An Attorney's Guide To Bolstering A Trial Record Against Appeal

Trial attorneys prepare for issues they expect will arise. But too often, in the course of a trial, a plenary hearing or even a motion, the excitement of 'winning' a point may overshadow an opportunity to solidify a client's position. This oversight allows the proverbial camel's nose to enter the tent, and creates an issue seized upon by an adversary to frame an appeal. Pending appeal, a trial court loses jurisdiction, except for its enforcement power (including interlocutory appeals), consistent with Rule 2:9- 1(a), stopping any forward motion. What's worse, a lost opportunity to clarify a ruling and to lock in a success may be the reason an appellate panel orders reversal and remand. No one likes to do the same thing twice, so what can be done to bolster the record in the event an appeal is filed? In a word, plenty. Below are a few tips, directed to trial lawyers, designed to improve a client's position when facing an appeal.

Factual Findings

Every litigant has the right to seek appellate review. Importantly, however, review is limited to two areas. First, did the trial judge state findings of fact based on "adequate, substantial, credible evidence" in the record.1 This responsibility of every trial judge is "fundamental to the fairness of the proceedings and serves as a necessary predicate to meaningful review..."2 Supported findings by the trial court are binding on appeal.3 Second, when raising legal challenges, importantly, the Appellate Division interprets the law and a trial judge's interpretation is not afforded deference.

In family matters, one of the most common reasons for reversal and remand is the trial judge's failure to comply with Rule 1:7-4(a). The rule mandates every judge "shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury [and] on every motion decided by a written order that is appealable as of right...."4

A trial judge must make "specific findings of fact so that the parties and the appellate court may be informed of the rationale underlying his [or her] conclusions."5 Consequently, when a reviewing court concludes there is satisfactory evidential support for the trial court's findings, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal."6

On the other hand, a judge's failure to perform this necessary task on any ruling "constitutes a disservice to the litigants, the attorneys and the appellate court."7 A judge who enters an order, but neglects to state critical findings, will face reversal and remand, because the Appellate Division cannot infer applicable facts underpinning the stated conclusion when the parties' submissions offer conflicting facts.8

Also, a judge's credibility findings are essential to reinforce the decision, as the Appellate Division gives heightened deference to the views of the trial judge "on intangibles not transmitted by the record such as witness credibility, demeanor, and the 'feel of the case.'"9 Why? Because only a trial judge "hears the case, sees and observes the witnesses, [and] hears them testify," giving the judge "a better perspective than a reviewing court in evaluating the veracity of witnesses."10

Judges understand this responsibility, so why risk possible reversal by letting an incomplete record slide? Don't be afraid to request an explicit statement of important factual findings and, if applicable, necessary credibility findings.

There are many ways to do this, which will not be perceived as insolent or condescending. For example, one might frame a courteous request as: "Judge, for the benefit of my client, I assume the court's underlying factual findings supporting the stated conclusion include...." This inquiry is professional and provides the judge with the information necessary to complete the decision.

Or, if hesitant to make the request in open court, submit the request in writing immediately following the proceeding. Cite the rule and request the judge supplement the order to include more detailed findings, copying the adversary.

Some might suggest the matter should be left alone, as the chances an adversary decides to appeal are not high. While this may be statistically accurate, when wrong, an appeal—even one that results in an order requesting the judge's findings—is time consuming and expensive. Even worse, because time has passed and memories fade, the detail provided by the judge may not be as solid as that stated at the time of the proceeding.

All is not lost. If an appeal is filed and the record needs to be enhanced, suggest the judge supplement the decision pursuant to Rule 2:5-1(b). The rule permits a judge to "file and transmit to the Clerk of the Appellate Division and the parties a written opinion...