In-person arguments return to Appellate Division

The justices of the Appellate Division, Second Department. In-person arguments return to the court on Monday, Feb. 28, 2022.  Photo via OCA

By Jacob Kaye

The courthouse of the Appellate Division, Second Department will soon again be filled with in-person arguments after exclusively holding virtual proceedings for nearly the past two months. 

In-person arguments will resume in the Appellate Division, Second Department on Monday, Feb. 28, as COVID-19 cases throughout the court system and throughout the city and state continue to decline. In-person proceedings were put on pause following December’s holiday break as Omicron cases quickly spread in New York causing hundreds of judges and court employees to test positive for the virus each day. 

While masks will still be required in the Appellate Division, Second Department, attorneys will again have the opportunity to argue their cases in front of a panel of appellate judges, an opportunity many welcome. 

Arguing in-person, particularly at the appellate level, offers a number of benefits, several attorneys who argue in front of the court told the Eagle.

“It's better to go there, for sure,” said Judah Maltz, a criminal law attorney based in Queens. 

Though Maltz has yet to argue in front of the court virtually, he’s been before the court in-person around 50 times in the past decade and a half. While there is potentially a convenience to appearing before the court virtually, Maltz said there are a number of reasons why in-person arguments are better.

“We like to see the judges’ reactions to our argument,” Maltz said. “And then you also get to listen to the other arguments and see where the court is going – even though the other arguments don’t really apply to my case, we like to see the flow of the cases.”

“The emotions expressed by the judges, their facial demeanor, is very important, you don't see that with virtual,” he added. “If I am on a virtual conference, I think I would be talking directly to the judge that asked the question and I won’t be able to see the entire panel, their reaction and that's very important.”

The attorney added that arguing in-person has a grander feel to it and may encourage an attorney to present themselves better or have more confidence. Additionally, the courtroom, built in 1938 in Brooklyn Heights, brings a weightiness to the arguments that might not be felt over video conference, Maltz said. 

“You have to really feel that this is the case of the century, that this is a very important case for your client,” he said. “You get dressed in the right suit, you present yourself as though you're going to be arguing in front of four judges of the appellate division. When you're at home, you could wear your shirt and tie and a jacket but maybe wear dungarees, So, it's a different situation.”

Joseph DeFelice, an attorney who mainly practices immigration and criminal defense law in Queens, expressed a similar sentiment about arguing in-person. 

“It's a better colloquy between the court and the lawyers when they do it in-person, as opposed to virtually,” DeFelice said. 

The attorney, who has argued approximately 100 cases before the court, also said that he’s heard from a number of his colleagues who say they, in some ways, prefer the virtual option. 

If an attorney has a case at the beginning of the day’s calendar, they may have to travel an hour or so to get to the court by 10, and they’re unlikely to get back to their offices before 1 p.m., DeFelice said. 

“When you’re doing it virtually, you're sitting on a computer, and maybe you're doing a few things in your office, and when it's over you're right there in your office already,” DeFelice said. “I know a lot of lawyers who are happy with just doing it virtually, because of the time involved – especially when you’re in a small practice.”

Maria T. Fasulo, the clerk of the court in the Appellate Division, Second Department, said that overall, response to returning in-person has been “positive.”

“Everybody wants to go back to the way things had been,” Fasulo said. “Clearly [that means] having in-person arguments in an appellate court that has always functioned in that medium as opposed to virtually. Notwithstanding the convenience of that to some of the parties, because they don't have to travel to Brooklyn to hear an appeal.”

If there is any court that could operate under a hybrid model, it’s an appellate court, where only an attorney’s presence is needed. While it’s unclear whether or not the court will support a hybrid model in the future, Fasulo said the court would be able to support one. It also would be able to operate fully should a new variant thwart in-person proceedings again. 

“We've taken advantage of the new technology, and it's worked very well for this court,” Fasulo said. “As soon as the pandemic started, we didn't skip a beat in terms of hearing arguments – our tech people had us up and running and almost immediately we were hearing arguments. 

“We did it fairly seamlessly,” she added. “I'm very pleased about that.”

The courthouse of the Appellate Division, Second Department will soon again be filled with in-person arguments after exclusively holding virtual proceedings for nearly the past two months.

In-person arguments will resume in the Appellate Division, Second Department on Monday, Feb. 28, as COVID-19 cases throughout the court system and throughout the city and state continue to decline. In-person proceedings were put on pause following December’s holiday break as Omicron cases quickly spread in New York causing hundreds of judges and court employees to test positive for the virus each day.

While masks will still be required in the Appellate Division, Second Department, attorneys will again have the opportunity to argue their cases in front of a panel of appellate judges, an opportunity many welcome.

Arguing in-person, particularly at the appellate level, offers a number of benefits, several attorneys who argue in front of the court told the Eagle.

“It's better to go there, for sure,” said Judah Maltz, a criminal law attorney based in Queens.

Though Maltz has yet to argue in front of the court virtually, he’s been before the court in-person around 50 times in the past decade and a half. While there is potentially a convenience to appearing before the court virtually, Maltz said there are a number of reasons why in-person arguments are better.

“We like to see the judges’ reactions to our argument,” Maltz said. “And then you also get to listen to the other arguments and see where the court is going – even though the other arguments don’t really apply to my case, we like to see the flow of the cases.”

“The emotions expressed by the judges, their facial demeanor, is very important, you don't see that with virtual,” he added. “If I am on a virtual conference, I think I would be talking directly to the judge that asked the question and I won’t be able to see the entire panel, their reaction and that's very important.”

The attorney added that arguing in-person has a grander feel to it and may encourage an attorney to present themselves better or have more confidence. Additionally, the courtroom, built in 1938 in Brooklyn Heights, brings a weightiness to the arguments that might not be felt over video conference, Maltz said.

“You have to really feel that this is the case of the century, that this is a very important case for your client,” he said. “You get dressed in the right suit, you present yourself as though you're going to be arguing in front of four judges of the appellate division. When you're at home, you could wear your shirt and tie and a jacket but maybe wear dungarees, So, it's a different situation.”

Joseph DeFelice, an attorney who mainly practices immigration and criminal defense law in Queens, expressed a similar sentiment about arguing in-person.

“It's a better colloquy between the court and the lawyers when they do it in-person, as opposed to virtually,” DeFelice said.

The attorney, who has argued approximately 100 cases before the court, also said that he’s heard from a number of his colleagues who say they, in some ways, prefer the virtual option.

If an attorney has a case at the beginning of the day’s calendar, they may have to travel an hour or so to get to the court by 10, and they’re unlikely to get back to their offices before 1 p.m., DeFelice said.

“When you’re doing it virtually, you're sitting on a computer, and maybe you're doing a few things in your office, and when it's over you're right there in your office already,” DeFelice said. “I know a lot of lawyers who are happy with just doing it virtually, because of the time involved – especially when you’re in a small practice.”

Maria T. Fasulo, the clerk of the court in the Appellate Division, Second Department, said that overall, response to returning in-person has been “positive.”

“Everybody wants to go back to the way things had been,” Fasulo said. “Clearly [that means] having in-person arguments in an appellate court that has always functioned in that medium as opposed to virtually. Notwithstanding the convenience of that to some of the parties, because they don't have to travel to Brooklyn to hear an appeal.”

If there is any court that could operate under a hybrid model, it’s an appellate court, where only an attorney’s presence is needed. While it’s unclear whether or not the court will support a hybrid model in the future, Fasulo said the court would be able to support one. It also would be able to operate fully should a new variant thwart in-person proceedings again.

“We've taken advantage of the new technology, and it's worked very well for this court,” Fasulo said. “As soon as the pandemic started, we didn't skip a beat in terms of hearing arguments – our tech people had us up and running and almost immediately we were hearing arguments.

“We did it fairly seamlessly,” she added. “I'm very pleased about that.”