As a respondent in an appeal, the odds are in your favor. The yearly reversal rate in New York’s appellate courts is less than 10%. If you got as far as having an order that grants your client the sought relief, then you are in a good position heading into your defense of the appeal.
Usually …but… because judges are human they make mistakes—even when they rule in your client’s favor.
I recently dealt with a judge’s mistake that was almost impossible to surmount. The motion court judge granted a defendant’s motion for summary judgment dismissing a complaint, but it relied upon a repealed statute to support its reasoning.
I was retained to write the respondent’s brief, and when I got the appellant’s brief (who was the unhappy plaintiff whose complaint was dismissed) my stomach sank. I was sure the order in this case would be one of the 10% that get reversed. There was no way around it: the reason for the judge’s holding was flat wrong (the statute was repealed more than 20 years ago!).
What does an appellate attorney do in such a situation? Well, I searched the record for an alternative ground upon which the appellate court could affirm the order, and I found one. Then I led with that point in the responding brief, and I was frank about the judge’s clear error (even though the error was in my client’s favor).
You can see my handiwork in the brief below. The appellate court agreed, and upheld the order (over the strong protestations of the appellant, of course).
One more point: the argument that ended up winning was not one that the attorney focused on in the summary judgment papers he submitted to the lower court. I had to dig deep to find a one-off sentence where they mentioned it. Luckily, that was enough to argue that it was an alternate ground urged by the defendant in the lower court.
But luck is not always on your side. So if you want to be sure that your brief in the lower court puts forth your client’s best argument—the one that will stand up on appeal—then try consulting with an appellate attorney at the time you are making your motion (or better yet, let an appellate attorney who also drafts motions, someone like me, help you draft the best winning brief).
