Friday, January 25, 2013

A Specialized Appellate Division?

Justice David B. Saxe of the Appellate Division, First Department, wrote an interesting column in the New York Law Journal on Wednesday.  Believing that the court is not as familiar with commercial issues as it should be, Justice Saxe suggested that the Court should consider forming specialized appellate panels, comprised of judges with intimate knowledge of commercial and business issues.  But, what caught my eye is that Justice Saxe went further to suggest that [i]n fact, perhaps we should consider convening special benches for other categories of appeals, such as complex criminal appeals.  It would be probably be a good idea to appoint a standing committee within the court to oversee and adjust the use and the functioning of such specialized benches."

As someone who frequently litigates criminal appeals, Justice Saxe's idea certainly piqued my interest, prompting me to ask: would it make a difference?  On the one hand, out of the dozens of cases I've argued, I've had a few where I think the panel missed the nuances of my argument.  Of course, I lost those cases, and I'm not the first advocate to bemoan after a loss that the judge or jury just didn't "get it."  

On the other hand, I also think that forming a special panel for complex criminal appeals would result in marginal improvement.  For the most part, I think the justices - at least in the First Department - are deeply familiar with the facts and issues, and understand how the case before them fits into the bigger picture.  I suppose the question boils down to whether a wholesale change in the composition of panels is necessary to see that small improvement.  Still, I remain agnostic on the issue, and would be interested to hear what others think.  


  1. Sounds like this could create some significant inefficiencies, particularly in smaller jurisdictions like the 4th department. Also, on the criminal front, it seems like you could have a 14th amendment issue, with some criminal appellants given a special panel, and others given the regular panel, you could see a disparate treatment problem crop up.

  2. Your mentioning an equal protection issue got me thinking: how does the court decide that an appeal is complex? An appeal with a large record chock full of objections and preserved issues may ultimately boil down to one straightforward issue. Meanwhile, there are more than a few "simple" appeals that, in actuality, are far more complex than meets the eye. The court would find difficulty crafting objective criteria. Ultimately, the court would have wide discretion in determining what appeals are defined as "complex," and given that reality, I would anticipate that a number of criminal defendants would cry foul about the inherent unfairness of it all.