In a must-read article
for litigants navigating appellate strategy in New York, Jonathan B. Nelson,
partner and co-chair of our litigation department, has published "The Nine Percent Problem:
Who Actually Pays for Appellate Delay" in The New York Law Journal, examining how appellate delays
create unequal financial consequences for trial winners.
Through a real-world
case, Jonathan illustrates how a plaintiff who won a $620,000 judgment faced
nearly four years of appellate proceedings. She was forced to deposit over $1.4
million to pursue a retrial and ultimately settled for less than her original
award, not because she was wrong, but because she couldn't afford to wait.
Jonathan's key insight:
appellate delay doesn't distribute costs evenly. The statutory 9% interest rate
benefits losing appellants who simply wait and accrue leverage, regardless of
merit. Meanwhile, winning plaintiffs face mounting restitution obligations that
erode their recovery.
The article offers
practical strategies for managing this risk and proposes two legislative
reforms: tolling interest during motion pendency and establishing decisional
time standards for appellate motions. Both could significantly reduce this
burden without requiring additional judicial resources.