Making Concessions at Oral Argument

Today, while I was waiting to argue an appeal in the Appellate Division, an argument before mine illustrated the idea that sometimes it is the right move to concede that one’s position on a particular legal issue is not correct.  The case involved an arbitration clause.  Counsel for a respondent that was opposing arbitration contended, among other things, that the ruling below that had denied arbitration could not be appealed as of right.  He argued that because the amendment to the Court Rules that permitted immediate appeals of decisions compelling or denying arbitration had not become effective until after the decision below in his case, there was no right to appeal. 

Judge Espinosa noted, however, that the Supreme Court’s decision in GMAC v. Pittella, 205 N.J. 572 (2011), had been rendered before the proceedings below in the appeal being argued, and that the Supreme Court had stated in that opinion that, as of that date, decisions denying or compelling arbitration would be immediately appealable as of right.  (The Court’s precise language in GMAC was “as of today, litigants and lawyers in New Jersey are on notice that all orders compelling arbitration shall be deemed final for purposes of appeal, regardless of whether such orders dispose of all issues and all parties, and the time for appeal therefrom starts from the date of entry of that order” (emphasis by the Court)).  The attorney responded that since the Court Rule had not yet been enacted, any immediate appealability rule was not yet effective. 

Judge Espinosa then asked, in a teasing tone with a big smile on her face, whether the attorney was really contending that when a Supreme Court opinion contains a procedural directive that, by the Court’s express language, was effective immediately, that directive in fact did not become effective until a Court Rule embodying it was adopted and approved.  Plainly, she was incredulous, as indeed she should have been, since the Supreme Court ruled forty years ago, in Busik v. Levine, 63 N.J. 351, 362-63 (1973) (plurality opinion), that it could exercise its constitutionally-based rulemaking power in the context of an opinion in a particular case rather than only through the rulemaking process.  The attorney thought the better of what he had said, and conceded that he was not taking such a position.  His credibility, and that of his client, could have been seriously undercut if he had not stepped back from his original argument. 

The attorney had told the panel that he had ten reasons why the decision below denying arbitration should be affirmed.  One or more of the nine other reasons may yet carry the day.  But it was very prudent of him to concede this particular argument, and it is a lesson for all appellate practitioners that sometimes we must step back from some of our contentions.