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Nicholas E. Tishler
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Research, Writing And Appellate Services
Research, Writing And Appellate Services

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CLE Opportunity on Appellate Practice in New York:
On November 4, 2015, the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association will present a Continuing Legal Education program entitled "New York Appellate Courts: A View from the Inside," which will focus on appeals in the Court of Appeals and in the Appellate Division, Third Judicial Department. We are trying a shorter format, starting at 9:00 a.m. and ending at 1:00 p.m. The format of the program will be predominantly question and answer in which judicial and non-judicial representatives from both courts answer questions prepared and presented by local appellate practitioners as well as questions selected from those submitted by members of the audience. Members of the Clerk's Office of the Appellate Division will provide "Insights and advice on avoiding problems getting your appeal on the calendar," or how to avoid getting the telephone call that every lawyer dreads. That 45 minute segment will be preceded by a 15 minute presentation by Jennifer P. Rutkey, Esq., entitled "Practice in the Appellate Division: Managing client expectations, ethical questions and practical tips." The presentation by the Clerk's Office will be followed by a 50 minute question and answer session with two justices of the Appellate Division. After a 10 minute break, Stuart M. Cohen, Esq., will talk about the most important concepts that attorneys should keep in mind in order to increase the likelihood that their application for permission to appeal to the Court of Appeals will be granted. Stuart's presentation will be followed by a 45 minute presentation by representatives of the Clerk's Office from the Court of Appeals entitled, "Inside the Office of the Clerk." The program will conclude with a 50 minute question and answer session with an associate judge of the Court of Appeals. I am pleased to have participated in planning this program and will be moderating it on Wednesday, November 4
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Appellate Advocacy Moot Court
On 10/13/2015, I had the pleasure of being one of three judges for a
round of Albany Law School's Domenick Gabrielli Appellate Advocacy
Moot Court Competition. The problem presented an appeal to the United States Supreme Court for review of the decision and order of a fictional Circuit Court of Appeals 13th. It raised two issues arising out of a conviction for possession of cocaine with intent to distribute. The first issue arose out of the denial of defendant's motion in limine to exclude evidence (song lyrics) that she contended was inadmissible evidence of prior bad acts and irrelevant character evidence under Federal Rules of Evidence 404(b), and in the alternative, that the evidence was inadmissible under Federal Rules of Evidence 403. The second issue arose under the Batson test, challenging the prosecution's use of a peremptory challenge, and arguing for an extension of the Batson doctrine to instances of discrimination based on sexual orientation. The part of Chief Justice was filled by Patrick Barnett-Mulligan, Albany Law School's Pro Bono Coordinator, who argued appeals on behalf of the Attorney General of the State of New York for more than two decades. The other associate justice was played by Kathleen Evers, an associate in the Health Law Department at Coffey & Aronowitz. As always, the experience for me was educational and invigorating. The bench brief and supporting materials, all 114 pages, were well organized, written and presented. Kudos to the hard working members of the Gabrielli Competition Committee, Alexandra L. Scoville, Chair, Steven Cummings, Associate Board Member, and the Committee's Faculty Advisor, Associate Dean Rosemary Queenan. Congratulations to the advocates on both the prosecution and defense teams. They are a credit to Albany Law School and their performances reflected their dedication to acquiring the high level of skill they demonstrated as well as the time they spent preparing for what I think was a vigorous and reasonably realistic appellate argument. I am looking forward to the next round that I will be judging on Sunday, 11/08/2015. If you are interested in learning more about appellate practice, you can visit my website at http://www.appeals-law.com.
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Do you need a new attorney for your appeal? Most of my work is referred to me by other attorneys. Sometimes another attorney calls me directly or has their client call me. It is my custom and practice to work “of counsel” to the “attorney of record.” When I am retained to take and perfect an appeal, I am responsible for filing and serving the notice of appeal and any other documents required to start the process as well as for producing the record on appeal and briefs and presenting oral argument. www.nicktishler.com
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Some attorneys are good at both trial and appellate litigation and sometimes it is a good idea to continue with the same lawyer or law firm when a litigant finds themselves in an appellate court either as an appellant or a respondent. There are some situations in which it is advisable to retain new counsel. An attorney named Dennis Owens wrote an excellent article called New Counsel on Appeal? concerning that issue that was published by the American Bar Association. Even though it is 25 years old, it is still relevant. You will find it on my website at www.nicktishler.com
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A little about me...
I was born in New York City and raised in the greater New York metropolitan area. I decided to attend Northeastern University School of Law in Boston because of its commitment to practical legal education and high quality legal writing. After graduating law school I returned to Long Island, where I began my career as an assistant district attorney with the Office of the Suffolk County District Attorney. Having gained significant experience in trial and appellate practice, in 1986 I started my own law practice, concentrating in appeals research and writing. I practiced on Long Island, in New York City and in Rhode Island before establishing my office in Niskayuna, New York. I chose Niskayuna because of its proximity to Albany, New York’s capital, with its extensive research facilities, law school, and appellate courts.
http://www.nicktishler.com/
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The Court of Appeals, New York State's highest court, is composed of a Chief Judge and six Associate Judges, each appointed to a 14-year term. New York's highest appellate court was established to articulate statewide principles of law in the context of deciding particular lawsuits. The Court thus generally focuses on broad issues of law as distinguished from individual factual disputes. There is no jurisdictional limitation based upon the amount of money at stake in a case or the status or rank of the parties. http://www.nycourts.gov/ctapps
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The information contained on my website (www.nicktishler.com) is what I usually say to a potential client in one or two hours of discussion. If you read the information contained in the first three tabs of my website, you will have a good understanding of the appellate process. If you would like to discuss the specifics of your case with me, the first fifteen minutes of my time is free. I can usually provide some direction for you within fifteen minutes.
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New York has four Appellate Divisions, numbered one through four. Their geographical jurisdiction is defined by statute. Each Appellate Division is comprised of judicial districts that are comprised of specific counties. The Appellate Division of the Supreme Court for the First Judicial Department is located in Manhattan. The Appellate Division of the Supreme Court for the Second Judicial Department is located in Brooklyn. The Appellate Division of the Supreme Court for the Third Judicial Department is located in Albany. The Appellate Division of the Supreme Court for the Fourth Judicial Department is located in Rochester.
 For more information, please see my website at www.nicktishler.com
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Do you need a new attorney for your appeal?
Most of my work is referred to me by other attorneys. Sometimes another attorney calls me directly or has their client call me. It is my custom and practice to work “of counsel” to the “attorney of record.” When I am retained to take and perfect an appeal, I am responsible for filing and serving the notice of appeal and any other documents required to start the process as well as for producing the record on appeal and briefs and presenting oral argument.   www.nicktishler.com
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