This seminar, sponsored by the Morris County Bar Association, took place last night. The headliners of the panel of presenters were Justice Patterson and Judges Axelrad, Sabatino, and Stern. [Disclosure: As discussed here, I was also one of the panelists].
This seminar was unlike some others focusing on appellate practice in that, as the seminar title suggests, more time than usual was devoted to thinking ahead to an appeal by preserving the trial record. Justice Patterson emphasized the imporance of precise objections, and the need for greater formality than might otherwise be expected or customary at trial. This is especially so, she stressed, in the context of events such as a charge conference, which are often hurried, and where shorthand references to proposed charges submitted, prior colloquy or rulings of the trial court, or other shortcuts, if not amplified, could hinder or prevent appellate review. Justice Patterson’s advice in this regard was “be formal even at the cost of being annoying.” Otherwise, the plain error standard of review may end up applying to your appeal, and that would prejudice your client’s position.
Judge Sabatino focused on rulings that exclude evidence at trial. He strongly suggested that counsel make a proffer of what the proposed evidence would have been, or what testimony an excluded witness would have given. Federal Rule of Evidence 103 expressly addresses such proffers. Though there is no comparable New Jersey Evidence Rule, Judge Sabatino finds proffers to be available in New Jersey state court as an important safeguard in enabling an appellate to determine whether the excluded evidence or testimony might have altered the result.
Judge Stern addressed a common concern of counsel at trial: reluctance to object too much in the presence of the jury. Acknowledging that concern, Judge Stern suggested that counsel take opportunities to object to evidence or testimony when it is anticipated, and before it is offered in the presence of the jury. Alternatively, though second best, Judge Stern suggested that a motion to strike the evidence or testimony and to instruct the jury appropriately is another way to protect the evidentiary record without the jury seeing it.
Finally, Judge Axelrad, who had extensive experience in the Family Part (among her other judicial duties), noted that, in her experience, counsel in Family matters often end up essentially testifying to “facts” that are not supported by Certifications or testimony. Such “facts” are not evidence. She cautioned family law counsel in particular to see past what may be the heat of the moment and make sure that all necessary facts are placed into the record by competent Certifications or testimony.
There was also much good advice about when and what to appeal, when an interlocutory appeal may be appropriate, when to seek and how to handle Civil Appeals Settlement Program (“CASP”) Conferences, appellate motion practice, tips for oral arguments, and Supreme Court practice. Addressing that final topic, Justice Patterson urged counsel who argue in the Supreme Court, among other things, to “be yourself.” Though nothing can substitute for knowledge of the facts and the law of the case, Justice Patterson said that the same personal qualities that lead an attorney’s colleagues to like to go to lunch with him or her may help the Court feel favorably toward that attorney’s position. Judge Sabatino agreed, while adding a note of levity. He quoted former United States District Court Chief Judge John Gerry, who similar urged counsel to “be yourself,” but added “unless you are a first-class jerk.”
There was talk that the Morris Count yBar Association might offer an encore presentation of this seminar, with the same panelists. Keep an eye out for it.