Freestyle Lawyering: An Expedited Appeal in the New York State Courts
Ouellette, Alicia R., Journal of Appellate Practice and Process
New York's appellate courts normally hear cases on a first come, first served basis. Occasionally, however, when a party can show "urgency or good cause," (1) a court will expedite the appeal process by granting a calendar preference and an expedited briefing schedule. Determining how to obtain that preference and expedited briefing schedule can often be difficult because New York's roles of civil procedure (the CPLR) provide only that "[p]references in the hearing of an appeal may be granted in the discretion of the court to which the appeal is taken." (2) The statutory roles provide no guidance about how to seek a preference or what an application for a preference must show to be successful. Virtually no case law exists on the subject, and even the bible used by New York practitioners, Siegel's New York Practice," (3) does not explain how to expedite an appeal. The sage advice of most experienced appellate attorneys is, then, the most helpful: "Call the clerk's office."
Calling the clerk makes sense because the procedures for expediting an appeal vary from court to court, and no single source systematically outlines the quirks of the procedure used by each court. There are some local court rules: The state's top court, the New York Court of Appeals, has an established procedure, as do two of the four intermediate appellate courts. The other two determine the procedure for dealing with emergency matters on an ad hoc basis that seems to follow unwritten rules that are known to, and understood by, a select few appellate experts.
In some cases, the preferred procedure is a formal motion to be decided by a full panel. Sometimes, a letter request to the clerk's office is sufficient. At other times, a lawyer must go to the home chambers of an individual judge and ask him or her to sign an order to show cause. Because the preferred procedure for expediting a particular appeal depends upon the court in which the appeal will be heard and the facts of a particular case, New York practitioners must rely on experience, their best guess, or the advice of the clerk's office when determining how to initiate an expedited appeal. Obviously, this situation is not ideal. In the most urgent and stressful cases, practitioners must search around for the appropriate procedure, relying at times on nothing more concrete than the voice at the other end of a telephone.
This article will attempt to provide some guidance to practitioners who wish to expedite an appeal in a New York court by first setting forth the existing rules for the court of appeals and each department of the Appellate Division. It will then set forth the preferred practices in those departments that lack published rules, as best those practices can be discerned from the experience of the author and members of the Appeals Bureau of the New York State Attorney General's Office. (4) It will further examine some instances in which New York appellate courts have granted preferences in order to illustrate the sorts of cases in which the effort to expedite an appeal is likely to be successful. Finally, the article will offer some practical tips for bringing an appeal on an expedited basis, including putting a record together and advising a client on when to expect a decision.
II. HOW TO SEEK A PREFERENCE AND EXPEDITED BRIEFING SCHEDULE
A. The New York Court of Appeals
The procedure for obtaining a preference from the court of appeals is simple: Write a letter to the clerk of the court with notice to all other counsel whose clients may be affected. (5) The letter must include "(1) a statement of the nature of the case; (2) the jurisdictional predicate for appeal to the Court of Appeals; (3) the state of readiness of the appeal; (4) all relevant dates, such as the dates of orders and judgments below, the notice of appeal or order granting leave, the dates of filing of briefs and papers on appeal; and (5) the reason why a calendar preference is needed and why it should be granted. …