"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.