This is how many questions asked about the Appellate Division begin. Most of the time, the answer is, "No."

Yet, a recurring theme in the questions we are asked as retired Appellate Division judges is worry: "a state of anxiety and uncertainty over actual or potential problems." It occurred to us that a good deal of this anxiety is rooted in a lack of familiarity with how the Appellate Division works, which we might alleviate. So, this is the first of a series of columns designed to pull back the curtain a bit on the workings of the Appellate Division. In each installment, we will discuss some aspect of appellate process and address questions that are not case-specific, which you may send to [email protected].

First, let's talk about your audience. What is New Jersey's Appellate Division? With 32 judges assigned to eight panels of four judges (Parts A through H), it is the largest intermediate appellate court in the country. Unlike many of the 40 other states with intermediate appellate courts, our Appellate Division judges are not elected, but selected from the trial bench by the Chief Justice. The Appellate Division also differs from its sister-state counterparts because its Parts are not limited geographically or by specialization of subject matter. Each Part reviews legal issues raised in any matter appealed, from any vicinage and any administrative agency.

The regular court calendar starts in early September and ends in early June.  The eight most senior judges on the Appellate Division serve as Presiding Judges of the Parts.  They review the week's calendar, assign two or three judges from the Part to consider the case and designate the author of the opinion. For the summer, the court is divided into temporary "summer parts," typically consisting of two judges who are assigned a more limited calendar. Each year, the Parts are reconstituted from the members of the court as reflected in the General Assignment order.

When your client is dissatisfied with a trial court or agency decision, "Can you appeal?" may be the first question you discuss. Yet, there is a second, important question: "Should you appeal?"

Appeals "as of right" and "by leave" are defined in Rule 2:2-3. An appeal "as of right" is from a final, formally entered judgment, and not from an informal decision or statement of reasons. A correct result reached through an erroneous analysis may well be affirmed because "appeals are from judgments, not opinions." And final means final—as to all parties and all issues. If all substantive issues have been decided but an outstanding attorney fee application remains or the trial court retained jurisdiction on an issue, the order is not final.

Review "by leave" requires a motion for leave to appeal. While Rule 2:5-6 sets forth the procedure, Rule 2:2-4 establishes the standard: Leave to appeal may be granted "in the interest of justice, from an interlocutory order … if the final judgment … thereof is appealable as of right." Because it is only available in cases where the final judgment will be subject to appeal as of right, this motion asks the court to step in and review a component of the case without the benefit of a full record and without knowing how the significance of that issue shakes out in the final result. Generally speaking, that is not a favored recipe for great jurisprudence. And, sometimes, the final resolution may render an earlier order inconsequential, demonstrating, after the fact, that the court's review was not required in the interest of justice. Hence, the general policy against piecemeal review, reinforcing the principle that a motion for leave to appeal is granted "only sparingly."

Should you appeal? This presents practical considerations. Consider these.

Evaluate all the legal issues for both sides. Do you expect your adversary to appeal? Will your appeal prompt a cross-appeal that might prove more troublesome for your client than the result already obtained? On the other hand, if the result at the trial level is mixed, filing an appeal can open a door to mediation, either through the Civil Appeals Settlement Program (CASP) administered by the court or through private mediation.

Beware of the potential for establishing precedent. Appellate courts not only review trial decisions for reversible error, they also interpret and develop the law for general application in future cases when precedent does not exist. If the law is unclear, is this the right case to test the waters and create new law?

Because all appellate opinions are accessible on the internet, the client must weigh whether the value placed on confidentiality overrides the need for a different result in this one case.

Litigants are entitled to a fair trial, not a perfect one. Although deeply frustrating to see an error go uncorrected, Rule 2:10-2 instructs, "Any error … shall be disregarded by the appellate court unless it is … clearly capable of producing an unjust result."

Thus, a meritorious appeal must demonstrate both error and prejudice. Appeals must be grounded in a meritorious issue and not to "buy time," gain leverage or harass. Frivolous filings prompt requests for sanctions and trigger ethical concerns for counsel.

Assuming your issue meets that bar, did you establish a record at trial to support that argument?

Finally, an appeal requires both time and money. The median time for disposition after a notice of appeal is filed is 15 months. Once an appeal is filed, Rule 2:9-1(a) generally limits a trial court's jurisdiction to enforcement of its final order. How fluid are the facts governing the relationship between the parties? Will your client's objectives be hamstrung waiting for the appellate determination? Similarly, the client must consider the financial cost if a trial court order is enforced while the appeal is pending.

Marie E. Lihotz, a former Presiding Judge of the Appellate Division, is now of counsel with Archer and Greiner, providing appellate consulting, mediation and arbitration services. Marianne Espinosa, a former Judge of the Appellate Division, is of counsel with Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins. She focuses on appellate consultation, mediation, arbitration and the investigation of employment law disputes.