Appellate Law Overview

Successful litigation strategy requires anticipation of being the appellant or being the prevailing party who is defending the appeal. Trial planning requires a honed knowledge of the rules of evidence and appellate practice.

The Appellate Court System

New York State’s highest Court is the Court of Appeals, located in Albany.  The State’s intermediate appellate system is divided into four judicial departments: First Department, Second Department, Third Department, and Fourth Department. Each department controls a specific geographic segment of the State’s 62 counties. While appellate practice in all five courts is governed by statute, each court has additional rules of procedure unique to itself.

The Sources of Appellate Practice

Appellate practice is governed by statute and by a full body of complex case law. The above links connect the reader with the rules and the FAQ’s of each court.  A party seeking to take an appeal needs to be aware that, while the decisions of the Court of Appeals are binding on every court in the State, the decisions of one Department are not binding upon another DepartmentAdditionally, although with very limited exception, all intermediate and final judgments and orders may be appealed automatically to the Appellate Division, there is no automatic right, however, to appeal to the Court of Appeals (except as permitted as by statute) meaning that a party must apply to the Court of Appeals for permission to appeal.

The absolute right to take an immediate appeal to the Appellate Division from final or (almost all) interim orders in matrimonial litigation is a priceless treasure of our judicial system. A party has the right to challenge the outcome of an interim order or judgment made during the pendency of the matrimonial action as well as final determinations.

Appellate practice from the Family Court is more restricted and issues pertaining to service are quite different.

What Appellate Courts Do

The appellate court does not conduct a new trial and will not hear new evidence that had not been presented to the trial court. With the rarest exception, appellate courts review no more than what transpired before the trial court and determine whether procedures and/or substantive law were applied correctly. Appellate courts generally give great deference to the trial court’s findings of fact and findings of credibility.  Since the Equitable Distribution statute involves judicial discretion, appellate tribunals also review for abuses of discretion.

In New York, property distribution, spousal support/alimony, child support, custody and visitation, and counsel and expert fees are always tried before a judge only and never before a jury.

When and How an Appeal Is Initiated

To initiate an appeal, the “appellant” – the party appealing – must either file a notice of appeal or file a motion requesting permission (“leave”) to appeal. The appellant must present an appellate record consisting of materials from the trial court or the motion court.

The time frame to file a notice of appeal in New York is 30 days from the date of service of the notice of entry of judgment.  Critically, the failure to timely commence is absolutely fatal to the appeal — in other words, it results in the forfeiture of the right to appeal — it is absolutely jurisdictional, the appellate court may not extend the time to appeal.

In some instances an appellant must make a motion for permission to appeal.  The timeliness of the motion also falls within the same 30-day jurisdictional rule.

The Papers Presented to the Appellate Court

In addition to the Record on Appeal, an appeal generally involves three legal briefs, all of which must cite statutes, cases or other legal authorities. Briefs must also contain references to the designated Record on Appeal.

First, the appellant files an opening brief along with the Record on Appeal. This brief must explain the factual and procedural history of the case, in a truthful and accurate  fashion, even if it is not kind to your client — it is appellate-counsel’s job to cast the best light on the client and try to make him/her as likable as possible.

Counsel then explains, by a combination of fact and law, how the trial court erred and why the appellate court should reverse the ruling

Next, the “respondent” then files an answering brief.  Like the appellant’s brief, the respondent’s brief should also explain the factual and procedural history, followed by argument, supported by statute, case law or both, in support of upholding the trial court or the motion court.

Finally, the appellant has an opportunity to file a reply brief wherein the appellant argues against the claims made in the respondent’s answering brief limited by the constraint of not being permitted to introduce any new legal arguments. The reply must only address issues and statements made in the responsive brief.

After All the Briefs Have Been Filed

After the briefs have been filed, the Appellate Division may, depending on individual court rules, hear oral argument — the time frame depends on the back log of cases awaiting argument. The appellate panel issues a written decision stating its reasoning. The timing of the written opinion varies considerably among different courts, but is generally a period of several months.

A party dissatisfied with an appellate court ruling may either want to make a motion a reargue or want to consider an appeal to the State’s highest court, the Court of Appeals. Generally, with limited statutory exception, permission must be requested to appeal. One instance of an automatic right to appeal occurs when two justices dissent on the law (disagree with the majority opinion). Recent statistics from the Court Appeals show that only about 8-10% of civil cases are granted leave (permission) to appeal. A key factor that the high court looks for before granting leave to appeal that its decision will not just rectify the one case before it but rather what long range implications the issues have statewide.