In New Jersey, our court system is set up in a hierarchy. At the lowest level is Administrative Agencies and Municipal Courts, the next level up is the Trial Courts, then the Appellate Division and at the top of the pyramid, the New Jersey Supreme Court. Each court is appealable to the level above it. For an example, a municipal court case can be appealed to the Trial Court. A Trial Court decision is appealable to the Appellate Division and the Appellate Division, under certain circumstances, is appealable to the New Jersey Supreme Court.
What’s an appeal and what is so appealing about an appeal?
The purpose of an appeal it to determine whether an error occurred at the lower court level and whether that error requires reversal or other intervention by the court to which they are appealing. Appeals are based upon an error, either in fact or law. Not liking a decision does not make it automatically worthy of an appeal. If there is no error, or the error is harmless, then whether we like the decision or not is irrelevant, it will very likely be upheld upon appeal.
An appeal is not an opportunity to redo your case. It is not “another bite at the apple.” It is an application to the next higher court that there has been a mistake of some kind made that needs to be reviewed by the court handling the appeal. Keep in mind, the court handling the appeal is not re-hearing the case. Its job is to review the proceedings below and determine whether or not an error occurred and whether or not that error needs to be corrected.
Seems simple, doesn’t it? Not so fast. Appeals are complicated. Not only does there have to be an error that warrants review, there are time limits and other restrictions that impact appellate practice. If you are planning on taking an appeal to the New Jersey Appellate Division (or the New Jersey Supreme Court), there are very specific Rules that apply to appellate practice. For example, some appeals can be taken as a matter of “right” meaning the case has been completed and a Final Order has been entered such that a Notice of Appeal can be filed with the Appellate Division. However, in other instances, no Final Order has been entered and leave for appeal (permission to even apply to appeal) has to be obtained first. Those are called interlocutory appeals.
Once the Final Order has been entered, or leave for appeal has been granted if it is not a Final Order, then the Notice of Appeal and Case Information Statement have to be filed. Once they are accepted, a Notice of Docketing is issued and a briefing schedule is entered. Once all of the briefs are submitted, the Appellate Division will consider the case. If oral argument has been requested, it will eventually be listed for oral argument before an Appellate Panel, usually two to three judges per panel. Then, following oral argument, the panel confers and issues a written decision.
All of this takes time. Appeals (unless accepted as emergent) take time to unfold, often several months to even years. It is a slow process. There is no immediate gratification in terms of an instant decision. The panel does not, in perfect synchrony, bang their gavels and yell “You’ve been WRONGED!” No, they read all the briefs. They read all the transcripts. They listen carefully to the arguments. Then they give thoughtful deliberation as to whether or not an error has occurred and what, if anything, they need to do about it.
Even then, the decision could call for a remand, meaning it is being set back to the lower court to do something else, such as engage in further proceedings, supplement the findings or some other instruction issued by the Appellate Division.
It is not uncommon for a litigant that gets a decision they don’t love to demand to appeal. Sometimes an appeal is exactly the right course of action. Other times it isn’t. Before taking the leap, it’s important to consider all the options.
Julie Burick, Esq. is a shareholder/partner at Adinolfi, Molotsky, Burick & Falkenstein. She has significant experience assisting clients with appeals and understands the complex issues and requirements for filing with the Appellate Court. If you think your case may require an appeal, time is of the essence. Contact our Haddonfield office today to schedule a confidential consultation.