May It Displease the Court

Our late mother had a sign pinned to the broom closet reading, “When others eliminate work, they’re efficient. When I eliminate work, I’m lazy.”

So we viewed with a jaundiced eye the First Department’s recent trumpeting of its work-elimination efficiency.  “We have been as efficient as ever,” proclaimed the Presiding Judge in the NY Law Journal. Not only did the court kick off the new season “with zero pending appeals” (italics in original), last year it “disposed of” more than 4,500 appeals and 3,736 motions.

“I am happy to report,” bubbled the PJ, that “we disposed of every appeal that was perfected in 2020, notwithstanding several judicial and other staff vacancies.”

We had a firsthand view of First Department disposal strategies the other day at oral argument. The first efficiency was that the PJ no longer asks the parties how much argument time they want. Instead, he reads out the list and automatically assigns 5 minutes to appellants in civil cases and 4 minutes for criminal cases. Eyebrows were raised. 

But the real work-elimination reform was the doing away with even the pretense of reading the briefs.  Brief-reading, at least in criminal cases, has gone the way of checked luggage and dinner included with your airline ticket. 

We never thought we’d miss the ancients who assured the parties that they had at least a nodding acquaintance with the issues. Justice Ellerin (ret.) could always draw a laugh by saying, “And remember, we do know the basic principles of contracts, torts, and criminal procedure.”  

But now, thanks to judicial and other staff vacancies, the panel relies on bench memos written by the janitor. Our (masked) jaw dropped as the PJ took up one of our four precious minutes with a derisive diatribe about how our client was reliably identified after being arrested. But the issue was whether the arrest was lawful. As every first-year law student knows, the State has to prove the lawfulness of the arrest before it can use evidence obtained from the arrest – no matter how reliable. When we finally managed to get this across, three judges insisted with highly authoritative but utterly uninformed certainty that a defendant has to testify to challenge the lawfulness of his arrest. Judges who are no doubt well versed in real estate law but know less about criminal procedure than the average cop.

Why do lawyers put up with this? Imagine a doctor who doesn’t look at the x-rays and insists there’s nothing wrong just because you’re coughing up blood. Imagine a mechanic who doesn’t look at the engine and says the plane is ready to fly. 

Hold your hat, we’re going to say something radical: every client, whether it’s Bank of America or the corner drug dealer has the right to an informed appellate panel. Not a court that “disposes of” 4,500 appeals by not reading the briefs.

And we shouldn’t be afraid to say so. When the panel has it hopelessly wrong and is more interested in shouting at you than hearing your explanation, you can use your 30 seconds of rebuttal time to politely suggest that their analysis would be assisted by a look at your reply brief (which the janitor hasn’t read).

Or you can just call them lazy.  

First Department Disposal Service