Our New Jersey appellate court rules extensively detail the requirements for the form and content of an appellate brief. If the brief is nonconforming as to format, the Appellate Division clerk will not hesitate to require the format be revised to conform with our court rules and insist that the brief be resubmitted after it is revised. However, in Sackman v. N.J. Mfrs. Ins. Co., 2016 N.J. Super. LEXIS 61 (App. Div. Apr. 26, 2016), in a published decision, the Appellate Division went one step further and imposed a monetary sanction upon plaintiff’s counsel for filing a brief which essentially contained no law to support his arguments.
Plaintiff Stuart Sackman was injured in a motor vehicle accident. He claimed to have sustained a permanent injury and settled with the driver who rear ended him. He then filed this UIM action against NJM, his automobile insurance company. The UIM matter was eventually tried for 3 days before a jury. After deliberating for only 20 minutes, the jury returned a verdict, finding that the plaintiff did not sustain a permanent injury causally connected to this accident.
Plaintiff’s appeal argued that: (1) the judge erred in denying his motion to preclude the jury from having to find he suffered a permanent injury; (2) that the evidence presented at trial established such permanency as a matter of law; (3) that the brevity of the jury’s deliberations was per se indicative of bias and constituted a clear miscarriage of justice; and (4) that NJM’s counsel’s reference to the tortfeasor as the defendant was a misleading characterization of the trial and the court failed to give a curative instruction.
Plaintiff injured his left shoulder in this accident. Eventually, he underwent arthroscopic surgery to repair damage to his rotator cuff. This repair required the rotator cuff to be reattached using a screw, which is stitched into the bone.
The plaintiff’s insurance policy contained the verbal threshold. Hence, under N.J.S.A. 39:6A-8, the plaintiff needed to establish that he suffered a permanent injury to pursue a claim for pain and suffering incurred as a result of this accident.
In this appeal, the plaintiff solely relied upon Gilhooley v. County of Union, 164 N.J. 533 (2000) in arguing that he satisfied the permanency element of the verbal threshold. He argued that the orthopaedic hardware implanted by his doctor to repair his shoulder was sufficient evidence to satisfy, as a matter of law, that he had met the verbal threshold.
In opposition, NJM contended that the evidence offered at trial was not so one-sided that a reasonable juror could not have concluded that the injuries plaintiff suffered from the accident had healed. Further, NJM argued that the Gilhooley case did not apply because it dealt with an injury in the context of the Tort Claims Act, not N.J.S.A. 39:6A-8.
The Appellate Division found that the record was replete with evidence from which a rational juror could find that plaintiff did not present sufficient evidence to satisfy the verbal threshold. The Court noted that the plaintiff failed to discuss, or even cite, the relevant standard of review with respect to a motion for a directed verdict. Here, the Court found that the trial judge’s analysis and ultimate conclusion was amply supported by the evidence presented at trial and that the judge properly applied the statutory standard under AICRA. It found that the Gilhooley case did not apply to a verbal threshold case subject to N.J.S.A. 39:6A-8.
Next, the plaintiff’s appellate brief devoted 2 ½ pages to an argument that, the jury only spending 20 minutes in reaching its unanimous verdict that the plaintiff did not meet the verbal threshold, constituted a miscarriage of justice. The Court noted that the plaintiff failed to cite to any legal authority to support this relief.
The plaintiff’s last argument was that the trial judge should have given a curative instruction to the jury in response to a remark of defense counsel in her opening to the jury, referring to the tortfeasor as the defendant. Again, the Court pointed out that the plaintiff’s counsel devoted 1 ¼ pages in his brief to this argument without citing to any legal authority in support of this position.
The Appellate Division stated that “had the plaintiff’s appellate counsel taken the time and effort to conduct even a modicum of research of this legal issue,” he would have discovered a Supreme Court case exactly on point. Under this prior case, in a UIM matter, the Supreme Court found that it was not required to refer to the insurance company as the “defendant.”
After rejecting all of the plaintiff’s arguments, the Appellate Division took the unusual step in sharply chastising the plaintiff’s counsel for the “complete lack of any effort by counsel to cite and discuss, in a professionally reasonable manner, relevant legal authority in support of the three arguments raised therein.” The Court chose to impose a monetary sanction upon the plaintiff’s counsel because he “must be censured and sanctioned because [his brief] 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.”
The Court noted the plaintiff’s attorney’s failure to cite to the relevant standard of review in reviewing the trial judge’s decision and, for his other arguments, the failure to cite to any legal authority to support his arguments. In a prior case, the Court had “repudiated the same type of shoddy, unprofessional submission.”
In Sackman, the Appellate Division stated that it was reaffirming its “commitment to the enforcement of professional standards” expressed in prior case law. By submitting such a shoddy, unprofessional brief, the Court found that the plaintiff’s attorney showed disrespect for the work of the court and the legal profession itself.
Hence, this indifference to the “fundamental tenets of the legal profession displayed by the plaintiff’s appellate counsel” warranted the imposition of a monetary sanction under the appellate court rules. Ironically, despite the harsh criticism by the Appellate Division of the conduct of the plaintiff’s counsel in the submission of this appellate brief, the monetary penalty imposed was only $200, payable to the clerk of the Appellate Division. It was to be payable by the attorney and not the plaintiff himself.
Regardless of the relatively minor penalty imposed, it is extraordinary for the Appellate Division to publicly chastise an attorney for the arguments made in his brief. It was apparent that what most bothered the Court was the lack of effort by the plaintiff’s counsel to cite to any applicable law. The Appellate Division’s imposition of this penalty clearly was sending a message that attorneys in this state are expected to research the law and submit a brief containing legal authorities supporting their arguments. The Appellate Division emphasized that is the kind of effort, at the minimum, expected by any judge from a lawyer admitted to practice in New Jersey.
