True, the title of this piece recycles an old pun, but it should get you thinking about the appeal of family law cases. That appeal may not be to your sense of humor … but to a higher court. When it comes to matrimonial or Family Court cases, the Appellate Division is the ultimate appellate forum. In theory, there is a tribunal that sits higher, but the Court of Appeals decided just 172 civil appeals in 2008. New York is a big State with many unhappy litigants, not many of whom have cases reaching Albany’s hallowed halls. For the overwhelming majority of Nassau County family law cases, the Appellate Division, Second Department, is the court of last resort.
An effective advocate appreciates the Second Department’s workload; it is the busiest appellate forum in the State, perhaps the galaxy. The Second Department has jurisdiction over a region inhabited by more than half of the State’s population. The residents of our crowded Department generate lots of divorce cases and Family Court petitions. In the not-so-distant past, that meant long delays in the hearing of appeals. No more. The Court is current, due in no small part to the efforts of the Appellate Division case managers, who are assigned the unenviable task of corralling court reporters and appellate lawyers into doing their work quickly.1 Obtaining a full set of transcripts of a divorce or Family Court proceeding is one of the most time-consuming aspects of a family law appeal. These non-jury trials frequently take place over long periods of time; consequently, assembling minutes from far-flung court reporters can be a major headache. Once accomplished, the Appellate Division will issue scheduling orders for the briefs, generally granting one or two 30-day extensions.
While the Court has made great strides in moving cases, family life works on a different time-space continuum than appellate courts. Having preserved your client’s rights (by serving and filing the Notice of Appeal within the do-or-die 30 days),2 the pesky question remains: should your client put more time and money into the appeal? All things being equal, appellate judges do not aspire to embarrass judicial colleagues by remanding cases. Nor do they have much incentive to reverse, given all of the court resources already expended on the parties. Appellate courts generally defer to trial courts’ assessments of witness credibility, findings of fact, and exercises of discretion.
Evidentiary errors rarely lead to reversal, and I wish you “good luck” at convincing an appellate court that the finder of fact at a judge trial was unduly swayed by improper considerations. In short, appellants have uphill battles in family law appeals.
While prisoners have few alternatives to an appeal, family law litigants may do better pursuing other avenues of relief. If a change of circumstances presents itself, the doors of Family Court remain open for petitions to modify orders of custody, visitation or child support. The disposition of neglect/abuse or juvenile offense matters may become moot if the child returns home before the appeal is decided. In any event, the Family Court retains jurisdiction to hear challenges to a child’s continued placement outside the home. If the family is ready for reunification, a Family Court petition may be a quicker road to achieving that goal.3
Another dissuading factor may by the client’s conduct since the lower court decision. What purpose is there to an appeal if the client has relapsed into substance abuse, failed to engage in positive visits with children or dropped out of required therapy? Because the family will likely undergo an updated evaluation upon remand, the appellate victory will be pyrrhic if the client presents poorly at that time. Most importantly, be forewarned: if the child does not seek a change of the lower court’s decision, the prospects are dim for succeeding as appellant in a custody/visitation case. The appellate court expects the Attorney for the Child to consult with the child and articulate the young person’s preferences during the appeal; at oral argument, the judges may even ask for an update on recent developments. In a custody/visitation or neglect/abuse appeal, the child’s current wishes have a significant impact on the appeal’s outcome.
Finally, to state the obvious, attorneys, court reporters and appellate printers cost money. Lots of money, unless the client qualifies for assigned counsel. As a final insult, the client may be stuck with a bill of costs and, in the case of a matrimonial appeal, the spouse’s attorneys’ fees. The appeal could end up being an expensive exercise in obtaining a Second Department decision affirming the lower court. No gambler by nature, I often advise against appealing family law matters for all of these reasons.
Yet, there may be no choice. A client may be the appellee, the subject of a truly awful decision below, or bound-and-determined despite the obstacles. Have faith; some new best friends will help with the more tedious procedural aspects. The appellate printer should provide technical guidance and handle the nitty-gritty of printing, serving and filing. The Appellate Division case managers are founts of information, and the Second Department is blessed with two especially knowledgeable and friendly ones, Mr. Ken Rose and Ms. Jackie Vasquez. Best of all, recent years have seen an improvement in appellate practice that even a Luddite can appreciate: the Appellate Division website (http:// nycourts.gov/courts/ad2). At the website, there are lots of goodies, including easy-to-access Rules of the Court, forms, links to resources, decisions, and calendars. The Family Court Appellate Handbook, located at “Links,” answers many technical questions regarding civil appeals, not just those from Family Court.
My favorite destination at the Appellate Division website is the free and easy research tool located at “Decisions: HTML format (searchable).” Once there, click the Advanced Search tab and, voila, all of New York State’s appellate cases and many lower court rulings are at your fingertips. For example, in an appeal concerning a Nassau County custodial parent’s request to move to a distant state, the research might consist of narrowing the Court to “App Div, 2nd Dept.” In the box called “Search full text,” type a relevant word or phrase. In this example, the word “Tropea” (the parties’ name in a seminal Court of Appeals case) yields a list of 61 recent decisions, any of which may be accessed by a left-click of the mouse. The entire process should take less than three minutes, assuming the Appellate Division’s website is on your computer’s toolbar, which I highly recommend.
Of course, reading those 61 cases takes considerably longer, and may not provide a crystal clear picture of how the law applies to a specific situation. While the Court publishes all of its decisions, few cases are deemed worthy of lengthy opinions. Consequently, few Appellate Divisions decisions recount facts in detail or set forth protracted legal analysis. In most, the Court applies relevant doctrine in summary fashion, informing parties of the ruling, but giving limited insight on the case’s broader impact. Adding another level of complexity, the Appellate Division is a panel court. In the Second Department, 22 Justices hear cases in panels of four. You do the math, because I cannot …. but I am pretty sure that the possible combinations of judges hearing any given appeal is a large number. While the Court strives to achieve consistency, variances in panel dynamics can make the difference in the emotional field of family law, one filled with imprecise doctrines such as “best interests of the child” and “change of circumstances.”
Fortunately, there is one aspect of the appeal completely within an attorney’s control: writing the best possible brief. Great briefs are not written to gratify clients’ egos or to inform appeals courts of every indignity suffered by counsel below. To quote Dionne Warwick, “That’s what friends are for.” Effective briefs tell an interesting (nonfiction) story, get to the point quickly, and make the clients’ desired outcome seem inevitable. Of course, I am no judge, so my opinion is worth exactly what you have paid for it: Not much. Still, it is my unshakeable belief that family law appeals are won or lost in the fact sections.
Briefs are distinctly different from oral argument, when a judge may warn counsel to focus on arguing law, instead of reciting case history. In my experience, however, the Justices of the Second Department know very well the law on matters typically raised in matrimonial or Family Court appeals. It is the meandering and scattered nature of a typical record that needs to be synthesized from your client’s perspective. For my money, the best investment of an appellate attorney’s time is made by crafting a compelling history of the trial, with citations to the record. The goal is a readable Statement of Facts that provides a strong foundation for the legal analysis to follow.
Consider the literature that you chose to fill precious non-work time, and learn from the masters about how to communicate information and emotion without indulging in cliché or technical jargon. Popular culture focuses much attention on family law scenarios because of their human drama; that is the true “appeal” of family law. There should be no problem finding a good story to tell. As an example, if I were representing Goldie Locks in her appeal from a juvenile offense finding, the summary of the appellant’s case might begin as follows: “Exhausted and hungry after a long day wandering through the woods, Goldie Locks stumbled through the open door of the Bears’ cottage and called out for help (Locks 2/14/08 T. 57; Krupski 1/4/08).” A footnote would explain that citations to “T.” refer to the pages of the trial transcript, and that the name of the relevant witness and date of the testimony precedes each such reference.4 In this instance, Ms. Locks had testified in her own defense on Valentine’s Day 2008, and Officer Krupski had testified for the presentment agency (the prosecution) on an earlier date concerning the child’s statement upon her burglary arrest. This citation method allows the narrative to build, avoids repeating similar evidence by different witnesses, emphasizes that numerous sources support the fact presented, and steers clear of the distancing “So-and-So testified that…” Of course, when summarizing the opposing party’s case, it probably serves your client’s interests to give a somewhat less gripping rendition of events. But, beware; do not omit important facts undercutting your client’s position. That is a very fast way to alienate the court. Sticking your head in the sand may work for ostriches, not so for appellate attorneys.
Time dedicated to refining the Questions Presented and Point Headings yields ample benefits; it focuses the fact section presentation and the quality of the legal analysis. Another dividend is the persuasive effect of the Table of Contents, potentially a judge’s first impression of the appeal. Writing the argument section is similar to preparing for oral argument; it requires putting oneself in the court’s robes and answering the judges’ probable concerns. At oral argument, welcome (and listen to) the tough questions from the bench. Those inquiries are not personal attacks, but a window into the panel’s thinking and a chance to persuade. You should accept that invitation with alacrity. If the brief has discussed those same difficult issues in a convincing manner, so much the better.
“Twenty Pages and Twenty Minutes,” is the title of a “Litigation” magazine article on appellate advocacy by Former Federal Court of Appeals Judge John C. Godbold.5 In a nutshell, that title describes an advocate’s opportunity to convince the Justices of the busiest Appellate Division: 20 pages of high-impact brief writing and 20 minutes of engaging oral argument.6 In the spirit of Judge Godbold’s succinct words: don’t squander it.
Gail Jacobs is an attorney specializing in appellate, family and criminal law. A former Dean of the Academy of Law, she is currently Co-Managing Editor of the Nassau Lawyer and a director of the Nassau County Bar Association.
1. Case managers are assigned to all Family Court appeals and Supreme Court custody and visitation cases. No case manager will be assigned to Supreme Court appeals in which visitation or custody uncontested, and the general rules regarding the time for perfecting appeals apply to those cases.
2. 22 NYCRR § 670.
3 requires civil appellants to serve and file the Notice of Appeal with the clerk of the court where the judgment or order has been filed. The appellant must also file two additional copies of the Notice of Appeal, attaching to each a completed Request for Judicial Intervention Form, the order or judgment appealed from, the underlying decision or opinion, and the Additional Appeal Information Form. The lower court clerk will forward the two additional Notices to the Second Department.
3. There is no rule barring a concurrent Family Court petition requesting review of placements during the appeal; the best practice may be to pursue both avenues simultaneously. By the same token, if no Stay has been issued after the Family Court terminates parental rights following a finding of Permanent Neglect, the County may initiate adoption proceedings during the pendency of the appeal. Opposing counsel will need to seek a Stay of the adoption at the beginning of the appeal. In fact, most family law decisions ordering a change of family status require a Stay in order to maintain the status quo pending appeal.
4. Because court reporters generally do not number the pages of a family law trial sequentially from day-to-day, citing the date of the transcript is necessary.
5. “Twenty Pages and Twenty Minutes,” Spring 1989 issue of the American Bar Association magazine, “Litigation,” Volume 15, No. 3.
6. The current maximum length of a Second Department brief is 14,000 words, considerably longer than 20 pages. The court seems to appreciate attorneys who make their points using less than the maximum number of words and time permitted.
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