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Judges give Women’s Bar Association a review of the Appellate process

January 23, 2019 By Rob Abruzzese Brooklyn Daily Eagle
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A judge from the Appellate Division and two others from the Appellate Term were hosted by the Brooklyn Women’s Bar Association on Tuesday night for a continuing legal education seminar on the Appellate process.

Hon. Sylvia Hinds-Radix, of the Appellate Division, Second Department; Hon. Doris Ling-Cohan, of the Appellate Term, First Department; and Hon. Michelle Weston, of the Appellate Term, Appellate Term, Second, 11th and 13th Judicial Districts each took part in the CLE titled “A Review of the Appellate Process.”

“This is an overview of the appellate courts,” said Natoya McGhie, co-chair of the BWBA Young Lawyers Committee, which sponsored the event. “We’re going to talk about the counties covered, the makeup of the court, the appeals process, what the judges expect, what is appealable. Some stuff is appealable as of right; some you need permission to appeal.

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“We’ll also cover suggestions for attorneys to use during oral argument,” McGhie said. “This is great for younger attorneys thinking about appellate practice, trial attorneys who don’t do appellate work but need to preserve issues for appeal or for anybody thinking about a career change.”

Justice Ling-Cohan, who is from Brooklyn and graduated from John Dewey High School and Brooklyn College, talked about being proud to be a part of an event encouraging women to take on more appellate cases.

“About a year ago I was a part of the first all-woman panel of appellate justices in New York state’s history,” said Justice Ling-Cohan. “I was the presiding judge that day, but the hidden story was that nobody who appeared before us that day was a woman. So I’m happy that you are interested in the appellate courts and want to be appellate litigators. It is not as hard as it may seem. I encourage you. We need more of you out there.”

The judges took turns explaining the types of cases and the jurisdiction of their respective courts. Justice Weston’s court covers Criminal and Civil Courts in Brooklyn, Queens and Staten Island. Justice Hinds-Radix court covers Supreme Court cases from 10 counties, which represents approximately 51 percent of New York’s population, and Justice Ling-Cohan’s court covers Civil and Criminal Court cases from Manhattan.

“You have to appeal from a judgement; you cannot just appeal from a decision,” Justice Weston explained. “When you have a trial in Civil Court and the judge rules against you and said this is the decision and order of the court, that is not appealable. You have to reduce it to a judgement. Have the judgement file entered, serve it on your adversary and then you can appeal from that.”

The key, the judges explained, was preserving the record during trial. Justice Hinds-Radix explained that this can be a critical issue in determining whether or not they can hear an appeal.

“A lot of times we see a record coming out of the Criminal Court where the issue was not preserved, but the attorney says, ‘Judge, the issue is not preserved, but we’re here asking you to hear it in the interest of justice,’” Justice Hinds-Radix said. “You have a major issue here. You said objection, but objection to what? What is the objection you’re making? Make sure that’s on record and preserved for the appellate court.”

Justice Ling-Cohan added that occasionally litigants may have to ask the judge to go back and make the record clear to properly preserve the record. Justice Weston agreed and added that even if an attorney feels like a judge is in the wrong, it pays to be polite.

“You’ve got to be nice,” Justice Weston said. “I’m serious, because judges are human beings, too. You can’t come in and say, ‘You’re going to be reversed.’ Well until I’m reversed, this is how it is. And if you forget to move in a crucial piece of evidence, who do you think is going to remind you?”

Many lawyers often wonder how effective oral argument is in appellate cases, since judges go into the case with so much prior knowledge. However, Justice Hinds-Radix said that it can occasionally make or break a case.

“I love oral argument,” she said. “It is the best thing for me on the bench. I tell attorneys all the time that I think you’re doing your clients a disservice if all you do is write and submit briefs. Most of the time, I’ve stayed up all night reading this brief, and there is something in this brief that I want to ask you about. Or I agree with you, but I need something more to convince my colleagues.”

Natoya McGhie served as the moderator during Tuesday’s CLE.

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