Major Changes to the Appellate Rules, Effective September 1, 2022

In an omnibus rule amendment, the Supreme Court announced extensive rules changes that will take effect on September 1, 2022. Those amendments include significant changes to the appellate rules contained in Part 2 of the New Jersey Court Rules, as well as to some Part 1 Rules that affect appeals. Here is a summary of the most important amendments:

Rule 2:13-1(b) has been amended to change the title of “Presiding Judge for Administration,” the top judicial position in the Appellate Division, to “Chief Judge of the Appellate Division.” Per amended Rule1:37-3, the abbreviation for that will be “C.J.A.D.” Congratulations to Judge Messano, who will become New Jersey’s first Chief Judge of the Appellate Division.

Rule 1:36-2(a) has been amended to change the procedure by which Appellate Division opinions can be approved for publication. The revised language states that opinions of the Appellate Division “shall be published only upon the direction of a majority of the panel members issuing the opinion and with the approval of the Part’s presiding judge.” That clarifies the previous language, which had permitted publication of Appellate Division opinions “only upon the direction of the panel issuing the opinion.” It also gives presiding judges of Parts a veto power over publication, although it does not seem likely that presiding judges will veto the wishes of a majority of their Part in this regard.

Rule 2:2-3, which deals with appeals as of right to the Appellate Division, has been amended to add several new categories of rulings that are immediately appealable as of right. Those include “orders granting or denying as a final matter class certification, R. 4:32” (a turgid and vague formulation apparently intended to allow all class certification rulings to be appealed immediately by the losing party), “”orders denying motions for intervention as of right, R. 4:33,” “orders granting pretrial detention,” R. 2:9-13 and R. 3:4A,” and “any other orders as are provided by case law,” a catch-all category.

An entirely new paragraph has been added to Rule 2:3-3. That new language reads: “When aware of any other pending appeal or an appeal already decided arising out of the same judgment, order, decision, or action, parties are obligated to immediately notify the clerk of the court of the existence of the other appeal even if the other appeal is filed after the party’s appeal. This obligation requires the party to advise of other appeals pending or decided even if pending in or decided by a court of some other jurisdiction.” This appears to be, in essence, an expansion of the obligation currently imposed in the Case Information Statement to disclose other appeals “now pending or about to be brought before this court [meaning the Appellate Division only]” that “arises from substantially the same case or controversy” as or “involves an issue that is substantially the same, similar or related to an issue” in the appeal in which the CIS is being filed.

Rule 2:4-1, relating to the time for appeal, has been amended to incorporate times for appealable orders in adoption matters (21 days) and for orders granting pretrial detention (seven days).

Rule 2:5-1, which addresses the notice of appeal and the case information statement, has been completely rejiggered. Rule 2:5-2, which called for a deposit for costs, has been deleted. Rule 2:5-3(d), which discusses ordering transcripts, has been re-written to address private parties, governmental parties, and indigent parties in separate provisions. That Rule also now provides that the preparer of a transcript is to send the transcript directly to the Appellate Division, rather than to the party ordering the transcript, as before. That saves a step, since the party was then obligated to file the transcript with the Appellate Division, and ensures that the transcript makes its way to the court, since some parties neglected to follow through on filing transcripts.

In a set of changes perhaps most impactful of all to appellate practitioners, Rule 2:6 has changed the landscape for briefs in various ways. Rule 2:6-6(a) requires the cover of a brief (and an appendix, if bound separately) now to include “the date of submission to the court.” The page limits for opening and reply briefs, contained in Rule 2:6-7, have been reduced across the board. Opening briefs, which had a limit of 65 pages, are now limited to 50 pages. Replies, formerly permitted up to 20 pages, are now restricted to 15 pages. The page limit for a brief of a respondent/cross-appellant, pursuant to Rule 2:6-2(d) has been reduced from 90 pages to 75 pages, and the page limit for a brief of an appellant/cross-respondent under Rule 2:6-4(e) must now fit within 50 pages instead of 65. All page limits may be “relaxed by leave of court,” but only “upon a showing of good cause by motion.” Movants must also “certify the motion is made in good faith and not for purposes of delay.”

The formatting requirements for briefs, contained in Rule 2:6-10(a), have also been amended. Formerly, the Rule provided that each page of a brief “shall contain no more than 26 double-spaced lines of no more than 65 characters including spaces, each of no less than 10-pitch or 12-point type.” Using Courier New 12 satisfied that mandate even if counsel did not understand why it did so. The amended Rule states that “[a]ll briefs, petitions, and motions shall be double-spaced and use Times New Roman or a similar font in 14 point with character spacing expanded by .3 points.” As before, however, “[f]ootnotes and indented quotations may be single-spaced.” The much-criticized Courier font is now history.

The page limit reduction may make briefing more challenging in some cases. But the change to Rule 2:6-11(a), which extends the time for reply briefs from ten days to fourteen days, may offer some relief.

Rule 2:6-11(d), which deals with submissions after normal briefing is concluded, has been expanded as to two types of cases. The new language allows an appellant in criminal, quasi-criminal, or juvenile matters to advise the court, by letter, “of any change in the custodial status of a defendant, juvenile, or other party subject to confinement, during the pendency of the appeal.” A comparable provision allows either party to an appeal involving Division of Child Protection and Permanency matters to advise the court by letter “of any change in the placement status of the child during the pendency of the appeal.”

Rule 2:6-11 has been amended to add motions for summary disposition to the list of motions that automatically toll the time for filing briefs and appendices. A new paragraph has been added that makes clear, however, that the time will not be automatically tolled if the party filing the motion was previously granted one or more extensions of time to file briefs and appendices. Such parties must file a motion for an extension.

Rules 2:7-1, 2:7-4, and 2:7-5 have been amended in certain respects. Those Rules deal with filing fees and transcript costs.

The summary disposition rule, Rule 2:8-3(b), has been amended to impose a presumptive time limit for motions for summary disposition. The new language states that a motion for summary disposition “may not be filed, absent leave granted by the court, if 25 days have elapsed from the filing of all respondent briefs.” That is a time constraint that must be kept in mind if there is an intent to seek summary disposition.

Rule 2:11-1 addresses oral arguments. An amendment to that Rule states that Appellate Division appeals will be considered without oral argument “unless argument is requested by one of the parties [this phrase was in the prior version] or unless the court deems oral argument appropriate [this phrase is new].” The previous requirement that a party requesting oral argument do so within fourteen days after service of the respondent’s brief has been deleted from that sentence but has been moved elsewhere, so it still governs. The Rule also now states that if one party requests oral argument, other parties can rely on that request and need not file their own requests for argument. Relatedly, a party cannot withdraw its request for argument unless “all other parties participating in the appeal” consent.

Finally, Rule 2:11-4, which governs attorneys’ fees on appeal, has a new sentence. That sentence states “Although a movant should append statements or invoices sent to the client as supportive of the claim for fees, the supporting affidavit must also list in detail the services rendered, the dates the services were rendered, and the type of service rendered on that date.” That seems duplicative. It also assumes that statements or invoices are sent to clients even in purely contingent cases, which is generally not so. Presumably, the “should append statements or invoices” language does not make such a submission mandatory if bills have not been sent to clients.

Other Rules have been amended in largely formal respects. And many Rules other than those related to the appellate process have been amended as well. It would be prudent to review the entire order, so as to be fully informed about the changes.


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