The Columbian Lawyers Association of Brooklyn resumed its monthly meetings on Wednesday, Sept. 4, after a summer hiatus, gathering at Gargiulo’s Restaurant in Coney Island. Despite a last-minute cancellation from the scheduled guest, the event took an unexpected and educational turn.

For the first time in the association’s history, a meeting was nearly held without a Continuing Legal Education (CLE) component. However, thanks to the quick thinking of new president John Dalli, four distinguished judges from the Appellate Division, Second Department — Hon. William Mastro, Hon. Lillian Wan, Hon. Robert Miller, and Hon. Carl Landicino — stepped in to provide an impromptu discussion about appellate practice.

The four judges shared insights into the workings of the appellate court, highlighting common issues they encounter and offering advice to attorneys on how to handle their cases effectively.

When asked by Past President Joe Rosato about the key issues attorneys should be prepared for when arguing before the Appellate Division, Hon. William Mastro explained the importance of preserving the record.

“To me, the most overlooked thing in Appellate practice, something that always comes up even when people have practiced for a while — preservation of the record,” said Justice Mastro. “That, to me, is the biggest problem that we see. We can get a case, an issue looks like it is ripe for resolution, and then we discover that it wasn’t properly preserved for appellate review.”

He further explained the distinction between the Appellate Division and the Court of Appeals in this regard, noting that while the latter provides no leeway if an issue is not preserved, the Appellate Division operates under “In the Interest of Justice Jurisdiction,” offering more flexibility to address important issues.

“As long as you make a record and preserve your argument for appeal, you are good,” Justice Mastro said. “There were so many records we used to get that didn’t have that.”

Hon. Lillian Wan urged attorneys to take advantage of the live-streamed oral arguments and archives provided by the Second Department.

“I think it is a good idea for a practitioner to watch some previous oral arguments,” Justice Wan said. “They’re live-streamed every day, and then we have oral argument archives. Usually, if you’re arguing before the Second Department, there are a few weeks where you know who your panel is going to be so you can watch other arguments that the judges have sat on.”

She also highlighted the extensive work that goes into even the shortest of decisions, and said, “The public sees decisions that might only be a few paragraphs long, but you don’t see how much work has gone into that short decision, how many pairs of eyes have seen that case starting with the Law Department, then a panel of four justices and all of their court attorneys. We also have a Decisions Department.”

Hon. Lara Genovesi, who also participated in the discussion, stressed the importance of oral arguments and encouraged attorneys to review past cases in which the court issued decisions.

“I was going to say listen to oral arguments, but I will go even further — listen to oral arguments on cases that you are citing in your brief that the Second Department has issued. You’ll see and learn what our issues and concerns were.”

She explained the weight oral arguments can carry and said that while not every case needs to be argued, attorneys should be able to recognize when their case may benefit from it.

“I can hone in on the issues if you are there for oral argument,” Justice Genovesi said. “If you are not there sometimes, we just shrug our shoulders and say, ‘They didn’t give us the record and didn’t explain it in the brief, and we cannot go beyond the four corners of those documents.’”

Hon. Robert Miller addressed the importance of preparation, cautioning attorneys about appearing unprepared before the court.

“One of the most frustrating things about the court is that, unfortunately, there are too many times where we know the case better than the attorney standing in front of us, and that is inexcusable,” Justice Miller said.

He advised trial attorneys who are inexperienced in appellate practice to consider bringing in an appellate attorney for complex cases and said, “Trial skills are very different from appellate skills. If you have a substantial case, or you want a substantial judgment, and you have never been before us before, I would urge you to consider getting a co-counsel.”

Hon. Carl Landicino encouraged attorneys to engage in a “back-and-forth” during oral arguments, explaining that being prepared to respond to potential questions is key to success.

“I like the back-and-forth where the lawyer will walk through their own argument so that if they know if we go a different way, then they are prepared for that,” said Justice Landicino. “That is a little different from knowing your papers. You need to know your papers, but you have to assume that we’re going to ask certain questions, and we’re not going to put you on the spot if you keep answering the questions the same way.”

He also emphasized the value of humility in court, advising attorneys to acknowledge when they don’t have the strongest argument.

“Humility is very important,” Justice Landicino added. “Not everyone has the greatest position, and not every argument is a winning argument. Acknowledge it to the court when you know that is not your strongest argument. That helps us because it gives you credibility before the court, and credibility is everything.”

The discussion wrapped up with Hon. William Mastro reflecting on the importance of oral arguments in appellate decisions.

“In all of the years I’ve been at the court, during every sit. there would be at least one case where the judges weren’t really settled on where we were going,” Mastro said. “If there were 20 cases, I’d say there were at least 16 cases where we knew where we were going. But those other four cases, usually we’re saying to each other, ‘let’s see what they say at oral argument.’”