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NEW JERSEY APPELLATE PRACTICE IN A NUTSHELL
TABLE OF CONTENTS
I.
When an Appeal May be Brought
A.
Final Orders
B.
Interlocutory and Interim Orders
II.
Initiating an Appeal as of Right
A.
Notice of Appeal
B. Appellate Case Information Statement
C.
Transcript Request Form
D. Relevant Court Rule, R. 2:5-1
III.
Interlocutory Appeals
IV.
Serving the Transcripts
V.
Scheduling Order
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VI.
Preparing the Appendix
A.
Necessary Inclusions
B.
Formatting the Appendix
C.
Binding
D.
Indexing the Appendix
E.
Court Rules
VII.
Appellant's Initial Brief
A.
The Cover
B. Format
C.
Court Rules
1.
Initial Brief, R. 2:6-2
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2.
Response Brief, R. 2:6-4
3.
Reply Brief and Appendix, R. 2:6-5
4.
Cover of Brief and Appendix, R. 2:6-6
VIII.
Interlocutory Appeals
A.
Interlocutory Appeal to the Appellate Division
B.
Interlocutory Appeals to the New Jersey Supreme Court
I.
WHEN AN APPEAL MAY BE BROUGHT
A.
Final Orders.
Ordinarily, an appeal cannot be brought until
a Final Order has been entered in the case. A Final Order is an
order that disposes of ALL issues as to ALL parties in the litigation.
Sometimes an Order may be deemed to be Final in nature if it disposes
of all issues as to one of multiple parties if the remaining issues
being litigated in the court are severable and do not pertain
the party seeking to take an appeal. This is sometimes the case
when the Order is one of summary judgment. A summary judgment
may be rendered for or against one party but not the others.
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An appeal of a Final Order is known as a "direct
appeal" or an "appeal as of right", which are basically
the same thing. A party has the right to one appeal, hence an
"appeal as of right". Appeals from a Final Order entered
in the Superior Court are brought to the Superior Court of New
Jersey, Appellate Division, located in the Richard Hughes Justice
Complex in Trenton. The Hughes Justice Complex is also the location
of the New Jersey Supreme Court and the Office of the Attorney
General.
B.
Interlocutory and Interim Orders.
The terms Interlocutory Order and Interim Order
are interchangeable. An Interlocutory Order is any Order entered
by the court before entry of a Final Order. Examples of Interlocutory
Orders pertain to discovery, Temporary Restraining Orders, Pendente
Lite Orders and Summary Judgment Orders that do not dispose of
the entire case.
An appeal of an Interlocutory Order is known
as an Interlocutory Appeal or an Interim Appeal, although the
term Interlocutory is used more often in the State of New Jersey.
An Interlocutory Appeal may be filed within twenty days of entry
of the Order unless a Motion for Reconsideration has been filed
within that twenty-day period, in which case the twenty-day clock
will begin to run upon entry of the Order disposing of the Motion
for Reconsideration. The court rule pertaining to the tolling
of time during Motions for Reconsideration is:
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The running of the time for taking an appeal
and for the service and filing of a notice of petition for certification
shall be tolled:
* * * *
(e) In civil actions on an appeal to the Appellate
Division by the timely filing and service of a motion to the trial
court for rehearing or to amend or make additional findings of
fact pursuant to R. 1:7-4; or for judgment pursuant to R. 4:40-2;
or for a new trial pursuant to R. 4:49-1; or for rehearing or
reconsideration seeking to alter or amend the judgment or order
pursuant to R. 4:49-2. The remaining time shall again begin to
run from the date of the entry of an order disposing of such a
motion.
R. 2:4-3(e).
The difference between an appeal as of right and an Interlocutory
Appeal is that, as stated above, a party has the right to one
appeal of a Final Judgment. A Final Judgment and a Final Order
is the same thing. That is the appeal as of right. By contrast,
a party does not have the right to an Interlocutory Appeal. A
party must ask the Appellate Division for permission to appeal
prior to entry of a Final Order. This is known as a Motion for
Leave to Appeal, discussed in another Chapter below.
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As to Motions for Reconsideration, it is pertinent
to note that a Motion for Reconsideration filed outside of the
twenty-day time limitation does not restart the clock for filing
a Motion for Leave to Appeal. This can work for or against you.
If your adversary does this, you can make a cross-motion to the
Appellate Division to dismiss his or her appeal. Many attorneys
do not know that an untimely Motion for Reconsideration does not
restart the clock, but unfortunately, the Appellate Division often
overlooks the untimeliness of the Motion. In addition, permission
can always be sought for file the Motion for Leave to Appeal nunc
pro tunc. "Nunc pro tunc" is Latin and means out of
time, hence, a Motion for Leave to Appeal outside of the allotted
twenty-day period.
Appeals as of right (direct appeals) and Interlocutory
Appeals are the two types of appeals that may be brought, besides
appealing to the New Jersey Supreme Court, discussed in Chapters
below.
II.
INITIATING AN APPEAL AS OF RIGHT
An appeal as of right (direct appeal) is initiated
by filing a Notice of Appeal with the Appellate Division. An appeal
as of right is an appeal filed after rendering of a Final Order
or Final Judgment. This is distinguished from an Interlocutory
Appeal (also known as an Interim Appeal or sometimes an Appeal
by Leave of Court), which is an appeal brought prior to entry
of the Final Order or Final Judgment. The court rule governing
appeals as of right, in relevant part, provides as follows.
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(a) As of Right. Except as otherwise
provided by R. 2:2-1(a)(3) (final judgments appealable directly
to the Supreme Court), and except for appeals from a denial by
the State Police of an application to make a gun purchase under
a previously issued gun purchaser card, which appeals shall be
taken to the designated gun permit judge in the vicinage, appeals
may be taken to the Appellate Division as of right.
(1) from final judgments of the Superior Court
trial divisions, or the judges thereof sitting as statutory
agents; the Tax Court; and in summary contempt proceedings in
all trial courts except municipal courts;
(2) to review final decisions or actions of
any state administrative agency or officer, and to review the
validity of any rule promulgated by such agency or officer excepting
matters prescribed by R. 8:2 (tax matters) and matters governed
by R. 4:74-8 (Wage Collection Section appeals), except that
review pursuant to this subparagraph shall not be maintainable
so long as there is available a right of review before any administrative
agency or officer, unless the interest of justice requires otherwise;
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(3) in such cases as are provided by law.
Final judgments of a court, for appeal purposes, shall also
include those referred to by R. 3:28(f) (order enrolling defendant
into the pretrial intervention program over the objection of
the prosecutor), R. 3:26-3 (material witness order), R. 4:42-2
(certification of interlocutory order), R. 4:53-1 (order appointing
statutory or liquidating receiver), R. 5:8-6 (final custody
determination in bifurcated matrimonial action), and R. 5:10-6
(order on preliminary hearing in adoption action). An order
granting or denying a motion to extend the time to file a notice
of tort claim pursuant to N.J.S.A. 59:8- 9, whether entered
in the cause or by a separate action, shall also be deemed a
final judgment of the court for appeal purposes.
R. 2:2-3(a) et seq.
A.
The Notice of Appeal.
The Notice of Appeal is a simple document to
prepare. It is one to two pages in length. It simply states the
name of the parties, the court and judge appealed from, the date
and substance of the Order, the name of the party who is appealing
and the trial court docket number. A sample Notice of Appeal is
attached at Appendix A. You can fill in the blanks on an online
Notice of Appeal form at http://www.judiciary.state.nj.us/forms.htm.
The Notice of Appeal must have a copy of the Final Order attached
to it. An original and four copies must be filed with the Appellate
Division. Two copies must be served upon the trial judge, two
copies upon the Clerk of the trial court and two copies to counsel
for each party or each pro se party.
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The Notice of Appeal must be filed with Appellate
Division and served upon the parties and other interested entities
and persons with forty-five days of entry of the Final Judgment
or Order. The relevant court rules provides
(a) Appeals from final judgments of courts,
final judgments or orders of judges sitting as statutory agents
and final judgments of the Division of Workers' Compensation
shall be taken within 45 days of their entry.
R. 2:4-1(a).
B.
Appellate Case Information Statement.
Notices of Appeal must be accompanied by an Appellate
Case Information Statement. Again, this is a very simple document
to prepare. You can fill out a copy at http://www.judiciary.state.nj.us/forms.htm.
This document is for the court's informational purposes only.
It only provides the names, addresses and telephone numbers of
the parties, what type of appeal is being filed (civil, criminal
or the like) and a concise statement of the issues to be raised
on the appeal. The statement of issues should be very brief, only
a sentence of two each, direct and to the point. E.g., "Point
I: The trial court entered an Order for child support without
making a finding that the appellant can afford to pay".
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C.
Transcript Request Form.
The third and final document that must accompany
a Notice of Appeal is a Transcript Request Form. This document
may also be obtained from the New Jersey Courts' website at http://www.judiciary.state.nj.us/forms.htm.
If there was a hearing of any kind, you will need to Order a copy
of the transcripts.
To Order transcripts, you will need to call the
Clerk of the Superior Court in the County where the case was heard
to be transferred to the judge's chambers. Tell the assistant
who answers the phone that you are filing a Notice of Appeal and
need to know the name and phone number of the stenographer to
Order the transcripts from. The form is self-explanatory and simple
to fill out. You will need to send it to the address that the
stenographer will provide you along with a deposit, which is ordinarily
around $300.00. The unused balance will be promptly returned to
you or you will be billed for the remaining balance due.
If your case is an emergency, tell the stenographer
that you need an expedited transcript. They can get it to you
within 48-72 hours, but you will pay approximately triple the
price. Make sure that they provide you an Index with the transcript
so that you can easily find your way around it without going from
page to page. The index will tell you what page every word appears
on. You may also want to get a diskette with it so you can copy
and paste from the transcript into your brief. This will save
a lot of time from having to retype pertinent parts of the transcript
into the brief.
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This is all you need to do to initiate a direct
appeal. Include an extra copy (an original plus five copies) to
get a "conformed copy" returned to you. A conformed
copy is one that bears the filing date and docket number on it.
You will want that for your records for proof that you have filed
it timely. You must include a self-addressed stamped envelope.
Just write on the bottom of the envelope, "Please return
a conformed copy". You should receive it in about 10 days.
D.
Relevant Court Rule, R. 2:5-1.
The court rule relevant to the Contents of a
Notice of Appeal and Case Information Statements is R. 2:5-1(f).
This rule provides
(f) Contents of Notice of Appeal and Case Information
Statement; Form; Certifications.
1. Form of Notice of Appeal. A notice of appeal
to the Appellate Division may be in the form prescribed by the
Administrative Director of the Courts as set forth in Appendix
IV of these Rules. The use of said form shall be deemed to be
compliance with the requirements of subparagraphs 2 and 3 hereof.
A notice of appeal to the Supreme Court shall meet the requirements
of subparagraph 3(i), (ii) and the portions of (iii) that address
service of the notice and the payment of fees. Notices of appeal
in capital causes shall also include the appropriate attorney's
certification in respect of transcripts. The notice of appeal
to the Appellate Division shall have annexed thereto a Case
Information Statement as prescribed by subparagraph 2 of this
rule.
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2. Form of the Case Information Statement;
Sanctions. The Case Information Statement shall be in the form
prescribed by the Administrative Director of the Courts as set
forth in Appendix VII and VIII of these Rules (civil and criminal
appeals, respectively). The appellant's Case Information Statement
shall have annexed to it a copy of the final judgment, order,
or agency decision appealed from except final judgments entered
by the clerk on a jury verdict. In the event there is any change
with respect to any entry on the Case Information Statement,
appellant shall have a continuing obligation to file an amended
Case Information Statement on the prescribed form. Failure to
comply with the requirement for filing a Case Information Statement
or any deficiencies in the completion of this statement shall
be ground for such action as the appellate court deems appropriate,
including rejection of the notice of appeal, or on application
of any party or on the court's own motion, dismissal of the
appeal.
3. Requirements of Notice of Appeal.
A. Civil Actions. In civil actions the notice
of appeal shall set forth the name and address of the party
taking the appeal; the name and address of counsel, if any;
the names of all other parties to the action and to the appeal;
and shall designate the judgment, decision, action or rule,
or part thereof appealed from, the name of the judge who sat
below, and the name of the court, agency or officer from which
and to which the appeal is taken.
* * * *
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C. All Actions. In addition to the foregoing
requirements, the notice of appeal in every action shall certify
service of a copy thereof on all parties, the Attorney General
if necessary, and the trial judge, agency or officer. In all
appeals from adult criminal convictions the notice of appeal
shall certify service of a copy thereof and of a copy of the
Case Information Statement upon the appropriate county prosecutor
and the New Jersey Division of Criminal Justice, Appellate Section.
In all actions the notice of appeal shall also certify payment
of filing fees required by N.J.S.A. 22A:2. The notice of appeal
shall also certify compliance with R. 2:5-1(f)(2) (filing of
Case Information Statement), affixing a copy of the actual Case
Information Statement to the notice of appeal. In all actions
where a verbatim record of the proceedings was taken, the notice
of appeal shall also contain the attorney's certification of
compliance with R. 2:5-3(a) (request for transcript) and R.
2:5-3(d) (deposit for transcript), or a certification stating
the reasons for exemption from compliance. Certifications of
compliance shall specify from whom the transcript was ordered,
the date ordered, and the fact of deposit, affixing a copy of
the actual request for the transcript to the notice of appeal.
R. 2:5-1(f).
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The text of the court rule pertaining to the preparation
and filing of a Court Transcript Request Form is R. 2:5-3.
(a) Request for Transcript; Prescribed Form.
Except as otherwise provided by R. 2:5-3(c), if a verbatim record
was made of the proceedings before the court, agency or officer
from which the appeal is taken, the appellant shall, no later
than the time of the filing and service of the notice of appeal,
serve a request for the preparation of an original and copy
of the transcript, as appropriate, (1) upon the reporter who
recorded the proceedings and upon the reporter supervisor for
the county if the appeal is from a judgment of the Superior
Court, or (2) upon the clerk of the court if the appeal is from
a judgment of the Tax Court or a municipal court, or (3) upon
the agency or officer if the appeal is from administrative action.
The appellant may, at the same time, order from the reporter,
court clerk, or agency the number of additional copies required
by R. 2:6-12 to file and serve. If the appeal is from an administrative
agency or officer which has had the verbatim record transcribed,
such transcript shall be made available to the appellant on
request for reproduction for filing and service. The request
for transcript shall state the name of the judge or officer
who heard the proceedings, the date or dates of the trial or
hearing and shall be accompanied by a deposit as required by
R. 2:5-3(d). The request for transcript shall be in a form prescribed
by the Administrative Director of the Courts. A copy of the
request for transcript shall be mailed to all other interested
parties and to the clerk of the appellate court. The provisions
of this paragraph shall not apply if the original and copy of
the transcript have already been prepared and are on file with
the court.
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(b) Contents of Transcript; Omissions. Except
if abbreviated pursuant to R. 2:5-3(c), the transcript shall
include the entire proceedings in the court or agency from which
the appeal is taken, including the reasons given by the trial
judge in determining a motion for a new trial, unless a written
statement of such reasons was filed by the judge. The transcript
shall not, however, include opening and closing statements to
the jury or voir dire examinations or legal arguments by counsel
unless a question with respect thereto is raised on appeal,
in which case the appellant shall specifically order the same
in the request for transcript.
(c) Abbreviation of Transcript. The transcript
may be abbreviated in all actions either:
(1) by consent, provided all parties to the
appeal agree in writing that only a stated portion thereof will
be needed by the appellate court, and in such cases, only those
portions of the transcript specified in the writing shall be
ordered in the request for transcript, or
(2) by order of the trial judge or agency which
determined the matter on appellant's motion specifying the points
on which the appellant will rely on the appeal. The motion shall
be filed and served no later than the time of filing and service
of the notice of appeal, and service of the request for transcript
prescribed by paragraph (a) of this rule shall be made within
3 days after entry of the order determining the motion.
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(d) Deposit for Transcript; Payment Completion.
The appellant, if not the State or a political subdivision thereof,
shall, at the time of making the request for the transcript,
deposit with the reporter or the clerk of the court or agency
from whom a transcript is ordered, either the estimated cost
of the transcript as determined by the court reporter, clerk
or agency, or the sum of $500.00 for each day or fraction thereof
of trial or hearing. If the appellant is the State or a political
subdivision thereof, it shall provide a voucher to the reporter
or the clerk or the agency for billing for the cost of the transcript.
The reporter, clerk or agency, as the case may be, shall upon
completion of the transcript, bill or reimburse the appellant,
as appropriate, for any sum due for the preparation of the transcript
or overpayment made therefor. If the appellant is indigent and
is entitled to have a transcript of the proceedings below furnished
without charge for use on appeal, either the trial or the appellate
court, on application, may order the transcript prepared at
public expense. Unless the indigent defendant is represented
by the Public Defender or that office is otherwise obligated
by law to provide the transcript to an indigent, the court shall
order the transcript of the proceedings below furnished at the
county's expense if the appeal involves prosecution for violation
of a statute and at the municipality's expense if the appeal
involves prosecution for violation of an ordinance.
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(e) Preparation and Filing. The court reporter,
clerk, or agency, as the case may be, shall promptly prepare
or arrange for the preparation of the transcript in accordance
with standards fixed by the Administrative Director of the Courts.
The person preparing the transcript shall deliver the original
to the appellant and shall deliver a copy together with a computer
diskette or CD-ROM of the transcript to the court reporter supervisor
in the case of an appeal from the Superior Court, to the clerk
of the court in the case of an appeal from the Tax Court or
a municipal court, or to the agency in the case of an administrative
appeal. The diskette or CD-ROM shall be in Microsoft Word, Microsoft
Word compatible or Adobe PDF format. The person preparing the
transcript shall also forthwith notify all parties of such deliveries.
When the last volume of the entire transcript has been delivered
to the appellant, the court reporter supervisor, clerk or agency,
as the case may be, shall certify its delivery on a form to
be prescribed by the Administrative Director of the Courts.
That transcript delivery certification and a complete set of
the transcripts and diskettes/CD-ROMs shall be forwarded immediately
to the clerk of the court to which the appeal is being taken.
A copy of the certification shall also then be sent to the appellant.
The appellant shall serve a copy of the certification on all
other parties within seven days after receipt and, if the appeal
is from a conviction on an indictable offense, on the New Jersey
Division of Criminal Justice, Appellate Section. The appellant
shall file proof of such service with the clerk of the court
to which the appeal has been taken.
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(f) Statement of Proceedings in Lieu of Transcript.
If no verbatim record was made of the proceedings before the
court or agency from which the appeal is taken, the appellant
shall, within 14 days of the filing of the notice of appeal,
serve on the respondent a statement of the evidence and proceedings
prepared from the best available sources, including the appellant's
recollection. The respondent may, within 14 days after such
service, serve upon the appellant any objections or proposed
amendments thereto. The appellant shall thereupon forthwith
file the statement and any objections or proposed amendments
with the court or agency from which the appeal is taken for
settlement and within 14 days after the filing of the same the
court or agency shall settle the statement of the proceedings
and file it with the clerk thereof, who shall promptly provide
the parties with a copy. If a verbatim record made of the proceedings
has been lost, destroyed or is otherwise unavailable, the court
or agency from which the appeal was taken shall supervise the
reconstruction of the record. The reconstruction may be in the
form of a statement of proceedings in lieu of a transcript.
R. 2:5-3.
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III.
INTERLOCUTORY APPEALS
Interlocutory Appeals, also known as Interim
Appeals or sometimes Appeals by Leave of Court, are appeals of
court Orders entered prior to entry of a Final Order or Final
Judgment. These are most common when a party is aggrieved by a
temporary child custody, child visitation, child support, alimony
or Order in a matrimonial proceeding concerning an award of attorney's
fees or court costs (known as Pendente Lite Orders), or Orders
of summary judgment. The relevant court rule provides,
(b) By Leave. On application made pursuant
to R. 2:5-6, appeals may be taken to the Appellate Division
by leave granted, in extraordinary cases and in the interest
of justice, from final judgments of a court of limited jurisdiction
or from actions or decisions of an administrative agency or
officer if the matter is appealable or reviewable as of right
in a trial division of the Superior Court, as where the jurisdiction
of the court, agency or officer is questioned on substantial
grounds.
R. 2:2-3(b).
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The court rule referred to R. 2:2-3(b), R. 2:5-6, provides as
follows:
(a) Appeals. Applications for leave to appeal from interlocutory
orders of courts or of judges sitting as statutory agents and
from interlocutory decisions or actions of state administrative
agencies or officers shall be made by serving and filing with
the court or agency from which the appeal is taken and with
the appellate court a notice of motion for leave to appeal,
as prescribed by R. 2:8-1, within 20 days after the date of
service of such order, administrative decision or notice of
such administrative action. If, however, a motion to the trial
court for reconsideration of the order from which leave to appeal
is sought is filed and served within 20 days after the date
of its service, the time to file and serve the motion for leave
to appeal in the Appellate Division shall be extended for a
period of 20 days following the date of service of an order
deciding the motion for reconsideration. The filing of a motion
for leave to appeal shall not stay the proceedings in the trial
court or agency except on motion made to the court or agency
which entered the order or if denied by it, to the appellate
court.
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(b) Cross Appeals. Applications for leave to
cross appeal from interlocutory orders and administrative decisions
or actions as to which leave to appeal has not already been
granted shall be made by serving and filing with the appellate
court a notice of motion within 20 days after the date of service
of the court order or administrative decision appealed from
or after notice of the agency or officer's action taken or,
if no cross motion is filed, within 20 days following decision
of a motion for reconsideration as provided by R. 2:5-6(a).
If an appeal from an interlocutory order, decision or action
is allowed, an application for leave to cross appeal (if the
application has not been previously denied) may be made by serving
and filing with the appellate court a notice of motion within
10 days after the date of service of the order of the appellate
court allowing the appeal.
(c) Notice to the Trial Judge or Officer; Findings.
A party filing a motion for leave to appeal from an interlocutory
order shall serve a copy thereof on the trial judge or officer
who entered the order. If the judge or officer has not theretofore
filed a written statement of reasons or if no verbatim record
was made of any oral statement of reasons, the judge or officer
shall, within 5 days after receiving the motion, file and transmit
to the clerk of the Appellate Division and the parties a written
statement of reasons for the disposition and may also, within
said time, comment on whether the motion for leave to appeal
should be granted. Any statement of reasons previously made
may also be amplified.
R. 2:5-6.
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Finally, one other court rule comes into play. That rule is R.
2:2-4. This Rule provides:
Except as otherwise provided by R. 3:28, the
Appellate Division may grant leave to appeal, in the interest
of justice, from an interlocutory order of a court or of a judge
sitting as a statutory agent, or from an interlocutory decision
or action of a state administrative agency or officer, if the
final judgment, decision or action thereof is appealable as
of right pursuant to R. 2:2-3(a), but no such appeal shall be
allowed in cases referred to in R. 2:2- 2(a).
R. 2:2-4.
Motions for Leave to Appeal must be filed within The relevant
court rules provide:
(c) Applications for leave to appeal from interlocutory
orders, decisions or actions shall be made within the time provided
by R. 2:5-6(a).
R. 2:4-1(c).
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IV.
SERVING THE TRANSCRIPTS
After filing the Notice of Appeal, Case Information
Statement and Transcript Request Form you need to wait for the
transcripts to be delivered and begin collecting the documents
necessary to prepare your appendix. When the transcripts are received
you need to make a copy and serve them on your adversary. You
only need to send one copy to one adversary. You do not need to
send one copy of every adversary attorney or pro se party. They
are supposed to share the transcript, although many firms serve
a copy upon each party. You should contact the clerk to ask if
the reporter filed a copy of the transcripts with the Appellate
Division. They sometimes do that in pro se cases. If not, ask
how many copies they want. You also need to send a copy to the
trial judge and a copy to the trial court clerk. Make sure you
send all materials by Certified Mail Return Receipt Requested
so that no one can say that you did not do something or that you
did not do it on time.
V.
SCHEDULING ORDER
After serving the transcripts you will get a Scheduling
Order from the Appellate Division which states when the appellant's
Initial Brief is due, when the respondent's Response Brief is due
and when the appellant's Reply Brief is due. There is nothing else
to it.
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VI.
PREPARING THE APPENDIX
A.
Necessary Inclusions.
If you do not know what you are doing, preparing
the Appendix will cause you a headache. ON-POINT PARALEGAL SERVICES,
LLC, is subcontracted many appeals from New Jersey law firms because
they cannot get the appendix right. Make one mistake and the Appellate
Division will wrap it up and return it to you. Believe it or not,
many firms get it returned several times before they become fed-up
and just provide it to us to do. It is not that difficult, however.
The New Jersey Rules of Appellate Procedure mandate
that certain documents be included in an appendix if you think
they need to be there or not. As stated above, omit a document
and you will get it returned to you which means you case will
be dismissed if you do not correct it. This also requires you
to redo, re-copy and reserve it, which increases your cost of
litigation. The documents that are mandated for an appendix are:
1. Complaint,
2. Answer,
3. Final Judgment with Findings of Fact and
Conclusions of Law, if any (usually included on the same document,
sometimes in a separate one),
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4. All Orders that are at issue in the appeal,
5. The Notice of Appeal, Case Information Statement
and Transcript Request Form,
6. If it is a matrimonial appeal, a copy of
all Family Case Information Statements, and,
7. All motions (with responses, replies, corresponding
Orders and Exhibits, but not legal briefs) that are relevant
to the issues complained of on appeal.
Legal Briefs filed in the trial court are not included in the
Appendix unless you are the respondent and you are including them
in order to show that an argument raised by the appellant was
not raised first in the trial court.
Notices of Motion, Certifications of Service
and Proposed Orders are not included in the Appendix unless required
to prove a point. Only the Certifications, Affidavits and Exhibits,
and if it is a Summary Judgment Motion the Statement of Undisputed
Facts, need to be included if a Motion is being reproduced in
the Appendix.
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B.
Formatting the Appendix.
Formatting the Appendix is easy. You should start
with a photocopy of all of your documents rather than using the
ones you already have. This is because you are going to have to
write on the documents and bind them, which alters them from their
original form. Unless you plan on losing your appeal and not having
it remanded to the trial court, you will want to keep a copy of
the file in its original form.
Remove all staples and bindings from the documents
and put them in a stack in the order that you want them to appeal
in the appendix. You must paginate them, which means number them.
Parties who were plaintiffs in the trial court number the pages
in the lower right hand corner consecutively as follows "Pa1",
"Pa2", "Pa3", and so forward. "Pa"
means Plaintiff's Appendix. Defendants in the trial court number
the pages "Da1", "Da2", "Da3" and
so forth. "Da" means Defendant's Appendix.
C.
Binding.
If there are less than 200 pages of the Appendix,
including the brief you are going to file with the Appellate Division,
you may bind it all in one volume. Each volume may contain no
more than 200 pages. If you have 200 or more pages of Appendix,
excluding your Appellate Brief, you need to make separate volumes.
As stated, no more than 200 pages per volume or it will be returned
to you. No matter if it will be bound the Appellate Brief, if
there is one volume of Appendix or ten, the first step is to number
the pages.
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If you need to add a document in the middle of
the Appendix at a later date, you do not need to re-paginate it
unless the document is large. If you need to insert a document
at Pa75, paginate the added documents "Pa75a", "Pa75b",
"Pa75c" and so forth.
The New Jersey Rules of Appellate Procedure require
that the type of document be stated on the top of every page.
In other words, at the top of every page of the Complaint, it
should say "Complaint". At the top of every page of
the Certification of John Smith, it should say "Certification
of John Smith". In practice, however, no one does this, the
court does not gripe and the Appendix will not be returned to
you. The author has never done it and cannot recall if he has
ever seen it done.
D.
Indexing the Appendix.
The Appendix must have an Index. All that is
done in the Index is listing the documents and the page that they
appear at. Appendix B is a sample cover and Index for a one volume
Appendix. Appendix C is a sample cover and Index for a multiple
volume Appendix. Note that if there are multiple volumes, each
volume must contain the Index for all of the volumes. Just cut
and paste it. The only thing that will be different from each
cover and Index and is that the relevant volume will state Volume
I, Volume II or as the case may be.
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E.
Court Rules.
The text of the New Jersey Rules of Appellate
Procedure for the contents of an Appendix is set forth below.
1. Appellant's Appendix, R. 2:6-1.
(a) Contents of Appendix. (1) Required Contents.
The appendix prepared by the appellant or jointly by the appellant
and the respondent shall contain (A) in civil actions, the complete
pretrial order, if any, and the pleadings; (B) in criminal,
quasi-criminal or juvenile delinquency actions, the indictment
or accusation and, where applicable, the complaint and all docket
entries in the proceedings below; (C) the judgment, order or
determination appealed from or sought to be reviewed or enforced,
including the jury verdict sheet, if any; (D) the trial judge's
charge to the jury, if at issue, and any opinions or statement
of findings and conclusions; (E) the statement of proceedings
in lieu of record made pursuant to R. 2:5-3(f); (F) the notice
or notices of appeal; (G) the transcript delivery certification
prescribed by R. 2:5-3(e); (H) any unpublished opinions cited
pursuant to R. 1:36-3; and (I) such other parts of the record,
excluding the stenographic transcript, as are essential to the
proper consideration of the issues, including such parts as
the appellant should reasonably assume will be relied upon by
the respondent in meeting the issues raised. If the appeal is
from a summary judgment, the appendix shall also include a statement
of all items submitted to the court on the summary judgment
motion and all such items shall be included in the appendix,
except that briefs in support of and opposition to the motion
shall be included only as permitted by subparagraph (2) of this
rule.
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(2) Prohibited Contents. Briefs submitted to
the trial court shall not be included in the appendix, unless
either the brief is referred to in the decision of the court
or agency, or the question of whether an issue was raised in
the trial court is germane to the appeal, in which event only
the material pertinent to that issue shall be included. A document
that is included in appellant's appendix shall not also be included
in respondent's appendix unless appellant's appendix includes
only a portion of the document and the complete document is
required for a full understanding of the issues presented. If
the same document has been annexed to more than one pleading
or motion filed in the trial court, the document shall be reproduced
in the appendix only with the first such pleading or motion
and shall be referred to thereafter only by notation to the
appendix page on which it appears.
(b) Form. Documents included in the appendix
shall be abridged by omitting all irrelevant or formal portions,
with asterisks being used to indicate omissions. The filing
date of each included paper shall be stated at the head of the
copy as well as its subject matter (e.g., Pretrial Order, Notice
of Appeal). Each page shall be numbered consecutively followed
by the letter "a" to indicate the appendix (e.g.,
1a, 2a, etc.).
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(c) Binding; Table of Contents. The appendix
may be bound with the brief or separately, into volumes containing
no more than 200 sheets each. If bound with the brief, it shall
follow the brief, but there shall be a single table of contents
of the brief and appendix. If bound separately it shall be prefaced
with a table of contents. The table of contents shall indicate
the initial page of each document, exhibit or other paper included,
and the pages of the stenographic record at which each exhibit
was marked for identification and was offered into evidence.
Attachments to a document by way of affidavits, exhibits or
otherwise shall each be separately identified in the table of
contents and the initial page of each such attachment noted
therein. If there are multiple volumes of the appendix, each
volume shall contain a full table of contents and shall specify
on its cover the appendix pages included therein.
(d) Joint Appendix. Whenever possible counsel
shall agree upon a joint appendix, which shall be bound separately.
The cost thereof shall be apportioned between them.
2. Respondent's Appendix, R. 2:6-3.
If a joint appendix has not been filed, the respondent may prepare
an appendix, conforming to the requirements of R. 2:6-1, insofar
as applicable, and containing such parts of the record not included
in the appellant's appendix as the respondent considers necessary
to the proper consideration of the issues.
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VII.
APPELLANT'S INITIAL BRIEF
A.
The Cover.
A sample cover to an Appellant's Initial Appellate
Brief is attached at Appendix D. All information on the cover
should be conformed to the information of your case. This is mandatory
under the New Jersey Rules of Appellate Procedure.
B. Format.
A complete Appellant's Initial Brief in a matrimonial
case is attached at Appendix E. This was for a case where the
Appendix, with the brief included, did not exceed 200 pages and
was bound all in one volume. This example will show you how to
include and Index to an Appendix under such circumstances. If
there will be volumes of Appendix rather than being bound with
the brief, simply omit that section and its reference from the
Table of Contents. This is an actual brief filed with the Superior
Court of New Jersey, Appellate Division. It has all of the bells
and whistles.
The sample brief provided at Appendix E is self-explanatory.
There must be one-inch margins on all sides of the brief with
page numbers in the lower right hand corner. It must be double
spaced, and the font should be Courier New, pitch 12, or Times
New Roman, pitch 14. Courier New is preferred.
It must be printed on 8½ x 11 paper, 20
pound is fine. It shall be printed on only one side of the paper,
unless a heavier paper is used, but no one does that in practice
and it is not any cheaper. The heavier paper costs more money
and the print shop will still charge you as if it is printing
two pages.
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The cover and back of the brief must be a hardstock
paper. Kinkos does great appellate printing. Their catalog number
for the type of paper for an Initial Appellate Brief is called
EC2. An Initial Brief's cover is white, the Response is blue and
the Reply is Canary (cream).
The brief should be bound used Velobinding, which
are neat plastic vertical strips. Kinkos has all of these materials.
Covers of the Appendix must be the same and use the same kind
of binding.
Whenever you refer to a document in the Appendix,
refer to its page number in brackets, such as "[Pa1]".
If there are several volumes of Appendix, put "[Pa1, Vol.
I]" or "[Pa350, Vol. II]".
If there are transcripts, put a footnote at the
title for the Statement of Facts. The footnote should be like
this:
"1T" refers to the volume of transcript
dated _____________________.
"2T" refers to the volume of transcript
dated _____________________.
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Each volume of the transcript is assigned a number in like fashion.
Always put transcript citations in brackets. If you want to refer
the court to volume 1, page 10, lines 10-20, put "[1T-10:10-20]".
If you want to refer the court to volume 10, page 3, lines 6-12,
put "[10T-3:6-12]". If you need to cite to portions
of the transcript that go one for several pages, put "[1T-3:6
to 1T-8:10]". If you have several citations for one statement
you make in the brief, put "[1T-10:10-20; 10T-3:6-12]".
A reference to the Appendix needs to be made
for every statement made in the Procedural History and every statement
made in the Statement of Facts or elsewhere in the brief needs
a reference to the place where the document is located in the
Appendix or the part of the transcript. The court will not seek
these items out if you do not refer to them and may dismiss your
appeal if you do not do so.
C.
Court Rules.
The text of the New Jersey Rules of Appellate
Procedure for preparing legal briefs is set forth below.
1.
Initial Brief, R. 2:6-2.
(a) Formal Brief. Except as otherwise provided
by R. 2:6-4(c)(1) (statement in lieu of brief), by R. 2:9-11
(sentencing appeals), and by paragraph (b) of this rule, the
brief of the appellant shall contain the following material,
under distinctive titles, arranged in the following order:
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(1) A table of contents, including the point
headings to be argued. It is mandatory that any point not presented
below be so indicated by including in parenthesis a statement
to that effect in the point heading.
(2) A table of citations of cases, alphabetically
arranged, of statutes and rules and of other authorities.
(3) A concise procedural history including
a statement of the nature of the proceedings and a reference
to the judgment, order, decision, action or rule appealed from
or sought to be reviewed or enforced. The appendix page of each
document referred to shall be stated. The plaintiff and defendant
shall be referred to as such and shall not, except where necessary,
be referred to as appellant and respondent.
(4) A concise statement of the facts material
to the issues on appeal supported by references to the appendix
and transcript. The statement shall be in the form of a narrative
chronological summary incorporating all pertinent evidence and
shall not be a summary of all of the evidence adduced at trial,
witness by witness.
(5) The legal argument for the appellant, which
shall be divided, under appropriate point headings, distinctively
printed or typed, into as many parts as there are points to
be argued. New Jersey decisions shall be cited to the official
New Jersey reports by volume number but if not officially reported
that fact shall be stated and unofficial citation made. All
other state court decisions shall be cited to the National Reporter
System, if reported therein and, if not, to the official report.
In the citation of all cases the court and year shall be indicated
in parentheses except that the year alone shall be given in
citing the official reports of the United States Supreme Court,
the Supreme Court of New Jersey, and the highest court of any
other jurisdiction.
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(6) In addition to the foregoing, each brief
may include an optional preliminary statement for the purpose
of providing a concise overview of the case. The preliminary
statement shall not exceed three pages and may not include footnotes
or, to the extent practicable, citations.
(b) Letter Brief. In lieu of filing a formal
brief in accordance with paragraph (a) of this rule and except
as otherwise provided by R. 2:9-11 (sentencing appeals), the
appellant may file a letter brief. Letter briefs shall not exceed
20 pages and shall conform with the requirements of subparagraphs
(1), (3), (4) and (5) of paragraph (a). As to any point not
presented below a statement to that effect shall be included
in parenthesis in the point heading. No cover need be annexed
provided that the information required by R. 2:6-6 is included
in the heading of the letter.
(c) All Briefs. All briefs must be plainly
legible and must conform with spacing, paper quality, type-size
and reproduction requirements set forth in R. 2:6-10.
(d) Respondent/Cross Appellant's Brief. The
respondent/cross appellant shall file a single brief both addressing
the cross appeal and answering the appellant's brief.
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2.
Response Brief, R. 2:6-4.
(a) Contents. Except as otherwise provided
by R. 2:9-11 (sentencing appeals), the respondent's brief shall
conform either to the requirements of R. 2:6-2(a) (formal brief)
or (b) (letter brief), insofar as applicable, except that a
counterstatement of facts need be included only if the respondent
disagrees with such statements in the appellant's brief.
(b) Consequences of Failure to File. Except
as otherwise provided by R. 2:9- 11 (sentencing appeals) and
paragraphs (c) and (d) of this rule, if a respondent fails to
file a brief conforming to the requirements of these rules,
the court may consider the appeal unopposed and deny the respondent
permission to oppose the appeal orally or may make such other
order, including an imposition of sanctions, as may be appropriate.
(c) Statement in Lieu of Brief. A statement
in lieu of brief may be filed if the appeal is from a quasi-judicial
decision of a named respondent which represents to the court
that the general public interest does not require its adversarial
participation in the appeal and that the parties directly affected
by its decision have adequately presented, or may be expected
to so present, the issues.
(d) Filing Responsibility of Public Agencies.
In all appeals, where a respondent is the State, a political
subdivision thereof, a public or quasi-public body, or a public
officer appearing in an official capacity, such respondent shall
file a brief or, if paragraph (c) is applicable, a statement
in lieu of brief.
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(e) Appellant/Cross Respondent's Brief. On
a cross appeal, the brief of the appellant/cross respondent
answering the points raised in support of the cross appeal shall
also include a reply brief, if any is deemed necessary.
3.
Reply Brief and Appendix, R. 2:6-5.
The appellant may file a reply brief; which shall
conform either to the requirements of R. 2:6-2(a) (formal brief)
or (b) (letter brief), and may set forth in an appendix thereto
such additional parts of the record as may be pertinent.
4.
Cover of Brief and Appendix, R. 2:6-6.
Except as otherwise provided by R. 2:6-2(b),
covers of briefs and appendices shall be as follows:
(a) Contents. The cover of each brief, and
of the appendix if bound separately, shall contain the following
matter: (1) the name of the appellate court and the docket number
of the action; (2) the title of the action, which shall add
to the designation of the parties in the trial court the designation
of appellant and respondent; (3) the nature of the proceeding
in the appellate court, the name of the court or agency or officer
below, and, if a court, the name of the judge or judges who
sat below; (4) the title of the document and the designation
of the party for whom it is filed; (5) the name and office address
of the attorney of record and the names of any attorneys "of
counsel" or "on the brief."
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(b) Color. The covers of appellant's brief
and appendix, respondent's brief and appendix, and appellant's
reply brief and appendix shall be white, blue and buff, respectively.
On a cross appeal, the respondent/cross appellant's brief filed
pursuant to R. 2:6-2(d) shall have a blue cover, and the appellant/cross
respondent's response thereto, filed pursuant to R. 2:6-4(e),
shall have a buff cover, as shall any permitted subsequent brief
of any other party. Covers of amicus briefs shall be green.
Covers of all briefs and appendices shall be of a firm material
but not glassine.
VIII.
INTERLOCUTORY APPEALS
An interlocutory appeal, also known as an interim
appeal, is an appeal filed before a Final Order has been entered.
For example, in a matrimonial action an Order of child support
may be entered that will stand pending final outcome of the case
when a Final Order will be entered.
A.
Interlocutory Appeal to the Appellate Division.
If a party desires to appeal from that temporary
order, known as a Pendente Lite Order, a Motion for Leave to Appeal
must be filed with the Appellate Division. The Motion for Leave
to Appeal asks the Appellate Division for permission to appeal
an issue prior to entry of a Final Order. These motions are quite
common, especially in matrimonial cases.
B. Interlocutory Appeals to the New Jersey Supreme Court.
If the Appellate Division denies leave to appeal,
i.e. denies the party permission to take a mid-case appeal, the
aggrieved party has the right to renew the motion to the New Jersey
Supreme Court asking if that court is willing to hear the appeal
mid-case.
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NOTICE TO NON-ATTORNEYS
In order to retain these services you must either
be a licensed attorney or a pro se non-attorney who wishes to
retain us as a consultant to your attorney. Many parties choose
this option if they want to have a paralegal prepare conduct their
legal research at a significantly lesser rate than would be charged
by an attorney, providing that their attorney is amenable to such
an arrangement. We do not interfere with attorney-client relationships.
If you choose this option, our work product will
be provided to your attorney in an editable format via CD or e-mail.
If you pay us directly we will also serve you with a copy of the
work product. If you are pro se or pro per, we will prepare a
pro se brief and appendix for you that is ready to be signed and
submitted as-is, but you will need an attorney who will accept
a copy of the materials on your behalf.
If you retain us, you are technically retaining
us to prepare the brief and appendix for the attorney, not for
you, although the brief can be prepared as a pro se brief upon
request. We will not provide you legal advice. Although such an
arrangement allows us to provide you low cost brief writing and
legal research services, this only allows us to conduct your legal
research and prepare you a legal brief. It does not allow us to
provide you legal advice or counsel. Only a licensed attorney
may provide you legal advice.
Nothing on this website is or should be construed as being legal
advice. You should not rely upon any of the information on this
website in making a legal decision of any kind. You should consult
a licensed attorney before making legal decisions.
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