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Below is an abridged version of an article first published in The Metropolitan Corporate Counsel magazine in December 2006
A Practitioner Brings Some Valuable Light To The Appellate Process
The Editor interviews Jeffrey S. Mandel, Counsel, Pitney Hardin LLP (Pitney Hardin became Day Pitney- Jeff Mandel is now the managing partner at the Law Offices of Jeffrey S Mandel LLC).
Editor: Would you tell our readers about your professional experience?
Mandel: I am a graduate of Indiana University, where I focused on criminal justice and psychology. I thought that Indiana's Kinsey Institute would be a primer for entering the Behavioral Sciences Unit of the FBI, but a love for the law directed me instead to Seton Hall University School of Law. While at law school, I interned for two appellate judges, which gave me my first exposure to the New Jersey Appellate Division. I went on to accept a clerkship with Judge Collester, Jr. of the Appellate Division, and I am now counsel at Pitney Hardin LLP (now, Day Pitney LLP), where I devote a large portion of my practice to appeals.
In addition to working at the firm, I have become involved in television commentary. I did a show for Court TV at a certain point, and the show went very well, which led to invitations to become a regular on Court TV and invitations to appear on CNN and Fox News Channel. I also teach, which is both time consuming and rewarding. I have taught at Seton Hall Law School and I currently teach Appellate Advocacy at Rutgers Law School in Newark.
Editor: What experience do you bring to the table on appellate practice?
Mandel: My Appellate Division clerkship provided me with an insider's look at what goes on in an appellate court, how appellate judges think -- how they analyze and dissect a case -- the role of the clerk's office in the process, and how everyone connected with that process works together to achieve a result.
In addition, I handle pro bono cases for the Office of the Public Defender, which enables me to argue cases before the Appellate Division and, incidentally, provides the services of a Pitney Hardin attorney for someone who otherwise could not afford to hire any attorney. I have also handled appeals for the Association of Criminal Defense Lawyers of New Jersey, which enabled me to have my first oral argument before the Supreme Court of New Jersey. I have now argued three on their behalf. The ACDL-NJ has been wonderful to me. Also, I have handled countless appeals on behalf of the firm's clients - mostly as respondents since we prevailed at trial!
I also sit on the State Bar Appellate Practice Committee, which gives me an opportunity to participate in roundtable discussions with respected appellate attorneys, members of the clerk's office, and appellate judges on a variety of appellate issues.
Editor: What is the most common mistake made by trial attorneys in appellate cases?
Mandel: Most attorneys fail to differentiate between an interlocutory appeal and an appeal as of right. It is not just a matter of knowing that one is final and the other is not. Each type of appeal has its own intricacies, and success is often dependant on knowing how each process works. Knowing the standards governing the grant of a motion for leave to file an interlocutory appeal is something that is often overlooked, with very harsh consequences.
Another common mistake -- and one that is usually even more detrimental to an attorney's chances of success on appeal -- is failing to preserve an issue for appeal. The rules are clear: if you fail to raise an issue with the trial court, it is generally deemed waived on appeal. In the heat of a trial, attorneys often neglect to consider what may be necessary for an appeal. That may result in failing to place an objection on the record or neglecting to have a particular document admitted into evidence. Some attorneys simply forget, or fail to appreciate, the standard of review. Other mistakes include filing non-conforming briefs and appendixes, and missing filing deadlines.
Editor: Would you tell us about New Jersey Appellate Practice, the book you are bringing out for GANN Law Books? For starters, who should benefit from reading this book?
Mandel: The great thing about the book is that is should be of value to a wide array of attorneys, whether practicing in a firm, as a solo practitioner or as in-house counsel. The book will be of use to the trial attorney in underscoring the importance of preserving the record and in being attentive to the timelines for filing certain types of appeal. The book goes through the process of filing an appeal and perfecting the appeal, and then through to oral argument. It will serve in-house attorneys who may never set foot in court in giving them an overview of the appellate system and at least some idea of how long certain things take in the appellate process. I think it is also of value to the in-house attorney in seeing what he or she is paying appellate counsel to do and why the process can be so expensive.
Trial judges may benefit from the book. A judge may be unsure whether he or she has jurisdiction over a particular issue, for example, because a litigant has filed a notice of appeal or a motion for leave to file an interlocutory appeal. Affording a trial judge an opportunity to look up an issue in the book sure beats entering an order when the court lacks jurisdiction or being reversed on appeal. Perhaps a litigant will seek to certify an interlocutory decision as final. This book may cause trial judges to view such requests askance.
As a former appellate law clerk, I know that the book will be of great value to those clerking in the Appellate Division or Supreme Court. A great deal of effort has gone into selecting the right cases for certain propositions that affect appellate rules and standards of review, and that will serve to save a great deal of research time for busy law clerks - and attorneys.
Editor: Why did you decide to write a book on appellate practice?
Mandel: Early in my career I wrote some articles on New Jersey appellate practice. To my surprise, I received quite a few calls and requests for help. As my career advanced, and I published more, the calls continued. I concluded, finally, that there was a need for a comprehensive treatise on appellate practice in New Jersey. I approached the leading publisher of law books, GANN Law Books, and explained to them that there was a real void for lawyers in this area. I proposed a comprehensive book on appellate practice. They agreed to review my proposal, and we are now working on the final edits of what should be New Jersey's go-to book on appeals. I think that this book is going to make a difference in appellate practice.
Editor: Why would a company taking a matter on appeal want to go with an appellate practitioner rather than stick with the attorney who handled the case at trial?
Mandel: For starters, bringing an appellate practitioner into the case often removes an emotional factor that can serve as an impediment to an appeal. Perhaps the trial attorney is advising against an appeal to cover up a trial error that he or she now regrets, or perhaps the trial attorney seeks an appeal based solely on losing at trial regardless of the prospects of success on appeal. The appellate attorney has no such baggage. He or she is there for the client, and brings to the case a fresh state of mind. That is important, I think, in making decisions on which issues to appeal.
A good appellate attorney is also knowledgeable about the types of trial errors that result in reversal. It is not easy to have a case reversed on appeal. For purposes of appeal, it is essential to know whether the errors below -- and there will always be errors because no trial is perfect -- are harmless or sufficient to warrant reversal.
An appellate lawyer versed in local practice does not have to first learn the rules when it comes time to appeal, which saves the client money too. In sum, while an appellate lawyer has a learning curve on the underlying facts, he or she can save the client money on the appeal or properly explain why an appeal is not in the client's best interest. After all, the intermediate appellate court is usually, in practice, your court of last resort.
Editor: Has the judiciary been receptive to the idea of a book on appellate practice?
Mandel: The Appellate Division's clerk's office proved to be invaluable during the time that I was researching and writing the book. I owe a great debt of gratitude to the clerk's office for sharing their knowledge with me and for being patient with my inquiries. The information that they shared incorporates many common questions fielded by the clerk's office. My hope is that they receive significantly fewer telephone calls and fewer non-conforming submissions because of the book.
By the same token, the Appellate Division judges have indicated that their jobs will be made easier if the lawyers who appear before them are familiar with presenting arguments before an appellate bench and in writing appellate briefs. I sure hope that they like the book, as several of them served as mentors to me.
Editor: How do you differentiate the argument that occurs before an appellate court and a trial court?
Mandel: There is a tremendous difference between making an argument before a single judge and appearing before an appellate panel. In New Jersey, the three-judge (and sometimes two-judge) Appellate Division panel is intimately familiar with the cases they hear, and they can be relentless, in a positive way, in their questioning. The resources they possess -- in terms of the memoranda their clerks prepare -- are formidable, and woe betide any practitioner who appears before them who is not prepared to respond to every conceivable question about the case, even on issues the parties themselves may not have briefed, such as jurisdictional issues.
Editor: What is the message that you try to convey to clients who approach you about filing an appeal?
Mandel: There are several things that a client needs to know. I think it is important for a client to appreciate the amount of time that goes into an appeal. To be successful, an appeal must take a different route from that taken below, and that can be both time-consuming and expensive.
It is also essential for clients to understand that the percentage of cases reversed on appeal is not high. They must also understand the requirement that they post a bond during the pendency of an appeal, something that may tie up assets needed elsewhere. These are some of the many messages that should be conveyed to the client.
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