The trial is over and an appeal filed. It appears the window for settlement has closed. It has not. Of course parties remain free to pursue mediation privately, but there is an alternative—parties may participate in the Civil Appeals Settlement Program (CASP), administered by the Appellate Division. This unique appellate program has a settlement rate of over 40%, and a very attractive price tag—it's free.

Yet, lawyers readily acknowledge they are unfamiliar with CASP. The Judiciary's website explains the program "is designed to identify, at the initial phase of processing, those appeals which could possibly be settled. Alternatively, appeals with very complex issues may be selected for a pre-argument conference in order to delineate and clarify those issues prior to briefing." See https://www.njcourts.gov/courts/. The program accommodates cases statewide, with six recall appellate jurists in chambers throughout the state, who consider the settlement possibilities of approximately 1,000 cases each year.

Not every civil appeal is conferenced. Certain case types are excluded, such as matters involving juveniles, the Division of Child Protection and Permanency, or domestic violence. Typical Superior Court matters considered for CASP inclusion involve negligence, employment, matrimonial, and contract matters. Additionally, appeals from final agency decisions, such as environmental enforcement actions and workers' compensation cases are included for review.

Conferencing occurs in the early stages of a case, before parties incur the expense of briefing. The appellate case information statement asks parties whether CASP review is appropriate. When counsel responds affirmatively, the matter is sent to the CASP judges for consideration. Even if "no" is checked, a CASP judge might call discussing his or her view of why a conference makes sense and inviting counsel to participate. Can you decline to conference? Certainly. Counsel best knows a client's objectives and when conferencing would not be productive, and there's no real down side as no negative inferences are drawn or even noted when a conference is declined or unsuccessful.

The process starts with the CASP unit of the clerk's office, supervised by Rhonda Collins, which identifies matters that fit the parameters of the program. The files are then sent to the CASP panel judges for consideration. Why a case is selected may vary, but among considerations weighed for selection are: Is the law at issue nuanced? Are there challenges to summary judgment? Will the cost of appeal—where a "win" means reverse and remand—be disproportionately high when compared to the real amount in controversy? Is it debatable that the trial determination fell within the range of reasonable discretion? Are there questions about the adequacy of the trial court's statement of reasons or the actual factual record? Are challenged jury charges ambiguous? Could an Appellate Division opinion have broader impact leading to a request for certification or appeal as of right to the Supreme Court?

As with any good settlement program, the judges assigned are adept and astute. The current robust CASP panel includes Supervising Judge Joseph F. Lisa (Westmont), Judge Michael Winkelstein (Linwood), Judges Paulette Sapp-Peterson and Philip S. Carchman (Trenton), Judge Jane Grall (Newark), and Judge Robert A, Fall (West Long Branch). Analyzing the issues identified, the CASP judges discern which matters best lend themselves to an agreed resolution.

The judges receive the notice of appeal, the appellate case information statement, and any final written opinion or statement of reasons rendered by the trial judge or agency. Sometimes, when a discrete issue is presented, the judge requests select pieces of the record regarding that issue. Finally, counsel may be requested to submit a short, informal conferencing position statement, including acceptable settlement positions.

If a case is not resolved after a conference, a briefing schedule is issued, and the case is processed for appeal. Nevertheless, the CASP judges inform counsel they may return any time before an opinion is issued to again discuss settlement. At times, during oral argument, the appellate panel presiding judge may suggest the parties attend or return to CASP.

What happens during a conference is as different as the judges conducting them. Most start with a phone call to counsel to pointedly address the parameters of the issues, the possible risks absent a settled result, and the benefits of resolution at this stage of the appellate process. A follow-up telephone conference or an in-person conference is scheduled, particularly if the case lends itself to separate discussions with each side. Conferences, held in the judge's chambers, are confidential and strictly informal—designed not to weigh in on the success of legal arguments raised, but rather to explore how the issues could be reviewed and the advantages of settling to save time, money, energy and emotion.

Some CASP judges include litigants in the conferences. This face-to-face contact allows a party to see and hear a judge's realistic assessment of the risks and rewards of settlement, such as the length of time to obtain a result, the time frame if Supreme Court review is warranted, the possibility an appellate panel decision could rule either way based on unpublished cases on similar issues, or the absence of determinative evidence in the record.

Most important, the CASP judges take time to explain the limits of the appellate process, noting not all errors require reversal of a trial decision. After all, parties are not guaranteed a perfect trial, just a fair one. This reality helps parties and their lawyers re-examine the advantages of securing a final result through agreement.

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.