United States: Preventing Deficiency Notices From The New Jersey Appellate Division

It's 11:55 p.m., and you just put the final finishing touches on your brief to the Superior Court of New Jersey, Appellate Division, which is due before the clock strikes midnight. For the last few weeks, you pored over the relevant law, crafted your arguments as persuasively as possible and gained confidence that the Appellate Division would ultimately rule in your favor. You make your way to New Jersey's eCourts webpage, upload your brief and several appendix volumes at 11:59 p.m., and exhale.

The next day you receive an e-mail from the Clerk's Office that your submission "has been marked deficient" and that you have 15 days to correct the deficiencies identified in the attached letter. The deficiency letter identifies a litany of citation, formatting, and procedural deficiencies under New Jersey's Appellate Court Rules. Now you have to reopen documents you thought were finished, make additional - sometimes substantive - modifications, re-upload everything and hope you did it right this time.

It is not uncommon for the Appellate Division to mark submissions deficient. Its Clerk's Office serves as the gatekeeper to the Court and has a keen understanding of the Court Rules, and it holds the line on those Rules before letting a submission make its way to the panel of judges. The below checklist is intended to present and explain, in an easy-to-follow format, New Jersey's Appellate Court Rules governing briefs and appendices submitted to the Court, identify common pitfalls that generate a deficiency letter and attempt to assist practitioners and litigants in ensuring that they receive the e-mail notification that their submission has been accepted and filed the first go-round.¹

I. PREPARING THE BRIEF FOR ELECTRONIC FILING

A.GENERAL APPEARANCE AND FORMATTING THROUGHOUT THE BRIEF

• Font - 10-pitch or 12-point type font is permitted. R. 2:6-10. Although this Rule does not mandate a specific font, a comment to the Rule identifies Courier BT as the most common font used when submitting briefs to the Court.
• Spacing - No more than 26 double-spaced lines of no more than 65 characters per page. R. 2:6-10.
• Page Length - Initial briefs of appellants and respondents shall not exceed 65 pages. R. 2:6-7. Reply briefs, if any, shall not exceed 20 pages. Id. Briefs of a respondent/cross-appellant shall not exceed 90 pages, and the brief of an appellant/cross-respondent, if answering points raised in support of a cross-appeal, R. 2:6-4(e), shall not exceed 65 pages. R. 2:6-7. Page limitations are exclusive of tables of contents and citations. Id. These limitations may be relaxed by leave of court. Id.
• Text Recognition - Both briefs and appendices must be text-searchable using Optical Character Recognition (OCR). If using Microsoft Word, you can easily convert the document to a PDF that will automatically be text-searchable. See section II.F below for a discussion on making the appendix text-searchable.

B. BRIEF COVER PAGE

• Name of Court - Centered at the top of the cover page, above the caption: "IN THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION." R. 2:6-6(a)(1).
• Appellate Division Docket Number - Follows this format: "A-XXXX-XX."
• Title of the Action - Typical case caption used for pleadings; however, include the trial court and appellate court designations for the parties, i.e., "Plaintiff-Appellant" or "Defendant-Respondent." R. 2:6-6(a)(2).
• Nature of the Proceeding in the Appellate Court - Provide the name of the court or agency or officer below. R. 2:6-6(a)(3). If a court, the name of the judge or judges who sat below. Id. For example: "On appeal from: Superior Court of New Jersey, Law Division, Ocean County, Docket No. OCN-L-1234-19. Sat below: Honorable John Doe, J.S.C."
• Title of Brief and Party Affiliation - Include, in all capitalized letters, the title of the document and the designation of the party for whom it is filed. R. 2:6-6(a). While not required by the Rules, and if space permits, include the name of the party filing the document. For example, if filing a brief on behalf of a Plaintiff-Appellant, the title on the document can read: "BRIEF OF PLAINTIFF-APPELLANT JOHN DOE." Id.
• Name of Law Firm, Attorney, and Contact Information - If a party is represented by an attorney, include the name of the law firm, the mailing address, telephone number, fax number (if any) and an indication as to whom the attorney represents (i.e., Attorneys for Plaintiff-Appellant John Doe). Id. Identify all attorneys of record. R. 2:6-6(a)(5). The Rules permit designations of attorneys "Of Counsel" and "On the Brief." Id. Include the e-mail address for each attorney identified on the cover page as well as their New Jersey Bar Identification Number.

C. TABLE OF CONTENTS

• Include all Items Required by the Rules - Rule 2:6-2 requires a brief submitted to the Court to contain a table of contents, a table of judgments, a table of citations of cases, a concise procedural history, a concise statement of facts, and the legal arguments divided by point headings. The table of contents should identify the page in the brief where each of these items appear. R. 2:6-2. Each and every point, sub-point, and sub-sub-point heading should be included in the table of contents.
• • Tip: As noted above, the table of contents and table of authorities are not applied towards the page count. R. 2:6-7. Number these pages in small roman numerals in the body of the brief and in the table of contents with page "1" beginning at either the optional preliminary statement discussed below or the procedural history.
• Point Headings - In the table of contents and the body of the brief, the sections of the legal argument should be divided by distinctively printed or typed point headings. R. 2:6-2(6). At the end of each point heading in both the table of contents and the body of the brief include in parentheses the place in the record where the opinion or ruling is located. Id. For example: "POINT I - THE TRIAL COURT APPLIED THE INCORRECT STANDARD (T20-25)." If the issue was not raised below, indicate as such in the table of contents and the body of the brief with a notation: "(Not Raised Below)." Id.

D. TABLE OF JUDGMENTS, ORDERS AND RULINGS

• Format - Organize the table of judgments, orders, and rulings the same as the table of contents and include the citation to the first page of the document as it appears in the appendix. R. 2:6-2(a)(2).
• Items that Must be Included - The table of judgments, orders, and rulings should include citations to the portions of the record (i.e., the appendix) where the trial court's judgment(s), order(s), and ruling(s) under appeal are located. R. 2:6-2(a)(2). Or, if applicable, identify the portions of the record where the administrative agency's final decision(s) is located. Id. The table should also identify where in the record the trial judge's written, or oral opinion is located and the location of any intermediate decisions that are pertinent to the appeal (i.e., planning board resolutions, initial decisions of the administrative law judge, and appeal tribunal decisions). Id.

E. TABLE OF CITATIONS OF CASES, STATUTES, AND RULES

• Format - Organize the table of citations of cases, statutes, and rules the same as the table of contents, except that case names shall be in alphabetical order. R. 2:6-2(a)(3). Each page of the brief in which a source of authority appears should be included in the table of citations of cases, statutes, and rules. However, if a case, statute, rule, regulation, or other authority is cited on more than five pages of the brief, the table of citations of cases, statutes, and rules may identify the authority with passim. Citations to the specific page of any given case, other than the first page, is unnecessary in the table of citations; however, pinpoint citations must be included in the body of the brief.
• Order - List all cases cited first, followed by any constitutional provisions, statutes, rules, regulations, or secondary sources. Arrange every source of authority in alphabetical order. R. 2:6-2(a)(3).
• Case Citations - The Appellate Division does not follow all of the rules contained in the Blue Book. For a helpful guide on how the Appellate Division cites to cases, statutes, and court rules, see The 2017 New Jersey Manual on Style for Judicial Opinions. Any citations to published New Jersey cases should be to the official New Jersey Reporter and not the Atlantic Reporter. R. 2:6-2(a)(6). Published cases from the Law, Chancery, and Appellate Divisions are contained in the N.J. Super. Reporter. If citing to a case published in the N.J. Super. Reporter include in parentheses, before the year of the case, the name of the court (i.e., "Law Div.," "Ch. Div.," or "App. Div."). Decisions from the New Jersey Supreme Court are published in the N.J. Reporter and do not need an identification of the Court in parentheses. R. 2:6-2(a)(6). If citing to a published case outside of New Jersey, cite to the National Reporter System or, if not contained therein, the official report for that State or jurisdiction. Id.
• Procedural History for Cited Cases - The aforementioned New Jersey Manual on Style requires any case citation to include the subsequent procedural history of the case, if any. If citing to an Appellate Division case from N.J. Super. and the parties subsequently sought and were denied certification to the New Jersey Supreme Court, the end of the case citation should also include a "certif. denied" notation. For example, State v. Blome, 459 N.J. Super. 227 (App. Div.), certif. denied, 228 N.J. 458 (2016).
• • Tip: Note in the above case citation that there is no year contained in the parentheses for (App. Div.). If a case was decided by the Appellate Division and the Supreme Court, in the same year, denied or granted certification, or affirmed or reversed the decision of the Appellate Division, omit the year from the first parenthetical and include it at the end of the subsequent procedural history, as in the above example. If a case was decided by the Appellate Division in one year and the Supreme Court decides an issue in the case in a later year, include both years in the citation. For example, State v. Maure, 240 N.J. Super. 269 (App. Div. 1990), aff'd o.b., 123 N.J. 457 (1991).

F. APPENDIX TABLE OF CONTENTS

• When to Include in the Brief - If an appendix is being attached to the brief itself, include the table of contents for the appendix in the brief's table of contents. R. 2:6-1(c).

G. PRELIMINARY STATEMENT

• Optional - The Rules do not require a party to submit a preliminary statement. R. 2:6-2(7). If a party wishes to include a preliminary statement, it must be used to provide a concise overview of the case. Id. It shall not exceed three pages and may not include footnotes or, to the extent practicable, citations. Id.

H. CONCISE PROCEDURAL HISTORY

• Keep It Short - Include a statement of the nature of the proceedings and a reference to the judgment, order, decision, action or rule appealed from or sought to be enforced. R. 2:6-2(a)(4). For any document referenced in the procedural history, include a citation to the relevant page(s) of the appendix where the document may be located. Id. Refer to the parties by name or as "Plaintiff" or "Defendant" unless it is necessary to refer to the parties as "Appellant" or "Respondent." Id.
• Transcripts - If there are multiple transcripts that were submitted to the Court, then the first time a transcript is cited in the procedural history a footnote should be included listing all of the transcripts that have been presented to the panel and assigning them a numerical identifier in chronological order. For example:
• • "1T = Transcript of Jan. 5, 2020, Oral Argument on Motion to Dismiss";
  • "2T = Transcript March 10, 2020, Oral Argument on Motion for Reconsideration" R. 2:6-8.
• Citing Transcripts - If there are multiple transcripts, be sure to cite them in the brief using the numerical identifiers designated in the footnote contained in the procedural history. For example, if citing to page 20, lines 10-25 of the transcript of the Jan. 5, 2020 Oral Argument on Motion to Dismiss in the above example, it should appear as: "1T20:10-25." R. 2:6-8.

I. CONCISE STATEMENT OF FACTS

• Tell a Story - The Rules require statements of facts to be in the form of a narrative chronological summary. R. 2:6-2(a)(5). It should not be a summary of all the evidence adduced at a deposition or at trial. Id.
• Cite, Cite, Cite - If practical, each and every sentence contained in the statement of facts should include a citation of the appendix page(s) supporting the statement. For example: "On October 1, 2020, the defendant ran a red light and was cited for careless driving. (Ja1-2)." R. 2:6-2(a)(5). If citing to a brief of the plaintiff, use the prefix "Pb" followed by the page number. R. 2:6-8. If citing to a brief of the defendant, use the prefix "Db" followed by the page number. Id. If citing to a reply brief of the plaintiff, use the prefix "Prb," followed by the page number. Id.

J. LEGAL ARGUMENT

• Point Headings - As noted above, any point, sub-point, or sub-sub-point headings should be used to break up the argument into bite-size "chunks" that will assist the panel in understanding your arguments. R. 2:6-2(a)(6). At the end of each and every point heading, there should be a citation to the record where the issue was raised below. Id. If the issue was not raised below, include at the end of the point heading a notation of "(Not Raised Below)."
• More Citations - If a sentence in the legal argument relies on a case, statute, rule, regulation, or item in the record, include an appropriate citation to assist the panel reviewing your arguments.

K. CONCLUSION

• Ask the Court for the Relief You Want - At the end of the brief, include a very short "conclusion," reiterating the party's request for relief.
• Signature Block - The attorney signing the brief does not have to do so in an old-fashion pen and paper. A simple "/s/ John Doe" will suffice. Ensure the signature block at the end of the brief matches what is on the cover, including any designations of attorneys "Of Counsel" or "On the Brief."

II. PREPARING THE APPENDIX FOR E-FILING

A. WORK TOGETHER

• Joint Appendix - The Rules encourage litigants to work together in agreeing on the contents of a joint appendix, which shall be bound separately. R. 2:6-1(d).

B. COVER PAGE

• Formatting - The Cover page should include the same information as contained in the brief. However, the title of the appendix shall be named appropriately (i.e., "JOINT APPENDIX" or "PLAINTIFF'S APPENDIX"). As discussed in greater detail below, if there are multiple volumes of an appendix, the cover page should contain the volume and the pages contained within that volume. R. 2:6-1(c).

C. TABLE OF CONTENTS

• Formatting - Follow the same process for a table of contents in the brief. Each separate document contained in an appendix should include the date and title of the document. For example: "January 5, 2020 Order on Motion to Dismiss." R. 2:6-1(c). The first page of each separate document contained in an appendix shall be listed in the table of contents. Id.
• Use the Proper Prefix - If a Joint Appendix has been prepared, use the prefix "Ja" followed by consecutive numbering. For example, page 1 of the joint appendix would be numbered "Ja1" and page 2 would be numbered "Ja2." If no joint appendix has been prepared, and the plaintiff has prepared its own appendix, use the prefix "Pa." If the defendant also prepares an appendix, use the prefix "Da."
• Break it Out - If a document in an appendix contains, for example, an affidavit with exhibits, each exhibit shall be separately identified in the table of contents and the initial page of each attachment shall also be noted. R. 2:6-1(c). Be sure to identify each document by its exhibit number below. For example: "Exhibit 1 to Doe Affidavit - Sept. 1, 2019, Careless Driving Citation Issued to Defendant Jane Doe."
• Include it All - Even if there are multiple volumes of an appendix, each volume should contain the full table of contents with point headings indicating where each volume begins and ends. Id. As noted above, the cover page should indicate the volume of the appendix and the pages contained within that volume. Id.

D. APPENDIX-WHAT'S IN AND WHAT'S OUT

• Required Contents of Appendix - Rule 2:6-1 lists the items that must be included in any appendix, if applicable. These items include, but are not limited to:
• • The complete pretrial order in civil actions;
  • The indictment or accusation and, where applicable, the complaint and all docket entries in the proceedings below for criminal, quasi-criminal or juvenile delinquency actions;
  • The judgment, order or determination appealed from or sought to be reviewed or enforced, including the jury verdict sheet, if any;
  • The trial judge's charge to the jury, if at issue, and any opinions or statement of findings and conclusions;
  • The notice or notices of appeal;
  • The transcript delivery certification prescribed by R. 2:5-3(f);
  • Copies of any unpublished opinions cited in the brief pursuant to R. 1:36-3; and
  • Any other parts of the record that are essential to the proper consideration of the issues. If the parties were unable to agree on a joint appendix, then the appellant shall assemble an appendix that it "reasonably assume[s] will be relied upon by the respondent in meeting the issues raised."
• Prohibited Contents of Appendix - Unless there is a question regarding whether an argument was raised below, briefs submitted to the trial court shall not be included in the appendix. R. 2:6-1(a)(2). However, if a brief is referred to in the decision of the court or agency, or the question of whether an issue was raised in the trial court is "germane to the appeal," then only the pertinent information from the brief submitted to the trial court may be included. Id.
• Motions for Summary Judgment - If the trial court's decision on a motion for summary judgment is under appeal, the appendix shall include a statement of all items submitted to the court on the motion for summary judgment and all such items shall be included in the appendix, except the briefs unless otherwise permitted. R. 2:6-1(a)(1).
• Don't Include Documents Twice - If the same document is annexed to multiple pleadings, it should only be included as an attachment to the first pleading in an appendix, and any subsequent versions of the document shall be omitted and replaced with a slipsheet indicating the appendix page where the document can be located. R. 2:6-1(a)(2).
• Cut Down the Fluff - If only a portion of a document included in an appendix is pertinent to the appeal, the document may be abridged with asterisks indicating an omission. R. 2:6-1(b).

E. MULTIPLE VOLUMES

• 200 Sheets or Less - If an appendix is larger than 200 pieces of paper, it must be broken up into multiple volumes, with each volume containing the full table of contents to the appendix. R. 2:6-1(c).

F. TEXT RECOGNITION

• Running OCR - The Appellate Division requires all appendices to be text-searchable. Once you have your appendix volumes combined into PDF format, use the "Recognize Text" feature of Adobe to make the document text-searchable. You can test whether your document is text-searchable by pressing "Ctrl+F" on your keyboard and searching for a word that appears in the appendix. If there are no results in response to your search, then you know you have to run the "Recognize Text" function on Adobe.
• Mind the File Size - To file an appendix on eCourts, it must be smaller than 25MB. If your appendix is larger than 25MB, it will have to be broken up into smaller volumes.
• • Tip: Running the "Recognize Text" feature will increase the size of the PDF file, so be mindful of this when preparing appendix volumes. In addition, if you include documents in an appendix that are part of a larger document, avoid using the "Print to PDF" feature as it will also increase the file sizes. Instead, use the "Extract Pages" feature of Adobe, which should help keep the file size down. You can check the file size of a document by right-clicking it and selecting "Properties."

III. PAPER FILING

If your brief and appendix are "accepted and filed" by the Clerk's Office, your work is not yet complete. You also have to include paper copies of the filed documents to the clerk's office. Do not send paper copies until your brief and appendix have been "accepted and filed." See below for the guidelines on submitting paper copies.

• Paper Type and Size - Paper shall be of good quality, opaque, unglazed, and approximately 8.5 inches by 11 inches in size. R. 2:6-10. Papers may be printed on both sides, provided legibility is not impaired. Id.
• Binding - Papers must be securely fastened, either bound along the left margin or stapled in the upper left-hand corner. R. 2:6-10. If submitting a separate brief and appendix, both the brief and appendix shall be separately bound. R. 2:6-1(c), 2:6-10.
• Cover Color - The cover of the appellants' brief and appendix shall be white. R. 2:6-6(b). The cover of the respondents' brief and appendix shall be blue. Id. The cover of a reply brief and appendix, if any, shall be buff. Id. On a cross-appeal, the respondent/cross appellant's brief shall have a blue cover. Id. On a cross-appeal, the appellant/cross respondents' brief shall have a buff cover.
• Cover Paper Type - Covers of all briefs and appendices shall "be of a firm material but not glassine." R. 2:6-6(b).

Footnote

1. This checklist is not intended to provide legal advice of any kind and is not, and shall not, serve as a substitute for reading and carefully following New Jersey's Court Rules governing submissions to the Superior Court of New Jersey, Appellate Division.

* RJ Norcia served as a Law Clerk to the Hon. George S. Leone, J.A.D. (Ret.), in the Superior Court of New Jersey, Appellate Division, during the 2015-2016 term. He is a member of Stradley's Appellate Practice Group and has authored party and amicus briefs in the Appellate Division and other appellate courts. In addition to his appellate practice, RJ has significant experience appearing in State and Federal trial courts in New Jersey and focuses his practice primarily on healthcare litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.