A Look at the Appellate Division (1st) from the Inside

Tomorrow's May 13th's New York Law Journal has a great article on the inner-workings of the Appellate Division.  Justice David B. Saxe, of the Appellate Division, First Department, writes about how the Justices prepare for arguments, procedural issues, and how the senority affects the order that the Justices enter the courtroom.  The title of the article is: How We Operate: An Inside Look at the Appellate Division, First Department

And best of all…the article is free.

Here are some excerpts.

A new justice cannot help but immediately notice that virtually every
formal act of the court, and most informal acts as well, require
recognition of the justices' seniority. For purposes of constituting
panels, the court's presiding justice (P.J.) is followed by the other
six "constitutional"1 justices in the order in which they were designated to the court. They are followed by the certificated2 justices and the "additional justices,"3
in the order in which they were designated to the court. Notably, for
other purposes, such as the assignment of chambers, seniority is solely
by date of designation to the court, and it is irrelevant whether a
justice is certificated. Seniority also dictates where each justice
sits on the bench for oral argument, in the conference room with the
panel after argument, in the conference room with the full bench, and
to some extent even in the lunch room.

It is the tradition at the First Department that most internal
documents, such as memoranda, calendars and schedules, refer to the
justices by their initials rather than their full names, presumably for
the sake of brevity. For those documents, I am not David B. Saxe, I am
DBS. This procedure may be useful in ensuring there is no confusion
between two justices who have the same or similar last names, such as
Justices David Friedman (DF) and Helen E. Freedman (HEF); however, it
can be singularly problematic where two justices' initials are
identical, as with Richard T. Andrias and Rolando T. Acosta.
Nevertheless, the tradition is so firmly etched into the court's
procedures that it is the justices who must be flexible; Justice
Andrias, as the more senior justice, is indicated by his initials RTA,
while Justice Acosta, as the more junior justice, must forgo the use of
his middle initial, and be known by the initials RA.

Preparing for Argument: In advance of each panel
sitting, each justice on the panel will be provided with the briefs and
records of the cases that are scheduled for that particular panel day.
Each justice is advised to maintain an area in chambers to put the
briefs and records for the next upcoming sitting date, where they will
be available for easy access, and be placed in the order that they will
appear on that day's calendar.

Chambers will also receive, in advance of the calendar date, a bench memo for most5
appeals on that calendar, each prepared by a court attorney – that is,
one of a pool of attorneys in our law department whose primary function
in the court is the preparation of such bench memos. These bench memos,
often referred to as "reports," consist of a complete discussion of the
facts, the decision of the lower court, the contentions on appeal, the
relevant law, and a legal analysis. The court attorney will also
provide a recommendation as to the suggested disposition of the appeal
(i.e., affirmance, reversal, modification, etc.) and usually the bench
memo will be accompanied by a short memorandum decision. Due to the
internal procedures followed by our law department, a senior
supervising court attorney who reviews the bench memo and
recommendation may differ with the recommendation or reasoning of the
court attorney.

Procedures After Argument: After a brief break, the
panel convenes in our second floor conference room to vote on that
days' appeal calendar. If the P.J. is on the panel, he or she is seated
in the center seat of our long rectangular conference table, with the
two most senior justices to his immediate right and the two most junior
justices opposite them. If the P.J. is not on that day's panel, the
J.P. of the panel sits in the seat to the immediate right of the center
seat, the next two senior justices on the panel sit to the immediate
right of the J.P., and the two most junior justices sit in the two
seats directly opposite the seats occupied by the J.P. and the next
most senior justice.

The justices generally bring to conference a folder containing their
court attorney reports, a copy of that day's calendar on which is noted
the initials of the justice assigned as the reporting justice for each
appeal, and a loose-leaf binder that contains what we call our "bible
sheets." A bible sheet is created for each appeal, and it contains the
name of the case and its appeal number, the names of counsel, the
initials of the court attorney who prepared the report and the names of
the justices who sat on that case, with the reporting justice's name
indicated by asterisks. As is perhaps suggested by its name, the bible
sheet becomes the framework for the work that follows.

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