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Q:  Should I be worried if my Appellate Division motion was filed the same as a trial court motion?

A: Maybe.

Motion practice in the Appellate Division is governed by Rule 2:8, which is different from trial court motions governed by Rule 1:6. Most obviously, there are no motion days. The court also keeps a tighter rein on the procedure. There are no replies or sur-replies. Unless leave is granted, no papers other than the motion and opposition may be filed. Oral argument is exceedingly rare and only occurs if the court directs it.

To understand the reasoning underlying some of the appellate rules, it helps to recognize the logistical differences between trial court and appellate motions. The trial judge sits in the courthouse where the motion is filed and the entire court file is located. In contrast, the Appellate Division has statewide jurisdiction. The judges sit in chambers throughout the state.  The appellate file resides in Trenton, where the motion is filed. The standard practice is for the motion judges to receive only the "motion package," which is delivered by courier to chambers from Trenton as part of the regular dispatch of boxes of materials for appellate review.

So, what belongs in the motion package?

A Notice of Motion should briefly state the specific relief sought, such as "stay pending appeal." Importantly, a brief and an appendix are required for all motions. The brief, in formal or letter form, must "explain clearly the nature of the action, the relief the moving party seeks[,] and why the moving party is entitled thereto." R. 2:8-1(a). If the motion seeks leave to appeal, the accompanying brief must include argument on the merits of the issues sought to be appealed. You must also provide the judges with the record necessary to decide the motion. The appendix should include the final judgment or order, the trial court's findings and conclusions, along with transcripts and portions of the record relevant to the motion. Responsive pleadings, which are due within 10 days, must set forth "with equal explicitness the grounds of opposition" and include an appendix of papers relied upon that are not in the moving party's appendix. No reply is permitted. R. 2:8-1(b).

In 2018, 9,704 motions were filed before the Appellate Division. Generally, the panel assigned to the appeal will decide motions to dismiss, those seeking reconsideration, or applications for counsel fees for work done in the Appellate Division. R. 2:8-1(c), R. 2:8-2. As for other motions, a motion calendar rotates responsibility for deciding motions among the 32 judges. Rule 2:8-1(c) establishes a general rule that motions will be decided by a single judge. However, in practice, only the routine motions such as pro hac vice requests and motions to appear amicus curiae are decided by a single judge: the presiding judges. Rule 2:8-1(c) also specifies those motions that must be reviewed by a panel of at least two judges, including motions for bail, stay of any order or judgment, summary disposition, and leave to appeal.

A motion is initially reviewed by a staff attorney in the Clerk's Office. A minor deficiency, such as an incorrect caption, will not preclude filing. When, however, the deficiency has the capacity to compromise the nature of the response by, for example, submitting an overlength brief or failing to include a brief, a deficiency notice is sent that gives a due date to correct, and adjusts the response date accordingly. Failure to timely correct a major deficiency will generally result in dismissal of the motion.

Motions are customarily decided within four weeks. Litigants who are unfamiliar with motion practice in the Appellate Division may well be disappointed in the limited format of the disposition. Typically, the order states only that the motion is granted or denied, without a statement of reasons for the result. At times, supplemental explanatory statements are included and, in rare instances, the court expounds on the basis of disposition, particularly in instances such as granting a limited remand, to assure clarity. Again, this contrasts starkly with trial court decisions, which must be supported by a statement of reasons to provide for appellate review. Supreme Court review of appellate motion decisions occurs infrequently—it is the zebra in the herd of 9,704 horses. In those rare cases when such review may be anticipated, a more expansive analysis by the appellate panel might be included in its order. But, for the herd of motions, this procedure pragmatically provides a prompt, clear directive that facilitates the administration of justice.

Bear in mind, some issues can be addressed without the need for a formal motion. Assume, for example, after you have filed your brief, a new, relevant development in the law occurred, such as a published opinion, legislation, rule, regulation or ordinance. You need not file a motion to supplement your brief. Rather, Rule 2:6-11(d) permits you to file a two-page letter, to alert the court of the new support for your appellate argument, and allows your adversary to respond with a similarly brief letter. A cautionary note: Do not use this procedure to submit unpublished opinions that do not meet the requirements of Rule 1:36-3.

Another instance when a motion may be unnecessary is to seek additional time to complete your motion papers. The pivotal factor is whether your adversary objects. If no objection, you may request one extension of up to 30 days without a motion, just sending a letter stating your reason for the request and confirming the fact that your adversary does not object. If you must file a motion, specify the date by which the brief can be filed but do not delay preparing the brief so you are not caught short in the event the motion is denied or the court permits only a limited extension.

**Next month: Two or three judges? Does it matter?

Questions that are not case-specific can be submitted to [email protected].

Marie E. Lihotz, a former Presiding Judge of the Appellate Division, is now of counsel with Archer & 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.