Valuable Insights From Appellate Division Judges

Last night’s meeting of the NJSBA’s Appellate Practice Committee, of which I am a member and a past Chair, was a roundtable discussion with six distinguished Appellate Division judges.  The judges took questions and asked their own questions of those in attendance.  Some very valuable insights emerged, including the following ten thoughts (plus a bonus eleventh one):

1.  Many judges consider the Preliminary Statement a “critical” part of any brief.  It is advisable to include a well-written Preliminary Statement in every brief, but especially in more complex cases.  It is an opportunity to state concisely what the issues are and why your position is irresistibly correct.  Don’t make it too long or it can backfire and annoy the judges.  And, be aware that the judges know that the Preliminary Statement is a “sales job” by counsel, so don’t overstate or take liberties with the facts or law.

2.   In preparing an Appendix, put the opinion and order being appealed from at the front.  The judges are very interested in those documents.  Many judges read those first.  Make it easy for the panel to find those documents.

3.  Though unpublished opinions are not precedential and cannot be cited by any court, it is appropriate to submit them if they are on point factually.  You must remember to supply a full copy of any cited unpublished opinion to the court and to all counsel, and to cite any contrary authority of which you are aware. 

4.  Only about 8-10% of all Appellate Division opinions are approved for publication.  But counsel have the ability to ask the Committee on Opinions to designate for publication an opinion that the panel has determined not to publish.  If you ask for that, though, explain why the opinion is worthy of publication.  But don’t wait too long to ask.  The law may have changed in the interim, cited cases may no longer be good law, or there may be other reasons why an older unpublished opinion will not be changed to a published ruling even if it were otherwise worthy of publication.

5.  Include material in your brief about the applicable standard of review.  But don’t go overboard with pages and pages of boilerplate. 

6.  As a respondent, if the judge below is particularly experienced and well-regarded, particularly in a specialty area such as Chancery or Family, refer to that judge by name in your brief.  Appellate judges are human, and sometimes they will be more inclined to affirm a judge whose reputation for care and thoroughness they know.

7.  Few cases involve novel issues of law.  In most cases, the most important part of a brief is to “tell a story” that is compelling and is supported by the record.

8.  If your case revolves around a particular phrase in, for example, an insurance policy, highlight that language in your brief.  But don’t quote it as part of a long quotation that includes other, extraneous language.  That distracts from what is truly important in the case.  Likewise, be sure that the critical document appears in the appendix.  When citing the court to where that critical language can be found in the appendix, use a pinpoint cite to the precise page where it appears.  A citation to the 20 pages on which the entire document appears forces the judges to search for the key language and will annoy the court.

9.  At oral argument, when the judges don’t ask you any questions, it could mean at least three different things:  (a) you are winning– the judges have nothing about which to challenge you; (b) you have lost– the judges don’t even really want to hear from you; (c) the judges are listening rather than interrupting with questions because they are learning from you about the facts or law and want you to continue educating them.

10.  Oral argument can change minds, but that doesn’t happen often.  A good oral argument can rescue a seemingly lost case, but a bad one can snatch defeat from the jaws of victory.  Waiving oral argument does not get your case calendared sooner than if argument were requested.  It’s fine to say at oral argument that you believe all the arguments are sufficiently briefed, but that you will answer any questions the court may have.  But it’s not so fine to do that if you were the party who requested oral argument.

11.  The bonus thought is the perhaps the most obvious one, and one that we have all heard before.  Some cases are complex and justify a 50-page brief (or even the maximum 65-page brief that the Court Rules allow).  But most cases do not require that sort of length.  Thirty pages is usually more than sufficient.  If you write longer than is necessary, you will annoy the judges and they may simply stop reading.

Thanks to the judges for taking the time to do this very valuable roundtable.