A common misconception about New Jersey’s appeals court (the Superior Court – Appellate Division) is that only “appeals” are heard there. Actually, the judges in the Appellate Division do much more than simply handling direct appeals.
Motions are routinely filed in the appeals court and are typically heard about a month after filing. By far, most of these motions are for Leave to Appeal. Such a motion is necessary when the proceedings in the trial are not yet over. In the event that you lose on an important issue mid or pre-trial, you may wish to file a Motion for Leave to Appeal so that you can get a second bite at the apple in the Appellate Division before resuming the trial.
Be forewarned, appeals court judges (for the most part) do not like to interrupt trials in order to put their two cents in. There are several reasons for this disinclination. First, the appeals court judges are extremely busy and under intense pressure to turn out their own direct appeal opinions. Second, there is a risk that interference with the trial court could undermine the trial judge’s authority. Finally, many issues that develop during trial are rendered moot by settlement.
However, your Motion for Leave to Appeal may be granted if the judges at the appeal level are convinced that the trial judge made an error. The appeals court judges must also decide that your case cannot wait for a direct appeal, which could take years. If you can meet these criteria, the judges in the Appellate Division may very well not only grant your Motion for Leave to Appeal but may also reverse the trial judge right then and there.
For a free evaluation of your appeal rights, call a former Appellate Division Law Clerk 24-7.