Thomas R. Newman
This summer marks the 30th anniversary of our joint authorship of the Appellate Practice column, as well as Thomas Newman’s 44th year as its author. At these milestones, we reflect on the evolution of New York appellate practice over the past three decades, focusing on technological advancements and efforts to reduce appellate court backlogs and delays.
Thirty years ago, electronic legal research was still a novelty. Law firms maintained extensive libraries of print-based case reporter volumes and other primary and secondary research materials. Law librarians served as the conduit to these print publications for the legions of associates who scoured them and weekly advance sheets searching for that elusive case in point. Decisions were manually "Shepardized" through Shepard's Citation Service to locate any negative subsequent history. This was an arduous, time-consuming process that ran the risk of incomplete results even for the most skilled researchers.
By the mid-1990s, many lawyers and law firms had transitioned at least partially from print-based materials to electronic legal research via online services such as Lexis and Westlaw, which offered cases, legislation and secondary materials in full-text format on searchable databases. The stand-alone UBIQ terminal, which put the Lexis dial-up service directly on a lawyer's desk, became a status symbol among tech-savvy lawyers. New CD-ROM technology utilizing hypertext search systems briefly gained popularity as legal publishers migrated their print content to the CD-ROM platform. By the late 1990s, however, advances in the World Wide Web spelled the demise of CD-ROM research by giving lawyers access to case law, legislation and secondary materials from jurisdictions all around the world, either through subscriptions to commercial databases such as Lexis and Westlaw, or from a vast array of publicly available websites. Today, court websites accessed via desktop computers, tablets and smartphones provide instant online access to decisions, rules of practice, calendars and archives of live-streamed oral arguments. The impact of these advancements on appellate practice has been immeasurable in terms of speed, accuracy and range of available information, although "information overload" has become a common complaint among lawyers.
Three decades ago, the IBM Wheelwriter was the pinnacle of stand-alone typing and word processing technology. Multiple drafts of a brief, especially revisions late into the night, were sure to provoke the ire of the typing pool. Typewritten briefs were typically sent to an appellate printer for type setting followed by hand delivery to the court, a process that took several days. With the evolution and proliferation of personal computers and printer technology in the late 1990s, word processing software gradually replaced the traditional electric typewriter as the sole means of document production. This was augmented by computer networks incorporating document management software and intranets that enabled lawyers and clients to collaborate on briefs. Once computer-generated briefs became the norm, digital printing replaced type setting and is still used today in courts that permit briefs and record materials in paper format.
Ironically, although lawyers, judges and their staffs have long had access to sophisticated electronic legal research databases and platforms, until recently they were still constrained to read copies of briefs and record materials the old fashioned way in paper format. The standard way of checking a record cite in a brief was to manually leaf through the bound pages of the record on appeal or appendix until the cited page was found.
This changed in the Appellate Division on Sept. 17, 2018 with the implementation of the statewide Practice Rules of the Appellate Division (22 NYCRR Part 1250), which, in certain cases, require electronic filing of digital copies (searchable PDFs) of briefs and of record materials in addition to copies of those documents in paper format (see Rule 1250.9). Under the Electronic Filing Rules of the Appellate Division (22 NYCRR Part 1245), digital briefs must contain bookmarks linking the tables of contents of briefs and records to the corresponding page of the document (see Rule 1245.5[f]). The Second Department further requires that cited authorities in briefs and motions must be hyperlinked to a PDF of the cited authority, which must be attached to the digital copy of the brief. See Technical Guidelines of the Second Department. Clicking on a hyperlinked case citation brings one instantly to the decision itself. The Court of Appeals similarly requires the submission of briefs and record material in digital format as companions to the required number of copies of printed briefs and record materials filed. See Rule 500.2. Today, the entirety of a massive multi-volume appellate record can be accessed via the Internet or stored on a tablet for access anywhere in the world.
The improvements in efficiency and productivity attributable to technological advancements will grow with each breakthrough. For example, is there a role in the future for artificial intelligence (AI) in appellate practice? AI-based systems are already in use for legal research, document review, contract analysis, and outcome prediction such as ranges of settlements and verdicts on similar facts. Will appellate courts use AI in the future to assist in deciding selected non-complex appeals—for example, the sufficiency of the allegations in a complaint to state a garden-variety cause of action—by analyzing facts and applying law, subject to the oversight of and final approval by appellate judges? While AI probably will never replace the creativity, judgment and experience of appellate lawyers and judges, it will likely play some role in appellate practice and process in the future.
Reduction of Case Delays and Backlogs
We cannot stress enough that the justices of the Appellate Division and judges of the Court of Appeals, and the non-judicial staff who support them, are extremely hard-working and firmly committed to the just and expeditious resolution of all matters. These courts have taken multiple steps to reduce case delays and backlogs caused by the explosion of civil litigation over the past three decades. Only a few of these initiatives are mentioned here.
Years ago, every appeal in the Court of Appeals was decided with full briefing and oral argument. In 1980, in order to expedite its proceedings and dispositions, the court promulgated Rule 500.4 (now Rule 500.11) of its Rules of Practice, which employs an alternative track of sua sponte merits (SSM) treatment of selected appeals, on the court's own motion, for expedited review without full briefing or oral argument. Such appeals are determined on the record, briefs and decisions filed in the court below, supplemented by counsels' letter submissions on the merits. Rule 500.11(b) states that an appeal may be selected for SSM review based upon (1) questions subject to a limited scope of review; (2) recent, controlling precedent; (3) narrow issues of law not of statewide importance; (4) unpreserved issues of law; (5) a party's request for such review; or (6) other appropriate factors. Of the 136 civil and criminal appeals decided in 2018 on the normal course or on the SSM procedure, 32 (23.5%) were decided upon SSM review. Twenty-one were civil matters and 11 were criminal matters. See 2018 Annual Report of the Clerk of the Court of Appeals [2018 Annual Report], p.4.
Prior to 1985, CPLR 5601(a) authorized an appeal as of right to the Court of Appeals from a final order of the Appellate Division that was one of reversal or modification or was rendered over a single dissent. In order to ease the burden of the court’s sizable caseload, the 1985 amendment to CPLR 5601(a) completely eliminated any appeal as of right to the Court of Appeals on the basis of a reversal or modification and adopted more stringent requirements for an appeal as of right on the basis of a dissent (i.e., now requiring "a dissent by at least two justices on a question of law in favor of the party taking such appeal"). This significant limitation on the court’s jurisdiction concomitantly reduced its caseload by largely transforming the court into a certiorari court in which the jurisdictional predicate for the majority of its cases is permission to appeal granted by the Appellate Division or Court of Appeals. In 2018, for example, the “permission to appeal” jurisdictional predicate accounted for 73% of the court’s civil appeals. See 2018 Annual Report, Appendix 5.
Unlike the Court of Appeals, "finality" is not a jurisdictional requirement in the Appellate Division. Almost every type of non-final order is immediately appealable to the Appellate Division as of right, the only qualification being that it "involves some part of the merits" or "affects a substantial right." See CPLR 5701[a][iv-v]. Barring legislative curtailment of the Appellate Division’s civil jurisdiction, a drastic step, the growth of appellate caseloads will continue to be an unfortunate byproduct of New York’s liberality in allowing interlocutory appeals. This problem is particularly acute in the Second Department, where major population growth over the past three decades in the counties comprising the Second Department has caused a dramatic increase in the volume of civil litigation and associated appeals. In 2018, for example, the Second Department had a larger civil caseload than the other three departments combined, measured both by records on appeal filed and by total dispositions. See The New York State Unified Court System, 2018 Annual Report, p. 38, Table 2. Indeed, in 2018 the Second Department accounted for 65% of the total civil dispositions in the Appellate Division. Id.
By last year, it could take as long as 18 months for a perfected civil appeal to be calendared for oral argument in the Second Department and then additional time for the decision. See Alan D. Scheinkman, 2nd Department Is Changing the Way It Operates to Reduce Backlogs, NYLJ (Sept. 4, 2018). To address this backlog, Presiding Justice Scheinkman introduced several initiatives, including an increase in cases on the day calendars for oral arguments, mandatory mediation in perfected cases, and reduction of the number and length of extensions, as well as the number of motions for extensions. Id. In a similar effort to improve judicial efficiency, the First Department has reduced its panels from five to four justices. See First Department Introduces Four-Judge Panels, Upsetting NY Bar Associations, NYLJ (March 5, 2019); see also Alan D. Scheinkman, Finding the Perfect Number: Part Two, NYLJ (Aug. 27, 2019). In the meantime, various proposals over the past three decades to amend the state Constitution to permit the Legislature to establish a Fifth Department of the Appellate Division on Long Island, splitting up the Second Department to alleviate its imbalanced case load, have failed to gain traction due to unresolved political issues. Undoubtedly, we have not heard the last of the possible creation of a Fifth Department to better balance the caseloads across the Appellate Division.
Thirty years ago, when courts and lawyers had more time at their disposal, there were fewer if any restrictions on the size of briefs and the time allowed for oral argument. Today, arguments, whether written or oral, are circumscribed by word and time limitations imposed by the courts. Initially, the Appellate Division instituted page limitations for briefs, but with advances in word processing software that could cram more and more text onto a single page through the use of condensed typefaces and font spacing, the Appellate Division substituted word limitations, currently 14,000 words for principal briefs and 7,000 words for reply and amicus briefs. See 22 NYCRR 1250.8[f]. The limitations on argument time developed as a consequence of the "hot bench," in which the court’s familiarity with the facts and legal issues is presumed, and the need to increase the number of cases on the calendars to address the backlog issue. While the Court of Appeals and four Departments of the Appellate Division ostensibly allow 30 minutes and 15 minutes per side for argument, respectively, in practice counsel are typically allotted 10 or 15 minutes in the Court of Appeals, and in the First and Second Departments the time is often cut down to 7 or 8 minutes on the call of the calendar. While some lawyers grouse about these word and time limitations, they undoubtedly have the salutary effect of forcing appellate advocates to select the strongest issues and arguments for the briefs and oral argument, write a brief that focuses on what matters to appellate judges, and present an oral argument in a way that succinctly and directly addresses the court’s concerns regarding the position advanced by the advocate. This is part of the unique skill set of successful appellate practitioners.
Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.