Most judges dislike briefs that assert that an adversary’s legal argument is “ridiculous,” “absurd,” “preposterous,” or the like. Judges often say that a statement that an opposing position is “without merit” or some other less charged verbiage suffices to convey the message that the adversary’s position should not be taken seriously. But is there a citation that can be added to one’s brief to drive home that point?
When I clerked, briefs from the Attorney General’s Office, which was often a respondent on appeal, introduced me to just such a citation: Rule 2:11-3(e)(1)(E). Though the language of the Rule has changed slightly since that time, Rule 2:11-3(e)(1)(E) is, in essence, still the same as it was then. It currently authorizes an affirmance without opinion when “some or all of the arguments made are without sufficient merit to warrant discussion in a written opinion.” The Attorney General’s briefs would cite that Rule as a conclusion to an argument that an opposing contention was groundless. We therefore used to refer to that Rule as the “That’s ridiculous” Rule.
Rule 2:11-3(e)(1)(E) has a cousin in Rule 2:11-3(e)(1)(A). That Rule authorizes an affirmance when “a judgment of trial court is based on findings of fact which are adequately supported by evidence.” Thus, that Rule is available to parties, especially respondents, who wish to cap off an argument that trial level findings of fact are sufficient to call for an affirmance, as opposed to Rule 2:11-3(e)(1)(E), which applies to arguments of law. Those two Rules apply to civil appeals. Rule 2:11-3(e)(2) contains a comparable Rule that applies to criminal, quasi-criminal, and juvenile appeals.