extraordinary analysis of stare decisis, and each opinion lays out its own road map for when an appellate court should, or should not, overrule precedent. The opinions are essential for any attorney preparing to argue that a precedent should be overruled, and for any attorney maintaining precedent should be reaffirmed.

Tuesday, January 26, 2010

Improper Dismissal of Civil Claims: The Procedural Niceties

New York's civil law is filled with procedural niceties which can make or break a case. Two recent decisions by the Appellate Division, Second Department, and the United States Court of Appeals for the Second Circuit, illustrate the point.

Because an opening statement to the jury in a civil case is supposed to lay out what the plaintiff intends to prove, it is often said that the failure of counsel to refer in his opening to a particular cause of action will entitle the defendant to dismissal of the omitted cause of action.

But in Beshay v. Eberhart the Appellate Division clarifies that dismissal after the opening statement of plaintiff's counsel is limited to situations in which (1) the complaint fails to state a cause of action, (2) the opening statement admits as fact a defense which has been interposed, or (3) plaintiff's counsel makes an admission or statement which so completely compromises his or her case that the court is justified in awarding judgment as a matter of law to the defendant. The decision can be found here.

In Hanrahan v. Riverhead the Second Circuit addresses CPLR § 1003 which authorizes a New York trial court to dismiss a complaint for failure to join a necessary party. The court notes that § 1003 calls for dismissal without prejudice, which means it is not a dismissal on the merits.

After suffering a § 1003 dismissal, plaintiff Hanrahan brought suit in federal court instead of refiling in state court. Because the § 1003 dismissal was not on the merits, the Circuit Court concludes that the federal action is not barred by res judicata.

The Second Circuit does give a procedural warning: a dismissal by the New York courts on the grounds a suit is untimely is considered a dismissal on the merits by the New York Court of Appeals. A suit dismissed in the New York courts on statute of limitations grounds and later brought in federal court will, therefore, be dismissed in federal court on grounds of res judicata. The Second Circuit opinion can be found here.

Monday, January 25, 2010

Proof of Prior Criminal Conduct

One of the more knotty procedural issues at a criminal trial arises when a prosecutor seeks to place in evidence before a jury proof of a defendant's prior criminal conduct.

In the seminal case People v. Molineux, 168 N.Y. 264 (1901), the New York Court of Appeals concluded that evidence of a defendant's prior criminal conduct is admissible only when relevant to establish motive, intent, absence of mistake, a common scheme, or the identity of the person charged with the crime on trial.

In the federal courts the issue is addressed by Federal Rule of Evidence 404. While Article 45 of the CPLR covers many evidentiary matters, New York has not codified the Molineux rule. As a result, there is now an enormous body of case law, developed since 1901, interpreting Molineux.

The basic concern is one of policy: a person should not be convicted of a crime because of his "bad character" or because his prior conduct indicates he has a propensity to commit the crime for which he is now on trial. Guilt must be established solely by evidence which specifically shows the commission of the crime being tried. But as the vast body of case law indicates, applying the policy is not always a simple matter.

The latest addition to the case law is recommended reading: the opinion of Justice Steven W. Fisher for the Appellate Division, Second Department, in People v. Wilkinson . The decision contains an excellent survey of the application of the Molineux rule by New York's appellate courts. The decision can be found here.

Friday, January 15, 2010

Supreme Court: Effective Assistance of Counsel in Capital Cases

Since the current Term of the United States Supreme Court began in October, the Court has issued thirteen opinions.

A remarkable five of those opinions have addressed claims that a criminal defendant was denied his constitutional right to the effective assistance of counsel. All five of these cases are death penalty cases, and all five address the penalty phase of a capital case.

A capital trial is bifurcated: the jury must first determine whether the defendant is guilty of a capital offense. If the jury finds the defendant is guilty, a second trial is then conducted before the same jury at which the jurors must decide whether to impose the death penalty.

In many death penalty cases the evidence of guilt is overwhelming, so the strategy of defense counsel is to focus on phase two: trying to convince the jury to spare the defendant's life. The difficulties for defense counsel at the penalty phase are self-evident: the crime is horrific, and the defendant may not cut a very sympathetic figure.

Ineffective assistance of counsel claims are very fact specific. It is, therefore, unusual for the Court to address so many of them in such a short period of time. I think this does reflect a general uneasiness that all capital defendants are not being adequately represented at the trial level.

But I think the fact that all five cases address the sentencing phase of a capital case also reflects a message from the Court: in light of the difficult hand dealt to defense counsel at the penalty phase--trying to elicit a sympathetic response from a jury, or trying to find a redeeming or mitigating fact, for someone already convicted of a horrific crime--only so much can be constitutionally expected of defense counsel.

Monday, January 11, 2010

Court of Appeals: Judicial Salaries

The New York Court of Appeals sat for three days of oral arguments last week, and will sit for three days of arguments this week. The next oral arguments will be in February.

Of the thirteen cases the Court will hear this week, the most compelling from a legal as well as a political point of view are the three cases to be argued tomorrow which bring up for review the question of the Legislature's failure to raise judicial salaries since 1999.

The issue is "linkage": the Legislature has refused to raise judicial salaries unless it also raises legislators' salaries. The question is whether linking raises in the two salaries violates the State Constitution. The Appellate Division, Third Department, concluded that linkage does not violate the State Constitution, while the Appellate Division, First Department, concluded that it does.

Chief Judge Lippman has recused himself because he was a plaintiff in one of the cases when he was Presiding Justice of the Appellate Division, First Department. The remaining six judges of the Court will hear the case based on the "rule of necessity": when judges should recuse themselves because of a conflict of interest (as here where judges will pass judgment on their own salaries) they will, nevertheless, decide the case because they are the only judges who can decide the case.

While judges are plainly entitled to a salary increase, I have not been persuaded by the legal claims against linkage. The State Constitution's Compensation Clause, like the same clause in the Federal Constitution, prohibits the legislative branch from reducing judges' salaries. The First and Third Departments concluded, as the United States Supreme Court concluded when interpreting the Federal Constitution, that the Compensation Clause is not violated when unchanged judicial salaries are eroded by inflation.

The argument is made under the Separation of Powers Doctrine that by failing to increase judges' salaries the Legislature is undermining the independence of a co-equal branch of government. But the independence of the judiciary is explicitly protected by the Compensation Clause which prohibits the Legislature from retaliating against judicial decisions by reducing judges' salaries. In light of the explicit Compensation Clause, I do not think that from the State Constitution's scheme of separation of powers an inference can be drawn that there is a constitutional obligation imposed on the Legislature to increase judicial salaries. A judge's salary is a matter for the political process.

Oral argument begins tomorrow at 2 p.m. You can watch the webcast by going to the Court's website which can be found here.

Supreme Court Note: beginning today the United States Supreme Court will hear three days of oral argument this week, and two days of arguments next week. Among the cases to be heard are Abbott v. Abbott which addresses the application of provisions of the Hague Convention on International Child Abductions when one parent takes a child to another country without the consent of the other parent; American Needle v. National Football League which addresses whether the NFL is exempt from the Sherman Antitrust Act; and Briscoe v. Virginia which will give the Court a further occasion to explore the full reach of Crawford v. Washington, 541 U.S. 36 (2004), the Court's seminal ruling on the Right of Confrontation.

Wednesday, January 6, 2010

Supreme Court: Major Prosecutorial Misconduct Case Settled

One of the major criminal justice cases of the current Term of the United States Supreme Court has been settled after oral argument.

As I reported in November, Pottawattamie County, Iowa v. McGhee raised the question of the limits on prosecutorial immunity from civil suit.

The Supreme Court has long held that prosecutors are immune from civil suit for damages under 42 U.S.C. § 1983 for actions and decisions taken in connection with the prosecution of a case. In Pottawattamie County the claim was made that the prosecutor procured false testimony during the investigation of a case and then used that testimony against the defendant at trial. The United States Court of Appeals for the Eighth Circuit concluded that there is no prosecutorial immunity "where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial."

Oral argument was heard by the Supreme Court on November 4. On Monday the plaintiff's law firm announced that the case has been settled for $12 million, which suggests that the defendant county was not encouraged by the Justices' questions at oral argument.

I am not aware whether statistics are kept of cases which are settled after the Supreme Court has granted the writ of certiorari and heard oral argument. I am certain, however, that Pottawattamie County is very unusual.