Do you know how to prepare for the receipt of either a settlement agreement or a judge’s order or court decision?
They’re both going to be very drastically different, but the most important thing to realize first is people think that you’re waiving all your rights when you do a settlement. You’ll actually even answer a question suggesting that you know you’re giving up all your rights. This is not necessarily the case. With settlements, you still do have some rights for appeal issues. There may be certain motions that can be filed, and as much as I hate to say it, they’re also malpractice issues in New Jersey that I recognize not only for your own attorney, but sometimes the other party’s attorney may actually be liable to you for improper conduct. This isn’t something I will go into in depth in this post because it’s far beyond the scope of this topic, but it’s something to realize that even with a settlement that there are certain rights.
Waiting May Be Too Late
Now with regard to receiving a court decision or a judge’s order, there are several issues that you need to investigate and certain rights that you have. It’s really important that you investigate these before you actually receive the decision. Don’t wait until you go into court and get a motion or don’t wait until you’ve finished the settlement conversation to ask about these because they’re going to be certain time constraints that you’re going to have and they’re going to be a lot of analysis that you need to do. Waiting until you actually get the decision may be too late.
Find Out About Legal Rights – Interlocutory or Final Order?
The first thing you need to do when you get a decision or a court order is to find out about the legal rights to seek a reversal or a new decision. These rights are going to vary greatly on whether the order is a final order or a interlocutory (temporary order). The difference is that final means final and there’s no other issues or proceedings anticipated. That’s very important because many judges, in my experience, don’t even fully understand when something is considered interlocutory because anything that may follow the decision will keep it from being a final decision.
Let me give you an example. I had a case years ago now where we were opposing a person’s request to relocate with their children. The judge granted the order and said, “Come back to mediate parenting time issues.” So the issue about relocation was decided and final, but they had this future proceeding for mediation. I asked the judge on the record if this was a final order now because I was planning to appeal it. He said it was.
I took it to the appellate division. They said it wasn’t. It’s very important because the appellate division will do whatever they can to avoid deciding interlocutory issues. One, because they’re not sure what the outcome is going to be, and two, everybody would be filing if you could file for any kind of temporary decision. As a result, they’re very, very rigid. It’s an entirely different standard and timeframe.
You need to determine, “Is your decision or your court order a final decision or an interlocutory decision?” Next, whether it’s one or the other, you still will have similar rights. You can do first a motion for reconsideration. If you have a final order, the court rules require that you file a motion for reconsideration within 20 days. If you have an interlocutory decision, you can file a motion to reconsider at any time during the proceedings, as long as you’re still before that judge or your case is still going.
If you’re going to file an appeal of a final decision, you have either 45 days to file it, if it’s a final decision, or 20 days if it’s an interlocutory decision. Whether it’s a motion to reconsider or an appeal that you’re going to file, know what the timeframes are and know what the differences are. If you do not file the appeal within the timeframes set forth (the 45 days or the 20 days), you may be forever barred from seeking that relief. It’s very important that you understand these rights and why I’m saying you need to do it in advance.
Decide – To Seek Stay of Enforcement or Not
Next, you need to decide if you’re going to seek a stay of enforcement. That means you’re going to ask one of the courts to stop the effect of the order until the motion or the appeal is decided. This is important because you need to do it at two different levels.
- You need to first ask the trial court, or the judge that’s assigned to your case, to stay the order and that may need to be done on the very day that you get to court, which is another reason why you should be deciding these things in advance.
- If you get a decision in court after argument and you want to take it to an appeal, you should ask the judge then for a stay of enforcement. If the judge refuses, which more often than not they do, you then need to ask the appellate division for a stay of enforcement because they’re not bound by the trial court’s decision, but the appellate division will want to make sure that you first asked in the trial court. You need to know in advance of receiving this decision, again, whether you’re going to be appealing it, and whether or not you’re going to need the enforcement or the stay of enforcement.
Analyze Potential Outcomes
Although I saved this point for last, it’s probably something you need to do much earlier in your analysis. Figure out what the outcomes of all of these processes are going to be from a cost and advantage standpoint.
- You want to know the outcomes of your motion for reconsideration. Find out from an attorney, if you can, what powers the judge would actually have if he or she wanted to reconsider the decision.
- You also want to know what the appellate division’s going to do. They only have so many options:
- Reverse the decision and change it,
- Remand it (which means to send it back to the trial court and ask for a new hearing, a new instruction, or a decision
- Deny it entirely and leave you where you started from
It’s important to understand this. From a practical standpoint, you want to find out how long it’s going to take to get to these outcomes and what the real benefit is going to be. For instance, if you are successful in the appeal and you get a remand, you want to know what happens after the remand. Most likely it’s going to be either a new hearing or a new trial, so you’re starting over again. You may not be able to start over again, so you need to know beforehand what your outcome’s going to be.
You need to know that what you’re filing for, whether it’s a motion for reconsideration or an appeal, is actually going to bring you to a place where it’s going to be helpful to move your case. It may take too long to decide. For instance, the relocation issue I mentioned, often takes a year or two for an appeal to be decided, and children are usually much older and their lives have progressed. Sometimes there are issues that between the time and the cost that even if you’re successful in the appeal, you’ve spent more than you’re actually fight over. You really want to do this analysis of the outcome and your cost in the very beginning.
I hope the information above helps you to know what you want to do to prepare for receiving either a settlement, a judge’s order, or final decision in your matter.