Just a few weeks ago, Chief Judge Janet DiFiore announced in her State of Our Judiciary speech that e-filing appeals in the Appellate Division would begin on March 1st. After the Office of Court Administration sought comments on proposed e-filing rules last summer, we knew that e-filing would soon begin. But the official date hadn’t yet been announced. Now, we know. As Chief Judge DiFiore explained, the courts took the bar’s comments to heart and made many changes to the final e-filing rules, which apply uniformly to all four Appellate Division departments. Here are the highlights of how the system will work.
First, this isn’t a full roll out of e-filing in every appeal. To begin on March 1, only limited kinds of cases will have to be e-filed, and they will vary by the Appellate Division Department.
As the e-filing system gets underway, and the Appellate Division works out any kinks, the list of cases will grow. Hopefully, it won’t be long before all appeals will be e-filed.
If you have a new appeal after March 1st (and your case falls within the list of selected cases), how have the appellate rules and procedures changed? First, after you file your notice of appeal, and the Appellate Division receives it, the Court will issue a Notice of Appellate Case or Docket Number. Counsel for the appellant must then file electronically a notice of appearance and, within 7 days, serve a copy of the notice on all other parties and file proof of the service. That’s an entirely new requirement.
Other counsel must then also appear on the electronic docket within 20 days after service of the Notice of Appellate Case or Docket Number, after which all briefs, records, appendices, and other documents would be deemed served when filed electronically.
Recognizing the reality that many attorneys use appellate printers to put together and file their briefs, and likely not wanting to put the appellate printing industry out of business in the state courts, the rules allow for the attorneys to designate a filing agent who may file on his or her client’s behalf. The attorney, however, is the one who remains on the hook for what is filed and ensuring that all deadlines are met.
Although some pro se parties have been previously excluded from e-filing, the new rules will allow a pro se party to choose to participate and e-file his or her brief using the same conventions as counseled parties.
And what are those conventions? Well, if you haven’t learned how to bookmark your PDF briefs and records on appeal yet, now is the time to learn because that’s what the rules require. Briefs must be filed in PDF/A format with the tables of contents of briefs and records linked to the corresponding pages inside. Never done it before? A few helpful resources can be found here (Adobe, Nuance). Also, if the record volumes get too big, they should be split into multiple documents and e-filed separately to ensure they aren’t rejected as exceeding the 100 MB maximum file size.
The new Appellate Division e-filing rules don’t entirely eliminate the need to file hard copies of your brief and record with the Court. But the total number has been reduced to an original and five copies. So, some paper will be saved, but not a ton.
Also, you don’t have to file the hard copies simultaneously with the electronic filing. Instead, the rules require that the parties wait for the Clerk’s Office to review and approve the electronic copy before filing the hard copies. Once you receive the approval notice from the Clerk’s Office, you have 2 business days to file the hard copies.
Finally, like with all other e-filing, the electronically filed documents are considered filed and served when they are uploaded to the NYSCEF system. That means attorneys are no longer constrained by the 5 p.m. (or sometimes earlier) court closing deadline. Instead, lawyers who can’t just put the pen down can write and edit until their heart’s content or midnight, whichever is earlier. That’s good news for those of us who have had to have a courier race a brief to the Appellate Division at the last minute before 5, and bad news for procrastinators who need a firm deadline to be productive. I see many late night filings ahead in the Appellate Division.
This is an exciting development, as New York starts to catch up with its counterparts in the federal courts. As the Appellate Division e-filing system gets underway on March 1st, it will hopefully work well enough to convince OCA that e-filing should be expanded to all appeals and, eventually, to all New York courts. Indeed, e-filing is good not only for lawyers, but it also provides the public with a valuable opportunity to get access to the court documents on which decisions are based. That, plus New York’s move to live stream all appellate arguments throughout the state, provides a level of transparency that just wasn’t present before. Now, you can read the parties’ briefs, watch the arguments, and read the court’s decision all from the comfort of your own computer screen. What could be better than that!
The new Appellate Division e-filing rules can be found here.