Split Court Relaxes Preservation Standard

, New York Law Journal


A deeply divided state Court of Appeals on Tuesday embraced a relaxed standard on preserving issues for appellate review, stressing that justice, not strict adherence to procedural rules, is an overarching concern.

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Originally appeared in print as Split Court Relaxes Preservation Standard for Appellate Review

What's being said

  • Johnny Hancock

    The Lippman court is going to go down as one rendering more odd opinions than its predecessors. Last week there was another opinion in a banking case, with a strong dissent (from J. Smith, I believe), that properly explained a number of fundamental problems with the majority‘s decision regarding narrowing the time for bank customers to notify the bank of improperly paid items.

  • Ravi Batra

    Dean Clark‘s 1938 "Handmaiden of Justice."

    What an exciting conflict in Peo. v. Finch; perhaps, it is an endless dance between substantive law and procedural law. Yet, in today‘s day and age when DNA evidence can expose the entire legal process in a particular case to equal state-sponsored unlawful conviction of the innocent, perhaps, we need to be less certain of certainty.

    As lawyers, we live to add brick by brick to the law of the case doctrine‘s victory-bank account; victories sometimes won due to adversary-counsel‘s error or neglect.

    But the best start, with a timeless edge to this raging debate contained in Finch, is Dean Clark‘s 1938 speech about the tension between substantive law and procedural law, to wit:
    "Although I agree," said Collins, M. R., in a leading English case, "that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of a handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case." Sentiments such as these, when expressed as abstract propositions, will no doubt win the assent of all. Applied to concrete cases, however, there is danger that by a conservative bench and bar they may be more honored in the breach than in the observance. The learned judge‘s homely simile might be carried further. A handmaid, no matter how devoted, seems never averse to becoming mistress of a household should opportunity offer. Just so do rules of procedure tend to assume a too obtrusive place in the attentions of judges and lawyers--unless, indeed, they are continually restricted to their proper and subordinate role. Now, at a time when at last there has been brought substantially to fruition in our national courts a significant reform, involving the due subordination of civil procedure to the ends of substantive justice, through the adoption of the new Federal Rules of Civil Procedure, it may be appropriate to examine this continuing conflict between substance and form and to consider how it has there been resolved." Charles E. Clark, The Handmaid of Justice, 23 Wash. U. L. Q. 297 (1938).

    It is most difficult, and indeed odd, to ignore the rules of procedure, as it doth appear to cause chaotic results while being precedent-destructive. Yet, if what we are in the business of is “doing justice,” then like the interest of justice jurisdiction, which presents a safety valve to logic gone astray and causing an injustice, a slight and rare recalibration away from pure logic honors justice, even as procedure is dishonored.

    However, the beautiful tension contained within this decision and twin dissents is ample proof of the nobility and independence of our judiciary, and why hardworking New Yorkers are luckier than most to live here and why New York lawyers are sought after the world over.

    Dated: 5/14/14
    Ravi Batra

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