Partners Y. David Scharf and Hon. David Saxe Share Innovative Strategy for Appellate Advocacy in New York Law Journal

Chair and Co-Managing Partner Y. David Scharf and Partner Hon. David Saxe, a former Associate Justice in the New York Supreme Court Appellate Division, First Department, recently co-authored an article in New York Law Journal entitled, “Obtaining an Edge in Appellate Advocacy,” in which they proposed a dramatically new strategy to boost attorneys’ chances of success in appellate practice – a “court attorney’s report.”

The authors recommended that, if time and resources permit, an impartial individual at the appellate lawyer’s firm should draft a document similar to the bench memo or court attorney’s report prepared by staff at the Appellate Division, First and Second Departments.

In the Appellate Division, this report provides an impartial summary of the facts, the applicable law and the arguments of each party. The court attorney then applies the law to the facts, leading to a recommended resolution for the appeal, which is then reviewed by the panel of judges. The report is carefully reviewed by supervisory staff at the court for accuracy of the discussion of the legal issues, completeness and, most importantly, for the proprietary of the recommendation.

“While the court attorney’s report never takes the place of the independent analysis of the judges sitting on that panel, it is generally given appropriate respect by panel members,” wrote Saxe and Scharf. “Many judges read the report before delving into the briefs and the record, to give themselves an initial impression of the appeal.”

By producing a replica of the court attorney’s report, appellant’s counsel will gain a clear sense of what the appellate judges will likely read. If the analysis and recommendation are unfavorable, they can draft a response to address key issues and counter opposing points, strengthening their case.

The authors concluded that “with certain appeals, with much on the line, the ability to place yourself within the thought process of those who will decide the appeal may provide a tiny edge that can make the effort worthwhile” and “may prove to be a lifeline.”

Subscribers to York Law Journal may read the article here.