The Most Common Deficiencies in Appellate Division Briefs and Appendices

The bane of every appellate practitioner’s existence is the dreaded deficiency notice from the Appellate Division. Last night’s meeting of the New Jersey State Bar Association’s Appellate Practice Committee included a discussion of the most common deficiencies in briefs and appendices submitted to the Appellate Division. That discussion was based on information from the Clerk’s office. Here is the list of most common deficiencies:

No “Table of Judgments, Orders and Rulings Being Appealed” with references to the location in the appendix of any such items. That requirement was added as Rule 2:6-2(a)(2) in 2016, but some filings still overlook it.

Point headings, in both the Table of Contents and the Argument section of the brief, that fail to include in parentheses where in the record the opinion or ruling is located (or, if the issue was not raised below, a statement to that effect). This requirement, related to the above, was also added in 2016, as Rule 2:6-2(a)(1) and (6).

A Preliminary Statement in a brief that exceeds the three pages permitted by Rule 2:6-2(a)(7). That provision also bans footnotes in the preliminary Statement and, “to the extent practicable, citations.”

No separate Statement of Procedural History with references to the record. See Rules 2:6-2(a)(4) and 2:6-4(a).

For appellants, no separate Statement of Facts with references to the record. See Rules 2:6-2(a)(5) and 2:6-4(a). A Statement of Facts is optional for respondents.

If there is more than one transcript date, no transcript key in the appellant’s brief listing the transcript dates in chronological order with numbered designations (1T, 2T, etc.). Relatedly, references to transcripts in the brief of any party that does not include the designations or transcript page numbers. Rule 2:6-8 addresses this and elaborates on the proper way to cite transcripts and other items.

Brief pages containing more than 26 double-spaced lines, or lines with more than 65 characters, which includes letters, numbers, punctuation marks, or spaces. See Rule 2:6-10. Courier fonts (most of us use Courier New) in 12-point font comply with these requirements. Times New Roman does not.

No Table of Contents for the appendix listing each document, including separate identification of each attachment to each listed document. Each appendix volume must include the full appendix Table of Contents at the beginning of the volume, and the cover of each volume must show the pages of the appendix contained in that volume.

Principal pleadings missing from the appendix, in violation of Rule 2:6-1(a)(1).

Each page of the appendix not consecutively numbered. See Rule 2:6-1(b).

Briefs or appendices that are illegible, or not bound or stapled in the upper left corner. See Rule 2:6-10.

Covers not in the colors specified in Rule 2:6-6(b), or the use of glassine covers, which that Rule forbids.

Failure to list everything required on the brief cover, which is covered by Rule 2:6-6(a). The most frequent deficiencies involve the complete title of the case with trial court and appellate docket numbers and designations, the names of all parties (“et al.” is not appropriate), and the filer’s New Jersey attorney ID number.

The final two deficiencies relate to appeals from motions for summary judgment. Rule 2:6-1(a)(1) requires a statement of items submitted to the trial court on the summary judgment motion. That is mandated even though those items themselves are, or should be, already included in the appendix. Failure to include that statement is a frequent deficiency. The other deficiency relating to summary judgment appeals is the failure to include the statement of material facts, as required by Rule 4:46-2.

No one is perfect, and deficiencies can be cured. But this list may help in avoiding the most common pitfalls in Appellate Division filings.