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NJ Appellate Practice-13 Considerations for the respondent
NJ Appellate Practice-14 Appellate Notices to the Bar
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NJ Appellate Practice-16 Appellate judge's blurbs/biographies
NJ Appellate Practice-17 NJ Appellate Practice (Gann)
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Mary P. Gallagher of the New Jersey Law Journal authored the article below. You should read her articles. Always insightful.
New Jersey Law Journal
Vol. CLXIII No. 2, Index 77
Copyright 2001 by American Lawyer Media, ALM LLC (1/8/01)
BEEN ADDING PRELIMINARY STATEMENTS IN APPEALS BRIEFS? IT'S NOW OK TO DO SO
Mary P. Gallagher
The state Supreme Court is giving its imprimatur to a practice many appellate lawyers have been doing all along -- leading off their briefs with preliminary statements, some of which aren't so brief.
The order by Chief Justice Deborah Poritz, published last week [163 N.J.L.J. 2], relaxes R. 2:6-2(a) to allow statements in briefs filed with the Supreme Court and the Appellate Division "for the purpose of providing the court with a brief overview of the case." The order formalizes and removes any question about inclusion of the statements. Before the order, courts technically could have rejected briefs with unauthorized statements under a strict reading of R. 2:6-2, but were not doing so, says Jack Trubenbach, chief counsel for the Appellate Division clerk's office.
The order also limits the statements to two pages and prohibits footnotes in the statement. The Appellate Division management committee, composed of the eight presiding judges and headed by Presiding Judge for Administration Sylvia Pressler, voted unanimously in favor of the rule relaxation when it met at the judicial college in late November. The order published last week is temporary but likely to lead to permanent revision when the rules are amended next year, Trubenbach predicts.
The Supreme Court's Civil Practice Committee, also headed by Pressler, already has discussed it, at its most recent meeting on Dec. 11. "Everybody thought it was a good idea," and the committee plans to address it again in February, says Jane Castner, the committee's staffer. Trubenbach says the Appellate Division judges decided to address the issue because more and more briefs were including unauthorized preliminary statements. Though the court keeps no statistics on the number, Trubenbach estimates that about 5 percent of all briefs include the statements. Use varies from a high of about 15 percent for civil appellants to almost none for criminal cases, with only about 5 percent for civil respondents, he adds.
Jeffrey Mandel, who teaches appellate advocacy as an adjunct at Seton Hall University School of Law, recalls an even higher incidence during his 1998-1999 clerkship with Appellate Division Judge Donald Collester Jr. "I rarely came across an appellate brief that lacked a preliminary statement," says Mandel, now an associate with Florham Park's Drinker Biddle & Shanley.
According to Pressler, judges were seeing the statements more frequently in complex cases, in which, she says, the statements can be very helpful, though they "can be counterproductive if used too expansively." Some attorneys were doing just that. "In some instances, it was fairly lengthy, and some contained footnotes and citations," says Trubenbach.
Many attorneys welcome the rule relaxation, which brings New Jersey appellate practice more in line with that of the federal courts. Federal Rule of Appellate Procedure 28(a)(5) requires briefs to include a summary of argument, which Mark Friedman, chairman of the State Bar's Appellate Practice Committee, likens to a preliminary statement. "As a practitioner, I am always glad to have another tool that helps me do a more effective job," says Friedman.
Allowing the statements is "a common practice in other courts for a long time" and "an idea whose time is long since due," he says. The Appellate Practice Committee includes several appellate judges, and Friedman says they are "split on whether the fact that the rule doesn't mention a preliminary statement means that you can't do it." Friedman says he has not been using a preliminary statement but what amounts to its equivalent in the form of introductory paragraphs to the various points in his legal argument and at the start of his statement of facts.
Now, with the relaxation of R.2:6-2, he "can tie the loose ends together and put it all upfront rather than apportion it between points," for a cleaner, more cohesive result that will serve as a pr(cis for the court. Randi Greenberg, committee vice chairwoman and an associate in the Murray Hill office of Robert Auerbach, says she had seen the statements included in other people's briefs. "But although there was never a specific prohibition, I never did it because the feeling was that if the rule doesn't authorize it, I'm not going to do it," she adds.
Even attorneys who were already making use of preliminary statements were happy to get the thumbs up. One such attorney is Douglas Brierley, who acknowledges including a preliminary statement in some instances, because "I didn't think the court would object to the use of it" and none did.
As "the first word of a client's arguments and position" read by an appellate court, a preliminary statement provides a context and sets the stage for what is to follow, says Brierley, a partner with the Morristown firm of Schenck, Price, Smith & King.
Laura LeWinn who has used a preliminary statement from time to time, particularly in more complex appeals, says she feels better about doing it now. LeWinn, a solo practitioner with offices in Cranford and Princeton, notes an additional benefit of using preliminary statements. Writing the statement is "a very helpful exercise" that makes "the writing of the brief flow more easily," she says.
Based on Mandel's experience, lawyers would be well-advised to take advantage of the rule relaxation. "Practitioners failing to include a preliminary statement were at a slight disadvantage," he recalls of his clerkship days. "A preliminary statement is the single most effective way to introduce your case to a law clerk who knows nothing about your case and is being asked to grasp the entire case and present a detailed memorandum to his or her appellate panel in a relatively short period of time," he says.
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