Interlocutory or Emergent Appeals and Other Desperate MeasuresAugust 22, 2016 New Jersey Law Journal
Jeffrey M. Pollock authored the New Jersey Law Journal article, "Interlocutory or Emergent Appeals and Other Desperate Measures."
Despite the depressing odds against you, there are times in an appellate lawyer's career when you have no choice but to file in the hope that you can grab victory from the jaws of defeat. This can occur at trial where you need immediate appellate intervention (interlocutory or emergent appeals), and it may happen where the appellate court's opinion is simply in error (petition for rehearing). The purpose of this article is to lay out the parameters of what the appellate court may recognize if you're able to grab their attention.
Frame the Issue
The one constant to each of these desperate appellate measures is that you must first and foremost frame the issue if you intend to have a prayer for success. It is the exceedingly rare case where the issue just jumps off the page—consider carefully how your case affects the entire legal system. Your case is likely important only to you, but the legal issue may impact the entire legal system. Before discussing the raw materials needed for a successful interlocutory or emergent appeal, or for a petition for rehearing, one element is absolutely necessary for success—distill the issue to its essence and state it powerfully.
We are repeatedly admonished as litigators that interlocutory appeals, emergent appeals and petitions for rehearing are rarely granted. That is accurate. For this reason, most times we are best served to refrain from filing in the first place because of both the cost and limited likelihood of success. In those rare circumstances where you are compelled to file one of these actions, however, the critical element is to grab the court's attention and make it evident that the issue here is one that simply cries out for immediate redress. If you do not frame the issue well, you are doomed to fail.
Mechanics first. The Appellate Division may grant leave for an interlocutory appeal "in the interest of justice." R. 2:2-4. Do not let the breadth of the "interest of justice" deceive you—interlocutory appeals are granted only in exceptional cases. An interlocutory order is an order that does not address all issues before the trial court or administrative agency. If the order does not address all issues as to all parties, it is interlocutory. An application for leave to appeal from an interlocutory order may be made by serving and filing with the court or agency appealed from within 20 days after the date of service of such order or administrative decision. R. 2:8-1. If there is a motion for reconsideration after the initial order was entered, beware of the eroding time limit for filing.
The motion for filing leave to appeal does not stay the proceedings in the trial court except on motion to the trial court or agency. If you request a stay from the trial court and that request is denied, then it may be necessary to make an application simultaneously in the appellate court for relief. If you are pursuing an interlocutory appeal, the Appellate Division will require a copy of the order of the trial court—if the court will not provide the order then you must at least provide the transcript of the hearing before the trial court. If you want to get a more detailed consideration of the types of interlocutory appeals likely to be considered, and of the mechanical steps necessary, I recommend you read Carol M. Henderson's article "A User-Friendly Guide to Interlocutory and Emergent Appeals," pp. 20-25, New Jersey Lawyer (August 2016).
There are a few times in most litigators' careers where time truly is of the essence. It can't merely be the case where the trial court "got it wrong." For an emergent appeal, the matter has to be immediate and irreparable—and you must succinctly demonstrate a real likelihood of success. The loss of money or a breach of contract (for which money damages will likely suffice) are typically bad candidates for an emergent appeal. If you have that rare and true appellate emergency, contact the Appellate Division Clerk's office at (609) 633-7082 and advise them of your emergent application. Pursuant to R. 2:9-8, a single Supreme Court of New Jersey Justice or Appellate Division Judge may grant temporary relief such as a stay or emergency order until the court takes further action. But, before an emergent application is made to the Appellate Division, an application must first be made for a stay to the trial court or administrative agency. R. 2:9-5; R. 2:9-7.
Petitions for Rehearing
A petition for rehearing is different conceptually from an interlocutory appeal or an application for emergent appeal because both an interlocutory appeal and an application for emergent relief are focused on the merits of the matter that was before the trial court below. In a petition for rehearing, the advocate is not addressing the merits of the underlying determination but rather is addressing the appellate court's opinion (not the trial court's decision). In federal court, a Petition for Rehearing to the Third Circuit United States Court of Appeals must be filed within 14 days of the issuance of the decision.
In seeking rehearing, you have to consider whether you intend to have the matter considered by the same panel or to request an en banc hearing (which is truly catching lightning in a bottle). If you pursue rehearing before the same panel, you will not normally be able to then pursue an en banc hearing. In the New Jersey Appellate Division and Supreme Court the party filing a motion for reconsideration must file within 10 days after entry of the judgment or order. In both the state and federal systems, the party seeking rehearing or reconsideration may request additional time, but that request must be made before the time-period to file has expired.
My wife and I are blessed with a wonderful golden-doodle puppy, Lilah, who has incredible energy and love, but little attention to instruction. Listening to my wife and Lilah at home last night, I lost count in 10 minutes of the number of times Lilah heard a firm "No!" Ignoring the onslaught of "No! … No! … No! …." Lilah happily persists in prying into the garbage, chewing on the furniture, gnawing my wife's sandals, pawing at the mirror, etc. To pursue interlocutory appeals, emergent appeals or petitions for rehearing we have to take a small lesson from Lilah and persevere despite the "no" that will likely come our way. I hope that you can take the small rebuke of a "no" with the same good demeanor and be dogged in your pursuit of justice.•
Reprinted with permission from the July 22 issue of the New Jersey Law Journal. (c) 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.