On Appeal—Fall 2019

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on appeal The Goldberg Segalla Appellate Publication

Fall 2019



How rules of appellate procedure change to keep up with electronic filing practices

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FALL 2019

Contents The Goldberg Segalla Appellate Publication

GOLDBERG SEGALLA APPELLATE CO-CHAIRS Brendan T. Fitzpatrick bfitzpatrick@goldbergsegalla.com

SPOTLIGHT 4  Blocked: Twitter, Trump, and the Public Forum Doctrine


Stewart G. Milch smilch@goldbergsegalla.com

6  R. T. Vanderbilt v. Hartford

William T. O’Connell woconnell@goldbergsegalla.com

Exclusion: Q&A With Larry Mason

EDITOR Stewart G. Milch smilch@goldbergsegalla.com

CONTRIBUTORS Meghan M. Brown mbrown@goldbergsegalla.com Cory A. DeCresenza cdecresenza@goldbergsegalla.com

and the Occupational Disease 8  Top 10 Things to Do Before and During an Appellate Argument

COVER STORY 10  Appealing to the Digital Age: How Rules of Appellate Procedure Change to Keep Up With Electronic Filing Practices


Matthew J. DeMarco mdemarco@goldbergsegalla.com

14  Successful Defense of Workers’

Allegra A. Sinclair asinclair@goldbergsegalla.com

Posthumous Award



Robert L. Kaiser

15  #AppellateTwitter Roundup

COPY EDITOR Nicolette Clark


Compensation Claim Involving

CROSSOVER  19  Legal Savvy, Technology Save Client from Potentially Costly Liability Claim 19  Brief Appealing Judge’s Decision Saves Workers’ Compensation Defense


Fall 2019 | 3




Can the President block his critics from his social media pages? The Second Circuit Court of Appeals considers the issue.


By Meghan M. Brown

n the age of social media, governments and government actors are able to communicate immediately and directly to their followers around the world. It is no longer novel or surprising to read that President Trump is tweeting about interest rates at the Fed, health care, the border, the price of oil, various media outlets, the commemoration of Vietnam Veterans, and the Washington Capitals’ Stanley Cup win—all within a single week. Do tweets constitute the speech of government business? More specifically, may a public official—specifically the President—block a person from his Twitter account in response to the political views that the person has expressed? Social media is forcing everyone, including government actors and the courts, to analyze how the First Amendment fits into these ever-evolving digital platforms. Appellate courts are now starting to encounter cases involving the public

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forum doctrine and whether (and how) it applies in spaces like Twitter, Instagram, and Facebook. Are social media platforms—particularly the comment section—public fora? If so, does that mean that the prohibition on viewpoint discrimination applies in such digital spaces? Appellate courts are starting to confront the issue and appear to be answering both questions in the affirmative. As a result, elected officials throughout the country—up to the highest level—are learning to navigate how viewpoint discrimination and the public forum doctrine applies to their social media accounts, specifically when they block users from viewing or commenting. In recent and ongoing cases, government officials have been challenged in court for blocking individuals. They claim that the public forum doctrine and the prohibition on viewpoint discrimination are ill-suited to digital accounts and impermissibly stretched to apply to social media. Free speech proponents, on the other hand, invoke the doctrine to limit the government’s ability to block and silence critics.

The Second Circuit Court of Appeals just heard an argument on these issues on March 26, 2019 in the case of The Knight First Amendment Institute v. Trump, et al. What brought that case to the Circuit Court of Appeals? The Knight First Amendment Institute and seven individuals who had been blocked from President Trump’s Twitter account, @realDonaldTrump, and who sued the President and other members of his communications team alleging that they violated the First Amendment by blocking them because they criticized the President or his policies. The plaintiffs asserted, among other arguments, that the Twitter account is a public forum under the First Amendment, and that the government therefore cannot exclude people from that forum based on their views. In May 2018, the U.S. District Court for the Southern District of New York agreed with the plaintiffs. In a 75-page decision, Judge Naomi Reice Buchwald held that portions of the @realDonaldTrump Twitter account where users directly engage with the content of the President’s tweets are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that blocking the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. The District Court rejected the contentions of the defendants, including President Trump, that the President’s personal First Amendment interests superseded those of the plaintiffs. The parties agreed that, although the @realDonaldTrump account had been created in 2009, the President has used the account to communicate and interact with the public about his administration since his inauguration in January 2017. There was no dispute that the account is generally accessible to the public without regard to political affiliation or any other limiting criteria, as any member of the public can view the tweets from the @realDonaldTrump account without being signed in to Twitter, and they agreed that anyone who wants to follow the account can do so. Additionally, the defendants did not contest the plaintiffs’ allegation that they had been blocked from the President’s Twitter account because they posted tweets criticizing the President or his policies. Judge Buchwald concluded her lengthy decision by holding that the speech in which the plaintiffs wish to engage—criticizing the President or his policies—is protected by the goldbergsegalla.com

First Amendment, and that the President and the White House Social Media Director exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of tweets sent from the account. That interactive space is the portion of the account where other users may reply and directly engage with his tweets. Judge Buchwald held that such an interactive space is a public forum, and the “viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.” The court rejected the administration’s arguments that the First Amendment did not apply to the President in this case because he was acting as a private individual. The plaintiffs requested both declaratory and injunctive relief. The District Court held that injunctive relief was unnecessary, and concluded that a declaratory judgment was sufficient, stating that “no government official— including the President—is above the law, and all government officials are presumed to follow the law as it has been declared.” Judge Buchwald did not order Trump to unblock the plaintiffs, but instead issued declarative relief: “the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment.” The decision is narrow, applies only to the Trump administration, and is not binding on other public officials. Moreover, the court held that only portions of the Twitter account are considered a public forum subject to First Amendment protections, not the entire account or Twitter as a whole. Following the May 2018 decision and order, the President unblocked the seven individual plaintiffs but also appealed. The appeal was argued before the Second Circuit Court of Appeals on March 26, 2019. On behalf of the President, the Department of Justice argued, among other things, that the President’s Twitter account is not a public forum. In response to challenges from the judges asking how the President is not acting in his official capacity when tweeting, Justice Department lawyer Jennifer Utrecht acknowledged that the President’s tweets are official government statements, but claimed he is acting in his private, unofficial capacity when he decides to block followers from the account. The court noted that the President was being represented by

the Justice Department and not a private attorney because he is not a private individual. The judges asked how the President’s tweets could not amount to official government business, including when he blocks his critics from access to the account. Jameel Jaffer, Executive Director of the Knight Institute, argued the case on behalf of the plaintiffs. He argued that “the president uses his Twitter account as an extension of his office” and that therefore “the First Amendment forecloses him from blocking people from the account simply because they’ve criticized him or his policies.” The Second Circuit has not yet issued a decision, which will only be the second federal appellate court to weigh in on the issue. Earlier this year, the U.S. Court of Appeals for the Fourth Circuit became the first appellate court in the country to hold that a public official’s social media account could constitute a public forum under the First Amendment. In Davison v. Randall, the court held that a local county official’s Facebook page, which she used for official purposes, was a public forum and that her decision to temporarily block the plaintiff from posting on the page was unconstitutional viewpoint discrimination. The plaintiff had sued the official, who was the chair of the county board of supervisors, alleging that the chair violated his First Amendment and due process rights by blocking him from the chair’s Facebook page. The plaintiff sought both injunctive and declaratory relief. The U.S. District Court for the Eastern District of Virginia dismissed the plaintiff ’s due process claims but entered judgment in his favor on his free speech claims. The parties cross-appealed, and the Court of Appeals for the Fourth Circuit affirmed, holding, among other things, that the chair of the county board of supervisors acted under color of state law in maintaining a government official’s webpage on Facebook and in banning the plaintiff from the page; the Facebook page qualified as a public forum, for First Amendment purposes; and the chair of the county board of supervisors engaged in viewpoint discrimination in violation of the First Amendment by banning the plaintiff from posting on it. The U.S. Supreme Court has not yet weighed in on the subject, and the Fourth Circuit and soon Second Circuit decisions will set a precedent that is likely to be followed by other officials at all levels of government.  Fall 2019 | 5


R. T. Vanderbilt v. Hartford and the Occupational Disease Exclusion:

Q&A With Larry Mason

By Stewart G. Milch Goldberg Segalla partner Larry D. Mason recently argued an appeal in the Connecticut Supreme Court regarding the insurance coverage case, R. T. Vanderbilt v. Hartford Accident and Indemnity. Law360 labeled it as one of the top-10 insurance cases to watch in 2019. I got in touch with Larry to get some crucial insight into the case and how it could influence the insurance law landscape going forward.

and those parties filed 13 appeals. The Appellate Court affirmed the trial court’s judgment in part, but also reversed it in part. The Supreme Court granted the plaintiff ’s and defendants’ certification to appeal the Appellate Court’s judgment concerning the following issues: 1.

Did the Appellate Court properly affirm the trial court’s adoption of a “continuous trigger” theory of coverage for asbestos-related disease claims and properly affirm the trial court’s preclusion of expert testimony on current medical science regarding the actual timing of bodily injury resulting from asbestos-related disease?

The plaintiff manufactured and sold industrial talc from 1948 through 2008. Over the past several decades, thousands of personal injury lawsuits have been brought against the plaintiff in venues across the country alleging that the plaintiff ’s talc contained asbestos and that exposure to its product caused diseases such as mesothelioma and asbestosis. The plaintiff brought this action seeking a declaratory judgment as to its rights and obligations, and those of 30 insurance companies, including the costs of defending and indemnifying the plaintiff in the underlying lawsuits.


Did the Appellate Court properly affirm the “time on the risk” rule of contract law, which allows for pro rata allocation of defense costs and indemnity for asbestos-related disease claims?


Did the Appellate Court properly interpret the pollution exclusion clauses in some of the policies as applicable only to claims arising from “traditional” environmental pollution and not to those claims arising from asbestos exposure occurring in indoor working environments?

The trial court bifurcated the trial into four phases: the first two were tried to the court and addressed the plaintiff ’s declaratory judgment claims, related counterclaims, and cross claims. After the trial court ruled as to the first two phases, the plaintiff and some of the defendants sought and received permission to appeal the interlocutory judgment,


Did the Appellate Court properly interpret the occupational disease exclusion clauses in some of the policies as precluding coverage for claims of occupational disease, regardless of whether the claimant was employed by the policyholder or by a third-party user of the allegedly harmful product?

You recently argued an appeal in the Connecticut Supreme Court in R. T. Vanderbilt v. Hartford, a closely watched insurance coverage case. Can you tell us a little bit about what it involves?

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Why is it so important to the insurance industry? The occupational disease exclusion issue that I argued is a case of first impression in the United States. Through its support from amicus curia on behalf of the manufacturing industry, Vanderbilt has generally and vigorously argued that occupational disease exclusions only apply in the worker’s compensation context. In other words, policyholders assert that occupational disease exclusions have a narrow application solely to bar coverage for claims brought by an insured’s own workers. On behalf of the interested insurers, I argued that the plain and unambiguous language of the occupational disease exclusions have a broader application to bar coverage for occupational disease claims brought not only by the insured’s employees but also by individuals who contracted an occupational disease in the course of their work for other employers. The other issues on appeal—allocation, trigger, and the applicability of the pollution exclusion—remain significant as the insurance industry is looking for the State of Connecticut to join other states that have addressed similar issues. Many states have applied well-settled principles of insurance law to give effect to the insurance contracts as written and to otherwise enforce the “benefit of the bargain” negotiated between the insured and its insurers. What will the impact of the decision be? A victory on appeal for the insurers will have lasting impact both in Connecticut and across the United States regarding important issues of insurance law. For example, the “unavailability of insurance” exception to pro rata allocation is fundamentally at odds, not only with Connecticut law but with the majority of courts that have addressed the allocation of loss for long-tail claims implicating multiple policies and coverage periods. A rejection of the lower court’s affirmance of the trial court’s misguided rule would restore order to this area of insurance law insofar


as shifting loss from uninsured periods to insured periods runs afoul of the basic insurance concept that risks are not transferred where there has not been a policy purchased. Moreover, it is simply unreasonable for insureds, like Vanderbilt, to expect that insurers should be responsible for losses that occur outside of their policy periods. The Supreme Court of Connecticut has the opportunity to ensure that this absurd result does not happen. It will be additionally important for the highest court of a state to affirm the only decision in U.S. history that interprets the occupational disease exclusion. Here, the Supreme Court of Connecticut need only apply basic principles of contract construction to achieve the correct result. However, the implications of a finding that the occupational disease exclusion unambiguously bars coverage for occupational disease claims brought not only by the insured’s employees but also by individuals who contracted an occupational disease in the course of their work for other employers will reduce the insurance industry’s exposure to certain toxic tort—including asbestos—bodily injury claims. What are the takeaways for insurers? The implementation of proactive strategies for resolution of complex insurance coverage disputes is the optimum approach. Without such a strategy, the historically misunderstood occupational disease exclusion defense would not have been pursued as a bar to coverage for certain toxic tort—including asbestos—bodily injury claims. Insurers must also remain strong advocates for the fundamental principles of insurance law. Because many judges have little experience with commercial insurance issues, the insurance industry requires strong advocates to counterbalance the lack of understanding of basic insurance contract construction and risk transfer concepts as well as to protect against policyholder bias.

Fall 2019 | 7


Top 10 Things to Do Before and During an Appellate Argument

By Stewart G. Milch

As appellate lawyers, we spend most of our time at a desk, where we research, read cases, write briefs, and then write some more. Oral argument, however, is our opportunity for some excitement—to get out from behind our desks and demonstrate oral advocacy skills that match our writing talents. So, you want to make a good impression with your colleagues, clients, and—most importantly—judges? CONSIDER THE FOLLOWING 10 THINGS TO DO DURING AN ORAL ARGUMENT:

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Always BEGIN BY INTRODUCING YOURSELF and telling the court which party or parties you represent.


Just as you did in your brief, LEAD WITH YOUR STRONGEST POINT.


When a judge interrupts your presentation to ask a question, STOP SPEAKING—immediately. Do not try to continue, and never speak over them.


A corollary to number 3: ANSWER THE QUESTION YOU’RE ASKED. Don’t say “I’ll get to that later” or “I’d like to finish the point I was making.”


KNOW THE RECORD. There’s nothing more embarrassing than getting asked a question about what’s in the record and not knowing the answer.


KNOW ALL THE RELEVANT CASES. Be able to answer questions about them, especially the ones contrary to your position. Sometimes a judge who is friendly to your position will throw you a softball question. But, more often, you’re going to be challenged: Why should I adopt your position when this case I’m asking you about is contrary to your argument?


A corollary to number 5: If possible, UPDATE YOUR RESEARCH the day of or a couple of days before your argument. You don’t want to miss a decision—good or bad that may impact your case.


Have the first few sentences of your argument planned, but DON’T READ YOUR ARGUMENT. Oral argument is not an opportunity to read a prepared speech; it’s an opportunity to have a conversation with a panel of judges and advocate your position.


In advance of your argument, if you can, OBSERVE OTHER ARGUMENTS IN THE SAME COURT. Some courts even stream oral arguments live. If you can’t make it to the actual courthouse, viewing them is a good substitute.

10. If permitted in the court where you’re arguing and you’re the appellant, remember to RESERVE REBUTTAL TIME. If it’s clear from your opponent’s argument that the court is on your side, you can always waive your rebuttal.

HELPING YOU STAY AHEAD Blogs Asbestos Case Tracker asbestoscasetracker.com

Data Privacy and Security dataprivacyblog.com

Environmental Law Monitor environmentallawmonitor.com

The Insurance and Reinsurance Report insurerereport.com

Life Science Matters druganddeviceblog.com

OSHA: Legal Developments and Defense Strategies osharegulationsblog.com

Professional Liability Matters professionalliabilitymatters.com

Sports and Entertainment Law Insider sportslawinsider.com

Workers’ Compensation Defense gsworkerscompensationdefense.com

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By Allegra A. Sinclair

ith the increasing reliance on electronic filing of appellate briefs and records, the rules governing appellate practice and procedure in many jurisdictions have been amended to address both anticipated and unanticipated issues arising from electronic service and filing systems. While e-filing has been in place for over a decade in the federal courts of appeal, numerous state appellate courts had been slower to implement it. This article discusses the most recent changes to the Federal Rules of Appellate Procedure, and examines how electronic filing and service have impacted state appellate practice rules in three jurisdictions—North Carolina, Florida, and New York—which are each at different stages of implementing their own e-filing systems.

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Federal Rules of Appellate Procedure The Supreme Court of the United States adopted several significant amendments to the Federal Rules of Appellate Procedure last year, which took effect on December 1, 2018. These amendments “govern in all proceedings in appellate cases thereafter commenced, and, insofar as just and practicable, all proceedings then pending.” With respect to electronic filing, the amended Rule 25 now creates a level of uniformity nationwide in electronic service and filing, requiring any party represented by counsel to file electronically, unless non-electronic filing is allowed by the court for good cause or by its local rules. Amended Rule 25 leaves the issue of electronic filing by pro se parties to the discretion of the court where the appeal is pending and its local rules. In addition to complying with the Federal Rules of Appellate Procedure, federal appellate briefs, records, and motions must also abide by the particular local rules of the court in which the appeal is pending. The amendment to Rule 25 also revises the electronic service rules, now stating that service may be made electronically on a registered user by simply filing the document with the court’s e-filing system or by any other electronic means that the person served has consented to in writing. Previously, service through the electronic filing system also required the served party’s written consent. With respect to electronic signatures, amended Rule 25 clarifies that “a filing made through

How rules of appellate procedure change to keep up with electronic filing practices Electronic submission has become common practice in nearly every industry across the country and around the world, and industry-specific procedures have needed to evolve to keep up. Appellate practice is not exempt from these changes.

a person’s electronic-filing account and authorized by that person, together with that person’s name on a signature block, constitutes the person’s signature.” Much to the delight of those still reeling from the reduced timeline for reply briefs following the elimination of the three-day rule for electronically-served documents several years ago, Rule 28.1 and 31 of the Federal Rules of Appellate Procedure have been amended to extend the time period for filing a reply brief from 14 days to 21 days in appeals and cross-appeals. With respect to changes unrelated to electronic filing practices and procedures, Rule 29 of the Federal Appellate Rules adds language to mitigate the potential for judicial disqualification and recusal as a result of the participation of an amicus curiae, stating that “a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.” The final noteworthy change to the Federal Appellate Rules involves the issuance of the appellate court’s mandate—the appellate court’s order to the lower court—which in-


forms the lower court’s next action and transfers jurisdiction back to it. Rule 41, as amended, allows a party seeking certiorari to the Supreme Court to move to stay the issuance of the mandate. If granted, any such stay shall automatically include any extension of time the Supreme Court provides for filing a petition for writ of certiorari, so long as the party informs the court of appeals of the extension. Rule 41 further provides that once certiorari is denied, the circuit court must issue the mandate immediately upon its receipt of the Supreme Court’s order denying the petition “unless extraordinary circumstances exist.” North Carolina North Carolina was one of the forerunners in the initial implementation of electronic filing at the state appellate level, pioneering an e-filing system for its appellate courts in 1998. Prior to the most recent amendments to the North Carolina Rules of Appellate Procedure, a party’s use of the North Carolina Supreme Court and Court of Appeals Electronic Filing Site was wholly optional, and the traditional, paper filing of certain appellate documents was required. Consistent with the general national trend, however, North Carolina’s

amended appellate rules reflect continued steps towards a more paperless, electronic-based system by mandating electronic filing of certain documents and eliminating rules that required the filing of exhibits, supplements to the record, and memoranda of additional authority in triplicate. Additional substantive amendments were enacted to address the recent statutory changes giving original appellate jurisdiction over matters involving the termination of parental rights and to consolidate the appellate courts’ requirements for the protection of minors and various personal identification numbers. While the revisions regarding qualifying juvenile appeals do not impact most civil litigants, it is important to note that the amended rule requires all documents in such juvenile appeals to be filed electronically, “[u]nless granted an exception for good cause,” again evidencing the courts’ preference for e-filing. Rule 41, addressing the initial Appeal Information Statement (AIS) prepared by an appellant, has also been completely rewritten to reflect its new web-based format. Previously, the AIS was furnished to the appealing party by the Clerk of Court of the Court of Appeals

Fall 2019 | 11

when the record was docketed in the Court of Appeals. As amended, the rule now requires the appellant to complete the AIS on the courts’ electronic-filing site before submitting an appellant brief, thus requiring an appealing party to become a registered user of appellate courts’ e-filing system. As briefly noted above, elimination of the “three-copy” rule for supplements to the record and documentary exhibits with the option for e-filing further emphasizes the courts’ move towards paperless filing practices. Notably, even under the amended rules, a party appealing to the North Carolina Court of Appeals still cannot electronically file a record on appeal in a non-juvenile matter. Records on appeal may be electronically filed in matters originally docketed in the Supreme Court and must be filed electronically filed in qualifying juvenile matters unless good cause is shown. The record on appeal in a non-juvenile matter must be mailed or hand-delivered to the Clerk of the Court of Appeals for filing and the assignment of a docket number. Rule 13, governing the calculation of time for the filing and service of briefs, however, was amended by the Supreme Court to state that the appellant’s brief is now due within 30 days from the filing of the record on appeal. The previous method for calculation was based on the Clerk mailing of the printed record on appeal to the parties. This amended timetable could signify an intention to move to electronic filing of appellate records in both appellate courts. The amended North Carolina Rules of Appellate Procedure also consolidate the confidentiality requirements for appellate submissions by adding Rule 42, which addresses documents filed under seal with the courts. Under Rule 42, appeals involving juvenile delinquency; adjudications of abuse, neglect, or dependency of a juvenile and related changes to legal custody of the child, including the termination of parental rights; or a sexual offense committed against minor, whether the matter is civil or criminal, are sealed automatically. The rule also makes clear that items sealed at the trial court level will remain sealed at the appellate level while also providing authority for a party to move the appellate court to seal items that were not

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previously under seal. Items under seal are not available for public viewing on the North Carolina Supreme Court and Court of Appeals Electronic Filing Site and Document Library. Consistent with previous rule requirements, the amended rules maintain that the parties to an appeal in any sealed matter involving a child use agreed-upon initials or pseudonyms instead of the minor child’s name. Finally, Rule 42 adds additional categories of personal identification information, namely driver license numbers, financial account numbers, and tax identification numbers, which must be excluded or redacted from appellate submissions. Previously, only social security numbers required redaction under North Carolina’s Appellate Rules. Florida In Florida, litigants may e-file in each of the five district courts of appeal and in the Florida Supreme Court. Electronic filing in the Supreme Court through the Florida Courts E-Filing Portal is mandatory for all attorneys. As of January 2019, all of the district courts of appeal were also accepting filings from the Florida Courts E-Filing Portal. The district courts of appeal are eventually expected to fully transition to the statewide portal from the eDCA system, which the district courts of appeal still currently use for their electronic dockets and to electronically serve their orders and decisions. Florida has also required email service of filings and papers in appellate cases, with limited exceptions, since 2012. The January 1, 2019 amendments to the Florida Rules of Appellate Procedure primarily address changes to the deadlines for certain appellate filings, enacted following the Florida Rules of Judicial Administration’s elimination of the five extra days provided for responding to a document served by email. The rules now only add five extra days to the period for responding when the document is served by postal mail. To counteract the time lost by elimination of the five-day period for response to electronically served documents at the appellate level, the Florida Supreme Court adopted the amendments proposed by Florida’s Appellate Court Rules Committee. Under the revised

Florida Rules of Appellate Procedure, the time for service of the answer brief, the reply brief, and the cross-reply brief has been extended from 20 days to 30 days, and the time period for service of responses to appellate motions has been extended from 10 days to 15 days. Requests for oral argument may now be made within 15 days from the date that the last brief is due to be served, rather than the previous 10day period. With respect to cross-appeals, the Supreme Court has extended the time for filing notice of cross appeal from 10 to 15 days from the filing of the original notice of appeal. The deadline for briefs by a respondent addressing the Supreme Court’s jurisdiction to review the decision of the district court of appeals has also been increased from 20 to 30 days after petitioner’s service of its jurisdictional brief. Notably, the Supreme Court also revised the Rule of Judicial Administration addressing the computation of time to now state that when calculating a time period for any rule of procedure, local rule, court order, or statute, which does not specifically identify the method for computation, the time begins from the next day (after the triggering event) “that is not a Saturday, Sunday, or legal holiday.” With respect to electronic filing, the Supreme Court of Florida amended the appellate rules to permit parties to file and serve the initial document of an appeal electronically, unless the same is a petition invoking the original jurisdiction of the Supreme Court, district appellate court, or circuit court, in which case the petition must be served both by email and in hard copy paper format by U.S. mail, fax, or hand delivery. The Florida Rules of Appellate Procedure were also amended to address matters unrelated to electronic filing and service, including the authorization of immediate appeals from non-final orders, which set aside or otherwise find a settlement agreement unenforceable, and from orders granting or denying a motion to disqualify counsel. The revised rules consolidate a party’s post-decision motions for clarification, rehearing, certification, or written opinion into a single document per decision or order and clarify the rules and possible grounds for requesting the same.

New York In March of last year, New York began the expansion of its New York State Courts Electronic Filing System (NYSCEF) to certain appellate matters in the four departments of the Appellate Division. Roll out of e-filing at the Appellate Division was originally quite limited, with the Electronic Filing Rules of the Appellate Division giving each department the authority to “designate e-filing in such cases and case types as it deems appropriate.” During the initial roll out, mandatory e-filing only applied to the following cases: for the First Department, all appeals in commercial matters originating in the Supreme Court, Bronx and New York Counties; for the Second Department, all appeals originating and electronically filed in the Supreme and Surrogate’s Courts in Westchester County; for the Third Department, all appeals in civil actions commenced by summons and complaint in Supreme Court originating in the Third Judicial District; and for the Fourth Department, all appeals in matters originating in or transferred to the Commercial Division of the Supreme Court in the Fourth Judicial Department. Since the initial implementation, the Second, Third, and Fourth Departments have further expanded mandatory appellate e-filing. The Second Department now requires appeals from the remainder of the Ninth Judicial District to be e-filed when the notice of appeal is dated on or after December 3, 2018, or when the notice of appeal is dated prior to December 3, 2018 but the appeal is perfected on or after January 15, 2019. The Third Department has substantially expanded mandatory e-filing since the initial rollout, now requiring e-filing matters in which a notice of appeal was filed on or after April 1, 2018, where the matter was e-filed in the trial court, where the parties consent to the case being e-filed, and in civil actions commenced by summons and complaint in the Supreme Court originating in the Fourth and Sixth Judicial Districts. As of July 1, 2018, appeals in civil proceedings commenced by petition in the Supreme Court, and appeals in proceedings commenced in County Court, Court of Claims, and Surrogate Court must also be e-filed where the notice of appeal is filed on or after July 1, 2018. Finally, appeals in civil proceedings commenced in Family Court


must be e-filed as of January 2, 2019 in matters where the appeal is perfected on or after January 2, 2019. Since October 1, 2018, the Fourth Department has required mandatory e-filing in all matters e-filed in the lower court as well as all Surrogate Court matters. It has also expanded voluntary e-filing to all other civil matters as of January 1, 2019. The Electronic Filing Rules of the Appellate Division that accompanied the rollout—in addition to the rules for service, filing, and participation within the system (and the continued filing of hard copies of briefs, records, and appendices with the court)—set forth brandnew requirements of appellants. Pursuant to Rule 1245.3, within 14 days of filing a notice of appeal with the trial court, the appellant’s counsel must register or confirm registration as an authorized e-filer with NYSCEF, electronically file the notice of appeal, and enter information in NYSCEF as the court requires. The court will then issue an appellate docket number, which the appellant must serve on all parties in hard copy with an e-filed proof of service documenting it. Within 20 days of service of the docket number notification, all other parties are required to register in NYSCEF. Once all parties have registered with NYSCEF, service and filing by them must be through e-filing. Hard copy service and filing following the registration period for an appeal is then only permitted by exempt litigants and attorneys, the requirements for which are set forth in Rule 1245.4. In addition to the introduction of appellate e-filing through NYSCEF, New York has adopted the Practice Rules of the Appellate Division to further create uniformity in practices within the Appellate Division. These rules apply to all appeals in New York, whether traditionally filed or e-filed, and went into effect on September 17, 2018. The most significant impacts of the new rules are the creation of uniform standards for perfecting an appeal and maximum word counts for briefs and reply briefs. Now, in each department, a civil appellant is deemed to have abandoned the appeal if it is not perfected within six months of the date of the notice of appeal, order of transfer, or order granting

leave to appeal. Appellants may extend this time first by 60 days, through stipulation of the parties or by letter to all parties, and again for an additional 30 days by letter, on notice to all parties. Any further requests for extension of time to perfect an appeal must be made by motion. To create uniformity in briefing requirements among the four departments, the Practice Rules of the Appellate Division adopted word-count limitations of 14,000 words for appellant and respondent briefs and 7,000 words for reply and amicus curiae briefs. The party submitting the brief must include a certificate of compliance with the word count and typeface requirements of the rules. Each department has supplemented the Practice Rules of the Appellate Division and the Electronic Filing Rules of the Appellate Division with its own set of local rules, which address areas where its own practices differ from the statewide rules. A thorough review of the department-specific rules, therefore, remains necessary. As e-filing continues to expand in the departments of the Appellate Division, we should expect further refinement and revision to both the Electronic Filing Rules and Practice Rules of the Appellate Division to answer unresolved issues like electronic signature requirements for appellate submissions and to further develop guidelines for a uniform appellate practice. Mandatory E-Filing Rules on the Horizon Ultimately, the particular appellate rules governing an appeal can vary greatly based upon the jurisdiction’s stage of e-filing implementation. Even in jurisdictions where e-filing and electronic service are not new, the courts are continuing to amend their rules to further to streamline the e-filing process, and, in some instances, make previously optional e-filing a mandatory practice. While this article primarily focuses on rules addressing the implementation of technological changes and the ripple effect such changes have had on more traditional appellate issues (like service and deadlines), it is always important to carefully study the jurisdiction-specific appellate rules of procedure as well as the effective dates of any amended rules when considering any appellate issue.

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Estate of Youngjohn v. Berry Plastics Corp.

Successful Defense of Workers’ Compensation Claim Involving Posthumous Award By Cory A. DeCresenza and Matthew J. DeMarco What happens to an award when a claimant dies suddenly, without a spouse or children? Goldberg Segalla recently obtained a favorable decision in defending a workers’ compensation appeal before the New York State Supreme Court, Appellate Division, Third Department. Estate of Youngjohn v. Berry Plastics Corp. involved the interplay between a posthumous schedule loss of use award and the Lacroix v. Syracuse Exec. Air Serv. decision, which holds that a schedule loss of use award could be paid in one lump sum.

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was superseded by later statutory modifications, supported by case law indicating that a schedule is not assignable to any particular period of time and could therefore be paid in one lump sum.

In Youngjohn, the claimant had reached maximum medical improvement, and the parties reached a tentative stipulation that would have awarded the claimant well over 300 weeks of benefits. But before the stipulation could be approved by the New York State Workers’ Compensation Board, the claimant died for reasons unrelated to his claim. He wasn’t married, nor did he have children.

The law judge agreed with the claimant’s attorney and awarded the entire remaining permanency award—including awards that theoretically would have accrued after the claimant’s death—to the claimant’s estate. Cory and Matt appealed to the Board Panel, insisting that only the remaining weeks of schedule loss of use award that accrued before the claimant’s death were payable, plus funeral expenses. On appeal, the Board Panel rescinded that finding, and decided that only payment for funeral expenses was due. The claimant’s attorney appealed to the Third Department, which finally got it right: The carrier was directed to pay the remaining weeks of the schedule loss of use award that accrued before death, plus payment for funeral expenses.

Given the narrow facts, Goldberg Segalla partner Cory A. DeCresenza and associate Matthew J. DeMarco argued under Workers’ Compensation Law Section 15(4) that only the portion of the schedule loss of use award that had accrued before the claimant’s death could be awarded, plus payment of funeral expenses. In this case, that meant that the claimant’s estate was owed approximately 115 weeks of awards, plus payment of funeral expenses as the claimant did not have a qualifying spouse or dependents. In response, the claimant’s attorney argued that the language in Section 15(4)

The net result saved the carrier approximately $140,000, based solely on a rarely used statute that only applies in very specific situations—that is, when a claimant dies for unrelated reasons, without a spouse or dependents, before a schedule loss of use is awarded by the board. Had the claimant lived another month or two—enough time for the parties to finalize the stipulation—he would have received the full value of the schedules. This case serves as a reminder that workers’ compensation law is full of little quirks that sometimes lead to strange, unexpected outcomes.


#AppellateTwitter Roundup appellate news and hot takes from across the country and around the world. Selected by Meghan M. Brown


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Success stories from other Goldberg Segalla practice groups

Legal Savvy, Technology Save Client from Potentially Costly Liability Claim

Brief Appealing Judge’s Decision Saves Workers’ Compensation Defense

In the end, after all of the he-said-she-said and the country-club records showing the allegedly injured plaintiff playing golf and the video of him scampering about a soccer field, it was a small, silver box from beneath the dashboard of a Ford Escape that likely clinched the case.

As Goldberg Segalla associate attorney Thais E. Rodriguez sat down to write a brief one day last winter, she felt the stress that comes with a crucial task. She had to persuade the state Workers’ Compensation board to rescind a judge’s decision that effectively established a $5 million claim against her client by not allowing her to call witnesses or present evidence in that client’s defense.

The box, a computer called a restraints-control module, is an automotive nerve center about the size of a man’s hand. It records starts and stops, impacts and restraint deployments, acceleration, braking, and speed. It holds a record of what was happening around the time of an accident. It’s on virtually all newer cars. And it was in the back of attorney Brian W. Skalsky’s mind as he started defending a driver and insurer facing a potentially big liability claim over a relatively minor accident on Interstate 5 near San Diego. The plaintiff, a former professional soccer player, claimed that because Brian’s client had rear-ended him, he had back injuries that had required injections and a radiofrequency ablation. At trial, he asked for just under $1 million. Brian, who recently joined Goldberg Segalla and the firm’s General Liability practice, has a lot of experience litigating such cases and knew just what to do. He retained an accident-reconstruction expert to download data from that restraints-control module. Using special equipment carried in a hard-shell tote the size of a suitcase, the reconstruction expert found data for almost 30 seconds leading up to the accident: The plaintiff ’s car was going 11 mph at the time of the accident. Brian’s client, as she rear-ended him, was going 23. The experts in the case used the weights of the vehicles and some math to determine a comparative speed for the accident: 7 mph—barely twice as fast as a man walking.

The workers’ compensation claim in question had been filed by a masonry worker in March 2017, almost seven months after he injured his right foot by catching it in a scaffold cross-brace. The claim was denied because the worker was a non-leased employee—someone the masonry company had brought on board without going through the professional-employer organization that, by contract, was supposed to do its hiring. Now, the worker was challenging the denial of his claim, and Goldberg Segalla attorneys were preparing to defend the professional-employer organization’s insurance carrier, whose policy covered workers’ compensation claims for leased employees of the masonry company. But a judge had denied their request to develop the record, a decision that effectively short-circuited their defense of the insurance carrier and, from their standpoint, rendered the case all but lost. And so, on January 18, 2018, after a day spent researching case law, Thais crafted a three-page, roughly 1,000-word appeal calling the judge’s decision “arbitrary and capricious” and asking the New York State Worker’s Compensation Board to overturn it. The board did. Its decision thrilled her client, whose claims manager sent a copy to the owner of the insurance company. It also spoke to Thais’s strengths as a litigator and the resourcefulness of Goldberg Segalla’s Workers’ Compensation practice.

The data from the restraints-control module was, Brian recalls, the best and arguably only piece of purely subjective evidence he had for defending the driver and insurer, but, in concert with the other evidence he’d unearthed, it was enough. Though the jury voted 9-3 that Brian’s client was somewhat negligent in the accident, it was unanimous in finding that the defendant was not a substantial factor in causing injury to the plaintiff.


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