Court System Budget Cuts Force Appellate Division Justices Off the Bench

Even before the coronavirus pandemic hit New York, the state had a huge budget deficit to overcome. With the pandemic decreasing state revenues even further, Governor Andrew Cuomo recently announced a planned $300 million reduction to the New York court system’s budget. That’s a very large cut, and the courts did not have a choice but to take some drastic cost cutting measures in response.

Unfortunately, one of the measures that Chief Administrative Judge Lawrence Marks and the courts chose to make up for the 10% budget reduction was to deny 46 judges recertification to the bench after they reached the state’s mandatory retirement age of 70.

Under Judiciary Law 114 and 115, judges of the Court of Appeals and Supreme Court (including both the Appellate Division and the trial bench) may apply to be recertified to the Supreme Court bench after they retire for up to 3 terms of 2 years each. So, a judge who reaches the age of 70 may continue to serve either on the Appellate Division or the trial bench after their mandatory retirement until they reach the age of 76, if the court system finds that they “has the mental and physical capacity to perform the duties of such office and (b) that [their] services are necessary to expedite the business of the supreme court” (Judiciary Law 114 [1]; id. 115 [1]).

Recertification of retired judges is fairly routine. For example, once Court of Appeals Associate Judge Eugene Pigott reached mandatory retirement age and was forced off the Court of Appeals bench, he applied for and was granted recertification as a trial court judge in Erie County. Although routine, recertification is not guaranteed, however. The decision lies in the discretion of the Administrative Board of the Courts.

To make up part of the $300 million budget cut that Governor Cuomo has forced on the court system, Judge Marks announced that 46 judges would not be certified to the bench for terms beginning January 1, 2021, including 7 Justices of the Appellate Division. The First Department will be losing 2 Justices (David Friedman and Ellen Gesmer). The Second Department will lose 4 (Jeffrey Cohen, John Leventhal, Joseph Maltese, and Sheri Roman). And Justice Eugene Devine will leave the Third Department.

Only 3 judges were granted recertification notwithstanding the budget cuts: (1) Appellate Division, First Department Administrative Judge Angela Mazzarelli, who serves on “a number of task forces and commissions such as the State Commission on Judicial Conduct,” according to the court system spokesperson; (2) Appellate Term, First Department Justice Carol Edmead; and (3) Appellate Term, Second Department Administrative Judge Jerry Garguilo.

The budget cuts will certainly take a toll on the court system, but especially the Appellate Division, Second Department, which is already trying to reduce its large backlog of pending undecided appeals, and now loses 4 Justices from the court. Although this was likely unavoidable due to the unprecedented circumstances that the state and court system now face, it’s still troubling if it only further delays the resolution of pending appeals. For as they say, “justice delayed is justice denied.”

New York Daily Fantasy Sports Suit: Will New Legislation Moot the Constitutional Challenge to DFS?

After the Third Department declared that DFS violates the New York Constitution’s ban on gambling, the thought was that the industry’s only savior would be the seven Judges of the New York Court of Appeals. But now there may be another way.

Yesterday, Senator Joseph Addabo introduced a new bill that could provide a way around the Third Department’s holding that DFS is prohibited gambling and effectively moot the case before the Court of Appeals. A quick refresher: The New York Constitution bans “gambling,” but doesn’t define the term. The Third Department held that the Penal Law definition of what is prohibited gambling governs the extent of the constitutional ban. That is, the Constitution prohibits any games the outcome of which depend upon chance in a material degree, notwithstanding that they may also involve the players’ skill.

Here’s the way around. In addition to providing a new severability clause for the Interactive Fantasy Sports Law, the new proposed legislation would redefine the scope of gambling under the New York Penal Law to exclude daily fantasy sports.

By amending the Penal Law definition of gambling, the new proposed legislation would play right into the Third Department’s holding. If the scope of “gambling” under the Constitution is governed by the Penal Law, as the Third Department held, changing the Penal Law, as the Legislature has the power to do, would fix the constitutional problem (assuming you think there is one—I don’t).

Thus, if the bill is passed and signed into law before the Court of Appeals decides the appeal, it would effectively moot the constitutional challenge because the Court would have to apply the law as it stood at the time of its decision. Now, the Court would still have to agree with the Third Department’s determination that the scope of “gambling” under the Constitution is the same as the Penal Law definition, but that seems likely, given that the Penal Law definition was adopted in the first instance to implement the constitutional ban after it was adopted.

This is a very interesting development, and could have a huge impact on the appeal before the Court of Appeals. It’s definitely something to watch.

COVID-19 Update: New York Court of Appeals and Third and Fourth Departments are Going Virtual Too!

Following the First and Second Department’s forays into virtual Skype arguments, the Court of Appeals announced yesterday that it would be hearing arguments virtually during its June session.

COA NTB 4.23.20

Although some attorneys whose appeals had been scheduled for the March or April/May session won’t get the chance to argue, because the Court will be taking a few previously calendared cases on submission (including an interesting—to me, at least—issue about whether a municipal defendant can exclude one of multiple claimants from a statutorily required pre-suit deposition), most cases from those sessions will be rescheduled for argument later. And the Court has chosen a limited number of cases for the first virtual argument session in the Court’s history in June. The arguments will be livestreamed, as always, so we’ll all get to see what the Judges’ homes or chambers look like (unless of course they’ve figured out how to work virtual backgrounds).

The Third and Fourth Department Expand Virtual Court Operations Too

Not to be left out, the Third and Fourth Department are also following the First and Second Departments’ lead into virtual arguments.  Last Friday, the Fourth Department announced that it was not only going to be scheduling special virtual argument sessions for May and June and holding Skype arguments, but that it was also rescinding its prior order that had suspended appeal perfection and briefing deadlines.  In its place, the Fourth Department set a new schedule for the appeals:

Fourth Department Deadlines

The Third Department too is scheduling special virtual argument sessions for May and June. But, unlike the Fourth Department, the Third Department is continuing its suspension of perfection and briefing deadlines, at least for now.  That may change as we finish up the virtual argument sessions, and the Court sees how well they can work.

Now the Court of Appeals and all four departments of the Appellate Division are hearing arguments virtually, and the work of our appellate courts can continue, even in these times where we’re all working from home.

 

 

COVID-19 Update: Arguments are Back in the First and Second Departments!

Although most New York courts remain limited to hearing designated essential matters, or deciding their already fully submitted motions, the Appellate Division, First and Second Departments are expanding virtual operations for all of their appeals. For appellate lawyers like me, that’s very good news.

Earlier today (April 15th), the First Department released an update advising the bar that it has created two new special argument terms during which appeals will either be submitted on the papers or argued via Skype: (1) the May Special Term, beginning May 4th and ending May 29th, and (2) the June Special Term, beginning June 1st and ending June 26th.

Most notably, the First Department announces that it will allow parties to agree to perfect appeals and e-file motions in non-essential matters, even while the deadlines to do so remain suspended. That means that you can file that long looked-over brief that was ready to be filed a few weeks ago, if the other side agrees.  But again, opposing counsel will have no obligation to respond because the deadlines are still suspended until the Court orders otherwise.

In the Second Department, the Court will continue hearing appellate arguments via Skype, if the parties request to be heard. The first round of virtual arguments in late March and early April went off without a hitch, the Court says, and so the next round of arguments are being scheduled for April 27th through May 8th.

Second Department Skype Argument

Although the Third and Fourth Departments remain on the virtual sidelines for now, here’s hoping they’ll embrace the example set by their downstate brethren soon, so we can all get back to arguing, from a safe virtual distance of course!

Are Women Getting a Better Chance to Argue in State Appellate Courts? A Deeper Look at the Numbers Reveals a Troubling Trend in New York

A little less than three years ago, following the in depth look that Adam Feldman took at how infrequently women were getting the chance to argue at the Supreme Court, I took a look at how they were faring at the New York Court of Appeals. Examining the data from the 2016 arguments before the Court, I found that women argued approximately 37% of the time in all of the Court’s argued cases (136 arguments by women attorneys out of 372 opportunities total).

2016 Women Argument Pie Chart

That’s a pretty good rate compared to women’s opportunities to argue at the Supreme Court from 2012 to 2016, which according to Adam’s piece, amounted to 17% to 18% of the total arguments.  But, the total 2016 argument rate of 37% at the New York Court of Appeals masked an underlying divide between criminal cases where women argued nearly half of the time (89 of 188 criminal arguments, for 47%), and civil cases where women argued only 26% of the time (47 out of 184 civil arguments).

Is 2016 truly representative of the chances that women get to argue at the New York Court of Appeals, though? That’s the question that has nagged at me since I first put together the 2016 data.  So I dug a little deeper to find out. I looked at the argument data from 2012 and then from 2019 to see if things were materially different. They were, and not in a good way.

2012 Argument Data Shows a Lower Rate of Women Arguments

2012 Women Total Pie Chart2012 Women Total Bar Chart

If 2016 seemed to provide better opportunities for women to argue at the Court of Appeals than at the Supreme Court, 2012 was worse than 2016. During the 2012 calendar year, there were a total of 420 arguments before the Court of Appeals, but only 120 went to women.  That’s 29%.  There were only 18 cases where women argued on both sides, while their male counterparts did so 98 times. And like in 2016, 2012 also had a big disparity between criminal arguments and civil arguments. Women argued at the Court of Appeals 43% of the time in criminal cases (72 out of 167 available criminal arguments), but only 19% of the time in civil cases (48 out of 253 available civil arguments).

2012 Women Criminal Args2012 Women Civil Args

2019 Argument Data Shows Women Arguing at a Similar Rate to 2012, But With Far Fewer Total Arguments

2019 Women Total Pie Chart2019 Women Total Bar Chart

In 2019, the Court of Appeals heard 168 total arguments, 50 of which were women. That’s a total rate of 30%. Again, cases argued by men on both sides far outpaced cases argued by women on both sides (43 to 10). And the criminal to civil argument divide was still present. Women argued in 44% of criminal cases (31 criminal arguments out of 71 total), but only 20% of civil cases (19 civil arguments out of 97 total).

2019 Women Criminal Args2019 Women Civil Args

The 2012, 2016, and 2019 Argument Data Compared Shows a Significant Issue with the Court of Appeals Taking Fewer Cases

Although the rate of women arguing at the Court of Appeals in 2019 (30%) stayed pretty much the same as in 2012 (29%) and is close to the higher rate of 37% in 2016, the larger issue is that the Court is taking fewer cases and hearing fewer arguments now, which means that there are far fewer arguments that women and other underrepresented groups of advocates could take in the first place.

Comparison Chart

In 2019, the Court of Appeals only had 168 total available argument spots. That’s down 60% from the 420 total available arguments in 2012, and also way down from the 372 total available arguments in 2016. That’s a huge issue.  As can been seen in the table, the total arguments that went to women have declined over the years, from 120 in 2012 to 50 in 2019.

So, although the 32% of arguments being made by women over the three years I looked at is better than has been seen at the Supreme Court, the declining total number of arguments is a large barrier to getting more arguments for women and other underrepresented groups in the legal profession. That’s especially so in civil cases, where the total rate of women arguments before the Court of Appeals over those three years is only a meager 21% (114 civil arguments by women out of 534 total), and there were only 97 total available civil arguments in 2019, down from 253 in 2012 and 184 in 2016.

Beyond the Court of Appeals granting leave to appeal in more cases (which I’m in favor of), I think it would go a long way for Chief Judge DiFiore and the Court to adopt a policy encouraging arguments by women and other underrepresented advocates in the State’s highest court.  Policies like this, which have been adopted by many Judges throughout the state and in the federal courts, can go a long way to set the tone for the legal profession. I think it’s time for the Court of Appeals, on which sits a majority of distinguished women Judges, to lead by example.

COVID-19: New York Courts Take Unprecedented Action to Limit In-Person Appearances

Unprecedented times call for unprecedented measures. And we’re certainly in unprecedented times.  With the spread of COVID-19 growing exponentially each day, Chief Judge Janet DiFiore, Chief Administrative Judge Lawrence Marks, and the entire courts system have decided to take unprecedented action to limit in-court proceedings to only those essential for the administration of justice.  All non-essential proceedings are suspended until further order, and that now includes the filing of all litigation papers, under an order issued by Chief Administrative Judge Marks on March 22nd. While lawyers may keep working on their litigation matters, the courts will not be accepting any filings, except for those in enumerated essential proceedings.

Here’s a quick summary of the measures that the New York courts have adopted to try to do its part to keep its employees and the litigants that normally appear before it each day safe (UPDATED as of March 23, 2020):

The Appellate Division

For the first time that I can recall, the Appellate Division has suspended oral arguments. Each Department is handling it differently. In the First Department, the Court has cancelled all arguments scheduled for March 17, 18, and 19 and is taking those cases on submission. Beginning with the April term, and until the Court orders otherwise, all appeals will be submitted on the briefs or by oral argument through Skype. The Second Department is also taking its appeals on submission, unless the parties request to argue via Skype.

In the Third Department, the Court has strongly encouraged all attorneys who are scheduled to argue during the March term, which runs from March 23rd to 27th, to submit their appeals on the briefs. If argument is required, the Court is rescheduling the arguments for a later date. And in the Fourth Department, the Court has decided to take all arguments scheduled for the March/April term on submission only, without oral argument. Arguments for the May 2020 term will be rescheduled.

All of the Appellate Division Departments have now also issued orders suspending all non-statutory perfection and filing deadlines for the foreseeable future. In the First Department, for example, all deadlines are suspended, except for those cases that have been perfected for the May or June 2020 terms. All other Departments have suspended all deadlines for all cases (the Second Department, Third Department, and Fourth Department orders are here).

To be clear, and to avoid a trap for the unwary, the Appellate Division’s orders did not suspend the statutory deadlines for filing a notice of appeal or a motion for leave to appeal. Those deadlines were not been extended, in the first instance. But Governor Cuomo later issued an executive order tolling all statutory deadlines until April 19th, which includes the service of notices of appeal or motions for leave to appeal. The executive order provides:

In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis,   any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.

That fills the gap that had been left by the Appellate Division’s deadline suspension order, and ensures that all deadlines have now been suspended for the duration of this order. Although this executive order only tolls deadlines until April 19th, I would fully expect the Governor to extend this order further if the State’s COVID-19 response is still in full effect as we approach that date.

The Court of Appeals

The Court of Appeals at first decided to proceed with the oral arguments scheduled for its March session, which has argument dates on March 17th, 18th, 24th, and 25th. The Court advised counsel, however, that if they are unable to make it due to the public health crisis, the Court was willing to accommodate argument by videoconference.

As the Court began its first arguments in the March session, it was a remarkable sight to see the Judges observing social distancing by moving Chief Judge DiFiore, Judge Rivera, and Judge Stein from their normal positions on the bench to the advocates’ tables in front of the bench, while the remaining Judges spread out along the bench behind them. As they say, a picture is worth a thousand words:

IMG_3572 (002)

And behind the advocates was an eerily empty courtroom that echoed with each argument.

After holding arguments for the first day of session, the Court of Appeals has now decided to suspend the remainder of its argument calendar for March 18th, 24th, and 25th, and will reschedule those appeals for a later date. The Court will also no longer accept any filings, including stay applications, in person at the Clerk’s Office.

The Trial Courts

In the New York trial courts, only pending criminal or civil trials may continue. Any trials that have not yet begun will be adjourned pending further order. Further, as of March 16th, all evictions and eviction proceedings are suspended until further notice. All other matters are limited to those that the courts have deemed essential.  No other court appearances will be held to try to ensure the safety of court staff and the parties.

These are certainly trying and uncertain times. The New York courts are trying to do their part to ensure that essential judicial services can still be provided, while ensuring the safety of court employees and the public alike. For updated information about court closures or other steps the courts have taken, the New York State Bar Association has put together a site that is being updated daily with new information, which can be found here. Stay safe everyone.

 

The New York Constitution Can Help Fix the Backlog of Appeals in the Appellate Division, Second Department

Everyone admits that the backlog of pending appeals in the Appellate Division, Second Department is a problem. As Presiding Justice Alan Scheinkman acknowledged in an op-ed in the NY Law Journal last fall, “it can take as long as 18 months for a civil appeal to obtain a place on the court’s day calendar and then more time for a decision to be rendered.” That’s 18 months after an appeal is fully briefed. And to get that far in the first place it could take up to a year from when the notice of appeal is served. So, in reality, the Second Department is often looking at appeals that are pending for almost three years before they are decided.

Recognizing this huge issue, Presiding Justice Alan Scheinkman of the Second Department announced a number of procedural reforms in September 2018 that were designed to decrease the Court’s backlog of appeals. First, the Court increased its oral argument calendars from 20 to 24 cases per day. That’s a good first start. Judge Scheinkman also noted that the Court would use specialized benches for an additional sitting in some long delayed matrimonial, Commercial Division, and land use and zoning appeals.

Third, Judge Scheinkman announced that he was reemphasizing the Court’s requirement of mandatory mediation for pre-perfected appeals through the Court’s Civil Appeals Management (CAMP) program. Judge Scheinkman’s hope is that early mediation will help new appeals, and long delayed ones, settle, which would help reduce the Court’s backlog. Finally, Judge Scheinkman also forecasted that the Second Department would be much less receptive to extensions than it had been in the past. Under the new Appellate Division Uniform Rules, parties can obtain two 30-day extension for their principal briefs by stipulation or letter agreement, but any further extension requires a formal motion “upon a showing of good cause.” The Court will not show much empathy for claims of a heavy workload or a pending reargument motion in the trial court. As Judge Scheinkman put it,

Extension motions should be confined, as the rule says, to limited circumstances where good cause exists, such as where an unexpected health issue or other unforeseeable event has occurred.

In addition to Presiding Justice Scheinkman’s reforms, a proposal was introduced in the Legislature last year to split the Second Department into two separate courts—a North division covering appeals from Dutchess, Orange, Putnam, Rockland, and Westchester counties and a South division covering appeals from Brooklyn, Queens, Nassau, and Suffolk counties.

That’s an interesting proposal, but there are two catches. First, the bill received little support last year and died in the Judiciary Committee of the NY Assembly, the only house in which the bill was introduced. Second, splitting the Second Department requires a constitutional amendment. The NY Constitution expressly provides that there shall be 4 departments of the Appellate Division, and specifies their boundaries.

And the constitutional amendment process is a long and troublesome one. The proposed amendment first has to pass in two successive legislatures, and then be approved by the people of this State at a general election. Normal people, however, aren’t generally thinking about how to fix the backlog of appeals in the Second Department and whether splitting it in two makes sense for the judiciary. So, finding the necessary support for a constitutional amendment may prove difficult.

But the Second Department doesn’t need the rigmarole of a constitutional amendment to fix its backlog of appeals. The New York Constitution already provides two solutions that I noticed. First, section 4(a) of the Judiciary article of the NY Constitution grants the Legislature the right to change the boundaries of the Appellate Division departments every ten years as long as it doesn’t change the total number of departments. Here’s how they’re currently divided:

The Second Department covers the 2nd, 9th, 10th, 11th, and 13th Judicial Districts, while the First Department covers the 1st and 12th, the Third Department covers the 3rd, 4th, and 6th, and the Fourth Department covers the rest.

So, how can the Legislature change the boundaries of the Second Department to reduce its backlog of appeals? Well, it’s all just moving pieces to a puzzle. The 9th Judicial District could become part of the Third Department. Or maybe just move Putnam, Dutchess, and Orange counties into the 3rd Judicial District, which would take them from the Second Department into the Third. Or to get all crazy with it, move Onondaga County into the 6th Judicial District, trade the 5th Judicial District from the Third Department to the Fourth in exchange for the 6th Judicial District, make the 9th Judicial District part of the Third Department, and send the 2nd Judicial District to the First Department. Oh, plus a player to be named later and cash considerations. The possibilities are endless. I’m fairly certain that it’s been more than ten years since the Legislature changed the boundaries of the Appellate Division, so this option is on the table.

If that’s too confusing for you, there’s a second way. Tucked away in the judiciary article is a never-mentioned provision giving the four Appellate Division Presiding Justices the right to call a meeting when one of the Departments is unable to complete its work within a reasonable time and transfer appeals to the other Departments. Who knew? Particularly, Article VI, section 4(g) of the Constitution provides:

So here, because the Second Department has been unable to decide all of its appeals within any reasonable period of time, it could be time for the four Appellate Division Presiding Justices to call a meeting of the families and transfer a bunch of Second Department appeals upstate. The Third and Fourth Departments decide fewer appeals after oral argument each year than the Second (1,579 in the Third Department and 1,444 in the Fourth Department compared to 3,815 in the Second Department in 2017).

Sure, this option would tax the Third and Fourth Department Justices with more work, but overall it should reduce the time that it takes to have appeals decided throughout the State. A little increase in the times from notice of appeal to decision in the Third and Fourth Departments should be more than offset by the significant reduction in the Second Department. And the caseload would be spread out across the four Appellate Division departments more equitably.

There are solutions to fix the huge backlog of undecided appeals in the Second Department. The courts just need to know where to look. Although Presiding Justice Scheinkman’s efforts are certainly laudable, and may well help reduce the problem to an extent, I think the time has come for more drastic action than adding 4 more cases to the daily argument calendar can provide. The time is here to look to our Constitution and use the powers that the Legislature and Judiciary have been granted to change the boundaries of the Appellate Division departments or transfer Second Department appeals to other departments. Indeed, three years for an appeal is just too long for any party to have to wait.

Bring Your Lunch to the Court of Appeals: A Conversation with Judge Leslie Stein

It’s not often that you get the chance to have lunch with a sitting judge of your state’s high court, much less in a group of just four other people. Lucky for me, that’s the kind of quality programming that the Albany County Bar Association provides. Last time, it was lunch with Justice Michael Lynch of the Appellate Division, Third Department. This time, the ACBA’s Brown Bag Lunch program brought me to the Court of Appeals for lunch with Associate Judge Leslie Stein. As always, it was a fantastic program. Here are just a few highlights of what we talked about.

Differences Between the Trial Bench, the Appellate Division, and the Court of Appeals

Judge Stein’s career on the bench has run the gamut. She began in the Civil Part of City Court, was then elected to Supreme Court, elevated to the Appellate Division shortly after that, and was appointed to the Court of Appeals three years ago. So what’s the biggest differences between her stops?

Besides the general complexity of the cases before her, which of course increased as she rose to the Appellate Division and now on the Court of Appeals, Judge Stein explained that the biggest difference between sitting in City Court and the Appellate Division and the Court of Appeals is learning how to make a collaborative decision on the cases you hear. While at City Court or Supreme Court, Judge Stein was the sole person responsible for the decisions in the cases she heard. She got to review the law, the facts, and decide the outcome that she thought was right every time.

Once she was elevated to the Appellate Division and especially now on the Court of Appeals, the decision-making process became much more collaborative. After oral argument, Judge Stein explained that all the judges on the case sit down at conference to discuss the issues and a possible result. In that discussion, the Judges have to convince each other of the right outcome, and no one Judge’s perspective can control.  You need at least 3 votes at the Appellate Division and 4 at the Court of Appeals to issue a decision, after all. There is much more give and take, and compromise about what the Judges are willing to agree to. That process, Judge Stein said, often leads to much narrower opinions on the relevant issues to get the agreement that the Court needs to decide a case.

The Use of Oral Argument Questions and Separate Opinions to Develop the Law

But when the Judges can’t all agree on a particular issue, Judge Stein said that questions at oral argument and writing separate opinions are often useful to help push the Court to reach agreement. In fact, oftentimes, the Judges go into oral argument with a few questions that are designed more to persuade their colleagues on an issue than they are to elicit a response from the advocates. And the Judges each have a good sense of which questions are which. The Judges have their own unique styles of questioning, Judge Stein told us, and when the questions are being used to persuade their colleagues on the Court, it’s pretty easy to see.

Judge Stein offered some important advice for advocates who argue before the Court. The Judges all know that you’re wrapped up in the particular facts and issues in your client’s case, but you have to be ready to answer the bigger question: “What rule would you have this Court adopt?” The Court wants to know where the line should be drawn not only for the particular case in front of it, but for all cases throughout the State. It’s sometimes surprising, she said, that attorneys come to argument unready to answer that question. Don’t let that be you (especially because if you’ve watched the Court’s arguments, the question about what the rule is comes up in almost every single one).

Judge Stein also told us that separate opinions can have the same persuasive purpose. About one week before the start of the argument session, each Judge is assigned to write an opinion on a case that will be argued at that term (this is a change from the Court’s prior practice where the Judges randomly were assigned writings at the conference immediately after oral argument concluded).  Thus, Judge Stein explained, when the Judges leave the bench after oral argument at the Court of Appeals, they know which cases they’ll be writing an opinion in, but not necessary whether that opinion will be for the majority or the dissent. After argument, the Judges head to conference, discuss the issues in each case, with the least senior Judge (now, Judge Feinman) beginning, and hold an initial vote on the case. If the Judge that has been assigned the writing has the majority, then he or she will write the majority opinion, and the dissent is assigned to the next least senior Judge who disagrees.

Many times, however, Judge Stein explained, the Judges who are writing the dissent write opinions that never leave the internal chambers of the Court. They are offered to persuade the majority to narrow its opinion as a part of the give and take process. The draft dissenting opinions are used for points of discussion among the Judges to see if they can reach a compromise on the issues. Many times, it works, the Judges agree to sign on to the majority, and the draft dissent is scrapped, having served its purpose.

But when it doesn’t, the dissent becomes part of the Court’s opinion, offering the bench and bar a different critique of the issues in the case. Judge Stein told us that dissents can also be valuable to signal when a Judge feels that the law should be changed, as Judge Rivera recently did in calling for a reexamination of the excited utterance exception to the hearsay rule in People v Cummings or Judge Wilson did in calling for the Court to interpret its jurisdiction to include the ability to dismiss an appeal as improvidently granted.

Concurring opinions can be used the same way, Judge Stein noted. When a Judge agrees in principle with the Court’s proposed result, but would use different reasoning to get there, he or she will use a concurrence to explain the difference. Or, as Judge Fahey did recently, to explain that the issues in the case are important and should be decided, but that this particular case is not the right one in which to reach them, and to signal to the bar to bring these issues to the Court in another case.  Much of what the Court does, Judge Stein said, is about the development of the law, and not necessarily just for the case in front of it.

The Process of Hiring Clerks

No discussion of the inner workings of the Court of Appeals would be complete without touching on the subject of those attorneys who help the Judges do their jobs. All of the Judges on the Court have different policies on who they will hire for clerks, what kinds of experience they’re looking for, whether they want permanent or rotating clerks, and whether they’re willing to hire clerks straight out of law school.

Although some Judges on the Court have exclusively rotating clerks for 2-year terms in order to get a fresh perspective in chambers, Judge Stein has traditionally had permanent law clerks, people she has grown to know well and who know her intellectual tendencies. That, she thinks, has worked very well for her over the years. But, just recently, Judge Stein hired a new clerk on a 2-year term commitment. So, she’s willing to reevaluate her stance and her new clerk, she said, is working out very well.

When we asked what she looks for in a potential clerk, she said that it’s important for the applicant to have at least 2-3 years of experience representing clients of some sort. That perspective is important to sort through the arguments that the attorneys in each case bring to the Court. The practical experience helps Judge Stein sort through the practical impact of the cases that the Court is deciding, which is always a consideration when the Court decides cases that affect the law statewide.

Judge Stein also looks for strong writers, of course, but importantly also someone who is willing to stand up to her and tell her when the clerk thinks she is wrong on the law. It’s ultimately the Judge’s call where her opinion comes out in a case, but the process of reaching that decision is strengthened when the clerks provide a strong point of view and don’t just agree with Judge Stein’s initial reaction.

Best of all, as we finished up lunch with Judge Stein, she offered to take us on a private tour of the Court, to see the detailed hand-carved woodworking throughout the courtroom, sit in the Judges’ chairs and look at the still existing spittoon underneath the bench, tour the robing room where the Judges get ready for argument before they enter the courtroom, see the two-story conference room and the “Cardozo” room where the decisions get made, and last but certainly not least, the Judges’ chambers on the second floor.

Not bad for a brown bag lunch. Not bad at all.  It was, in fact, as fantastic program, and many thanks are owed to the Albany County Bar Association for continuing to put this great programming on for its members and to Judge Stein for taking the time out of her busy schedule between sessions to host us.

 

 

 

Are Women Getting a Better Chance to Argue in State Appellate Courts? Like in Most of the Law, the Answer is “It Depends”

There has been a wealth of information recently on just how few women are getting opportunities to argue before the Supreme Court. Inspired by the fantastic piece done by Adam Feldman of Empirical SCOTUS (and @AdamSFeldman on Twitter) that looked at the dearth of women getting chances to argue before the nation’s highest court during the last 5 years (if you haven’t read Adam’s work, please take a minute and do that.  It’s fascinating stuff!), and Raffi Melkonian’s (@RMFifthCircuit on Twitter) look at oral arguments in the Fifth Circuit (the thread starts here), I started to wonder if the state appellate courts are a female-friendlier venue for high court appellate arguments.

Riding the coattails of the impressive work done by Adam and Raffi, I looked at how many arguments were done by women attorneys in the New York Court of Appeals during 2016. According to Adam’s piece, “if we look at all attorneys that have argued before the [Supreme] Court between the 2012 and 2016 Supreme Court terms (a total of 864 attorney arguments), females make up between 17% and 18% of the attorneys.”  For the Fifth Circuit in 2016, Raffi’s calculation also came out to about 17%.

Women argued in the New York Court of Appeals, on the other hand, approximately 37% of the time (136 arguments by women attorneys out of 372 opportunities).  That’s a significantly better rate than in the federal Courts of Appeals (assuming the Fifth Circuit is a good example) and in the Supreme Court. Of the cases that were argued before the Court of Appeals in 2016, there were 31 cases in which two women attorneys argued compared to 74 cases in which two men faced off.

Although the overall opportunities for women to argue in the Court of Appeals seem better than is seen in the Supreme Court and the Fifth Circuit, the total argument data masks a large divide in criminal and civil argument opportunities. When the arguments are broken down by case type, there was a much greater chance that women attorneys would argue criminal cases than civil cases.

In 2016, there were 188 attorneys who argued before the Court of Appeals in criminal cases.  89 of those attorneys were women.  That’s 47%.  The number of criminal cases in which both advocates were women was also largely equal to the number where both were men, 24 to 26.

For civil cases, however, the rate was much more similar to the rates seen in the federal appellate courts. The Court of Appeals heard arguments from 184 attorneys in civil cases in 2016, only 47 of which were women.  That’s 26%. Slightly higher than the Fifth Circuit and Supreme Court, but not significantly so.  The disparity in civil cases argued by all women versus argued by all men is even more stark.  While there were 48 cases with all-male arguments, the Court of Appeals heard only 7 cases in which the attorneys at the podium were all female.

Although this is just one year of data (and I may have to go back a few more years to see if these trends hold over time), the argument data suggests that women attorneys are getting better opportunities for appellate arguments in public interest avenues, like The Legal Aid Society, Appellate Advocates, or District Attorney’s Offices, than they are in typical private law firms.  Given the well-publicized difficulties in women advancement in law firms, the dearth of women arguing in civil cases is not surprising. But that’s certainly no excuse for the problem.

While it’s great to see the state high court appellate argument opportunities even out in criminal cases, much work still needs to be done on the civil side.  As Raffi said (and I can’t put it any better), “just a thought for those of us who assign cases, and for clients who decide who they want to argue[, g]ive someone else a shot.”

A Conversation with Judge Michael Lynch of the Appellate Division, Third Department

If you’re invited to a brown bag lunch with a judge, be sure to bring a lunch. That was the mistake I made this week at the Albany County Bar Association’s first quarterly brown bag lunch event with local judges. (In my defense, I ran out of time to grab lunch and wanted to make sure I was at least on time. I’d rather be hungry than late to a meeting with a judge.)

The brown bag lunch program is the County Bar Association’s latest effort to provide its members with more opportunities to sit down for informal discussions with the members of the local bench. First up on the schedule was the Appellate Division, Third Department’s Michael Lynch, a distinguished jurist who served on the trial bench for 9 years before being elevated to the Third Department in 2014. I’ve appeared before Judge Lynch on a number of occasions, both while he was sitting at Supreme Court and now on the Third Department. He has always been very contemplative and easily able to distill complex cases to pinpoint the issues on which the case will turn. But what was so easy to see while sitting at the lunch table with him, his wife, his son, and about 15 other local attorneys was how welcoming he is and how much he enjoys engaging with the bar.

Our conversation, which was a great question and answer session with the Judge, touched on a number of topics, including the value of oral argument, the Judge’s own experience in appellate arguments, and a judge’s role in settlement talks, among many other things. Here’s a brief recap of what Judge Lynch had to say.

The Value of Oral Argument

Judge Lynch noted that he and the rest of his colleagues at the Third Department have noticed more and more attorneys waiving oral argument on their appeals and submitting the cases on the briefs. That is a big mistake, Judge Lynch cautioned. Don’t waive oral argument, ever. The arguments, the Judge noted, aren’t just for you to plead your case to the Court. They are a valuable opportunity for the Judges to clarify issues they are having with the cases with the attorneys who know the cases best. Without oral argument, that valuable opportunity is missed, and the Court is left to sort out the issues on its own.

For as much as it is said that oral argument has little impact on how cases are actually decided, Judge Lynch certainly indicated that it still plays a big role for him. And I actually think that’s generally true. Oral argument is your chance to have a conversation with the Judges and either bring them comfort that what the trial court did was right or show them how it was wrong. It’s at oral argument where you can get a sense of the issues that are troubling the Judges, and use your time to show how the case should come out in your client’s favor. That’s a valuable opportunity. Don’t give it up.

It’s OK to Admit You Don’t Know

Judge Lynch also made a point to tell us that if you don’t know the answer to a question during oral argument, it’s OK to admit when you don’t know the answer. As an example, Judge Lynch told a story when he inherited a Voting Rights Act case while he was the Albany County Attorney and was arguing a Rooker-Feldman issue in the Second Circuit. The first question from the panel was whether then-County Attorney Lynch was aware of a case that had been argued (not decided) earlier that week in the Supreme Court on the Rooker-Feldman doctrine. Honestly, he said, he had never heard of it, so he admitted to the panel that he wasn’t. It happens to everyone, he said, and the arguments go on, so you can’t let it throw you off.

Judge Lynch also told us that while it’s important to have a command of your record, the Court doesn’t expect you to know exact pages where things are located, except for possibly the crucial piece of evidence or issue in the case. But when you show the Court you have a command of the record, it is impressive, Judge Lynch said.

A Judge’s Role in Facilitating Settlements

Judges have a lot of different styles when it comes to settling cases. Some are more pushy than others, and Judge Lynch said that he viewed his role, when he was a trial judge, as helping to facilitate the settlement, but allowing the parties to go to trial even in cases that should have settled beforehand. For example, Judge Lynch had a trial where the parties were only $2,000 apart on the morning of the trial. Likely because of attorney animosity, the parties wouldn’t budge. So, instead of holding them hostage in chambers and forcing the parties to make up the difference, Judge Lynch let them go out, pick a jury, and present the plaintiff’s case. Afterwards, the plaintiff came back and accepted the defendant’s lower offer to settle. Every party has the right to go to trial, Judge Lynch said, and he didn’t think it was his role to force a settlement before trial.

Overall, it was a fantastic event put on by the Albany County Bar Association. Many thanks to the ACBA and especially to Judge Lynch for taking the time out to have lunch with us and share his many valuable insights. Next time, I promise I’ll leave enough time to grab my lunch.

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