Credit: Andrey_Popov/Shutterstock.com

Without a doubt, the most frequently asked "Should I be worried if" question concerns the number of judges assigned to decide an appeal. When two judges are assigned, appellants worry the Appellate Division did not determine their arguments sufficiently meritorious to warrant a three-judge panel. On the other hand, respondents wrinkle a brow when three judges are assigned, concerned they might lose a hard-won victory.

Are these concerns well-founded? Sort of. But only a little.

Rule 2:13-2(b) states: "Appeals shall be decided by panels of 2 judges … except where the presiding judge determines that an appeal should be decided by a panel of 3 judges." Because a published opinion must be issued by a three-judge panel, the one known thing is that, when two judges are assigned to a matter, the presiding judge did not anticipate a published opinion being issued when the assignments were made. The explanation is that direct. Now, let's break down the process.

Approximately one month before the calendar date, appellate staff sends "the boxes" to the presiding judge's chambers. The boxes contain briefs, appendices and transcripts for the 12–16 cases on the calendar. The mix of cases include some in which oral argument was requested and others designated "waivers," that is, cases decided on the papers.

The presiding judge of the panel issues case assignments to judges and bench memos to law clerks. Judicial assignments rest entirely within the discretion of the presiding judge, who strives to equalize the workload. On any given week, the cases range from the highly complex to the more routine. Agreement by two judges is necessary to issue an opinion. Thus, routine matters garnering likely agreement are assigned to a two-judge panel. This procedure allows more cases to be considered and reviewed each week.

Another important consideration in making assignments is the goal of providing judges with a breadth of experience. While trial judges' expertise may be concentrated in particular areas of the law (i.e., criminal, family, chancery, etc.), appellate judges are generalists, developing expertise in all legal matters arising from administrative or trial court orders. Over the course of a term, most presiding judges rotate case type assignments among the judges and their clerks to allow review of the broadest spectrum of legal issues. The assignment of two judges to a case affords another opportunity for enhancing experience as it allows a panel judge to gain experience presiding over oral argument as the more senior of the two judges assigned.

Even when the presiding judge's initial review of a matter suggests it should be handled by two rather than three judges, there are instances when a two-judge case becomes a three-judge case, either before or after the calendar date.

Approximately one week before the calendar date, each judge reviews the record of each assigned case and prepares "pinks," which are short memos drafted on pink paper. A pink reflects the judge's preliminary impressions of the case. It includes identification of the legal issues, questions needing clarification, legal authority applicable or challenged, and why the judge suggests a likely result. We emphasize these impressions are preliminary, remaining subject to change following a full review and oral argument.

Law should never be decided in a vacuum so pinks are circulated among the judges on the panel, including those not assigned to a matter. All the judges read all pinks for the calendared cases. In our experience, appellate judges continue to ponder matters through the pre-argument conference and after argument. Rule 2:13-2(b) states a two-judge panel "may elect to call a third judge to participate in the decision at any time before making its determination and shall do so if the 2 judges cannot agree as to the determination." A third judge will also be added if the presiding judge decides the issues presented warrant a published opinion because "the appeal presents a question of public importance, of special difficulty, of precedential value, or for such other special reason …." Rule 2:13-2(b).

When a decision is made to add a third judge who did not participate in oral argument, the court reaches out to the parties seeking their consent. Ordinarily, the third judge will review the briefs and record. If requested, the court will rehear oral argument, with all three judges participating, either in person or in an argument conducted by telephone.

Practice tip: There is no need to give a reason to request re-argument when a third judge is added. Fairness guides the court's process. In one instance, an attorney demanded re-argument because, he claimed, one of the two judges was sleeping during argument. Since both judges had posed questions during argument and had not perfected the art of asking questions while asleep, they were baffled and amused. However, all three drank a lot of coffee before re-argument.

And now, the numbers.

The outright affirmances and reversals of calendared appeals (excluding sentencing arguments) for the last year reveal affirmances in 85% of all criminal cases and 71% of all civil cases. Turning to outright reversals, the averages were 17% of all civil appeals and 10% of criminal appeals.

The percentage of criminal appeals affirmed by a two-judge panel was 88%, only slightly higher than the average. The percentages for civil appeals are similar. Two-judge panels affirmed in 74% of appeals, just a tick above the average. And three-judge panels affirmed in roughly two-thirds of both civil and criminal appeals. The percentage of reversals in civil appeals was 16% in two-judge cases and 20% in three-judge cases. The gap was more pronounced in criminal cases. While there were reversals in 7% of the cases heard by two-judge panels, the percentage rose to 24%, more than twice the average, in three-judge cases.

In sum, the number of judges assigned is something like a crossword puzzle clue regarding the leanings of the appellate panel. It may suggest—but does not reveal—the answer.

Next month: Why wasn't my case published?

You may submit non-case-specific questions 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.