A guide for attorneys handling an appeal in New York. Arguing your first appeal at the Second Department: This presentation will make you feel better. It is also a good refresher for veterans.

1. GUIDE FOR YOUR FIRST ORAL ARGUMENT IN THE
SECOND DEPARTMENT
“ANOTHER KIND OF LAW FIRM FOR THE NEW DIGITAL AGE”
718.777.0400
PARDALIS & NOHAVICKA LLP 718.777.0400
PARDALIS & NOHAVICKA LLP 718.777.0400
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2. PREPARE, ANTICIPATE, AND VISUALIZE
There is a first time for everything in litigation. Getting called up from the
ranks by the partner to handle oral argument of an appeal is a critical
emotional event on the part of the assigning senior attorney and the lucky
advocate – you.
PARDALIS & NOHAVICKA LLP 718.777.0400

3. PREP:
IMMERSE INTO THE FACTUAL
AND LEGAL MATRIX OF THE
CASE
• UNFORTUNATELY, YOU WILL NOT BE REMUNERATED WITH
MONEY FOR THE UNGODLY AMOUNT OF TIME YOU PUT IN
OFF-HOURS DURING YOUR INTENSIVE PREPARATION FOR THIS
APPEAL; BUT THERE ARE NO WORDS FOR THE PERSONAL AND
PROFESSIONAL REWARDS OF A PROUD PERFORMANCE IN AN
APPELLATE COURT. EVEN IF YOU LOSE.
• READ THE DECISION BEING APPEALED THROUGH AN UNBIASED
LENS.
• READ THE CASES CITED TO BE SURE THAT THE CONTEXT IS
APPROPRIATE
• THEN READ THE RECORD MAKING REFERENCES TO WHAT THE
MOTION COURT BELIEVED WAS IMPORTANT AND WHAT WAS
IGNORED.
• WAS THE RESPONDENT’S ARUMENT IN THE LOWER COURT
JUST EASIER TO EMBRACE?
• BE ABLE TO ARTICULATE THE ERROR IN THE MOTION COURT’S
DECISION
• SEARCH THE DECISION; SPOT THE FLAW; PULL THE TRIGGER.
READ THE ENTIRE RECORD
PROBE THE DECISION APPEALED FROM
KNOW THE CASES RELIED UPON BY
THE MOTION COURT
BE ABLE TO EXPLAIN TO PEOPLE WHO
HAVE NOT STUDIED LAW WHAT THE
CASE IS ABOUT (IF YOU ARE CITING
CASES IN YOU EXPLANATION, YOU
FAILED)
READ ALL OPPOSING BRIEFS
DISCOVER YOUR VOICE
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4. ANTICIPATE THE
QUESTIONS OF THE PANEL
THINKING ABOUT THE CASE AS MUCH
AS POSSIBLE WILL BRING TO THE
SURFACE THE QUESTIONS THAT THE
APPELLATE PANEL MAY HAVE FOR YOU.
WHAT WAS THE ERROR?
WHAT ARE THE ISSUES OF FACT THAT
PRECLUDE SUMMARY JUDGMENT?
WHAT WAS THE APPROPRIATE
STANDARD OF REVIEW?
WHY WASN’T THIS POINT BROUGHT
OUT MORE EFFECTVELY IN THE
MOTION COURT?
THINK.
PARDALIS & NOHAVICKA LLP 718.777.0400

5. VISUALIZE YOUR
PERFORMANCE
VISUALIZATION IS A TECHNIQUE USED
BY ATHLETES, ACTORS, DANCERS,
MUSICIANS, AND MANY EXCELLENT
LITIGATORS.
SEE YOURSELF STANDING UP AND
APPROACHING THE PODIUM.
HOW WILL YOU SET YOURSELF UP
BEFORE BEGINNING YOU ARGUMENT?
WHAT IS YOUR INTRODUCTION GOING
TO BE?
WILL YOU SMILE?
WILL YOU BE USING GESTURES?
RUN IT THROUGH YOUR HEAD.
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6. INTRODUCTION
AT THE SECOND DEPARTMENT THE
CALENDAR CALL BEGINS AT 10:00 A.M.
SHARP.
THERE IS NO CHECK-IN UNLESS YOU
ARE ARGUING AND YOUR NAME IS
NOT INDICATED ON THE COVER PAGE
OF THE BRIEF. IF THAT IS YOUR
SITUATION, GO UP TO THE CLERK
LOCATED ON YOUR LEFT AS YOU
ENTER THE MAIN COURTROOM. HAVE
YOUR CASE NAME AND CALENDAR
NUMBER READY AND SIMPLY INFORM
THEM THAT YOU WILL BE ARGUING.
DURING THE CALENDAR CALL WHEN
YOUR CASE IS ANNOUNCED YOU
STAND AND ANNOUNCE WHETHER
YOU ARE THE APPELLANT OR
RESPONDENT AND REQUEST THE
AMOUNT OF TIME YOU NEED FOR
ARGUMENT
PARDALIS & NOHAVICKA LLP 718.777.0400

7. MAY IT PLEASE THE COURT
• Good morning, Your Honors; and may it please the Court. My name is Joseph Nohavicka and I am
appellate counsel for Zelouf International.
• We are requesting that the decision of Supreme Court Queens County, which granted summary judgment
against Zelouf , be reversed.
• The core issue to be decided by this court is whether the 2004 Top Cove Stock Transfer from Bekas to River
City was a fraudulent conveyance. Because the motion court conducted its analysis using a flawed
framework, its conclusion was incorrect.
• This is a case about deceit as between the respondents Bekas and Valiotis. Zelouf, the appellant, is an
innocent party; a merchant trying to get paid for goods delivere to companies owned by Bekas. While
Zelouf was in the process of obtaining a judgment against Bekas, the Top Cove deal was architected by
Valiotis. As a result of this plan, Bekas was disenfranchised of his only asset – 40 shares of Top Cove, now,
by the way, worth millions. This deal also effectively prevented Zelouf from recovering payment on a debt
over a decade old.
• This Court has already determined that Bekas had stated a claim against Valiotis, where Bekas claims
that the Top Cove deal was fraudulent. Valiotis attempted to use the judical estoppel theory then the
same way he is attempting to use it now; however, that theory was rejected sub silentio and should be
rejected now.
• On a separate trip to this Court, it was determined that there existed a special relationship as between
Bekas and Valiotis because of their past familial and business dealings, which puts the fraudulent
conveyance analysis under a more discerning prism – because there is no arm’s length dealing.
•
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8. SMILE AND BE POLITE
SO THAT IS APPROXIMATELY WHAT AN
INTRODUCTORY STATEMENT LOOKS
LIKE.
THE PANEL WILL PROBABLY HAVE A
DIFFERENT VIEW AND START
QUESTIONING YOU ABOUT WHAT
THEY BELIEVE IS IMPORTANT.
ALTHOUGH IT IS IMPORTANT THAT
YOU BRING TO THE COURT A SENSE OF
GRAVITAS AND MEASURED
CREDIBILITY, THERE IS ABSOLUTELY
NOTHING WRONG WITH A POLITE
SMILE BEFORE YOU BEGIN.
PROPERLY PLACED HUMOR CAN EVEN
BE APPRECIATED
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9. LISTEN TO THE PANEL
AND PREVENT DEAD AIR
• If you are in the middle of a sentence and one of the justices begins
to speak, shut down and listen carefully. The court is asking a
question because they are struggling with something. If you are the
appellant that is a good thing: it means they are considering an
infirmity of consequence. If it is an infirmity in your argument you
are being given a chance to shore it up. If it is an infirmity in your
adversary's argument you are being provided with an opportunity
to exploit it.
• When you have finished answering a question immediately jump
back into your argument. Do not look at the other justices on the
panel to get you back on track or to throw you a lifeline as you
dangle in dead air. Move on: "I hope that answered your question;
and that brings me to my next point...”
• Know when it is time to stop. When you have made your points,
end it, thank the court for listening, and sit down.
PARDALIS & NOHAVICKA LLP 718.777.0400

10. NO FEAR
ORAL ARGUMENT IS A FRIGHTENING
PROSEPECT.
THE RETURN ON PUTTING YOURSELF
THROUGH THE PROCESS IS BEYOND
MEASURE.
THE RETURN OF HAVING THE
COURAGE TO GUIDE AN ASSOCIATE
ATTORNEY THROUGH THIS PROCESS,
LIKEWISE, IS BEYOND MEASURE.
HOW ELSE ARE OUR YOUNG
ATTORNEYS GOING TO LEARN HOW TO
PRACTICE APPELLATE LAW UNLESS THE
EXPERIENCED PRACTITIONERS ARE
WILLING TO SHARE COURT TIME?
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11. WE WILL PREPARE TOGETHER TO MAKE OUR PROFESSION
STRONGER AND OUR SERVICE TO THE PUBLIC MORE EFFECTIVE.
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12. TECHNOLOGY IS QUICKLY REDEFINING THE GLOBAL
LAW PROFESSION.
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13. SHARING KNOWLEDGE WITH THE BAR AND PROVIDING TO THE PUBLIC FULL ACCESS
TO JUSTICE AND WITH THE KEYS TO UNLOCK THE MYSTERIES OF LAWCRAFT IS NOW
THE BUSINESS OF THE LAW.
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PARDALIS & NOHAVICKA LLP 718.777.0400

14. GOOD LUCK WITH YOUR
FIRST ORAL ARGUMENT.
“ANOTHER KIND OF LAW FIRM FOR
THE NEW DIGITAL AGE.”
PARDALIS & NOHAVICKA LLP 718.777.0400