Calendars Decisions

TACKLING THE BACKLOG:
NEW INITIATIVES IN THE SECOND DEPARTMENT

By: Alan D. Scheinkman

As appellate practitioners are all too well aware, the Appellate Division, Second Department, has a significant backlog of perfected civil appeals awaiting calendaring. Lamenting the causes will not solve the problem, though it is important to stress how hard the justices of the Court, and our dedicated non-judicial staff, work day-in and day-out. Despite their efforts, it can take as long as 18 months for a civil appeal to obtain a place on the court’s day calendar and then more time for a decision to be rendered. We have an obligation to meet this problem head on and to overcome it. It is vital that attorneys and their clients receive appellate justice without undue delay, recognizing as well that delays at the appellate level can cascade into delays in the trial courts. But reducing delays must be achieved without compromising the careful consideration that our Court devotes to each matter that comes before us and the high quality of the decisions rendered. The Excellence Initiative, so compellingly championed by Chief Judge Janet DiFiore, must embrace, and must be embraced by, all of the State’s courts.

So we reach the question: what are we, in the Second Department, going to do about our backlog? After studying the issues, and lengthy consultations with the entire Bench, our able Clerk, Aprilanne Agostino, and our staff, starting now, with our return from Labor Day, there are a number of important initiatives and changes that are being implemented. It is important for the attorneys who appear before us to take note of these developments.

1. More Civil Cases on Day Calendars

Our Court hears cases on its day calendar four days per week, and sits in panels of four justices each of those days. In addition to the cases appearing on day calendars, the Court also has submission calendars that have been composed of criminal cases where the only appellate claim is the excessiveness of the sentence and other non-argued civil cases. For much of the past decade at least, each day calendar has been composed of 20 cases. Most of those cases are ones in which counsel have requested oral argument. In total, in 2017, the Court decided 3,815 argued and submitted appeals.

Starting on Tuesday, September 4, the Court’s day calendars are expanding to 24 cases. This, and some other related measures, should result in an increase of 25 to 30 cases each week being argued before our Court. Hearing these additional cases will cut significantly into our backlog. Taking on more cases is going to increase further the already daunting workloads of our Justices and non-judicial legal staff. But all are committed to doing their best, both to bear this additional burden and to make sure that the quality of our work remains at the highest level. We will evaluate the impact of this increase after a few months.

From the perspective of the advocate, this change means that our calendars are going to be longer and, for those lawyers whose cases are at, or near, the bottom of the calendar, the wait for their turn at the podium will be longer. For now, we will be continuing to start the calendar at 10 a.m. and proceed straight through to the end, subject to a brief recess or two. But the Court will evaluate how the arguments go and may consider dividing the calendar into discrete morning and afternoon sessions. Under our new electronic device policy, attorneys may freely use their laptops and mobile devices in the attorneys’ room, while keeping track of the progress of the calendar on the large video monitor.

2. Special Benches for Special Challenges

Over the summer, we took a look at the content of our inventory and found that we had a substantial number of complex cases that had been significantly delayed. These appeals fall broadly into three categories: matrimonial matters, Commercial Division cases, and land use and zoning disputes. With the assistance of volunteer Justices, we created special benches, to sit on selected Wednesday afternoons in the early Fall to hear the most-delayed of these cases. The first special bench, which will hear delayed and complex matrimonial cases, will sit on September 26 at 2:30 p.m. That will be followed by a bench to hear Commercial Division appeals on October 2 at 2:30 p.m., and a special land use and zoning bench will hear cases on October 17 at 2:30 p.m. The use of special benches, to hear selected case types, may be expanded during the course of the year.

3. Mandatory Mediation

Another way to look to address the backlog is to offer assistance to counsel and their clients in resolving the appeal, if not the entire case, through mediation. Many of our cases have been dormant while awaiting their turn before us. Our Civil Appeals Management (CAMP) program, ably presided over by four distinguished retired Justices of our Court, has been able to resolve approximately 50% of the pre-perfected civil appeals assigned to them. We are now going to use Special Masters to conference our backlogged perfected cases in an effort to try to resolve as many as is possible by voluntary agreement. The Special Masters will be retired judges and experienced attorneys who will be asked to devote 90 minutes pro bono to conferencing each assigned case. If the case cannot be resolved but the parties wish to continue settlement discussions, they may engage the Special Master to assist them further. The Special Masters will be assigned on the basis of geography and subject matter expertise. Experienced attorneys interested in participating as a Special Master may submit a letter and resume to me for consideration.

4. Reducing Motions and Extensions of Time

In 2017, the Second Department decided 11,587 motions, by far and away the most, in any of the Departments, to the point being double or nearly double. Viewed another way, we decide on average around 40 to 50 motions every single work day, including such important motions as motions for stays pending appeal. Many motions seek extensions of time to perfect appeals or to submit briefs. We have seen cases in which repetitive motions for extensions have been made, event to the point of the third or fourth motion for an extension of the same filing requirement.

With the advent of the new Uniform Rules for Appellate Division Practice on September 17, 2018, the Second Department has decided to significantly rein in the number and length of extensions, as well as the number of motions for extensions.

Under the new rules, the appellant has six months from the date of the notice of appeal to perfect the appeal; the respondent has 30 days from service to file and serve a brief, and a reply brief must be filed and served within 10 days of service of the respondent’s brief. The new rules provide, that unless the Court directs otherwise in a particular case: (a) the time to perfect an appeal may be extended for 60 days by stipulation or application and for another 30 days by application (for a total of 90 days); b) a respondent’s time can be extended for up to 30 days either by stipulation or application, and two such stipulations or applications may be filed (for total of 60 days), and (c) the time to file a reply brief can be extended for up to 10 days either by stipulation or application, with two such extensions being allowed (for a total of 20 days). Thus, the rules provide explicitly for automatic, or at least semi-automatic, extensions. However, from September 17, 2018 forward, further extensions will no longer be available for the mere asking.

Our new local rule on extensions provides that such motions “shall be granted only in limited circumstances and upon a showing of good cause”. Counsel need to take heed of this new, more restrictive approach to extensions, which is necessary in order to both curtail appellate delays and reduce the volume of motions flooding into the Court. While a Bench of the Court will carefully consider each extension motion, I offer a few observations as a general guide to counsel of the change in general perspective, without intending to presage how the Bench might rule on any particular motion.

Many of the extension motions now made are supported by nothing more than a claim that the “press of business” or “large work volume” has prevented the timely completion of the relevant appellate activity. Given the near crushing workload confronting our Court, a generalized plea of “press of business” will likely not engender much sympathy. Similarly, many present extension requests are founded on the pendency of a reargument motion in the trial court and the hope that the reargument motion will be more favorable to the appellant than the original determination. Since relatively few reargument motions are granted, and, if they are, an appeal may still be coming (this time from the other side), our Court may not be as receptive to these requests as it was in the past. While extension motions are, at times, consented to or are unopposed, the Court will still evaluate these on the basis of the new, more restrictive standard, with the result that they may be denied. Extension motions should be confined, as the rule says, to limited circumstances where good cause exists, such as where an unexpected health issue or other unforeseeable event has occurred. Counsel should also recognize that, going forward, any extension granted by the Court will be for no longer than is necessary to address the situation at hand, it being unlikely that the Court will routinely grant successive motions as it has done in the past

5. Conclusion

In summary, the Court is committed to reducing its backlog and is taking a considerable number of actions to hear and decide the cases coming before it in a just and timely way. We seek the cooperation of the Bar as we launch these new initiatives as well as the understanding of the Bar of the reasons why these changes are being implemented. We are open to suggestions and ideas and the actions taken thus far are subject to modification and revision in the light of experience. The Second Department has long been recognized for the quality of its decisions; it’s important that they be rendered timely too.