appellate – Page 2 – Duane Morris Appellate Review

April 6, 2018 by Paul J. Killion

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.

March 8, 2018March 19, 2018 by Duane Morris

The Record and Matter Outside It

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.

December 20, 2017 by Leah Mintz

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”

September 25, 2017 by Duane Morris

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.

August 31, 2017 by Duane Morris

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.

July 20, 2017 by Duane Morris

Third Circuit: First Amendment Protects Those Recording Police in Public

Is the recording of police carrying out their official duties in public places protected by the First Amendment? Recently, in a case with implications for news organizations as well as citizen-observers, a federal court judge dismissed the First Amendment claims of two citizens against police officers who disrupted, inspected, restrained and/or cited them while they were recording police officers operating in public. In Richard Fields v. City of Philadelphia, 16-1650, 2017 WL 2884391 (3d Cir. July 7, 2017), the U.S. Court of Appeals for the Third Circuit reversed, holding that the First Amendment protects this activity.

To read the full text of this Alert, please visit the Duane Morris website.

July 13, 2017June 7, 2018 by Paul J. Killion

How Long Does a California Civil Appeal Take?

Based on 2016 California court statistics, the time from the notice of appeal in a civil case to the filing of the Court of Appeal’s opinion differs substantially between California’s six appellate districts, and even between divisions within districts. The fastest California appellate court currently is Division 6 of the Second District in Ventura, with a median time of 423 days (a little over 14 months) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the court are processed in 667 days (a little over 22 months).

At the other end of the spectrum is the Third District in Sacramento, with a median time of 693 days (a little over 23 months) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the Third District are processed in 1,107 days (a little over 3 years).

Statewide, the median time to process civil appeals for all California appellate courts is 518 days (a little over 17 months), with ninety percent of all civil appeals processed statewide on average in 846 days (a little over 28 months).

Why the discrepancy between courts? Filings per justice explain much, but so does backlog. The Third District, for example, has far and away the largest number of pending appeals per justice.

And while we’re discussing statistics, what are your chances for success on appeal? If you’re the appellant, they’re pretty slim. Only 10% of civil appeals were reversed statewide in 2014-15. And if you decide to seek review in the California Supreme Court, it’s even more of a longshot—only 6% of petitions for review from civil appeals were granted by the Supreme Court in 2014-15.

The complete 2016 statistics can be found here.

July 12, 2017 by Duane Morris

Pyrrhic Victories Are to Be Avoided

This column discussed this subject almost 20 years ago (NYLJ April 7, 1999), but two recent decisions publicized on the front pages of the Law Journal suggest that it would be well to advise a new generation of lawyers that tactical victories in a jury trial may be followed by a loss of the appellate war. As a reminder, King Pyrrhus of Epirus, in Greece, triumphed over the Romans at Asculum, in southeastern Italy, in 279 B.C.E., but his losses were so heavy that he is reported to have said: “Another such victory over the Romans, and we are undone.” Bartlett’s, “Familiar Quotations,” p. 92, quoting Plutarch, “Lives,” Pyrrhus.

In litigation, the aim of an injured plaintiff is to obtain monetary or some other form of relief; for the defendant, vindication and dismissal of the action. It cannot be counted a victory if a favorable verdict is set aside by the trial or appellate court after a lengthy trial and the case must be retried at considerable expense, loss of time and renewed mental and emotional strain on the injured party or his or her survivors—all because of counsel’s avoidable error.

To read the full text of this article by Duane Morris attorney Thomas R. Newman, please visit the Duane Morris LLP website.

June 27, 2017 by Luke P. McLoughlin

U.S. Supreme Court to Hear Major Sports Betting Case

The U.S. Supreme Court announced today that it will hear an appeal from the en banc Third Circuit in the closely watched and long-running New Jersey sports betting litigation (consisting of two consolidated cases, Governor Christopher J. Christie, et al., v. NCAA et al., No. 16-476 and New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA et al., No. 16-477). The consolidated appeal, which will be argued next term, urges the Supreme Court to reverse the en banc Third Circuit panel that refused to allow New Jersey to expand sports betting in that state.

This appeal and the potential nationwide consequences of reversing the Third Circuit panel were the subject of an extended presentation and discussion at Duane Morris’ Future of Sports Betting panel, held on April 27, 2017. The panel included John Brennan, staff writer for The Record; Andrew Brandt, Director of the Moorad Center for Sports Law at Villanova Law School; and Christopher Soriano, Partner at Duane Morris.

June 2, 2017 by Luke P. McLoughlin

Recent Appellate Decision Draws Attention to Key Steps to Enforcing Restrictive Covenants

The Pennsylvania Superior Court’s recent decision in Metalico Pittsburgh, Inc. v. Douglas Newman, et al., No. 354 WDA 2016, 2017 PA Super. 109 (Apr. 19, 2017), confirms the importance of careful contractual drafting in agreements containing non-compete clauses and other post-employment restrictive covenants. In circumstances where an employee is hired for a term of employment but later becomes an at-will employee, that contractual language may determine the enforceability of the agreement’s non-compete and non-solicitation provisions.

Metalico entered into employment agreements with two employees in 2011. Each employment agreement had a three‑year term and a non‑solicitation provision prohibiting solicitation of employees and customers to join competitors during their employment and for a finite period thereafter. After the three‑year employment terms ended in 2014, both employees continued to work as at‑will employees for one year. Shortly thereafter, the two employees began working for a business competitor and allegedly began soliciting Metalico customers and employees to move to that competitor. Metalico sued to enforce the agreements’ non-solicitation provisions.

Continue reading “Recent Appellate Decision Draws Attention to Key Steps to Enforcing Restrictive Covenants”