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William C. Altreuter
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Wednesday, May 13, 2009

The Hon. David B. Saxe describes the internal workings of the Appellate Division, First Department. I love this sort of inside baseball, and not just about law-- descriptions of how people go about their jobs in general are fascinating to me. I was before Judge Saxe pretty regularly back when he was on the trial bench-- he had a deserved reputation of being a law guy, and he was pretty hands-on as well. It is helpful to know how he feels about some of the things that are a routine part of most people's advocacy. For example, "Often, briefs are laden with excessive discussion, addressing such generalities as the applicable standard of review or the requirements for summary judgment, including string cites. A new justice quickly learns to bypass this sort of boilerplate material. Normally an appellant's brief contains multiple points, but usually one or two are truly dispositive, and the justice will usually focus most attention on the salient issues. Those parts of the record that are referred to in those points must be examined." In other words, cut to the chase.

Little bits of protocol are also cool: "The J.P. controls the clock, and has the last word with regard to argument time. When an illuminated red light at the counsel table indicates that a lawyer has used up the allotted time, the J.P. has the authority to direct that argument cease. Even if another justice just finished asking counsel a question, once the allotted time has expired, protocol requires that counsel seek the permission of the J.P. (not the questioning justice) to respond to such a question, by asking: "Judge, I see my red light is on, may I proceed to answer the question?" Indeed, not only counsel, but also the justice asking the question should defer to the J.P.'s response. Similarly, if a justice wants to ask counsel another question after the red light has been illuminated, that justice should try to get the attention of the J.P., who may otherwise declare counsel's time up." Remember that, kids. When you want time to finish, ask the presiding justice.

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