I had the privilege of serving on the Appellate Division, Second Department for 10 years, first as an associate justice for five years, then as presiding justice for the remaining five years. The experience of working with exceptional judicial colleagues and attorneys at the court have given me some insights which I hope will be useful to appellate practitioners and litigants.

Is an appeal useful and necessary? CPLR 5701(2) permits wide latitude in taking interlocutory appeals from unfavorable orders. Subsection (iv) requires that subject order “involve some part of the merits” while subsection (v) requires that the order “affects a substantial right.” It does not take extraordinary creativity for an attorney to find grounds to take an appeal when such an expansive statute is available.

A defendant who is on the losing end of a summary judgment motion might naturally feel compelled to attempt to save his or her case, but will it be throwing away good money after bad? Has there been adequate preservation of the dispositive issues after reviewing the case law? Is the client ready to bear the ever-increasing costs of assembling the appellate record and retaining qualified appellate counsel? To prevail, will you have to make new law, or is the potential error of the court below clearly identified in prior case law? All of these factors must be carefully considered.

A plaintiff who loses a summary judgment motion will still have his or her day in court but stands to save the expense of a trial if successful on an appeal. Seeking a stay of trial at the Appellate Division is a strategy, but there is no certainty of a successful result and a survey of decisions in other cases will reveal that such motions are frequently denied. If in fact there is a denial of a stay, the client will be on a costly dual track of appellate and trial litigation. A cost/benefit analysis must be undertaken to avoid unnecessary time and expense.

Simply having easy access to an appeal does not mean that it is always wise to take one.

What are some of the reasons behind the lengthy amount of time the Appellate Division sometimes takes in rendering a decision? The volume of business before the court has compelled the Second Department to sit in four judge panels (the minimum quorum under the Constitution) for many years. The other three Departments have sat from time to time with four judges due to vacancies, illnesses, recusals, among other reasons. The concurrence of three justices is necessary in order to render a decision, and of course, there is the possibility of a 2-2 tie vote. The newly enacted Uniform Rules of the Appellate Division provide that a cause is deemed submitted to a “fifth judge” of the court if there is a deadlock unless there is an objection to that procedure at the call of the calendar.

The “fifth judge”, assigned from a list maintained for that purpose, will have to take on this duty in addition to his/her other responsibilities and read the record and briefs, consult with the other judges, and perhaps view the archived recorded argument before voting. Participation by the additional judge might be delayed until the original four judges have had an opportunity to work out their differences.

Upon breaking a tie vote, the result is a divided court in which there is a majority and a minority position. A decision must be circulated by the majority and a dissent prepared by the justices in the minority. Multiple drafts must frequently be circulated to respond to points being made by the other side. One or more of the justices may be persuaded to change their positions, further complicating the process.

Signed Opinions. Ideally, an appellate court decision and order should include a preamble detailing the issue(s) before the court and a recital of the factual context in which they are developed. Following that, should be a decretal paragraph concisely stating the relief that is to be granted or denied.

In further developing the court’s decision and order, there should follow a discussion of the facts as found by the court and the statutory and case law which supports the outcome announced by the court. It has been recognized that the primary role of the Appellate Division is the correction of errors, and in view of modern caseloads (the Second Department has issued in excess of 4,000 decisions per annum in recent years), the ability to issue lengthy decisions in every matter is necessarily constrained.

There does arise, however, cases of first impression or decisions which are in conflict with authority in other Departments of the Appellate Division. Added to this, are decisions which require greater detail because of the likelihood of further review by the Court of Appeals. These are some of the reasons behind which a signed opinion becomes necessary and desirable.

A justice undertaking to write a signed opinion is, of course, writing on behalf of the entire court in a matter of importance. In doing so, the writing should be clear and unambiguous in order to give appropriate guidance to the bench and bar. When circulating a draft of a proposed opinion, a justice should be mindful of the views of the other justices and incorporate them if necessary to preserve a consensus.

In practice, it is most desirable to have unanimity in a signed decision, but that is not always possible. A dissent, if there be one, should be as thorough as the majority opinion giving the reasoning for the view being expressed. Upon receipt of a draft dissent, it becomes necessary for the justice writing for the majority to respond to the argument, further precipitating more give and take among the justices. These writings may persuade one or more of the justices to change their votes, sometimes requiring more changes to the content of the drafts.

The final product is then circulated to the entire court for comment and more views may be expressed. Constitutionally, a panel of the Appellate Division may not be greater than five justices nor fewer than four. When the court consisted of only the “Constitutional” (the Presiding Justice and six associate justices) justices, it was a straightforward matter to achieve a degree of consensus. The Second Department now has 15 “Additional” justices to deal with its heavy docket and it is far more likely to have a wide range of views among 22 justices than it is among seven.

Since the Appellate Division may not sit en banc as the federal appeals courts are permitted to do, another process must be utilized to resolve contentious issues. A technique utilized in the Second Department has been to bring such matters before the entire bench in a discussion led by the Presiding Justice at Consultation. In my experience, this has served as an effective vehicle to address most concerns expressed by members of the court, while leaving the published decision in the hands of the panel before whom the cause was brought.

Oral Argument. I have been asked many times during the course of programs whether oral argument is necessary and useful in an appeal before the Appellate Division. My response has always been that the matter requires some consideration and thought by litigants and counsel. Oral argument is in fact discretionary with the court and under the local rules of each Department, certain categories of causes do not allow argument. However, barring the exclusions, oral argument is always permitted within the published limits set by the court. Local rules must also be consulted as to the permissibility of rebuttal argument.

Experienced appellate counsel will know that it is rare to be permitted to give an uninterrupted presentation without being asked questions that may or may not relate directly to the argument being made at a given moment. Nevertheless, the questions posed by an individual justice must be answered and in my experience, if the argument gets too far off track, the presiding justice or justice presiding will intervene to give counsel the opportunity to make their argument while assuring that the inquiries made by the members of the court are addressed.

Counsel who are reasonably satisfied with the arguments that they have articulated in their brief and are confident in the position that they have taken as regards to the law, would be well advised to avoid rehashing that which should be clearly evident to the court and invite at the outset, questions that the judges may have regarding the issues in the case. This is well appreciated in an environment in which calendars of 20-25 cases are on the docket with total oral argument sometimes exceeding five hours in a court session. When requesting time at the call of the calendar, ask for what you need, not necessarily what is printed on your brief.

Newer appellate practitioners could acclimatize themselves to the rhythm of oral argument by taking advantage of the live streaming that is now available. Briefs can be viewed online in advance and it can be seen how counsel and the bench interact in addressing the issues. The styles of the individual justices can also be observed to see how they go about developing issues with counsel during argument.

Counsel who require special accommodations due to physical or medical limitations should not hesitate to request them in advance. I have granted requests for the hearing impaired and for those with significant mobility issues.

During oral argument, the use of portable electronic devices is permitted under recently revised local rules, to assist counsel in bringing up case law or finding material in the record. Rest assured, that the panel of justices are relying upon the same resources in assisting them in the course of argument, limiting the amount of paper that must be readily at hand.

Randall T. Eng, former Presiding Justice of the Appellate Division, Second Department, is of counsel to Meyer, Suozzi, English & Klein, P.C., and a member of the litigation department, including the appellate practice and criminal defense groups. He also serves as referee, receiver, and arbitrator within the firm’s alternative dispute resolution practice.