Motions for reconsideration in state or federal court generally are discouraged. Court Rule 4:42-2 provides a generous standard—“in the sound discretion of the court in the interest of justice”—but in practice the motion requires a showing of law or facts presented in the motion papers that were overlooked or misapprehended and would result in a different result. Appellate courts sometimes say that it is better for the parties to have plain error corrected at the trial level than to go through the delay and expense of explaining the error to a higher court.

The result in Walsh v. Prospect Eogh, Inc., A-3218-17T2 (App. Div. Nov. 26, 2018) (not for publication), raises the question why the parties did not take advantage of the rule, rather than accept the expense and eight-month delay of an appeal, including appellate argument.

The Law Division denied a motion to compel arbitration, without oral argument, on the basis that plaintiff “did not agree to give up right [sic] jury trial,” as required by Atalese v U.S. Legal Services Group, L.P. Defendant had requested oral argument in the motion; the affidavit submitted in support of the motion attached the arbitration agreement clearly stating plaintiff was “GIVING UP ALL RIGHTS TO A TRIAL BY JURY;” and its brief prominently displayed the waiver language mandated by Atalese. Although the proposed motion listed “Papers Considered,” none were checked off.

Under R. 4:42-2, a motion for reconsideration was in order.

In the notice of appeal, civil case information statement, defendant listed the failure to grant oral argument and the existence of an arbitration agreement as grounds for reversal. The Law Division judge—who is served with the notice and per R. 2:5-1(b) has the ability to supplement its decision—did not provide a more complete statement of reasons in response to the appeal notice.

The Appellate Division, after oral argument before the panel, agreed that oral argument in the Law Division was required “as of right” and that reasons—rather than a single-line summary—should have been provided. Rather than reaching its own conclusion on the motion, the panel reversed and remanded, with the proviso that the parties may supplement their motion papers in the Law Division.

Trial judges face a sometimes unenviable task on motion days, often with a dozen or more motions to review and decide in a limited number of hours on alternate Fridays. We do not envy them. But in this case, the Appellate Division called out errors that were clearly avoidable and caused additional work for both the parties and the court system. We add two thoughts that the Appellate Division did not mention and which we cannot ourselves judge without being there: Maybe parties and judges should consider worthy motions for reconsideration in which situations of a manifest disregard of the rules or record. And maybe the Appellate Division needs to adopt a screening program to identify upon filing those cases in which failure to provide reasons, argument or other deficiency and either remand on an accelerated basis before briefing or notify the parties and trial judge of the issue while it is still curable.