Sackman v. New Jersey Manufacturers Ins. Co., ___ N.J. Super. ___ (App. Div. 2016). [Disclosure: I represent New Jersey Manufacturers in certain litigation, but not in this case]. This opinion, issued today, involved an underinsured motorist claim against an insurance company. The case was tried for three days, and the jury, after deliberating for twenty minutes, returned a verdict in favor of defendant and against plaintiffs. Plaintiffs appealed and the Appellate Division affirmed. Judge Fuentes wrote the panel’s opinion, which applied the standard of review, applicable to jury verdicts, that there was sufficient evidence and legitimate inferences therefrom to permit the jury to find as it did.
Judge Fuentes rejected the legal arguments that plaintiffs raised. He then went on, however, to impose a $200 sanction on plaintiffs’ appellate counsel, an action that he recognized was “extraordinary.” He stated that plaintiffs’ arguments were not frivolous, and plaintiff’s brief was “neatly printed and the point headings clearly identified the legal issues raised therein.” But “plaintiff’s appellate brief reveals a complete lack of any effort by counsel to cite and discuss, in a professionally responsible manner, relevant legal authority in support of the three arguments raised therein.”
In support of plaintiffs’ first argument, which attacked the trial judge’s decision to take the issue of permanent injury from the jury, counsel cited just one case, and “did not discuss or even identify the relevant standard” of review. Nor was there any analysis of how the reasoning of the cited case applied to the facts of the case or the requirements of the governing statute.
Plaintiffs’ second argument was that the twenty-minute jury deliberation, without more, showed that there was a miscarriage of justice. The brief spent two and one-half pages on that issue, devoting one-half page to quoting a Model Jury Charge about the duty of the jury to be impartial and not to allow bias or sympathy to intrude. That argument did not cite any legal authority.
Plaintiffs’ final argument arose from a statement by defense counsel in opening statements that defense counsel represented the defendant driver rather than the insurance company. Plaintiffs’ appellate brief devoted just one and one-quarter pages to that argument and, once again, cited no legal authorities. In fact, Judge Fuentes said, “[h]ad plaintiff’s appellate counsel taken the time and effort to conduct even a modicum of research of this legal issue, he would have discovered our Supreme Court addressed this precise contentious question in Bardis v. First Trenton Ins. Co., 199 N.J. 265 (2009),” five years before the trial of this case.
Citing State v. Hild, 148 N.J. Super. 294 (App. Div. 1977), which had imposed sanctions where a party had failed to justify its position “by specific reference to legal authority.” Judge Fuentes reaffirmed the Appellate Division’s “commitment to the enforcement of the professional standards our colleagues expressed in Hild.” Plaintiff’s counsel was sanctioned for “a lack of effort.” Counsel “failed to conduct even a modicum of legal research or attempt to present any reasonably competent analysis of the law as it related to the facts of this case.” By submitting a shoddy, professionally unacceptable brief, plaintiff’s appellate counsel displayed a disrespect for the work of this court and for the legal profession itself.”
Judge Lihotz joined in the opinion of Judge Fuentes. Judge Gilson filed a concurring opinion, joining in the result on the merits, but stating his view that plaintiffs’ appellate brief was not “so lacking in thought and preparation as to manifest a disrespect to professional standards.”
There are several takeaways from this opinion. First, though appellate sanctions are rare, they are available, and counsel must assume that, at some point, they will be imposed. Second, and most obvious, counsel must cite legal authority and relate it to the facts of the case. Third, the opinion may signal a requirement that counsel address the standard of review in every brief, since that was one of the things for which Judge Fuentes criticized plaintiffs’ appellate counsel here. The standard of review is an important aspect of any appeal, but the New Jersey Court Rules, unlike the Federal Rule of Appellate Procedure 28(a)(8)(B), do not explicitly require that the standard of review be addressed. Prudent appellate counsel will, however, do that in every case going forward.