Trial Lawyers Beware: Appellate Division Sua Sponte Sanctions Plaintiff’s Appellate Attorney for Shoddy Brief

By: Sherry L. Foley, Esq.

The Appellate Division in Sackman v New Jersey Manufacturers Ins Co., on April 26, 2016, sanctioned the plaintiff’s appellate attorney pursuant to Rule 2:9-9. That rule is designed to deter the improper prosecution and defense of an appeal. It’s purpose is to prevent the misuse of judicial resources that result from such improprieties. Not to be confused with Rule 1:4-8 or the Frivolous Action Statute, Rule 2:9-9 is meant to deal with violations of appellate procedural rules rather than spurious appeals.

The court in Sackman felt compelled to censure and sanction appellate counsel personally because the brief he submitted “displayed an utter indifference to the standards of professional competence a tribunal is entitled to expect from an attorney admitted to practice law in this State.” Sackman, supra, slip op. at 27. The brief lacked “any effort by counsel to cite and discuss, in a professionally reasonable manner, relevant legal authority” as it pertained to points raised in his brief. Ibid.

Among counsel’s transgressions, he failed to cite the relevant standard of review; he failed to analyze case law as it applied to the facts at bar. He failed to provide any case law in support of some of his positions and instead filled pages with nothing more than his unsupported assertions. Labelling the brief “shoddy” and “unprofessional”, the court cited to State v. Hild, 148 N.J. Super. 294 (App.Div. 1977) wherein the court had addressed and condemned similar “shoddy” workmanship. “The absence of any reference to the law, as here, suggests as well a regrettable indifference on the part of the brief writer not only to the rules but to the interest of the client as well.” Id. at 296.

Reaffirming its commitment to the professional standards expressed in Hild, the court set forth three rules that every attorney practicing before the court must adhere to. First, be familiar with the record below. Second, research and analyze pertinent legal authority as it applies to the pertinent facts on appeal. Third, briefs must reflect that the first two rules were performed in a “diligent and professional manner.” Sackman at 30.

The court emphasized that this type of professional behavior is not only to be expected from the courts but from your clients as well. The monetary sanction imposed was not substantial–the attorney’s firm was to issue a check payable to the Treasurer of the State of New Jersey in the amount of $200.00—but the client lost and, based on the opinion, may have an ethical complaint against the attorney. The moral of this case is hire experienced appeal counsel to handle your appeals. From this point forward, briefs submitted to the appellate courts of New Jersey will be strictly scrutinized for compliance with the Sackman standards.

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