Appealing to the Appellate Division: Appeals of Interlocutory Orders Part 2- The Process

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Appeals and Appellate Court Attorney

My last blog on appeals and the appellate court talked about the necessity of filing a motion for leave to appeal an interlocutory order, and whether the process is truly worth going through.  Remember that the court must give the party permission to appeal, and it is a heavy burden on the appellant to show that there is some sort of prejudice that will infect the trial, which warrants relief before it is adjudicated on.  Today, I will talk more about the procedure to do this.

Once the interlocutory order is entered, the party has 20 days after receipt of the order to motion for leave to appeal.  This period can be extended by another 15 days by the Appellate Division should there be good cause to do so, and there is no prejudice to the other side.  The issue must be briefed and cannot be longer than 25 pages.  The brief must also have an appendix that contains a copy of the order and a written copy or transcript of the decision of the trial court or agency, along with any other relevant documents.  In addition to the opposing sides, the trial judge receives a copy of everything, and has 10 days from receipt of the copy to provide a written statement to the Appellate Division whether leave should be granted.  It is recommended that when the motion for leave is filed, a motion to stay the trial court proceedings is also filed with the trial court, and if denied, to the Appellate Division.

The other side who opposes the motion for leave because he or she is in favor of the interlocutory order can also provide a written response as to why the motion should not be granted.  Remember that the standard to grant a motion to leave is extraordinary, requiring proof that it is in the interests of justice to consider this one issue before the trial commences, and not to do so at this point is irremediable.  Because it is a high standard to prove, the best way to defeat the application is to argue as to why this does not need to be considered right away.  Should the motion for leave be granted, the opponent can file a notice of cross-appeal regarding the interlocutory order in question only within 10 days.  Appeals of any other interlocutory orders require opposing counsel to utilize the above process.

After consideration of the motion, the Appellate Division can grant or deny leave.  If it grants leave, it can either reverse the trial court’s decision on the papers before it, which would be the brief and appendix.  It can also allow the parties to brief and argue the issues in the order further.  If it denies leave, or grants leave and affirms the trial court’s order, counsel may make a motion for leave to appeal to the New Jersey Supreme Court.  He or she would have 20 days from the date the opinion is posted by the Appellate Division to ask for leave from the Court.  Should a dissenting opinion be filed on the motion for leave, the issue in the interlocutory order becomes preserved for appeal after final judgment is entered, and there is an appeal as of right to the Supreme Court after the Appellate Division hears the appeal of the final judgment.

Ultimately, as I had said before, evaluate the issues in the case and whether it is worth filing an appeal before the trial on an interlocutory order.  If it is necessary, and would affect the outcome of the trial in a drastic way, then go for it.  Otherwise, wait until the conclusion of the trial and if judgment goes against the client, then make the interlocutory order a subject of the appeal.

To discuss your NJ Appeals and Appellate Court matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

Posted in Appeals.