They key documents in connection with any motion are those that support the motion and explain why it should be granted. Some motion, Court Rule, must be supported with a brief. E.g. R. 4:46-2(a) (motion for summary judgment “shall be served with briefs”). On all other motions, briefs are optional. Discovery and other relatively routine motions that do not require analysis of cases or statues often do not include a supporting brief. You should consider whether a brief is necessary to inform the court of the legal arguments involved in the motion, or whether the burden on the court to read an unnecessary brief, and the cost of that brief to the client, suggests that a brief be omitted on a particular motion. On the other hand, you should not expect a judge to decide legal issues on a motion in your favor if you have not supplied a brief to help the judge analyze those issues. Counsel must exercise judgment in this regard. In cases that are proceeding under “Best Practices,” where the same judge hears all pretrial motions, you should consider the level of involvement that the judge has had in the case and how much of the basic factual or legal background needs to be repeated for the judge’s benefit. Often, even the most active and able judges require some refreshing about your case due to the large number of cases that they are handling. Briefs must be served with the rest of the motions papers as required by R. 1:6-5.
If a motion relies on facts that are not either of record or subject to judicial notice, those facts must be submitted to the court by affidavit, R. 1:6-6, or by certification, which is an affidavit that replaces a notary’s signature with the signer’s own profession that the statements of the certification are true and that if they are willfully false the signer will be subject to punishment. The required language for a certification is contained in R. 1:4-4(b), which makes a certification the equivalent of an affidavit for motion and other purposes.
An affidavit must be “made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify.” Id. Thus, an affidavit must not contain argument. If supporting argumentation is needed, you should submit a brief. Many judges will simply strike all or part of an affidavit that contains argument, as violative of R. 1:6-6; Sellers v. Schonfeld, 270 N.J. Super. 424 (App. Div. 1993)
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