WHAT IS AN APPEAL?
An appeal is the process by which a party to a dispute asks a higher authority, such as a higher court, to review and reverse or modify the decision of a lower authority’s decision, such as the decision of a lower court or administrative agency. In an appeal, the appellant is the party that brings or files the appeal. The party that defends the lower authority’s decision is the respondent. Respondents may file their own appeal, called a cross appeal.
HOW DO I TAKE AN APPEAL OF A COURT DECISION (GENERAL INFORMATION)?
If you disagree with a civil decision in the Chancery Division, the Law Division, Special Civil Part or the Law Division, Civil Part, such as a judgment entered against you or your business at trial or the denial of a motion to vacate a default judgment, you may appeal the case to a higher court -- the New Jersey Appellate Division of the Superior Court. There are very strict deadlines for filing appeals. Appeals from orders or judgments that are not final are called “interlocutory appeals” and the procedure for such appeals is somewhat different than those for appeals from final judgments or orders. The procedure for taking an appeal from a municipal court decision is also different from the procedure for taking an appeal from a superior court decision. To appeal a final judgment that resolves all issues in the case, you must act in a specific time frame by filing a notice of appeal and other required documents with the New Jersey Appellate Division within 45 days from the date of the final judgment, order or decision judgment and pay a nonrefundable fee to the New Jersey Appellate Division – Chancery Division, Special Civil Part appeals and Law Division, Civil Part appeals are not heard by the special civil part or Law Division, Civil Part and you should not try to file appellate papers with either of those courts! As part of your appeal, you usually must also prepare a written court transcript request and order a court transcript from the appropriate court that decided the matter against you or your business and pay a nonrefundable fee for it. A court transcript is a written record of hearings held in court in a particular case. After a notice of appeal is filed, you must prepare and file other documents, such as a transcript, brief and a document that provides proof that you mailed these items to your adversary. If you want the opportunity to argue your appeal, you may have to file a request for argument by a specific deadline.
COMPLEXITY OF APPEALS
Appeals are highly complex proceedings and no website can possibly advise a party taking or defending against an appeal of all procedures or issues necessary to consider when handling an appeal! Court rules and New Jersey laws and regulations change very frequently, as does the caselaw interpreting them, all of which could have a major impact on any appeal. Also, the procedure for taking an appeal from a municipal court decision is also different from the procedure for taking an appeal from a superior court decision. This article does not discuss municipal court appeals
HOW DO I START A NEW JERSEY LAW DIVISION, SPECIAL CIVIL PART, LAW DIVISION, CIVIL PART OR CHANCERY DIVISION APPEAL?
A trial court or an agency is usually the authority that initially decides a case and civil appeals are normally taken from a trial court’s or agency’s decision. For purposes of this article, the term “trial court” may refer to either the trial court or agency that entered the judgment, order or decision that a party is appealing. Generally, appeals can only be taken from final judgments or orders that resolve all issues in a case. To appeal a final judgment that resolves all issues in the case, you must act within a specific time frame by filing papers with the New Jersey Appellate Division – in most cases within 45 days from the date of judgment or final order and pay a nonrefundable fee to the New Jersey Appellate Division – special civil part appeals and Law Division, Civil Part appeals are not heard by the special civil part, Law Division or Chancery Division and you should not try to file appellate papers with either of those courts! If you miss the 45 day deadline for a reason acceptable to the New Jersey Appellate Division, you may get the New Jersey Appellate Division to allow you to file after the 45 day deadline expires by filing a motion with the New Jersey Appellate Division.
FILING THE NOTICE OF APPEAL AND APPELLATE CIVIL CASE INFORMATION STATEMENT
An appeal from the final judgment of a civil trial court is taken by serving a copy of a notice of appeal and the request for transcript upon all other parties who appeared in the action and by filing the originals with the appellate court and a copy of the notice of appeal and the transcript request with the court from which the appeal is taken. The notice of appeal filed with the New Jersey Appellate Division must have a Case Information Statement in the form required by the Appellate Court Rules attached to the notice of appeal. If you are filing a motion for leave to appeal an interlocutory order or to proceed as an indigent (for a waiver of filing fees) read the appropriate section below about notices of appeal in those situations.
SERVING THE NOTICE OF APPEAL AND APPELLATE CIVIL CASE INFORMATION STATEMENT
In addition to the filing of the notice of appeal, the appellant mails a copy of the notice with a copy of the Appellate Civil Case Information Statement attached, by ordinary mail to the trial judge. If the appeal is taken directly from the decision or action of an administrative agency or officer, the appellant mails a copy of the notice of appeal, with a copy of the Appellate Civil Case Information Statement attached, to the agency or officer, except that if the appeal is taken from the Division of Workers' Compensation, a copy of the notice of appeal shall also be sent to the Workers' Compensation judge who decided the matter. Within 15 days thereafter, the trial judge, agency or officer may file and mail to the parties an amplification of a prior statement, opinion or memorandum made either in writing or orally and recorded pursuant to the Court Rules. If there is no such prior statement, opinion or memorandum, the trial judge, agency or officer shall, within such time, file with the New Jersey Appellate Division Clerk’s Office and mail to the parties a written opinion stating findings of fact and conclusions of law. An appeal to the New Jersey Appellate Division to review the decision, action or administrative rule of any state administrative agency or officer is taken by serving copies of the notice of appeal upon the agency or officer, the Attorney General and all other interested parties and by filing the original notice with the New Jersey Appellate Division. Service on the Attorney General shall be made pursuant to the court rules (Rule 4:4-4(a)(7)). On an appeal from the Division of Workers' Compensation the Division shall not be considered a party to the appeal and the notice of appeal is not served upon the Attorney General unless they are representing a party to the appeal.
WHAT INFORMATION DO I INCLUDE IN THE NOTICE OF APPEAL?
Since every civil appeal is unique, it is impossible to explain everything that has to be included in a particular notice of appeal. However, there are some things to remember when composing notices of appeal to be filed with the New Jersey Appellate Division. The notice of appeal to the New Jersey Appellate Division may be in the form prescribed by the New Jersey Courts and forms are often made available on the New Jersey Court website. In civil appeals, the notice of appeal to the New Jersey Appellate Division must:
· State the name and address of the party taking the appeal
· State the name and address of your attorney, if any
· State the names of all other parties to the action and to the appeal
· State the judgment, decision, action or rule, or part thereof appealed from, the name of the judge who sat below and the name of the court, agency or officer from which and to which the appeal is taken.
· certify service of a copy of the notice of appeal on all parties, the Attorney General if necessary and the trial judge, agency or officer.
· certify payment of filing fees required by New Jersey Statute Annotated 22A:2.
· certify compliance with New Jersey Court Rule 2:5-1(f)(2)(filing of an Appellate Civil Case Information Statement) and include a Case Information Statement in the form required by the New Jersey Appellate Court Rules attached to the notice.
· In all actions where a verbatim record of the proceedings was taken, certify compliance with New Jersey Court Rule 2:5-3(a) (request for transcript) and New Jersey Court Rule 2:5-3(d) (deposit for transcript) or include a certification stating the reasons for exemption from compliance. Certifications of compliance shall specify from whom the transcript was ordered, the date ordered, and the fact of deposit, affixing a copy of the actual request for the transcript to the notice of appeal.
WHAT INFORMATION DO I INCLUDE IN THE CASE INFORMATION STATEMENT? Since every civil appeal is unique, it is impossible to explain everything that has to be included in a particular New Jersey Appellate Division Case Information Statement. However, there are some things to remember when composing case information statements to be filed with the New Jersey Appellate Division. The New Jersey Appellate Division Case Information Statement must be in the form required by the New Jersey Appellate Court Rules. The appellant's Case Information Statement shall have attached to it a copy of the final judgment, order or agency decision appealed from except final judgments entered by the clerk on a jury verdict. If there is any change with respect to any entry on the Appellate Civil Case Information Statement, appellant must file an amended Case Information Statement on the prescribed form. Failure to comply with the requirement for filing a Case Information Statement or any deficiencies in the completion of this statement could result in penalties, including rejection of the notice of appeal or on application of any party or on the court's own motion, dismissal of the appeal.
WHAT IF MY APPEAL CONCERNS WHETHER A FEDERAL, STATE, OR LOCAL ENACTMENT IS VALID?
The party raising the issue on appeal serves notice of the appeal on the appropriate official as provided by New Jersey Court Rule 4:28-4 unless he or she is a party to the appeal or has received notice of the action in the court below. The notice must specify the provision of the enactment being challenged and the notice must be mailed within five days after the filing of the notice of appeal.
HOW DO I ORDER A TRANSCRIPT OF THE TRIAL COURT’S PROCEEDINGS ON THE JUDGMENT, ORDER OR DECISION THAT I AM APPEALING?
In some cases, there is no transcript made of the trial court’s consideration of the judgment, order or decision because the trial court prepared a written memorandum/decision, order or judgment. However, in many cases, the trial court’s proceedings are transcribed or recorded and if this occurs, you must order a copy of the transcript. It may be possible to have the transcript abbreviated, such as in the case of a long trial transcript. This may require the agreement of your opponent or you may have to make a motion to the trial court. To order a transcript, contact the county supervisor of court reporters, the court clerk or agency regarding the details of ordering the transcript, such as its estimated cost and the amount you must forward as a deposit for the transcript’s preparation. If an appealing party fails to timely order the transcript, they may face penalties. If the party filing the appeal already has a copy of the transcript that is the subject of the appeal, they do not have to order another copy. Instead, the appealing party must certify on their notice of appeal that they have a copy of the transcript. A form for ordering transcripts is normally available in the appendix of the New Jersey Court Rules and normally appears on the New Jersey Courts’ website. The standard transcript request form seeks the following information about civil appeals:
· the caption or title of the case as it appears on the papers from the trial court from which you are appealing.
· the trial court docket number.
· if a municipal appeal, enter the Law Division docket number.
· the county and the name of the trial court from which you are appealing.
· your name, address, including any email address and daytime phone number.
· if a court reporter was present in court transcribing the proceedings, the name and address of the court reporter.
· if the proceedings were sound recorded, the name and address of the court clerk of the trial judge.
· if you do not know the name of the court reporter, call the county courthouse and ask to be connected to the office of the supervisor of court reporters for that county and include that information on the court transcript request.
· if you do not know the name of the court clerk, call the trial judge's chambers and ask for that and their mailing address and include that information on the court transcript request.
· Since the transcript is being requested to file an appeal, indicate that use.
· the number of copies you are asking to be produced (the minimum number you can request is the original and 1 copy).
· the date(s) of the proceeding(s) you are ordering.
· the type of proceeding(s) (for example, trial, sentencing, motion, etc.).
· the trial judge’s name who heard each proceeding.
· the amount of the deposit.
The original of the court transcript request and a check for the deposit are sent to the court reporter or, in the case of a proceeding that was sound recorded, to the court clerk of the trial judge. Be sure to keep a complete copy of the transcript for your records.
HOW MANY COPIES OF THE BRIEF, APPENDIX AND TRANSCRIPT DO I FILE AND SERVE?
· 2 copies of briefs and appendices shall be served on each party to the appeal
· 1 copy of the transcript shall be served on any one respondent for the use of all respondents.
· Proof of such service shall be filed simultaneously with the Appellate Division Clerk’s Office as required by New Jersey Court Rule 1:5-3.
· 5 copies of each brief and appendix are filed with the Appellate Division Clerk’s Office.
· 3 copies of the transcript are filed with the Appellate Division Clerk’s Office (in addition to the copy filed by the court reporter supervisor, clerk or agency). If the original and copy of the transcript were filed with the clerk of the court from which the appeal is taken prior to the filing of the notice of appeal, the appellant shall, within 10 days after all briefs of all parties have been filed, request the clerk of the court from which the appeal is taken to immediately transmit the filed copy to the clerk of the court to which the appeal is taken.
WHAT IF SOMEONE ELSE IS APPEALING A JUDGMENT, ORDER OR DECISION IN A CASE IN WHICH I AM INVOLVED AND I AM SERVED WITH A NOTICE OF APPEAL – DO I HAVE TO TAKE ACTION?
If you are a respondent in the appeal, within 15 days after service of the notice of appeal upon you (or your attorney, if you are represented) you must file a Case Information Statement in the form required by the New Jersey Appellate Division Court Rules. You must also follow the deadlines for submitting appendicies and briefs and if you want the New Jersey Appellate Division Court to consider your position on the appeal, file briefs on time with the New Jersey Appellate Division Clerk’s Office. If a respondent is not satisfied with the contents of an appellant’s appendix, the respondent should seriously consider preparing and filing their own appendix, such as where they wish to present to the Appellate Division documents from the record made in the trial court but which the appellant failed to include in its appendix.
WHAT IF I WANT TO APPEAL A CIVIL COURT’S DECISION THAT IS NOT FINAL AS TO ALL ISSUES AND PARTIES IN A CASE (INTERLOCUTORY APPEALS)?
Many court decisions fail to decide all issues in a case as to all parties and thus, are not generally considered “final” judgments or orders. If you do not have a final judgment or order, you do not likely have standing to take an appeal and must take further steps, such as filing a motion, to perfect your appeal. Appeals of decisions that do not resolve all issues in the case as to all parties are called “interlocutory appeals”. Interlocutory appeals generally require the party taking the appeal to file a motion with the New Jersey Appellate Division asking it to permit the party appealing to appeal the decision. The motion generally must be made within 20 days of the service of the judgment, order or decision. Motion practice in the New Jersey Appellate Division has its own set of rules that a party must follow when filing such motions. Another approach that might be available to a party seeking to appeal an order which is not considered final is to file a motion with the trial court asking it to “certify” the judgment, order or decision that you seek to appeal as “final.” The motion may have to be made within 20 days of the service of the judgment, order or decision. If you make a motion for certification of a judgment, order or decision and it is granted, then you may file an appeal in normal fashion without having to file a motion with the New Jersey Appellate Division for it to consider whether to accept an interlocutory appeal.
WHAT IF I WANT TO APPEAL A CIVIL COURT’S DECISION BUT I AM NOT SURE WHETHER IT IS FINAL AS TO ALL ISSUES AND PARTIES IN A CASE?
It is often quite difficult to determine whether a particular judgment, order or decision is final or
interlocutory. In fact, it is not unusual for attorneys and even judges to incorrectly decide that a particular judgment, order or decision is final when in fact it is not! If you are taking an appeal and are unsure if the judgment, order or decision is in fact final, you could file with the New Jersey Appellate Division a notice of appeal and a motion for leave to appeal at the same time. If you decide to do this, keep in mind the deadline for filing motions with the New Jersey Appellate Division, which differ from the deadlines for filing appeals from final judgments, orders or decisions.
DO I HAVE TO FILE A NOTICE OF APPEAL IF THE COURT GRANT’S MY MOTION TO TAKE AN INTERLOCUTORY APPEAL OR TO PROCEED AS AN INDIGENT?
An order of the New Jersey Appellate Division granting an interlocutory appeal or on an appeal by an indigent, waiving the payment of filing fees and the deposit for costs shall serve as the notice of appeal if no notice of appeal has been filed and except as otherwise provided by the New Jersey Appellate Division Court Rules (such as Rule 2:7-1), the date of the order is deemed to be the date of the filing of the notice of appeal for purposes of New Jersey Appellate Division Court Rules. However, within 10 days of the entry of such order, the appellant must file and serve the prescribed Appellate Division Case Information Statement in accordance with the New Jersey Appellate Court Rules. Upon the entry of such order, the appeal shall be deemed pending and the appellant, or the Appellate Division Clerk’s Office ( if the appellant appears pro se) shall immediately so notify all parties or their attorneys; the clerk of the court or state administrative agency or officer from which the appeal is taken; the trial judge if the appeal is from a judgment or order of a trial court sitting without a jury or if in an action tried with a jury and the appeal is from an order granting or denying a new trial or a motion for judgment notwithstanding the verdict. The trial judge shall file an opinion or may supplement a filed opinion as provided by the Appellate Division Court Rules.
IF SOMEONE FILES AN APPEAL, DOES THAT FILING AUTOMATICALLY SUSPEND OR TEMPORARILY STOP THE TRIAL COURT’S JUDGMENT, ORDER OR DECISION (STAY PENDING APPEAL)?
The filing of an appeal and the filing of a motion for leave to appeal does not automatically suspend, or stop (stay) the judgment, order or decision being appealed. As a general rule, the appealing party’s obligation to perform under the order appealed from is not automatically stayed by the filing of an appeal. If, however, the judgment is not stayed and is partially satisfied by execution pending appeal, restitution may be necessary, such as if the judgment is thereafter reversed (even where the party filing the appeal never filed a supersedeas bond nor made a cash deposit). To secure a stay of the trial court’s judgment, order or decision, the party taking an appeal may have to file a motion with the court asking it to stay the judgment, order or decision. Even if the court decides to enter a stay pending the appeal, before permitting a stay, the court may decide to require security for the judgment, order or decision, such as the appeal of a judgment or order for payment of a sum of money or which adjudicates rights and liabilities in respect of property, the stay must be supported by a bond or cash deposit unless the court otherwise orders for good cause shown. A bond or deposit may also be required as a condition for staying other types of judgment or order. If the motion for a stay is made before the New Jersey Appellate Division schedules an appeal for oral argument, the applications for the stay is most often made to the trial court instead of the New Jersey Appellate Division.
WHAT IF I FACE AN EMERGENCY RELATED TO MY APPEAL OR I MUST IMMEDIATELY SUSPEND OR TEMPORARILY STOP ENFORCEMENT OF A TRIAL COURT’S JUDGMENT, ORDER OR DECISION?
If you have an emergency concerning your appear or you must seek to immediately suspend or temporarily stop enforcement of a trial court’s judgment, order or decision, you may want to make a motion for emergency relief (“emergent relief”). Those seeking emergent relief should contact the Superior Court Clerk's Office where the trial court sits to find out the particular judge handling emergent requests for that court. If the trial court denies the motion and the party seeking relief believes that the motion was improperly denied, the party should file a motion for emergent relief with the New Jersey Appellate Division Clerk’s Office.
WHAT IF MY CORPORATION OR COMPANY WANTS TO TAKE AN APPEAL?
If you are a corporation or company, the corporation or company is generally not permitted to file its own papers with the New Jersey Appellate Division unless they are represented by a New Jersey attorney
WHAT IF I DON’T HAVE ENOUGH MONEY TO PAY THE FILING FEES FOR AN APPEAL?
If you had indigent status in the trial court (meaning that you could not pay your filing fees) and if you submit a copy of the order providing you that status and an affidavit stating your status has not changed since the entry of the order, the New Jersey Appellate Division may permit you to continue as an indigent for the appeal. If you are seeking indigent status for the first time during the filing of your appeal, you shall have to file a motion with the New Jersey Appellate Division asking for indigent status. Indigent status might only relieve you from paying filing fees – if you are taking the appeal, you may still have to pay for the transcript of the hearing or trial that is being appealed.
WILL THE COURT APPOINT AN ATTORNEY TO REPRESENT ME IN MY CIVIL APPEAL?
It is uncommon for the New Jersey Appellate Division to appoint attorneys free of charge to represent parties involved in civil appeals
PAYING A DEPOSIT FOR THE COSTS OF THE APPEAL
In most civil appeals, in addition to filing fees, the party taking the appeal must deposit a sum of money with the New Jersey Appellate Division for the “costs” of the appeal. The sum must be deposited within 30 days of the appeal’s filing. There are exceptions to this rule and you should consult with an attorney or law books to learn more about such exceptions.
WHAT IF I NEED MORE TIME TO PREPARE AND FILE MY APPELLATE BRIEF?
If you get your opponent’s consent, the New Jersey Appellate Division Clerk’s Office normally provides one 30 day extension. To get the extension, you must submit to the New Jersey Appellate Division Clerk’s Office a letter stating your reason for the request and explaining that your opponent does not object. The party seeking the adjournment must send a copy of that letter to their opponent.
WHAT IS THE “RECORD” IN AN APPEAL”?
The record on appeal consists of all papers on file in the court or courts or agencies below, with all entries as to matters made on the records of such courts and agencies, the stenographic transcript or statement of the proceedings therein, and all papers filed with or entries made on the records of the appellate court. Certain portions of the record must be included in the appendix filed by the appellant. If the appeal involves an agency decision, within 30 days of the service upon it of the notice of appeal the agency or officer from which the appeal is taken shall file in the appellate court a statement of the items comprising the record on appeal and shall serve a copy thereof on each party to the appeal. The clerk of the court below (usually the trial court) or the agency or officer from which the appeal is taken, or the clerk of the New Jersey Appellate Division (if the original transcript is on file there) shall on request deliver the original transcript to the appellant in exchange for a copy. The remainder of the record shall be retained by the clerk or agency except that the attorney for any party may be permitted to make use of any portion of the record in the office of the clerk or agency and remove the original from that office, provided a copy thereof remains on file. The failure to return such record may constitute contempt of court. On the request of a party or of a judge of the New Jersey Appellate Division, the clerk of the court or courts below or the agency from which the appeal is taken shall deliver to the New Jersey Appellate Division Clerk’s Office for use by counsel at the argument or for the personal inspection by the New Jersey Appellate Court judges such portions of the records as they designate.
WHAT IS INCLUDED IN THE APPENDIX AND HOW IS IT PREPARED?
Since every civil appeal is unique, it is impossible to explain everything that has to be included in an appendix for a particular appeal. Whenever possible counsel shall agree upon a joint appendix, which shall be bound separately and if the parties agree to a joint appendix, they shall share the cost between themselves. The following is a partial list of what to include and how to prepare an appendix:
· the complete pretrial order, if any, and the pleadings
· the judgment, order or determination appealed from or sought to be reviewed or enforced, including the jury verdict sheet, if any
· the trial judge's charge to the jury, if at issue, and any opinions or statement of findings and conclusions
· the statement of proceedings in lieu of record made pursuant to New Jersey Court Rule 2:5-3(f)
· the notice or notices of appeal
· the transcript delivery certification prescribed by New Jersey Court Rule 2:5-3(e)
· any unpublished opinions cited pursuant to New Jersey Court Rule 1:36-3
· such other parts of the record, excluding the stenographic transcript, as are essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised.
· If the appeal is from a summary judgment, the appendix shall also include a statement of all items submitted to the court on the summary judgment motion and all such items shall be included in the appendix
· briefs in support of and opposition to motions shall be included only if the brief is referred to in the decision of the court or agency or the question of whether an issue was raised in the trial court is germane to the appeal, in which event only the material pertinent to that issue shall be included.
· A document that is included in appellant's appendix shall not also be included in respondent's appendix unless appellant's appendix includes only a portion of the document and the complete document is required for a full understanding of the issues presented.
· If the same document has been annexed to more than one pleading or motion filed in the trial court, the document shall be reproduced in the appendix only with the first such pleading or motion and shall be referred to thereafter only by notation to the appendix page on which it appears.
· Documents included in the appendix shall be abridged by omitting all irrelevant or formal portions, with asterisks being used to indicate omissions.
· The filing date of each included paper shall be stated at the head of the copy as well as its subject matter (e.g., Pretrial Order, Notice of Appeal).
· Each page shall be numbered consecutively followed by the letter "a" to indicate the appendix (e.g., 1a, 2a, etc.).
· The appendix may be bound with the brief or separately, into volumes containing no more than 200 sheets each. If bound with the brief, it shall follow the brief, but there shall be a single table of contents of the brief and appendix. If bound separately it shall be prefaced with a table of contents. The table of contents shall indicate the initial page of
each document, exhibit or other paper included, and the pages of the stenographic record at which each exhibit was marked for identification and was offered into evidence.
· Attachments to a document by way of affidavits, exhibits or otherwise shall each be separately identified in the table of contents and the initial page of each such attachment noted therein.
· If there are multiple volumes of the appendix, each volume shall contain a full table of contents and shall specify on its cover the appendix pages included therein.
WHAT IF THERE ARE FACTS, DOCUMENTS OR EVIDENCE THAT I NEED TO REFER TO IN MY BRIEF OR THAT I NEED TO INCLUDE IN MY APPENDIX BUT THAT WERE NEVER PRESENTED TO OR FILED WITH THE TRIAL COURT?
Parties involved in an appeal are generally required to only discuss facts, documents or evidence appearing in the trial court’s record of the case. Parties who attempt to present facts or evidence or documents to the New Jersey Appellate Division that were never submitted to the trial court prior to the appeal could face severe penalties. If you want to discuss such facts, documents or evidence, you shall likely need to file a motion either with the trial court and/or with the New Jersey Appellate Division, such as a motion to expand the record. In some cases, it may be necessary to make a motion seeking to return the matter to the trial court and to require it to make further evidentiary findings.
A party to an appeal who questions whether the record fully and truly discloses what occurred in the court or agency below shall, except as otherwise provided by the New Jersey Appellate Division Court Rules, make a motion to the trial court or agency to settle the record. Thereafter, if the appellant is denied and makes a similar motion to the New Jersey Appellate Division Court which may order a correction of the record or direct the trial court or agency to do so. The making of such a motion tolls the time for serving and filing the next brief due but the remaining time shall again begin to run from the date of entry of an order disposing of such a motion. If the proceedings were sound or video recorded, a party, prior to moving for an order settling the record, may, on notice to all other parties, request the clerk of the court in which the appeal is pending to review the tape thereof to determine whether a particular portion of the transcript accurately transcribed what was said by a participant. The clerk shall notify all parties of the determination, requesting that any objection be submitted in writing within ten days of the notification. If no timely written objection is received, the transcript shall be deemed so corrected and a copy of the notification shall be filed. If a party timely objects in writing, that party shall move for correction of the transcript in the court or agency from which the appeal is taken; however, if the appeal has already been calendared, the motion shall be made to the court in which the appeal is pending.
At any time while an appeal from a state administrative agency is waiting to be heard, if it appears that evidence not developed in the proceedings below may be material to the issues on appeal, the New Jersey Appellate Division Court on its own motion or on the motion of any party, may order, on such terms as it deems appropriate, that the record on appeal be supplemented by the taking of additional evidence and the making of findings of fact thereon by the agency below or, in exceptional instances, by a judge of the Superior Court especially designated for that purpose.
IF I AM RESPONDING TO AN APPEAL, DO I HAVE TO PREPARE MY OWN APPENDIX?
If a respondent is not satisfied with the contents of an appellant’s appendix, the respondent should seriously consider preparing and filing their own appendix, such as where they wish to present to the Appellate Division documents from the record made in the trial court but which the appellant failed to include in its appendix.
WHAT IF A NEW CASE OR LAW IS DECIDED AFTER I FILE MY APPELLATE BRIEF AND ANY REPLY BRIEF ALLOWED BY THE NEW JERSEY APPELLATE DIVISION COURT RULES AND THE NEW CASE COULD AFFECT MY APPEAL AND I NEED TO ADVISE THE NEW JERSEY APPELLATE DIVISION ABOUT THAT NEW CASE OR LAW?
Normally, parties involved in an appeal are not allowed to submit more briefs beyond what is specifically allowed by the New Jersey Appellate Division Court Rules. However, if a new case or law is decided while the appeal is waiting to be heard and after a party affected by the new case or law has filed all papers with the court that the rules permit, the party may serve on all other parties and file with the New Jersey Appellate Division Clerk’s Office a letter advising the court of the new case or law. Within 5 days of receiving that letter, any other party may serve on all opponents and file with the New Jersey Appellate Division’s Clerk’s Office a letter responding to the first letter.
DOES THE NEW JERSEY APPELLATE DIVISION AUTOMATICALLY SCHEDULE APPEALS TO BE ARGUED ORALLY?
No. However, any party involved in an appeal may request oral argument by filing a request for oral argument within a specific time frame. This is done by filing with the New Jersey Appellate Division Clerk's office, no later than 14 days after service of party responding to the appeal's brief, a separate paper containing the case caption and requesting oral argument. Parties involved in appeals that are to be orally argued need to advise the New Jersey Appellate Division Clerk’s Office of any dates on which the parties are unavailable by sending the Clerk a letter and forwarding a copy of that letter to all of the party’s opponents.
DOES THE NEW JERSEY APPELLATE DIVISION AUTOMATICALLY SCHEDULE MOTIONS TO BE ARGUED ORALLY?
No. Appellate Division motions are normally decided “on the papers” which means based on the papers submitted to the New Jersey Appellate Division by the parties and without any argument by the parties or their attorneys. Parties seeking oral argument on Appellate Division motions must include a request for oral argument in their motion papers. However, merely making the request in the motion papers does not assure that the New Jersey Appellate Division will grant the request, since the New Jersey Appellate Division rarely allows oral argument on motions that it hears.
WHAT IF, AFTER FILING A NOTICE OF APPEAL, I DECIDE THAT I WANT TO ABANDON OR DROP MY APPEAL?
A party taking an appeal may withdraw or dismiss its appeal, without the consent of the party’s opponents, at any time before the first brief is filed. This is done by forwarding a letter to the New Jersey Appellate Division Clerk’s Office advising the Court of this decision, by forwarding copies of the letter on the party’s adversaries and by filing a proof of service of the letter with the New Jersey Appellate Division Clerk’s Office. After the first brief is filed in the appeal, all parties involved in the appeal (or their attorneys) must sign a stipulation of dismissal and that signed stipulation must be filed with the New Jersey Appellate Division Clerk’s Office.
WHAT ARE SOME MISTAKES IN THE FORMAT OF APPELLATE PAPERS?
· Submitting handwritten briefs.
· Submitting appendices and exhibits that are difficult to read.
· Failing to include covers on briefs and appendices of the proper material.
· Failing to fasten papers properly to prevent loss of pages.
· Failing to include the name, address and telephone numbers on papers submitted to the New Jersey Appellate Division
· Submitting briefs that exceed page limits.
CONTENTS & FORMAT CHECKLIST FOR APPELLATE BRIEFS & APPENDICIES
· Type the appellate brief on 8 1/2" x 11" paper and use the proper typefont (12 point courier) and margins (1 inch) and each page may contain no more than 26 double
spaced lines of no more than 65 characters, including spaces.
· Make sure the brief and all documents included in the appendix are able to be read
· Use white covers for appellant's brief
· Use blue covers for party responding to the appeal's brief
· Use buff covers for appellant's reply brief.
· file five copies of your brief and appendix with the New Jersey Appellate Division Clerk's Office
· serve two copies of your brief and appendix with the New Jersey Appellate Division Clerk's Office
· file with the New Jersey Appellate Division Clerk's Office a proof of service of your service of the your brief
· If brief and appendix are bound together, the brief and appendix share one table of contents
· If the appendix is bound separately, the brief and appendix have separate
· tables of contents.
· The brief’s table of contents should include the point headings of the legal arguments contained in the brief.
· The appendix table of contents must indicate the first page of each document in the appendix.
· the filing date of each document in the appendix must be put at the head of the
· page where the document first appears.
· When putting documents into the appendix, use documents that were actually filed or provided to the trial court instead of drafts
· Include in the appendix all the relevant documents necessary for the New Jersey Appellate Division to decide the appeal, including the judgment, decision or order appealed from and the trial court’s opinion or statement of findings, if any, any pretrial order, the complaint, answers and a copy of the notice of appeal. If the appeal concerns the denial or granting of a specific motion or motions, include the motion papers (but generally speaking, motion briefs submitted to the trial courts are excluded from appendicies).
· If the trial court delivered its opinion, findings or conclusions orally, submit the transcript of that hearing to the New Jersey Appellate Division. If that transcript is not being filed with the New Jersey Appellate Division separately from the appendix, it should be included in the appendix and clearly identified in the appendix table of contents and the procedural history in the brief.
· If the trial court’s opinion was published as legal authority, provide the opinion’s citation to the New Jersey Appellate Division.
· If the exhibits are too large to include in the appendix, the party preparing the appendix may submit a letter to the New Jersey Appellate Division Clerk's Office (and that party must also send a copy of the letter to their opponent), which identifies the exhibits and their approximate size and bulk. After receiving the letter, the New Jersey Appellate Division will tell the New Jersey Appellate Division Clerk’s Office to advise the party making the request if the New Jersey Appellate Division needs to see these exhibits and if so, when and where to deliver them.
· Don’t include more than 200 in a single volume of the appendix. If the appendix and brief combined exceed this page limit, they must be bound separately.
· Appendix pages are numbered consecutively followed by the
letter "a" (e.g. 1a, 2a, etc.). If plaintiffs and defendants submit their own appendicies, it is advisable to number the pages of the different appendicies with “da” for defendants and “pa” for plaintiffs.
· Each party’s appellate briefs cannot exceed 65 pages
· Reply briefs cannot exceed 20 pages
· The briefs of parties responding to an appeal/cross-appellant's brief filed pursuant to R. 2:6-2(d) cannot exceed 90 pages.
· The brief of an appellant/crossparty responding to the appeal's brief pursuant to R. 2:6-4(e) cannot exceed 65 pages.
· The appellate brief must include a carefully drafted procedural history supported by citations to the appellate record and that does not include any legal arguments.
· The appellate brief must include a carefully drafted statement of facts supported by citations to the appellate record and that does not include any legal arguments. This statement should discuss the facts that the New Jersey Appellate Division needs to decide the appeal.
· The appellate brief must include a legal argument section for each legal argument raised on the appeal. These sections should not overlap one another but instead, should be strictly limited to the point to which the section pertains. Normally, the legal argument sections of briefs include citations to cases, statutes, court rules and other authorities that might support the party’s arguments. These citations should be in the format specifically required by the court rules.
· Avoid any references in the appellate brief to any fact or evidence never submitted as part of the trial court’s record and that is not included in the appendix.
CHECKLIST FOR APPELLATE MOTIONS
· each document submitted to the court must contain the name, address and telephone numbers of the moving party
· each document submitted to the court must contain the case caption
· documents submitted to the court should be dated and signed
· notice of motion specifically stating the relief being sought
· brief explaining the reasons for making the motion. The brief shall not exceed 25 pages.
· white covers for movant's brief covers.
· blue covers for movant's brief covers.
· proof of service stating that two copies of the motion was served on the moving party’s opponent
· file the original and four copies of the entire motion package with the New Jersey Appellate Division Clerk's Office.
· If the motion seeks additional time to file papers (such as a brief), state the date by which the moving party can file the papers
· If the motion seeks additional time to file other papers (such as a brief), it is often best to begin preparing those papers so that if the motion is granted the moving party shall be able to meet the New Jersey Appellate Division’s old deadline or if the motion is granted, the new deadline set by the New Jersey Appellate Division
· If you want oral argument on your motion, include a request for such argument in your motion papers
DEADLINES FOR FILING AND SERVING PAPERS
· within 10 days of the appealing party’s receiving the complete transcript, but no later than at the time of filing the appealing party's brief, the appealing party must provide one copy of the transcript to any one party responding to the appeal, to be shared by all the party responding to the appeals.
· the appealing party must serve and file a brief and appendix either: (1) within 45 days after the delivery of the transcript, if a verbatim record was made of the proceedings below; (2) if the transcript was delivered prior to the filing of the notice of appeal or if no verbatim record was made of the proceedings below, within 45 days of the filing of the appeal; (3) on an appeal from a State administrative agency, within the above time frame or in 45 days after the Attorney General serves and files the statement of the items comprising the record on appeal, whichever is later.
· A party responding to the appeal shall serve and file a brief and appendix, if any, in 30 days after receiving the appealing party's brief and appendix.
· The appealing party may serve and file a reply brief within 10 days after receiving the
party responding to the appeal's brief.
· If there is a cross appeal before the New Jersey Appellate Division in your case, the briefing schedule is similar to that outlined above but the appealing party has 30 days to file a brief in response to the cross appeal and the party responding to the original appeal has 10 days to file a reply.
· Regardless of the above deadlines, the New Jersey Appellate Division often sets different deadlines from those identified above. The New Jersey Appellate Division does this by entering a separate scheduling order. When it enters a scheduling order, the deadlines stated in that order control the parties’ deadlines. REMEMBER TO ALWAYS FIND OUT FROM THE APPELLATE DIVISION CLERK’S OFFICE IF A SCHEDULING ORDER WAS ENTERED BY THAT CLERK AFTER THE APPEAL WAS FILED!
CAN I HANDLE AN APPEAL MYSELF?
Appeals are some of the most complex proceedings in the court system. Some people can and do successfully handle appeals themselves, from filing the first paperwork to the court’s final decision on the appeal. The court normally has forms available on the worldwide web. However, neither court forms, websites nor advice from court personnel are good substitutes for a competent attorney’s legal services. Each case has its own particular legal issues and therefore, its own challenges. If you can afford an attorney, it is best to have the attorney perform the steps necessary to take an appeal. Appeals require those involved in the appeal (or their attorneys, if they are represented) to file strict deadlines and rules and failure to do so could result in fines or having the appeal dismissed temporarily or forever. The following are additional reasons to use an attorney to handle part or all of your case:
· court fees often change
· court rules often change
· court employees cannot give you “free” legal advice and a judge may refuse to let you claim that you were right in taking an action (or in deciding not to take action) because you relied on advice from such employees
· court forms available on websites may not cover every situation you may face in court
· each case has its own particular legal issues and therefore, its own challenges
· it is very common for people to file inadequate or incorrect complaints that result in the complaints or answers to complaints being rejected by the court or being dismissed by the court after filing and before or after trial because of procedural deficiencies
· it is not uncommon for judges to get very frustrated by an unrepresented party’s lack of preparation or ignorance of the facts or law of the case.
· a court has the power to punish unprepared parties or parties who make mistakes, such as by throwing their case out of court or limiting what they can present at trial.
· New Jersey has many published cases, laws, regulations, court rules and rules of evidence that are very tricky and that can be used to prevent you from doing much of what you want to do at trial.
· it is very common for courts to refuse to allow a party to use or refer to documents or items at trial that the person themselves never prepared. Often parties stumble into court with a video, photograph, bill or affidavit or other form of written statement, thinking they are going to use it as proof that they lost money or that they are not responsible for someone else’s damages, only to have a judge tell the parties that it is not going to even consider such items or documents.
· without the proper preparation, items and documents may never be considered by the court. Also, if there are any legal issues to be dealt with at trial, you must be prepared to argue them, which may require you to refer to court rules, evidence rules, laws, regulations or published cases.
· you cannot show up at court expecting the judge hearing your case to explain court rules, evidence rules, court procedure or the details of the law that applies to your case. The judge hearing your case is not permitted to give you legal advice.
It is important to remember that even if you have an attorney, you could lose your case. Hiring an attorney to handle part or all of your case does not guarantee your success. However, it may provide the assistance you need to win your case, to settle your case or to avoid certain mistakes.
DOES THE LAW OFFICE OF PAUL DEPETRIS HAVE EXPERIENCE HANDLING APPEALS?
Yes. Paul DePetris has performed the following tasks:
· Prepared appellate briefs for appeals from municipal court decisions.
· Prepared appellate briefs for appeals from superior court decisions.
· Prepared appellate briefs that succeeded in defeating appeals.
· Prepared appellate briefs that overturned the incorrect decision of trial judges.
· Prepared an appellate brief that defeated an attempt to appeal a case before the trial court completed the trial of the case (interlocutory appeal motions).
· Assisted other attorneys with the handling of appeals and interlocutory motions involving appeals.
WHAT IF I DON’T HAVE ENOUGH MONEY TO HIRE AN ATTORNEY TO HANDLE MY APPEAL FROM BEGINNING TO END?
In many situations, the Law Office of Paul DePetris offers alternatives to handling cases for an hourly fee, such as by offering to prepare the court paperwork for you or helping you handle your claim by yourself. Such flexible methods may allow you to keep the amount legal fees you spend on your case to a fixed sum, while providing you the help you need to handle your case. For a no cost phone consultation about what the Firm might be able to do for you, call or write an email to Mr. DePetris at: 609-714-2020 or consumerlaw@newjerseylemon.com.
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