As we all adjust to new procedures to keep the wheels of justice rolling, knowing the dos and don'ts of seeking emergent appellate review offers an important tool in your litigation tool box.  The process appears easy enough; however, understanding the parameters governing the court's review becomes critical to obtaining relief.

Just as a trial or administrative judge is asked to consider emergent issues presented by an order to show cause, the Appellate Division incorporates a gateway function to identify requests that are truly emergent. The process starts with a request for permission to file an emergent motion. The court rules offer limited guidance on this. See R. 2:9-8; cmt. 4. to R. 2:8-1.  Accordingly, the court issued guidelines and forms to commence the process for emergent review of any trial court order. These necessities are found under the appellate tab of the judiciary's website, www.njcourts.gov. Importantly, the guidelines for this screening process explain the general principles governing emergent review and even include possible examples.  See https://www.njcourts.gov/forms/10498_appl_perm_file_emerg_motion_portal. pdf?c=yUR (last updated on March 19, 2018).

The centralized process for immediate appellate intervention starts with a call to the designated attorney in the Appellate Division's Clerk's office, who routes completed requests to the emergent duty judges. The request (and if permitted, the motion) are filed with the clerk's office; not appellate chambers. Electronic transmission is permitted and encouraged.  Emergencies arising outside normal business hours are communicated through the State Police and must demonstrate that the matter cannot wait until the court opens.

Before you make that call, ask: "Is the matter emergent?" There must be a need for immediate relief; a desire for prompt review of a trial order is insufficient, and the substantive merits of a request are not weighed when determining whether short notice review is warranted. Rather, it is imperative "the application demonstrate the nature of the alleged impending harm, in addition to the time frame in which [the harm] will occur." The test requires (1) either irreparable injury or some similar showing will occur (2) before the court could review the matter in its ordinary course, such that (3) the interests of justice require review on short notice. Under this rubric, the loss of money is typically a bad candidate for emergent appellate relief.

The request must also be timely. Securing permission for short-notice review is hampered when the application reflects a "self-generated emergency," created by the applicant's delay, which in turn causes undue prejudice to the adversary. The guidelines instruct: "Unless an applicant provides a persuasive, written explanation for the delay, the court may either (a) decline to hear a 'self-generated emergency' application, or (b) set a briefing schedule that allows the adversary a fair chance to respond, and the court a reasonable time to decide the motion, even if that schedule leaves the applicant at risk that the threatened harm may occur in the interim."

The responses to a 19-question application must satisfy these requisites. The only attachments permitted are the order from which relief is sought and, if applicable, the order denying a request for a stay of that order. Do not include pleadings, underlying documents, or briefs. At this stage, all you are seeking is the right to file a motion—you are not filing the motion itself.

Permission to proceed on an emergent basis turns on "what is just and consistent with fairness and common sense." The review evaluates "the magnitude of the threatened harm to the applicant if the short-notice motion is not heard in time to prevent the harm from occurring."

Following review by a single judge, permission is granted or denied. The disposition order is a check list in part, particularly if the request is denied. If granted, the court's order will include a briefing schedule, with short timelines for the applicant to submit the motion and supporting filings and the respondent's pleadings. The applicant must serve the order and briefing schedule on all interested parties as well as the trial or administrative law judge. In addition to the motion, supporting certification and brief, be prepared to supply necessary transcripts.

Very Important: Appellate review requires the court to have jurisdiction. Without the authority to proceed, the request to file an emergent matter must be denied, causing delay in obtaining relief. Consider the following.

If you seek a stay of the trial court or agency order, the first request must be made to the trial judge; if denied, your next step is to the Appellate Division, seeking permission to file a stay motion on short notice. See R. 2:9-5; R. 2:9-7. Even if permission to file the motion is granted, it will not operate as a stay; a formal motion for stay is necessary. However, in rare cases, "where the threatened harm is severe and will occur very quickly," the dispositional order granting permission to proceed on an emergent basis may include an interim stay "to preserve the status quo" pending the panel's review of the complete  motion package.

There may be occasions when a trial judge refuses to consider a stay request or sign a stay order. If a trial judge refuses to sign an order denying the stay, certify what circumstances kept you from obtaining a stay order in time to stop the identified harm. For example, a trial judge may inappropriately refuse to consider a stay request unless a new motion is filed, to be considered in the regular motion cycle.

Equally important: You must formally seek appellate review along with the emergent motion. If you seek relief from a final order, a notice of appeal must be filed in addition to the emergent motion. If the challenged order is interlocutory, leave to appeal must be sought. Although there is no fee to seek permission to file an emergent application, once the matter is accepted by the court, all applicable filing and motion fees must be paid.

Emergent matters proceed like other motions. Most decisions are made on the papers; however, instances requiring argument before the emergent panel have arisen. At times, the panel may issue a full opinion, particularly when doing so ends the appellate process or disposes of the underlying dispute. But more often, appellate motion orders, unlike their trial counterparts, are devoid of the court's reasoning in reaching the result, garnering confusion or frustration. Emergent disposition orders are no different. But, knowing what facts must be shown to constitute an emergent matter—that is, harm must be immediate and irreparable—demystifies the reasons emergent relief will be granted or denied.

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.