Don’t Make the Court Ask You Twice

Fletcher v. Camden County Prosecutor’s Office, 2010 WL 4226150 (App. Div. Oct. 27, 2010).  In this appeal from a summary judgment, the Appellate Division questioned whether the appellate record was the same as the motion record below.  Somewhat unhappily, the court noted that the parties were asked before and after argument to review the motion record and ensure that the full record was before the Appellate Division.  Failure to comply with even one such request by an appellate court, let alone more than one, does not endear counsel or clients to the court.

The court never should have had to ask about the summary judgment record.  Rule 2:6-1(a)(1) requires the appellant’s appendix to contain a list of items in the summary judgment record.  Moreover, it should have been possible for the parties to agree on a joint appendix that included that information, since Rule 2:6-1(d) calls on counsel, “[w]henever possible … [to] agree upon a joint appendix.”  Unfortunately, counsel in many appeals make no effort to agree on a joint appendix, and the Rules do not offer any way to compel a joint appendix in cases where it should be possible to agree on one.  The result is the unnecessary death of more trees.