Tuesday, November 22, 2011

Appealing a Sua Sponte Order

    One of the practical problems which trial counsel confront is a sua sponte order which has an adverse effect on a party. 
    The situation can arise, for example, at a pretrial calendar conference when a judge sanctions a party for failure to comply with discovery deadlines established by court order or by stipulation of the parties. The sanction may consist of the imposition of attorneys' costs on the offending side, or even, in an extreme situation, the dismissal of a claim.
    It is well-established under New York law that there is no right to appeal a sua sponte order. The rule follows from CPLR § 5701(a)(2) which indicates that a party has a right to appeal from an order "where the motion it decided was made upon notice." Because a sua sponte order is not the result of a motion made on notice, the courts conclude that there is no right to appeal the order. 
    The solution for the aggrieved party? Make a motion on notice to vacate the sua sponte order, and if the motion is denied, appeal the order denying the motion to vacate. See, Sholes v. Meagher, 100 N.Y.2d 333 (2003); CPLR § 5701(a)(3).
    Happy Thanksgiving.       

Friday, November 18, 2011

An Outstanding CLE Program

    Now that Continuing Legal Education is ensconced as a cottage industry, lawyers are deluged with brochures and e-mails assuring us that if we do not immediately enroll in a particular CLE course we surely will be consigned to the dustbin of legal history. 
    Amidst the deluge it is always refreshing to find a CLE program which is not only informative and useful, but actually enjoyable. I attended one last week and I strongly recommend it when it comes around next year.
    For four days I attended an appellate practice program in Washington, D.C., sponsored by the American Bar Association's Council of Appellate Lawyers (I sit on its executive committee), the Appellate Judges Education Institute, and SMU Dedman School of Law. Hundreds of lawyers and appellate judges from across the country attended. Judge Eugene F. Pigott of the New York Court of Appeals was a member of a panel on how appellate judges approach decision making. 
    The program began on Thursday afternoon with two lawyers interviewing Justice Sonia Sotomayor for one hour, and it concluded on Sunday morning with a talk by Harvard Law School Professor Jack Goldsmith on the impact of war (including 9/11) on constitutional law. In between there were talks on developments and trends in civil and criminal law, a luncheon talk by Scott Turow on law and literature, panels on various aspects of appellate practice, and predictions by the attorneys involved in the challenges to the health care law regarding whether and when the Supreme Court would agree to hear the case (the predictions were accurate).
    A fascinating topic was the impact of technology on appellate practice. I learned, for example, that iPads have been distributed to all the judges of the United States Court of Appeals for the Ninth Circuit and the judges use them rather than carry around briefs and records on appeal. Does the fact that judges are reading from a screen affect how attorneys should write and structure their briefs? Should footnotes be avoided?
    Next year this appellate "summit" will be held in New Orleans. It will be one of the very best CLE programs you can attend.  

Friday, November 4, 2011

GPS Surveillance: Will the Supreme Court Go New York's Way?

    Back on May 12, 2009, I reported here that the New York Court of Appeals had that day ruled that the police cannot attach a global positioning system (GPS) tracking device to a person's automobile without a search warrant. People v. Weaver, 12 N.Y.3d 433 (2009). I noted that the opinion by Chief Judge Jonathan Lippman was a resounding invocation of  "the right to be let alone" enunciated by Justice Louis Brandeis in his prescient dissent in Olmstead v. United States, 277 U.S. 438 (1928).
    I also noted that because Weaver was based on provisions of the New York State Constitution the decision was beyond review by the United States Supreme Court.
    Next Tuesday, however, the Supreme Court will have the opportunity to address the issue when it hears oral argument in United States v. Jones, a Government appeal from a ruling by the United States Court of Appeals for the D.C. Circuit that a warrant was required to install the GPS tracking device which monitored Jones' movements in his car for approximately four weeks. Decisions in at least four other federal circuit courts have upheld the warrantless installation of a GPS tracking device.