Given that New Jersey's Appellate Division disposes of thousands of cases each year, perhaps it is not rude to ponder, "Do the judges really write all these opinions?" The answer is "YES!" Let us explain.

First, a word about the role played by the Clerk's Office. Of the surprises that await a trial judge newly assigned to the Appellate Division, perhaps the most welcome is the support provided by the Clerk's Office. Support is the operative word here.

The staff's work is informed by a mission to provide services that help the judges do their job. Both the professional and clerical staffs are reliably responsive, competent and even cheerful.   IT promptly fixes glitches encountered by the most and least—shall we say "technologically challenged"—judges, virtually on a 24/7 basis. In general, the attitude is succinctly reflected in the advice given to new judges by the clerk's office staff most closely involved in meeting a judge's routine needs: "Feel free to ask me anything. If I can't help, I'll find out who can."

We felt pampered.

But does this pampering extend to relying upon professional staff to write opinions? There are other jurisdictions that rely on law clerks to write opinions, and we find no basis to criticize the resulting product. Certainly, that practice would make any judge's job easier. But this "easy way" is simply not in the DNA of the Appellate Division.

In deciding cases, appellate judges review the parties' briefs and appendices, the appellate record, arguments presented at oral argument, and also consider input from others on the panel. Before any opinion is written, each case is discussed—at a minimum, at conference, or, depending upon the complexity of the case and the degree of agreement, over the course of telephone calls as the analysis is fine-tuned. The judge assigned to author the opinion then takes the lead in digging deeper into the record, the issues and the analysis that will lead to a draft opinion to be submitted to the other judges on the case for their review.

Less than 10% of appeals include a "CRM," a memo prepared by a Central Appellate Research staff attorney. The types of cases identified for preparation of a CRM might have complex arguments, novel legal issues, or extensive records. But, clearly, not all cases that fall into those categories are the subjects of CRMs. And, in particular, the time constraints in cases with an abbreviated timetable for disposition such as accelerated matters, interlocutory appeals, or cases on remand from the Supreme Court, do not allow for the possibility of a CRM assignment.

The Presiding Judge may also designate a case for a bench memo prepared by one of the panel's law clerks. These memos aid review of the file by succinctly stating the facts, the issues presented, and an analysis of the relevant law. Law clerks are encouraged to recommend a rational result, as judges use the memos to mentor their respective clerks in legal writing, organizing arguments, and sifting through the nuances of the law as they prepare to become practicing lawyers.

The personalities of Appellate Division judges, as manifested during the decision-making process, run the gamut. There is, however, one quality that is conspicuously rare: a reticence to express one's opinion. Stated more bluntly, this group considers debating and challenging each other an integral part of the job. The dialogue may continue even after a tentative understanding is reached on a disposition or after writing assignments are made. Indeed, every judge on the part is invested in reaching the result determined.

Sometimes, the briefs and memos are persuasive and sometimes, they are not. Sometimes, the arguments made by fellow judges are persuasive and sometimes, they are not. In every case, however, it is the judges who own both the decision-making and opinion-writing processes.

Once a draft opinion is prepared, it is circulated to each of the other judges on the case for review. Because it is printed on green paper, the draft is known as a "green." When sent to the other judges, the response coveted by the green's author is: "cleared as is," allowing the opinion to be filed. When publication is requested, both the opinion and the decision to publish must be cleared by the Presiding Judge as well.

But, far more often, the author receives an email or a telephone call from each judge, pinpointing comments, identified by page and line, which may necessitate one or more redrafts, until cleared by all judges on the case. This is not a perfunctory process. The comments may be as basic as proofreading corrections or, reminiscent of high school English class, as technical as noting a hyphen must be added to a compound adjective. The reviewing judges suggest edits for clarity, organization, or style.

Substantive review also continues. Was the application of a recent Supreme Court decision addressed? Should similar statutes in sister states be looked at? Is a federal court's analysis of the issue persuasive? A dissenter may continue to strive to persuade the other judges to change their minds, extending debate on the outcome. And sometimes, albeit rarely, the dissent emerges as the majority opinion.

Every opinion filed by the Appellate Division represents hours, if not days, of work by the author and time by fellow judges, commensurate with the complexity of the case. To be sure, judges draw upon resources in drafting opinions that include briefs by counsel, and, when applicable, bench memos by law clerks or Central Appellate Research. But, the appellate judges are well aware it is their names that appear on the finished product. And, rest assured, they have earned that.

Have a question about the Appellate Division?  Submit it to [email protected] and we will consider addressing it in a future column.

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.