Oral Argument on Substantive Civil Motions Under Rule 1:6-2(d): A Modest Proposal

LVNV Funding, LLC v. Colvell, 421 N.J. Super. 1 (App. Div. 2011).  This opinion, by Judge Koblitz, reversed summary judgment for a creditor on a revolving credit card account and discussed the proper way to prove such a case.  More globally, though, the decision emphasized that when oral argument is requested in a trial court on a “substantive motion involving significant legal issues,” the request should be granted, under Rule 1:6-2(d).  That rule states that except as to discovery or calendar motions, a request for oral argument on a motion “shall be granted as of right.”

Judge Koblitz did observe that if a trial judge decides on the papers a motion as to which oral argument has been requested, “the trial court should set forth in its opinion its reason” for ruling without oral argument.  The trial judge in this case did not do that.  The panel did not consider whether the denial of oral argument warranted reversal, since the substantive failure of proof that the opinion went on to disucss called for reversal.

The Appellate Division has not always enforced the seemingly plain and absolute requirement (in non-discovery or non-calendar motions) of granting oral argument when it is requested.  Judge Koblitz’s opinion cites several other published Appellate Division cases in this area.  In Great Atl. & Pac. Tea v. Checchio, 335 N.J. Super. 495 (App. Div. 2000), the Appellate Division noted that oral argument requests under Rule 1:6-2(d) are to be granted as of right, and that no basis appeared to relax that rule.  Raspantini v. Arocho, 364 N.J. Super. 528 (App. Div. 2003), similarly noted that while a request for oral argument may be denied, reasons for the denial should be set forth on the record.  In Spina Asphalt Paving v. Fairview, 304 N.J. Super. 425 (App. Div. 1997), the court found “no justification for the denial of the opportunity to appear and argue the motions in court,” though the panel did not reverse for that reason since the parties preferred a speedy decision on the merits of the appeal.

The final case that Judge Koblitz cited.  Fillipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997), a post-judgment matrimonial matter, arose under Rule 5:5-4(a), which provides that “the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions ….”  Judge Pressler ruled that motions involving “serious emancipation disputes” should have been heard orally, as requested, “as a matter both of due process and the appearance of due process.”  Since Rule 5:5-4(a) is not as strong as Rule 1:6-2(d) in mandating oral arguments on motions, Judge Pressler’s view applies even more strongly to civil motions under Rule 1:6-2(d).

Courts should be required to grant oral argument requests on any dispositive motion, with no right to relax Rule 1:6-2(d).  Argument requests should be granted on any non-discovery, non-calendar motion unless the judge gives reasons on the record why argument is unnecessary.  Failure to adhere to these principles should be grounds for reversal, a step that the panel in this case did not have to take since another ground for reversal was present.