Last night’s meeting of the New Jersey State Bar Association’s Appellate Practice Committee featured Judge Fisher. He took questions and discussed various issues of practice and the preferences of Appellate Division judges (or at least his own preferences).
Judge Fisher said that, contrary to what many people believe, Appellate Division arguments are not generally tape-recorded, even in locations where recording is available. An exception is when a judge who was to sit is ill or otherwise cannot attend oral argument. A tape is made and provided to that judge for review. The tape is not available to counsel, however.
In colloquy about why Appellate Division arguments are not routinely recorded, as are arguments in the Supreme Court of the United States, the Supreme Court of New Jersey, and the Third Circuit, it was suggested (though not by Judge Fisher) that there might be concerns that attorneys would “grandstand” for a recording, or that the exclusivity of the appellate record as developed below would be breached. Those reasons seem utterly unpersuasive. Regardless, however, oral arguments are not routinely recorded, perhaps largely because that is the way that it has always been.
Judge Fisher was asked whether a panel ever requests oral argument when parties have waived it. He responded that that happens occasionally, but not often. Judges will request argument if they believe it would be useful to them. That reiterates a point often made in the context of appellate practice pointers: oral argument is primarily for the benefit of the judges in reaching the right result, not for the advocates to “strut their stuff.”
Judge Fisher also made two points about the place in the appendix of relevant judicial opinions. First, he noted that cases that have been before the Appellate Division previously and then return (for example, on an appeal after a remand) follow the most senior judge from the previous panel. As a judge on such later appeals, he sometimes finds that counsel have not included the prior Appellate Division in the appendix. Judges may well recall that there had been a prior appeal, but they likely would not recall the details of the opinion that resolved that prior appeal. Judges who did not sit on the prior appeal would have no knowledge of the prior appeal. Judge Fisher thus strongly advocated for the inclusion in the appendix of any prior Appellate Division decision in the same case.
Second, Judge Fisher observed that it is sometimes hard to find in an appendix the ruling(s) of the trial court being appealed. He cited a proposed rule change, which the Civil Practice Committee has approved but which is pending before the Supreme Court, that would require point headings in briefs to state where in the appendix the ruling being appealed from appears. Even without that rule change, however, it is important to include any relevant rulings below in the appendix, in an easily found location, even at the very beginning of the appendix.
There was much more, including Judge Fisher’s views on the citation of unpublished opinions and on various other matters. Everyone found his remarks very enlightening and useful.