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Appeals 101: Three questions and three answers
By Jeffrey S. Mandel
July 11, 2008
This article is intended to serve as a preliminary guide for those facing their first appeal. As with any area of law, there are numerous nuances that cannot all be set forth in one article. This article identifies a subject rarely addressed - the responsibilities of a respondent on appeal.
The appellant has 45 days from the date of judgment to review the court rules, outline his or her strategy, prepare for appellate deadlines, and perfect the appeal. The respondent does not generally have that luxury. Being familiar with the procedure for responding to an appeal can create a strategic advantage and alleviate any concerns with being either unprepared or faced with a daunting deadline. Practitioners in receipt of a Notice of Appeal should know the response to three questions: Is the appeal timely? What needs to be done before filing my opposition brief? When is my brief due and how do I file it?
First Question: Did the appellant file a timely appeal?
Upon receiving a Notice of Appeal, the first thing one should do is confirm the appeal is timely. Absent leave from the court, the appellant's Notice of Appeal must be filed and served within 45 days from the date of "entry" of the judgment or order being appealed. R. 2:4-1(a). Appeals from state administrative agencies - except those specifically excluded in subs-section (b) - are required to be filed and served within 45 days of "service" of the judgment or order being appealed. Failure of the appellant to file a timely Notice of Appeal is a jurisdictional defect that cannot be remedied absent leave of court, which is rarely granted. If the appeal is untimely, the respondent should file a motion to dismiss in accordance with the dictates of Rule 2:8-1. Whether the appeal is timely or not, the judgment or order being appealed remains subject to execution. If the appellant has failed to obtain a stay pending appeal or failed to post a bond, the respondent is entitled to enforce the judgment or order being appealed.
The respondent also should immediately consider whether a cross-appeal is warranted. A Notice of Cross-Appeal is due within 15 days of "service" of the appellant's Notice of Appeal, even if this results in the respondent's cross-appeal being filed beyond the ordinary 45-day provision set forth in Rule 2:4-1.
As the respondent, take solace in the statistics: On average, the Appellate Division affirms approximately 70 to 75 percent of civil cases. For prosecutors who receive a criminal defendant's Notice of Appeal, the court affirms approximately 80 to 85 percent of criminal cases.
Second Question: What needs to be done before filing my brief?
Before filing a brief, the respondent should first file and serve a Case Information Statement. The Appellate Division has its own form of Case Information Statement and it is due within 15 days of "service" of the appellant's Notice of Appeal. R. 2:5-1. Unlike the Notice of Appeal, the failure to timely file a Case Information Statement is not a jurisdictional defect and will not preclude the respondent from participating in the appeal. However, the Appellate Division may issue sanctions, including dismissal, to any party on appeal who fails to comply with the rules.
Third Question: When is my brief due and how do I file it?
It is not uncommon for the case manager assigned to the appeal to issue a Scheduling Order, which will set forth the due dates for the parties' briefs. If issued, the Scheduling Order takes precedence over any deadlines established in the Rules of Court.
The respondent will await receipt of the appellant's brief, due within 45 days of the appellant's receipt of the transcript. R. 2:6-11(a). Within 30 days of "service" of appellant's brief, the respondent is required to file his or her opposition brief along with a supplemental appendix, if necessary. R. 2:6-11(a); R. 2:6-1. The opposition brief shall include the arguments in opposition to the appeal and, if a cross-motion has been filed, the arguments in support of the cross-motion. Each party is entitled to one reply brief, which is due within 10 days of receipt of the opposition brief. In the event that a cross-appeal is filed, the appellant still is afforded 45 days to file opposition and both parties still are afforded 10 days to file a reply.
Two copies of the brief should be served on the appellant and five copies on the Appellate Division. As with any formal filing, a Certification of Service should accompany the filing. It is also important to be mindful of the Appellate Division's rules for brief formatting (use Courier New 12).
Knowing the answers to these three questions is important in any appeal. However, no article on appellate practice is a substitute for familiarizing oneself with the rules applicable to appeal. The Appellate Division has a busy docket and deviations from the rules can result in an appeal being dismissed, an appellate motion being denied without one knowing that it is dismissed for non-compliance, or sanctions.