Tag Archives: appellate

COVID-19 and Emergency Extensions of Time in California State Courts (Just In Case)

In these troubling times of COVID-19, it’s useful to be reminded that the California Rules of Court have for some time contained provisions addressing extensions of time based on public emergencies and the illness of counsel.

Two rules in particular speak to this issue. Rule 8.63 of the California Rules of Court directs that the court “must consider” “illness of counsel” or “a personal emergency,” among many other factors, in determining good cause for a requested extension of time. (Cal. Rules of Court, rule 8.63(b) (10).) The rule also directs that “[i]f good cause is shown, the court must extend the time.” (Rule 8.63(a)(3).) And on a broader scale, Rule 8.66 authorizes the Chair of the Judicial Council (i.e., the Chief Justice of the California Supreme Court) to extend the time “to do any act required or permitted under the rules” up to 60 days on a statewide basis, if necessary.

Here’s the text of the rules:
Rule 8.63. Policies and factors governing extensions of time
(a) Policies
(1) The time limits prescribed by these rules should generally be met to ensure expeditious conduct of appellate business and public confidence in the efficient administration of appellate justice.
(2) The effective assistance of counsel to which a party is entitled includes adequate time for counsel to prepare briefs or other documents that fully advance the party’s interests. Adequate time also allows the preparation of accurate, clear, concise, and complete submissions that assist the courts.
(3) For a variety of legitimate reasons, counsel may not always be able to prepare briefs or other documents within the time specified in the rules of court. To balance the competing policies stated in (1) and (2), applications to extend time in the reviewing courts must demonstrate good cause-or an exceptional showing of good cause, when required by these rules-under (b). If good cause is shown, the court must extend the time.
(b) Factors considered
In determining good cause-or an exceptional showing of good cause, when required by these rules-the court must consider the following factors when applicable:
(1) The degree of prejudice, if any, to any party from a grant or denial of the extension. A party claiming prejudice must support the claim in detail.
(2) In a civil case, the positions of the client and any opponent with regard to the extension.
(3) The length of the record, including the number of relevant trial exhibits. A party relying on this factor must specify the length of the record. In a civil case, a record containing one volume of clerk’s transcript or appendix and two volumes of reporter’s transcript is considered an average-length record.
(4) The number and complexity of the issues raised. A party relying on this factor must specify the issues.
(5) Whether there are settlement negotiations and, if so, how far they have progressed and when they might be completed.
(6) Whether the case is entitled to priority.
(7) Whether counsel responsible for preparing the document is new to the case.
(8) Whether other counsel or the client needs additional time to review the document.
(9) Whether counsel responsible for preparing the document has other time-limited commitments that prevent timely filing of the document. Mere conclusory statements that more time is needed because of other pressing business will not suffice. Good cause requires a specific showing of other obligations of counsel that:
(A) Have deadlines that as a practical matter preclude filing the document by the due date without impairing its quality; or
(B) Arise from cases entitled to priority.
(10) Illness of counsel, a personal emergency, or a planned vacation that counsel did not reasonably expect to conflict with the due date and cannot reasonably rearrange.
(11) Any other factor that constitutes good cause in the context of the case.

Rule 8.66. Extending time because of public emergency
(a) Emergency extensions of time
If made necessary by the occurrence or danger of an earthquake, fire, or other public emergency, or by the destruction of or danger to a building housing a reviewing court, the Chair of the Judicial Council, notwithstanding any other rule in this title, may:
(1) Extend by no more than 14 additional days the time to do any act required or permitted under these rules; or
(2) Authorize specified courts to extend by no more than 30 additional days the time to do any act required or permitted under these rules.
(b) Applicability of order
(1) An order under (a) must specify whether it applies throughout the state, only to specified courts, or only to courts or attorneys in specified geographic areas, or applies in some other manner.

Duane Morris Partner Rob Byer Among Faculty at Advanced Appellate Advocacy 2019

Rob ByerDuane Morris partner Robert L. Byer will be among the faculty at PBI’s Advanced Appellate Advocacy 2019.  Join a panel of appellate judges and experienced appellate lawyers as they walk you through the process of appealing a case to a higher court. They’ll also identify potential minefields that you may encounter and provide guidance for side-stepping an explosion.

For more information or to register, please visit the PBI website.

Duane Morris’ Thomas Newman Recognized as the NYC Appellate “Lawyer of the Year” by Best Lawyers

Duane Morris’ Thomas Newman has been named by Best Lawyers as the 2019 “Lawyer of the Year” in New York City for Appellate Practice. The recognition is given to only one attorney for each practice area and city. Lawyers are selected based on high marks received during peer-review assessments conducted by Best Lawyers each year. Mr. Newman also received this distinction in 2018 and 2013.

Mr. Newman practices in the areas of insurance and reinsurance law, including coverage, claims handling, contract drafting and arbitration and litigation. In addition to his insurance/reinsurance practice, Mr. Newman has wide experience in appellate practice and has handled hundreds of appeals in both state and federal courts in New York and elsewhere and has argued 80 appeals in the New York Court of Appeals.

He is a member of the American Academy of Appellate Lawyers; a life member of the American Law Institute; a Fellow of the Chartered Institute of Arbitrators; a member of the London Court of International Arbitration; a member of the American College of Coverage and Extracontractual Counsel; a member of ARIAS-U.S.; a member of the Federation of Defense and Corporate Counsel; a Fellow of the New York State Bar Association Foundation; and a member of the New York State Office of Court Administration’s Advisory Committee on Civil Practice.

He is the original author of New York Appellate Practice, co-author of the Handbook on Insurance Coverage Disputes and the author of numerous articles on insurance/reinsurance and appellate practice.

Supreme Court May End Web Retailing As We Know It in South Dakota v. Wayfair, Inc.

The manner in which small businesses can easily solicit orders and sell merchandise over the internet may soon end. In its place, the Supreme Court may require a more regimented and costly scheme that may force many small businesses to go out of business or limit their sales to certain states. It all depends on the outcome of a recent case in the Supreme Court called South Dakota v. Wayfair, Inc. While Wayfair itself is not a small business, a decision in this case could adversely impact many small businesses that argue, like Wayfair, that they should have some presence in the state (and thus be a user of state services) before a state can impose a tax or tax collection duty on them. On the other hand, many larger businesses, local nonweb businesses and the states believe all businesses, whether in a state or not, should collect sales/use tax to even the playing field, and if some small businesses can’t hack it or handle the administrative or financial cost, so be it. This is the background on the issues at play in Wayfair.

Read the full Alert on the Duane Morris LLP website.

 

How Long Does a Ninth Circuit Civil Appeal Take?

So how long does a Ninth Circuit civil appeal take? Using the most recent statistics from the Administrative Office of the United States Courts published in its Judicial Business 2017 report for the fiscal year ending September 30, 2017, the median time from notice of appeal to decision in the Ninth Circuit was 22.8 months (and that is just the median time–half the appeals take longer.) (See Table B-4A to the report.) The next slowest circuit—the Third Circuit—handles civil appeals in just about the same length of time: 22.3 months from notice of appeal to final decision. (The Third Circuit’s disposition time is puzzling because it is usually closer to the median.) The 2017 median time from notice of appeal to decision across all Circuits is 12.1 months.

The Ninth Circuit is the largest circuit geographically, and it remains the busiest, with 11,096 appeals filed in the year ending September 30, 2017. The next busiest circuit—the Fifth—had 7,099 appeals filed in the same period. Measured by matters terminated on the merits per active judge and per panel, however, the Ninth Circuit ranked third among the circuits for the year ending September 30, 2017, with 463 merits-based terminations per judge and 771 per panel. The circuit with the heaviest workload, using this same measurement, is the Eleventh Circuit, with 762 merits-based dispositions per judge and 904 per panel. The lowest terminations per active judge is DC Circuit, with 137 per judge, and 131 per panel.

The Record and Matter Outside It

Thomas Newman A fundamental tenet of appellate practice is that the rights of the litigants are to be determined solely on the basis of materials contained between the covers of the record on appeal. With some rare exceptions discussed below, it is a serious breach of appellate decorum to refer to matters outside the record. Counsel who do so run the risk of being reprimanded by the court during oral argument and in a subsequent published opinion.

References in briefs to material not contained in the record may be stricken on motion made by the opposing party and, if granted, this may blemish the offending counsel’s reputation for integrity and reliability before the panel that will decide the appeal. The court may also deny costs to a prevailing party whose brief contained references to matters outside the record. Topal v. Pace University, 167 A.D.2d 387 (2d Dept. 1990) (“since the appendix to the defendant’s brief contains documents dehors the record, the defendant is denied costs on appeal”). This may amount to a significant loss for the prevailing party, far in excess of the $250 statutory costs (CPLR §8203[a]), because the party awarded costs is also entitled to recover its taxable disbursements, including the reasonable cost of printing the record on appeal and briefs. CPLR §8301(a)(6),

It is also improper to annex to a brief affidavits or exhibits that were not presented to the trial court and properly made part of the record on appeal. In City of New York v. Grosfeld Realty Co., 173 A.D.2d 436 (2d Dept. 1991), the court “note[d] with disfavor the attempt on the part of the appellant’s attorneys to submit on this appeal an affidavit specifically rejected by the Supreme Court and, therefore, not properly part of the record on this matter.” The First and Second Departments expressly prohibit the attachment of unauthorized materials to an appellate brief. Rule 600.10(d)(1)(iii) of the First Department provides that “[u]nless authorized by the court, briefs to which are added or appended any matter, other than specifically authorized by this rule, shall not be accepted for filing.” The rule permits an addendum containing “statutes, rules, regulations, etc.” Rule 600.10(d)(1)(i). In the Second Department, Rule 670.10.3(h) similarly provides what materials may be included in an addendum to the brief, e.g., decisions, statutes, cases, etc., cited in the brief that are not published or otherwise readily available, and states that “[u]nless otherwise authorized by order of the court, briefs may not contain maps, photographs, or other addenda.”

To read the full text of this article by Duane Morris partner Thomas R. Newman and Steven J. Ahmuty, Jr.,  originally published in the New York Law Journal, please visit the Duane Morris website.

When Tolling Ends for Class Members: The Seventh Circuit Expands the Scenarios When Class Members Lose the Benefits of Tolling

Class actions are vexing for defendants. The exposure can be large and the litigation can become very complex. One way to defeat a class action is on statute of limitations grounds. However, in the seminal case on statutes of limitations in the class action context, American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Supreme Court held when a plaintiff files a complaint on behalf of a proposed class, and where certification is denied because of the plaintiff’s failure to demonstrate that “the class is so numerous that the joinder of all members is impracticable,” the statute of limitations for the claim is tolled for each member of the class. Continue reading When Tolling Ends for Class Members: The Seventh Circuit Expands the Scenarios When Class Members Lose the Benefits of Tolling

District Courts Can Extend Time to File Notices of Appeal Beyond Time Allowed in the Federal Rules

The Supreme Court issued its first opinion of the October 2017 sitting, Hamer v. Neighborhood Housing Services of Chicago, No. 16-658, 2017 WL 5160782 (Nov. 8, 2017), early last month. We previously previewed this case when the Supreme Court first granted a writ of certiorari.[1] As expected, the Supreme Court clarified an important issue regarding time limits for filing notices of appeal in civil cases. Specifically, the Supreme Court held that district courts are allowed to extend the time for filing a notice of appeal beyond the thirty-day limit prescribed in the Federal Rules of Appellate Procedure because the deadline is only set by court rule, not statute, and thus is not jurisdictional.

The Supreme Court used Hamer to resolve a circuit split over whether Federal Rule of Appellate Procedure 4(a)(5)(C) is jurisdictional or whether it is a mandatory claim-processing rule. Jurisdictional time limits “deprive[] a court of adjudicatory authority over the case, necessitating dismissal—a ‘drastic’ result.” Hamer, slip op. at 2 (citing Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). These time limits are “not subject to waiver or forfeiture and may be raised at any time in the court of first instance and on direct appeal.” Id. at 2-3 (footnote omitted) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). Indeed, courts are independently obligated to consider jurisdictional timeliness rules, even when not raised by either party. Id. at 3 (citing Shinseki, 562 U.S. at 434). Mandatory claim-processing rules, by contrast, can be waived or forfeited if a party fails to object to an untimely filing. Id. However, “[i]f properly invoked, mandatory claim-processing rules must be enforced.” Id. (citing Manrique v. United States, 137 S. Ct. 1266, 1271-72 (2017)). Continue reading District Courts Can Extend Time to File Notices of Appeal Beyond Time Allowed in the Federal Rules

Duane Morris Partner Paul Killion to Present at California State Bar’s Inaugural Appellate Summit

Duane Morris’ San Francisco partner Paul Killion will be speaking October 14, 2017, at the inaugural Appellate Summit organized by the newly reconstituted California State Bar Litigation Section’s Committee on Appellate Courts.

Paul’s panel will address “When Things Go Wrong: Challenges and Strategies for Appeals from Jury Trials.” His co-panelists are California Court of Appeal Justice Kathleen Banke of the First District, Division One, and Syda Cogliati, Senior Appellate Research Attorney for the Sixth District. Paul is an appellate specialist certified by the California Board of Legal Specialization.

Duane Morris is a sponsor of the Appellate Summit.

For more information and to register, visit the California State Bar website.

Duane Morris’ Thomas Newman Recognized as the NYC Appellate “Lawyer of the Year” by Best Lawyers

Duane Morris’ Thomas Newman has been named by Best Lawyers as the “Lawyer of the Year” in New York City Appellate Practice for 2018. The recognition is given to only one attorney for each practice area and city. Lawyers are selected based on high marks received during peer-review assessments conducted by Best Lawyers each year.

Mr. Newman practices in the areas of insurance and reinsurance law, including coverage, claims handling, contract drafting and arbitration and litigation. In addition to his insurance/reinsurance practice, Mr. Newman has wide experience in appellate practice and has handled hundreds of appeals in both state and federal courts in New York and elsewhere and has argued 80 appeals in the New York Court of Appeals.

He is a member of the American Academy of Appellate Lawyers; a life member of the American Law Institute; a Fellow of the Chartered Institute of Arbitrators; a member of the London Court of International Arbitration; a member of the American College of Coverage and Extracontractual Counsel; a member of ARIAS-U.S.; a member of the Federation of Defense and Corporate Counsel; a Fellow of the New York State Bar Association Foundation; and a member of the New York State Office of Court Administration’s Advisory Committee on Civil Practice.

He is the original author of New York Appellate Practice (LexisNexis, 2010), co-author of the Handbook on Insurance Coverage Disputes (Walters Kluwer 17th ed. 2014) and the author of numerous articles on insurance/reinsurance and appellate practice. Mr. Newman is annually listed in Chambers USA: America’s Leading Lawyers for Business, The Best Lawyers in America and New York Super Lawyers, for appellate practice and insurance law.