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November 2, 2017 by Bruce D. GreenbergDownload PDF

"Does Anybody Really Care About Time?" As Lawyers, We MustBruce D. Greenberg

When the pop group Chicago sang “Does anybody really care about time?” their response was “If so, I can’t imagine why.” As lawyers, we must care about time. There are deadlines for everything. And while some deadlines can be adjusted, either on consent of an opposing party or with the approval of a court, others cannot be changed, or can be altered only on certain conditions. We must know which deadlines fall into which categories.

Many deadlines can be altered by agreement among counsel. In fact, the New Jersey Commission on Professionalism (“COP”) has promulgated principles stating that “[a] lawyer should respect a colleague’s schedule.” Elaborating on that theme, the COP principles state that “[a] reasonable request for scheduling accommodation, extension of time, or waiver of procedural formalities should not be refused if the interests of a client will not be adversely affected.”

Other time deadlines can be extended only with court approval. These include any date set by a judge in an order. Counsel are not free to alter those dates without getting the imprimatur of the court that set those dates.

Those two overarching principles—that consent allows adjustment of a schedule, and that there is an exception where the date in question has been embodied in a court order—are nicely summarized in New Jersey Court Rule 1:3-4(a). That rule states that “[u]nless otherwise expressly provided by rule, a period of time thereby fixed for the doing of an act may be enlarged before or after its expiration by court order on notice or (unless a court has otherwise ordered) by consent of the parties in writing.”

But that is not the end of the story. Rule 1:3-4(b) offers a catalog of rules that govern “enlargement of time for appeal and review.” Those rules differ depending on the particular context involved.

For example, under Rule 2:4-1(a), appeals from final judgments must be filed with 45 days. A different section of the rules, Rule 2:12-3(a), affords 20 days to file a notice of petition for certification to the Supreme Court from a final judgment of the Appellate Division. But Rule 2:4-4(a) governs extensions of both deadlines, providing a 30-day extension of each one. That extension is available only by motion “on a showing of good cause and the absence of prejudice,” and only if the appealing party in fact filed the notice of appeal or notice of petition for certification within the additional 30-day period.

But as they used to say on late night television infomercials, “that’s not all.” If a party has unsuccessfully moved for reconsideration of a decision that is sought to be appealed, Rule 2:4-3 tolls the time for a notice of appeal or petition for certification for the time between when the motion for reconsideration was filed and when that motion was denied (or, as a practical matter when counsel learn of that denial, though there might be debate about that). That affects the question of whether and when an appealing or petitioning party is out of time in the first place, thereby needing recourse to the Rule 2:4-4(b) extension. The timing rules for notices of appeal and notices of petition for certification can thus be very much like an onion: the more layers one peels, the more layers are revealed.

The extension rule for cross-appeals and certain other appellate proceedings, Rule 2:4-4(c), is very different. In contrast to the fixed 30-day “good cause” extension for notices of appeal and notices of petition for certification, Rule 2:4-4(c) allows an extension “for such period as [the appellate court] deems reasonable.” And that rule has no “good cause” requirement.

There is much more that could be said. But perhaps the most important rule about extensions is the rule that forbids certain extensions altogether. Rule 1:3-4(c), transparently titled “Enlargements Prohibited,” offers a list of more than a dozen rules whose time frames “[n]either the parties nor the court” may enlarge.

Lawyers need to know when extensions of time are barred, or what conditions or limitations on permitted extensions exist. Otherwise, we may (again, in the words of Chicago) “have time enough to cry.”