Consider Appellate Arbitration And Consultation

Monday, February 1, 2010 - 01:00

Editor: Bill, your firm is offering two innovative services. Please briefly describe each of these services.

Dreier: The first is an appellate arbitration panel, which includes a complete program of hearings, awards, and remand hearings. Jack and I and a third retired justice or Appellate Division judge, chosen by the appellant and respondent from a select list, will arbitrate the appellant's civil appeal, hearing the matter within 30 days after the parties' briefs are filed, and will render an arbitration award within 30 days after argument. The appellant's pending Appellate Division appeal will be stayed, and the arbitration award can later be confirmed, resulting in (1) a consent dismissal of the appeal (affirmance), (2) the entry of a new judgment on a confirmed arbitration award, or (3) in the event of a remand, the remaining issues will be decided by the panel or remanded to a select arbitrator with or without a private jury. If the arbitration route is chosen, the panel will be prepared to hear any new appeal without delay. We supply all forms.

The second service is appellate consultation, which includes analysis and consultation, moot appellate arguments and critiques, and brief writing. Judge Lintner and I will provide advice concerning the writing and revision of appellate briefs, analyze arguments, and work with lawyers in developing an effective appellate presentation. They can practice their arguments and obtain critiques from two of the respected retired presiding judges of the Appellate Division of the New Jersey Superior Court. We also provide brief writing by over a dozen experienced appellate attorneys, including several who have served in appellate clerkships.

Editor: What aspects of your backgrounds are relevant to the services that you will be providing?

Lintner: Bill and I were both presiding judges (now retired) of the Appellate Division of the New Jersey Superior Court. I was at the Appellate Division for nine years, and Bill was there for 15 years. Before that, we were both presiding judges of the Chancery Court, the Chancery Division of the Superior Court, and I also was the presiding judge of the Law Division. In total, I was on the bench for 20 years, and Bill was on for 25 years. Bill's background before serving on the bench was as a banking lawyer and a municipal lawyer, and I was a certified civil trial lawyer. We both have done arbitrations and mediations regularly now for a number of years. Because Bill retired nine years earlier than I did, he's had substantial experience as an arbitrator for the American Arbitration Association and CPR (International Institute for Conflict Prevention and Resolution).

Editor: What are some of the advantages of appellate arbitration?

Dreier: There are two major complaints with our old court, the Appellate Division. First, because of the Appellate Division's volume, it is very difficult to get a quick answer. It takes a long time to get on the calendar, and it takes a long time to get a decision. We don't know why, because both Jack and I were known for getting our decisions out quickly when we were writing the opinions. Second, the quality of the judges is viewed by the bar as uneven, and you do not know who will hear your appeal. Under our program, you pick the arbitrators.

Lintner: Remember, if you're going to appeal a case in New Jersey, it's going to be a year to almost two years before you get an opinion. Probably half the judges on the Appellate Division take six months or more to get their opinions out after oral argument.

Dreier: We intend that we will hear the case not more than 30 days after the filing of briefs, and within 30 days after argument, we will render a decision. So that's 60 days. We think that the actual turnaround time will generally be no more than 30 days from the filing of the briefs. It's up to the lawyers as to when they get their briefs done and when they want to argue. We'll work with them on a briefing and argument schedule, and when they submit their briefs, they can have their appeal heard within 30 days. And they'll have a decision from a panel that they picked, not the panels that now exist in the Appellate Division. They'll be able to tell their clients that the decision came from former appellate judges and former Supreme Court justices.

Initially, counsel would make a motion in the Appellate Division where this matter is pending to stay the appeal, and the stay is required by the Arbitration Act. That court stays the appeal, so it's frozen

Editor: So you're not out of court at that point?

Lintner: No, because you want to keep it there for the next move after our decision. Let's say we enter a decision affirming the decision below. You can have that decision confirmed by the Appellate Division. Actually, the easiest thing you can do if it's an affirmance is just dismiss the appeal, and the original decision would stay in effect.

If we modified a decision of the trial court, that doesn't require a remand; counsel would enter that modification as an arbitration award. As the appeal is still pending in the Appellate Division, the prevailing party would make a motion in that appeal to confirm the arbitration award. Under the Arbitration Act, the court would hear it and confirm the award. Then it's over.

If there is a reversal so that there is a dismissal ordered, we can easily do that also. However, if we reverse the original decision and remand the case for a jury trial, we must use a private jury to hear the case. However, often the matter will be a non-jury case, or a remand jury can be waived. That case would be arbitrated on remand. If the case remained in the court system, it usually would go back to the judge who originally tried it and in whom the parties may not have much faith because of the original decision and the problems that engendered the reversal. So it would often be in the parties' best interest to have an arbitrator hear this on remand. We will make available to the parties a cadre of at least ten respected retired judges from whom the parties can choose in their initial agreement to use in the event of a remand.

Editor: Isn't one of the benefits of appellate arbitration that there is little or no discovery on remand to an arbitrator?

Dreier: That's right. An arbitrator is permitted to limit discovery. It depends whether it's under the Federal Arbitration Act (FAA), where there is extremely limited discovery, although there are procedures to permit documentary review and even issuances of subpoenas. If it's under the New Jersey Act, discovery is broader, but it still is under the complete control of the arbitrator and, therefore, usually quite limited.

Editor: So maybe a remand to an arbitrator is a desirable thing to have happened.

Lintner: Right, because you will have confidence in the arbitrator. The beauty of our program is that counsel and the parties know up front the arbitrator they will have on remand because they already have agreed to him or her.

Editor: You also provide appellate consultation. Please tell us a little more about that service.

Lintner: If an appeal is pending or you are anticipating an appeal, we can help with your briefs or we can write your briefs. I have had a number of cases this past year when briefs have been filed, and one side contacts me and sends me the transcripts and both sides' briefs. The attorneys ask me what I think their best argument will be in front of the Appellate Division. They ask me about the judges, what I know about them and what the likely response would be to certain issues. What I do is review both sides' briefs and the transcript. Then, I'll sit down with the lawyers and tell them where I think they should concentrate their arguments. Lawyers tend to put too many issues in an appeal. They will argue too many points when there are really only two or three salient points that could be winners. So you get them to focus on the important points of the appeal, either to get the case affirmed if you're helping the respondent, or to get a reversal if you're helping the appellant. I advise counsel what I think the likely result will be and why.

Dreier: Jack and I have worked together or separately on these types of cases, and our services run from virtually handling the appeal to creating a moot court. Recently I was called in just to argue an appeal in federal court after briefing was complete. In another case, reviewed after briefing, I suggested that the lawyers not use what they thought were their two leading arguments and concentrate on a third that they raised toward the end of the brief. I told them that the first two arguments were clever, but they were not going to carry the day, and the only chance to win was to stress the third argument - and it worked.

Please email the interviewees at wadreier@nmmlaw.com and jllintner@nmmlaw.com with questions about this interview.