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Category: Appellate Law

  • A New Jersey Appellate Attorney’s Guide to Appeals

    A New Jersey Appellate Attorney’s Guide to Appeals

    No “Do-Overs,” But…

    Trial courts, like everyone, make mistakes. When that happens in New Jersey, you have the right to appeal your matter to the Appellate Division, which will review your case for the alleged mistakes. Your legal counsel, however, needs to preserve your arguments for appeal by raising them in a timely manner before the original trial court. The specific arguments will be raised for appeal before the New Jersey Appellate Division where your case will be reviewed by a panel of three judges who vote on the outcome, as opposed to a singular judge and a jury. The appellate court will review your matter with fresh eyes for legal errors, but if the trial court had to determine a fact—like whether to believe a certain witness—that kind of determination will not generally be overturned.

    The New Jersey Appeals Process

    The appeal process consists of two phases: briefing and argument. The party making the appeal—the appellant—will file an opening brief with the court describing the issues for appeal and their arguments. The opposing side—the appellee—will file a brief responding to those arguments in kind. Finally, the appellant has an opportunity to file a reply brief addressing the arguments raised in the appellee’s brief.

    If oral argument has been requested, and granted, the parties will convene before the panel of three appellate judges assigned to the matter to make their arguments in person. This appeal process is lengthy, and can take well over a year from start to finish, even in the best of times. The briefing and argument process itself can take several months, and the court might not decide the matter for several months more.

    An Appeals Law Firm Needs New Jersey Knowledge

    All appellate courts have different and somewhat complex procedures so it is important to have local experience. There are specific rules about the timing of brief submissions, accompanying papers and submissions, page counts, and even typeset and page formatting. Here is an excerpt from just some of the requirements by which appellate lawyers in New Jersey must abide:

    Paper shall be of good quality, opaque and unglazed. Coated paper may be used. Where the method of reproduction permits, color of paper shall be India eggshell. Copy may be printed on both sides provided legibility is not impaired. Papers shall be approximately 8.5 inches by 11 inches and, unless a compressed transcript format is used, shall contain no more than 26 double-spaced lines of no more than 65 characters including spaces, each of no less than 10-pitch or 12-point type.   

    And the list goes on. Experience matters because it is important to work with appeals lawyers who are knowledgeable about New Jersey’s requirements.

    Our Appeals Advantage

    The attorneys at The Law Offices of Andrew Dressel LLC have a proven record of success in their appeals, based in large part on the overall quality of their work. In the New Jersey appellate process, legal acumen really shines because so much depends on the papers, as opposed to testimony and oral argument. It requires closely scrutinizing the record for every helpful fact, presenting it in a digestible way to the appellate panel, and writing eloquently to really knock down your adversary’s arguments. Also, because it primarily focuses on legal (as opposed to factual) errors, our clients’ benefit from our significant legal research skills. We work to see the language from our own brief show up in the panel’s ultimate decision—confirming our arguments are compelling examples of quality and accuracy.

  • A Circuit Split Emerges on the Application of Arbitration Clauses to Affiliated Companies

    A Circuit Split Emerges on the Application of Arbitration Clauses to Affiliated Companies

    Spam phone calls have become an unfortunate part of everyday life, even if you have put yourself on a “no call” list. But would you expect that your cell service contract can prevent you from taking the spam callers to court? Well, depending on who your carrier is, who is calling, and what part of the country you are living in, that may very well be the case.

    In a somewhat unique turn of events, two federal courts of appeal, considering virtually the same fact pattern, came to completely opposite conclusions about the reach of an arbitration provision in a cell service contract, about a month apart from each other. The arbitration provision is found in an AT&T wireless agreement and requires customers to arbitrate “all disputes and claims” between the customer and any of AT&T’s “subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns.” The dispute at issue, however, involved purported spam phone calls from DirectTV, a subsidiary of AT&T, and claims under the Telephone Consumer Protection Act. Are such claims arbitrable? Apparently, this now rests on which circuit you happen to be filing suit in.

    The Fourth Circuit’s View-Mey v. DirectTV LLC

    In an August 2020 decision, the Fourth Circuit Court of Appeals held that these claims were in fact subject to arbitration. Noting the broad rule that federal courts are directed, under the Federal Arbitration Act, to construe arbitration clauses in a way that favors arbitration, the court held in its decision in Mey v. DirectTV LLC, that DirectTV clearly was a subsidiary of AT&T, that the parties had clearly agreed to a very broad arbitration provision that would include “all disputes and claims,” and that therefore the claims had to be arbitrated. The fact that the average consumer would not have contemplated that a cell service contract would be applied to a television provider or would know the byzantine corporate history that made DirectTV a subsidiary of AT&T was of no consequence. Indeed, as the court noted, the arbitration provision also applied to successors and assigns, two groups that could not possibly be known at the time of contracting. The parties agreed to a broad arbitration provision, one that could include disputes wholly unrelated to the contract containing the arbitration provision, and therefore the arbitration clause should be read to encompass the TCPA suit.

    The Ninth Circuit’s View-Revitch v. DirectTV LLC

    However, confronted with the exact same fact pattern, the Ninth Circuit Court of Appeals took a completely different tack. In Revitch v. DirectTV LLC, the Ninth Circuit court held that the TCPA suit was not encompassed by the arbitration provision. The Ninth Circuit court held that because DirectTV was not affiliated with AT&T at the time the cell service contract was entered into, the customer could not reasonably have anticipated that he would be agreeing to arbitrate disputes with DirectTV. Per the Ninth Circuit, it would be an absurd interpretation of the word affiliate to include companies not affiliated, or anticipated to be affiliated, with AT&T at the time the contract was entered into. My own view is that the Fourth Circuit likely has the better of this particular argument. As the Fourth Circuit court correctly pointed out, successors and assigns are per se unknown at the time a contract is consummated, but it is not absurd to say they fall within the ambit of an arbitration provision.

    The better argument may be the one adopted in a concurrence written by Judge O’Scannlain in concurrence with the majority opinion (also written by Judge O’Scannlain). In his concurring opinion, Judge O’Scannlain writes that the DirectTV suit is simply outside the scope of the arbitration provision because it does not “aris[e] out of” the cell service contract, as required by the Federal Arbitration Act. The lawsuit regarding DirectTV’s purported spam phone calls has no relation to a contract for cell service. This seems to me to be a much better way of squaring the broad arbitration provision agreed to and the intuitive sense most people have that a cell service contract should not create an agreement to arbitrate disputes with what was, at the time of formation, an unrelated company.

    These cases highlight the importance of careful drafting when putting together and negotiating a contract, particularly with regard to dispute resolution clauses. Whenever you or your business find yourself negotiating a contract of importance, it is key to hire experienced counsel who can recognize the subtleties that can lead to unintended consequences down the road. The Law Offices of Andrew Dressel LLC is a sophisticated firm with the skills necessary to both avoid unfortunate surprises in your agreements, as well as to negotiate the most favorable terms possible for you and your business. Whether you are seeking counsel for a “one off” contract or to engage an outside general counsel on a regular basis, please contact us through our online form, or by calling us at (848) 202-9323.