New Jersey Appeals to Appellate Division & Supreme Court


Common standards of appellate review have, thus far, not been addressed. Appellate courts do not consider issues from the same perspective as a trial court or a state agency. Instead, alleged errors raised by an appeal are considered by the appellate court pursuant to established standards of appellate review. In presenting an appeal, the appellate attorney must keenly identify the correct standard of review for each issue. Most clients and even attorneys are unaware that the standard of review often determines the outcome of an appeal.  The well established standards of review include: 1) de novo or plenary; 2) sufficiency of evidence to support the decision; 3) clearly erroneous; 4) mistaken exercise of discretion; 5) miscarriage of justice and 6) arbitrary and capricious. A few examples of the application of the standards of review applied to certain issues on appeal include the following scenarios.  Alleged error in charges to the jury are reviewed de novo by appellate courts, which is the least deferential to the court below. The jury charge must be read as a whole. Thus, the important factor is whether the charge as a whole is accurate. The failure to charge a jury on an element of a crime is presumed to be prejudicial error. In another situation, the standard for review for a motion to reverse a verdict because it is against the weight of the evidence is set forth as follows: “ the trial court’s ruling shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law”. Decisions which are in the discretion of the trial court are reviewable by the Appellate Division under an abuse of discretion standard. Such decisions will be reversed only if a mistake in exercise of discretion is shown.  Examples of discretionary decisions include a decision to grant or deny a motion for a mistrial or an adjournment, a decision to read or refuse to read certain testimony to the jury, and a decision to exclude evidence under Rule 4 of the Rules of Evidence etc.

Appellate courts review appeals from state administrative agencies with great deference to the decision by the agency. Accordingly, most agency decisions are reviewed under an arbitrary or capricious standard which translates into whether there was a violation of legislative policy. The opinion in Matter of Musick, 143 N.J. 206, 216 (1996) summarized the standard of review of administrative decisions by stating, “ Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy. The judicial role is restricted to three inquiries: 1) whether the agency’s action violates express or implied legislative policies; 2) whether the record contains substantial evidence to support the findings on which the agency bases its action; and 3) whether, in applying legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors”.

Of course, the administrative action cannot offend state or federal constitutions.

In other sections, the commencement of an appeal has been discussed coupled with an emphasis on deadline for almost each and every phase of the appellate process for which the violator receives no relief and, in fact, is most often disciplined by the court by imposition of sanctions or other means. The most difficult aspect of appellate practice which renders it virtually incomprehensible to both the Appellant, considering pro se, and the trial attorney, continuing on with the appeal, are summed up by 3 words: Transcript, Appendices & Briefs!  While the brief is the soul of an appeal, the transcript of the proceedings below, which can range from a few hundred to many thousands of pages, plus the appendix, should be viewed as the overwhelming body of knowledge upon which the appellate court will base its decision. The three are inextricably woven together. The three steps involved with the appendix can be briefly summarized as follows: 1) the transcript must be formally requested and served on all parties within certain time restrictions; 2) the contents of the transcript, whether hundreds or thousands of pages, must be determined, prepared and reviewed with a hawk’s eye to detail and eventual recitation in the brief; and 3) appropriately filed and served in a pre-determined number of copies upon different parties within a set time frame.

I have said that an appellate attorney needs to first experience trial law to not only grasp the procedural and substantive aspects of a trial but to have the acumen, patience and ability to meticulously and copiously review each and every line of the transcript even if contained within numerous volumes. The brief must eventually be replete with continual references to the exact line(s) and page(s) of the trial transcript(s) in order to demonstrate to the appellate judges exactly where the error was made so as to never allow a judge to go on a fishing expedition for such error. The Appellant has the responsibility for requesting the transcripts in various calibrations of copies that must be prepared by the county court reporter well in advance of the brief. Unfortunately, it is not inexpensive to order these necessary transcripts without which an appeal cannot proceed. The appellate attorney must explain this extra significant cost to the client and that the fees paid for the transcripts never reach the coffers of the appellate attorney but are an essential part of filing an appeal.

The importance of the appendix to the judges should never be underestimated. Not only is the content of the appendix critical but also the ease of use and consistency of form assist the judges in easily accessing information they need not search for haphazardly.   In civil appeals, 6 items are required to be included in the appendix and they include:

  • the complete pre-trial order and pleadings;
  • the judgment, order or determination appealed from or sought to be reviewed or enforced;
  • any opinion, statement of findings and conclusions by the court or agency, and if at issue, charges to the jury;
  • the transcript delivery certification;
  • statement of proceeding in lieu of a record prepared;
  • such other parts of the record essential to proper consideration of the issues.

In criminal cases, the first item is replaced by the indictment and, where applicable, all docket entries in proceedings below. The following attachments, items two through six, must also be included in the appendix and attached to the  appellate brief. If the trial judge’s opinion, statement of findings and conclusions or charges to the jury are in issue, they must become part of the appendix as well. The Appellate Division does not consider materials that are not part of the transcript or appendix known as 'the record'.

Superb brief writing is fundamental to a successful appeal. Although cloaked in procedural rules, regulations, statutes, substantive law and replete with citations to the transcripts and to precedential case and statutory authority and references, the brief is foremost the vehicle of persuasion!! Although legal research can be painstaking, it provides the writer with a thorough understanding of the applicable law while refining the issues on appeal.  Despite the rigid structure imposed upon the brief by the Rules, the appellate attorney must possess an expertise for writing coupled with a love of story telling so the client’s situation is palpable to the judges and calls out for resolution on the client’s behalf in the form of appellate relief.


Pursuant to Rule 2:2-1(a), only final appeals may be taken to the New Jersey Supreme Court as of right in the following limited circumstances:

Appeals may be taken to the Supreme Court from final
judgments as of right: 1) in cases determined by the
Appellate Division involving a substantial question arising
under the Constitution of the United States or this State;
2) in cases where, and with regard to those issues as to
which there is a dissent in the Appellate Division; 3) directly
from the trial courts in cases where the death penalty has
been imposed and in post-conviction proceedings in such
cases; and 4) in such cases as are provided by law.


In juxtaposition to the above-mentioned Rule, the most usual way, with little exception, for an appeal of a final judgment from either a trial court or a state administrative agency below that has been upheld or denied by the Appellate Division to reach the Supreme Court is by way of certification, which is not a right but a privilege. Therefore, the appellate attorney advising a client considering an appeal to the Supreme Court must inform the client that certification is granted as a matter of the Court’s discretion and not as a matter of right. There are 5 grounds for certification:

  • A question of public importance that has not been, but should be, settled by the Supreme Court
  • Similarity to a question presented in another case pending in the Supreme Court
  • Conflict with another decision of the same or higher court
  • Urgent need for exercise of the Supreme Court’s supervisory authority
  • Interest of justice

The Notice of Petition for Certification must be filed within 20 days of entry of the final judgment of the Appellate Division. Within 30 days of same final judgment, a Petition for Certification must be filed with the Supreme Court Clerk in the form of a brief accompanied by the record, which consists of the opinion of the Appellate Division, briefs, appendices and transcripts filed in the Appellate Division.

Each term, the Supreme Court receives well over 1,000 petitions for certification. Of these, approximately 8% to 9% are granted. Analysis of statistics pertaining to petitions for certifications reveal that 15% of the petitions filed in civil cases are granted while only 2% of the petitions filed in criminal cases were granted.



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