How to Get Appellate Judges Angry: Attack Their Opinion as Too Concise

New Jersey Division of Child Protection and Permanency v. A.L., ___ N.J. Super. ___ (App. Div. 2019). On October 28, 2019, in a per curiam opinion that can be found at 2019 WL 5544014 (App. Div. Oct. 28, 2019), Judges Fisher and Rose affirmed a Family Part decision finding defendant guilty of child abuse and neglect. After summarizing the facts and the arguments presented by defendant and the Law Guardian on appeal, the panel found that those contentions lacked sufficient merit to warrant further discussion in a written opinion, citing Rule 2:11-3(e)(1)(E), and affirmed based on the “comprehensive and well-reasoned written opinion” of the Family Part judge, Judge Bruce Kaplan.

Defendant, through new appellate counsel, moved for reconsideration. She also sought to re-open the record to allow her to press a claim of ineffective assistance by her prior appellate counsel (both appellate counsel were designated through the Office of the Public Defender). That was a novel claim. In an opinion today by Judge Fisher, joined by Judge Rose and Judge Accurso, who was not on the original panel, the Appellate Division remanded that issue for further development.

The reconsideration motion, however, aroused the panel’s ire. Defendant asserted that the panel had “eschewed the basic appellate obligation to review the record” and had failed to “scrupulously review” that record. The sole basis for that argument was “the fact that [the panel’s] opinion is three paragraphs in length.” Judge Fisher emphatically rejected that argument as “frivolous.”

In its three paragraphs, the panel had recounted the fact that, two months before her child was born, defendant had admitted to the plaintiff Division that she was a drug addict, “using as many as five bags of heroin daily.” One month later, the panel noted, defendant tested positive for heroin and cocaine, and one week before the birth, defendant tested positive for cocaine. The Family Part conducted a one-day hearing and found abuse and neglect.

The panel opinion also recognized that defendant had sought to keep the trial record open so she could adduce expert testimony. The Family Part denied that request as belated and without any certainty that defendant could obtain a favorable expert report. The panel found no abuse of discretion in the Family Part’s refusal to continue the hearing.

The panel’s three paragraphs were ample to summarize, accurately, the facts and legal arguments. In today’s opinion, Judge Fisher denounced the “unusual argument … that the length of a court’s opinion is proportionate to the court’s investment of time and energy in its disposition; in other words, defendant apparently believes courts issue lengthy opinions when they have exerted a great amount of effort and short opinions when they have given little or no attention to the record or the arguments. No assertion could be more misinformed or misguided.”

To drive home the point, Judge Fisher cited landmark decisions, including Brown v. Board of Education, 347 U.S. 483 (1954), Gideon v. Wainwright, 372 U.S. 335 (1963), and Schenck v. United States, 249 U.S. 47 (1919), as examples of “celebrated judicial opinions [that] have been extraordinarily concise when compared to the compelling issues presented.” Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928), Judge Fisher said, consumed only six paragraphs, but “no law school tort … textbook would be complete” without it.

Judge Fisher then went on to address the panel’s reliance on Rule 2:11-3(e)(1)(E). He noted that the Family Part’s opinion on which the panel had relied was 22 pages long. There was nothing wrong with adopting that ruling. Judge Fisher cited numerous cases, including one involving termination of parental rights, where our Supreme Court had, in comparable fashion, adopted a majority or dissenting opinion of the Appellate Division.

As this blog has often noted, including here and here, Judge Fisher in particular has mastered the art of the concise opinion. As he stated in today’s ruling, “the idea that longer opinions are the product of greater consideration than shorter opinions is just simply wrong.” (Many of us learned in grade school that the related idea that, in writing, “length is strength” is a fallacy).

An opinion need only be long enough to cover the subject. The panel’s brief opinion did that, and substantially incorporated the far longer ruling of the Family Part. In other jurisdictions, appellate courts routinely issue one-sentence, or one-word (“Affirmed”) rulings that offer no illumination at all. Though our Appellate Division has been the busiest undivided appellate court in the United States, its panels virtually never do that. Even when the Appellate Division cites Rule 2:11-3(e)(1)(E), it virtually always goes on to add some explanatory remarks. Defendant’s argument here was indeed “misguided.”