Connecticut Supreme Court

In a recent piece for the Connecticut Law Tribune, I examined the aspects of the appellate process that mystify lawyers and litigants alike:

An appeal isn't just the second take on a legal dispute.

According to appellate court judges and practitioners alike, appellate practice in Connecticut requires a specialized form of advocacy that is not understood by all litigants who are representing themselves and even by lawyers who handle the occasional appeal.

Appellate Court Chief Judge Alexandra D. DiPentima said there is a major lack of understanding that the appellate courts are not retrying cases but "reviewing to see if there were any errors below."

"There are times we get very able trial lawyers in front of us arguing as if we are a jury," DiPentima said.

The trial court is like a referee down in the football stadium that can see the plays up close, said Brendon Levesque, a partner at Horton, Shields & Knox whose practice includes appellate law.

But the appellate courts are like the referees up in the booth. They have a "very, very high standard" for overturning the lower court's call, he said.

He has to explain to clients who want to retry their cases on appeal that it is not the function of the appellate courts.

Just like a great trial lawyer needs to know the rules of evidence, a great appellate lawyer needs to know the rules of civil procedure, said Linda Morkan, counsel at Robinson & Cole and cochair of the Connecticut Bar Association's appellate advocacy section (but spoke in her individual capacity).

DiPentima said the Judicial Branch is going to be updating a handbook to help the occasional appellate lawyer and to help pro se litigants understand that the rules on appeal are different from trial court rules.

The Connecticut Law Tribune recently examined what may be the most comment lament of litigants when they appeal their cases: "When will the court decide my case?" Between 2005 and 2010, the average time between oral argument and the publication of decisions in the Supreme Court was 157 days, according to the Judicial Branch. Over the next three years, the average was 158 days.

During the 2013-14 term, which is officially drawing toward an end, the Supreme Court seems to have issued opinions faster than in the recent past, according to the Law Tribune's analysis.

But the length of time it takes for cases to come out is not the only factor that mystifies parties and their lawyers about the appellate court process, judges and practitioners say.

One of the most frequent questions people ask are how cases wind their way through the Appellate Court and the Supreme Court, Chief Justice Chase Rogers and DiPentima said in a recent joint interview.

Cases come to the Supreme Court because the justices grant a petition for certiorari for reasons such as there is a split on a legal issue between the superior courts, Rogers said.

A panel of Appellate Court judges has the responsibility to see if some of the intermediate appellate court's cases would be more appropriate in the Supreme Court.

The chief justice also receives petitions for cases involving urgent matters of public interest, such as election cases, under Section 52-265a.

Section 52-265a cases and cases involving child protection get prioritized in being heard and decided, Rogers and DiPentima said.

Otherwise, cases get put on the list as they become ready and "we just go down the list," Rogers said.

In the Appellate Court, child protection cases are scheduled as soon as the briefs are done and even before they are docketed, DiPentima said.

There also are motions for transfer by the parties to come to the Supreme Court from the Appellate Court, according to the chief justice.

Both Morkan and Levesque said they would rather have their cases transferred to the Supreme Court, especially when it's a case the Supreme Court will likely take up because it involves an issue of first impression or a split of authority among the superior courts.

"It's an economics and efficiency decision," Levesque said.

The transfer of cases also means the Supreme Court, while bound by precedent, could change the law, but the Appellate Court can't, Morkan said.

"Our Supreme Court makes sure its docket is full and that alleviates some of the burdens and crowding at the Appellate Court," Morkan said.

Rogers and DiPentima in their respective courts make the decision on who authors a majority opinion. Both said workload is the primary factor in deciding which colleague will be assigned a case to write.

Both courts also hold their judicial conferences on cases after oral argument, the two court leaders said.

While some jurisdictions have the practice of holding judicial conferences before oral argument, Rogers is of the opinion that it makes more sense to hold the conferences afterward because "a lot can happen during oral argument."

Both Morkan and Levesque said the brief is the most important part of appellate advocacy, and oral argument provides the opportunity to answer questions.

Oral argument can be extremely important in some cases and less important in others, Rogers and DiPentima said.

"There are times when the oral argument will change my mind and other judges' minds," said DiPentima.

A few weeks ago, an appellate attorney told me that the Connecticut Supreme Court has been taking longer to issue its decisions, but that the court's jurisprudence has become more scholarly. That conversation led me to look into the appellate-court process for the Connecticut Law Tribune, including examining the speed with which Connecticut Supreme Court handles its cases. You can look at the data behind the story here: 2013-2014SupremeCourtTerm.xlsx.

The story:

It may be the most comment lament of litigants when they appeal their cases: "When will the court decide my case?"

Often, appellate advocates wonder the same thing. "There is a general sense that opinions take too long to come out," says Linda Morkan, counsel at Robinson & Cole, who is cochairwoman of the Connecticut Bar Association's appellate advocacy section but emphasized she was speaking in her individual capacity.

At the same time, many appellate lawyers say they understand that the court is tasked with digging into difficult legal matters and coming up with decisions that set precedent. There is ample praise for the depth of scholarship among the current seven justices.

Chief Justice Chase Rogers said the court's goal is to work as efficiently as possible to give anxious parties a resolution to their disputes. But some cases take longer to resolve if there are multiple legal issues in need of examination. Sometimes decisions change, as what was initially the majority becomes the dissent. Moreover, decisions won't be released until all the justices are satisfied. "The bottom line is we're a court of last resort," Rogers says.

Given the interest in the matter among many Connecticut lawyers, the Law Tribune took an in-depth look at some statistics regarding the timing of decisions reached by the Supreme Court. Some may find it surprising that the current court isn't really any slower to release decisions than its recent predecessors.

Between 2005 and 2010, the average time between oral argument and the publication of decisions in the Supreme Court was 157 days, according to the Judicial Branch. Over the next three years, the average was 158 days.

During the 2013-14 term, which is officially drawing toward an end, the Supreme Court seems to have issued opinions faster than in the recent past, according to the Law Tribune's analysis. Of the 118 cases in which the justices have heard oral argument this term, 54 cases have been decided and it took 136 days on average for the court to issue decisions after oral argument. The shortest wait was 27 days and the longest 292 days.

There were still 64 cases pending as of Aug. 7, and it is unknown if any of those cases involve the type of factors that tend to delay the issuance of opinions.

At least three of those still-pending cases were heard last September—LaPointe v. Commission of Correction; Gilmore v. Pawn King; and Connecticut v. Carrion.

In contrast, the state Appellate Court took an average of 104 days after oral argument to release decisions between 2005 and 2010, according to the Judicial Branch. For the past three years, it has been 94 days.

In Connecticut, trial courts are required by law to issue their decisions within 120 days, and at least two Superior Court judges have been sanctioned in recent years for long-delayed decisions. Although some have suggested the Supreme Court adopt the same four-month deadline, Rogers said it's not workable. All sides deserve a full reading of the trial transcripts, which can be voluminous in cases with complex issues, she said. "You're not going to get a fair decision … covering all the issues in 120 days," Rogers said.

Pamela Meotti, the chief administrative officer for the Supreme Court, said the three staff offices that serve the appellate and the supreme courts are under the same imperative to be efficient. The clerk's office keeps the files and handles all communications with the parties and the public regarding cases. The staff attorney's office prepares summaries of pending cases, coordinates the court's preargument conference program that encourages settlement, and tracks issues that are coming before the court more frequently. The reporter's office checks the facts in cases, drafts the headnotes and publishes the cases when they are ready.

"Both courts aim to release the opinions as quickly as possible with the overarching goal that the opinions are decided in the right way," Meotti said.

Brendon Levesque, a partner at Horton, Shields & Knox whose practice includes appellate law, said that he tells clients it will typically take 18 months from filing their appeal to get to a decision, including taking three to six months for decisions to come out after oral argument. In fact, it takes a bit longer than that. Of the 54 cases decided so far in the term, it took 724 days on average—just shy of two years—between when the appeals were filed and the Supreme Court released its decision.

That time period can be affected by a number of factors. For example, some cases come to the Supreme Court after Appellate Court review. And some come straight from the trial courts. Chief Appellate Judge Alexandra DiPentima said the court has a panel of judges that looks for cases that should be sent straight to the Supreme Court for review.

The chief justice also receives petitions for cases involving urgent matters of public interest, such as election law cases that have to be decided quickly. Other expedited matters include child protection cases. Otherwise, cases get put on a list as they become ready for Supreme Court review, and "we just go down the list" and schedule arguments, Rogers said.

Attorneys noted that the U.S. Court of Appeals for the Second Circuit uses an informal process to issue "unpublished" decisions that come out a matter of weeks after oral arguments. The decisions serve to resolve the disputes between the parties. More in-depth published opinions are issued later. Those are the decisions that will be cited by lawyers in future cases.

In Connecticut, appellate court decisions seem to be lengthier of late, said Robinson & Cole's Morkan. In her opinion, that's a positive development for several reasons. The added depth often offers more thorough reasoning by the court, which is important for the development of the law and public policy. And the added heft helps a litigant "believe that you have been heard and the court has understood the issues."

James Streeto, a veteran assistant Connecticut public defender who regularly appears in the appellate courts, said that earlier in his career decisions seem to have come out a little more quickly. He said he thinks the quality of appellate lawyering has improved and that the courts have responded with more scholarly opinions. All that takes more time, he said. "I'd rather have a result that is careful and scholarly … than have a quick decision that's wrong."

Still, Streeto has mixed feelings. On one hand, well-crafted opinions develop the law and may help many more people down the road. On the other hand, he is representing clients who are doing very long stints in prison and "the only thing that matters to your client is if it is affirmed or reversed. The client doesn't care if 40 pages of scholarly" analysis follows their loss, he said.•

The Connecticut Supreme Court is considering an issue of first impression: does public policy prohibit exculpatory clauses in deposit agreements between banks and customers? I wrote about the case for the Connecticut Law Tribune:

Nine years ago, the Connecticut Supreme Court ruled that a ski resort couldn't limit its liability through contractual clauses. Now the court has to decide if the banking industry can be permitted to do what the winter recreational industry cannot.

The justices heard oral arguments last month in a case, the banking industry says, could have profound influence on its future financial health. Bank of America is seeking to overturn a $823,777 verdict returned by a jury that found the financial institution liable for the money a Catholic school employee swindled from the school.

The case begins with Salvatore Licitra, who started out as a part-time bus driver at St. Bernard School of Montville. Over time, his duties expanded to making bank deposits, working on accounts payable and accessing the school's computer system to prepare checks from the school's account. He had access to third-party checks written to the school and blank checks in the school's name.

Licitra's duties expanded, Bank of America said in court papers, even though the school never ran a background check on him and his criminal record "includes several convictions for forgery, larceny, altering prescriptions, issuing bad checks, improper use of credit cards, and burglary."

He continued his criminal activities in 2002 by opening an account with the school's tax identification number. He proceeded to deposit into the account, over the course of four years, more than 1,000 checks, some payable to the school and others drawn on the school's operating fund account.

"Bank employees knew him and came over to shake his hand and joke around with him when he visited the branch," according to the school's court papers. "In the years to follow, the defendant [Bank of America] sent statements for the account to Licitra's home address; issued Licitra an ATM card; and processed hundreds of transactions on the account for Licitra."

Licitra's embezzlement continued until his position at the school was eliminated in 2006. He was arrested in July 2007, after officials at the Diocese of Norwich discovered the scam, and is currently serving a seven-year prison sentence.

In the meantime, St. Bernard filed a civil lawsuit in an attempt to recoup some of its losses.

The school, noting that it was a longtime customer of Bank of America, argued that the bank violated its own policies and let Licitra open a checking account in the school's name even though he was not an authorized signer of documents for the school's accounts. The bank even failed to disclose the existence of the illicit account to the school's accountants for four years in a row, the school complains.

After hearing all of the evidence, the jury found that Bank of America was negligent, breached its contract with the plaintiff, and violated sections of Connecticut banking law and Uniform Commercial Code. Jurors found Bank of America 95 percent liable for Licitra's actions and St. Bernard 5 percent liable.

Bank of America's legal position has been that the lawsuit should have been thrown out because St. Bernard officials took too long to notify the bank about the unauthorized transactions. The bank has deposit account agreements which require customers to review monthly bank statements and to report any questionable transactions within 60 days. Any customer not acting within this time frame, according to the agreements, is barred from bringing "any legal proceeding or action against us to recover any amount alleged to have been improperly paid out of your account."

During the trial, New London Superior Court Judge James Devine declared that those exculpatory clauses—requiring St. Bernard to notify Bank of America about problems within 60 days in order to be able to sue the bank—were contrary to Connecticut public policy. He cited the 1995 case of Hanks v. Powder Ridge Restaurant Corp., in which the Supreme Court held that it was against the public interest to allow a ski resort to limit its liability through an exculpatory contract clause.

And so, in an apparent issue of first impression, Devine interpreted Connecticut General Statute Section 42a-4-103 to find that the Bank of America deposit agreements were unenforceable. The law states: "Parties to the agreement cannot disclaim a bank's responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack of failure. However, the parties may determine by agreement the standards by which the bank's responsibility is to be measured if those standards are not manifestly unreasonable."

Devine reasoned that the "exculpatory language in the agreement affects the public interest adversely, and, therefore, it is unenforceable because it violates public policy."

The result of the judge's ruling, Bank of America said, was that the trial jury was not permitted to see the deposit account agreements that were in effect at the time.

In appealing the trial court ruling, Bank of America says that the point of the deposit account agreement is not to absolve the bank of liability if it fails to operate in good faith and with ordinary care. Instead, the bank argues, the agreement is just setting out a procedure that customers—including the school—must follow in order to make a legal claim.

Other jurisdictions allow banks to have similar-length notice periods, Bank of America further argued.

The Connecticut Bankers Association has filed an amicus brief in the case. That brief argues that public policy does support exculpatory clauses in the contractual relationship between banks and their depositors. The organization said the bank's exculpatory clause isn't really comparable to that of the ski resort, which is designed to limit liability for physical injuries sustained by customers who are invited onto the resort's property.

"While the invitee to the ski area may have no ability to control the risk they take in using the ski area, the depositor has control over its deposits insofar as it can review activity in its account on a monthly basis," Jeffrey Mirman and David Wiese, of Hinckley, Allen & Snyder in Hartford, wrote in the bankers' amicus brief.

Contractual provisions limiting the amount of time account holders have to notify banks of account irregularities are vital to detecting fraudulent activity early on. If the trial court decision is not overturned, the association said Connecticut will become an outlier in fraud prevention in the United States. Fraud losses will skyrocket, the association warns.

St. Bernard counters that the reason for barring exculpatory clauses exists outside of the context of winter recreation. Exculpatory clauses have no place in the banking industry, the school countered, because account agreements are "contracts of adhesion," meaning banks have "a decisive advantage of bargaining strength" over their patrons.

To allow exculpatory clauses, such as the one used by Bank of America, "would allow banks to run roughshod over our legislature and their customers alike," St. Bernard's lawyers said.

Further, the school's lawyers argue, even if St. Bernard had a responsibility to review its bank statements for suspect transactions, that requirement applied only to the bank officials operating a fund account, not a fraudulent account that school officials had no idea even existed.

Gerald Garlick, of Krasow, Garlick & Hadley in Hartford, is representing Bank of America. He declined comment. Cassie Jameson and Michael Colonese, of Brown Jacobson in Norwich, are representing the school. They, too, declined comment.

But Ryan Barry, of Barry and Barall in Manchester, and former cochairman of the General Assembly's Banks Committee, said that Devine is a well-regarded judge and his reasoning could be persuasive to the Supreme Court. Even though Connecticut would be in the minority of states in barring banks from putting contractual limits on how much time depositors have to flag fraudulent account transactions, Connecticut does not have to follow the majority rule, said Barry, who has no role in the case.

"The courts in our state sometimes lead the way in many areas of the law," Barry said.