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Civil Trial Preparation for Attorneys Newly Admitted in New Jersey

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Civil Trial Preparation for Attorneys Newly Admitted in New Jersey

How is trial preparation in civil cases New Jersey different from other states’/federal practice? What are the special rules as to discovery? What are the customs and practices? How are the rules of evidence different? How does one preserve errors for appeal? This is an overview with examples from the presenter’s own experience. It is also helpful for new attorneys practicing in New Jersey courts.

Transcript

- Hello, my name is Dan Schiavetta Jr, and I'm giving a presentation lasting one hour for attorneys newly admitted in New Jersey, civil trial preparation basics. This is a presentation for people who are already admitted in federal court or in their home state, and I'm going to be going into things about New Jersey that are distinctive. I have a unique perspective on this. When I've been a lawyer for about seven years, we had a client who brought us some New Jersey cases. And so I had to get myself admitted in New Jersey. And so I took the BAR review course, and I took the BAR exam and I passed it. But as you know, when you take the BAR exam and study for it in a different state, a lot of these facts just swim in front of your eyes and you really have to practice to really know how the game is played. And I made some mistakes by being surprised about New Jersey practice in some respects. Fortunately, nothing that was not fixable. Anyway, this presentation is geared to people like me who have already been practicing in other places, and it's about things in New Jersey that would surprise you. All of this has to do with civil trial preparation. Now I must say that in New Jersey, civil trial preparation is basically the same as it is everywhere. You have to keep track of your witnesses, make sure they're ready, prep them, make sure all the necessary records are subpoenaed into court. Speak to the associate who has been living with the case for a year or two, who knows the case. Be aware of what motions have been made, what orders have been made, what the law of the case is, et cetera. I'm going to go into things that are distinctive about New Jersey. The first part of the presentation will be about the procedural differences. Then I will go into differences in substantive law, to the extent they are different from elsewhere. And finally, I'm going to give a short presentation on the impact of electronically stored information, which everyone has to know about these days if you are concerned about trial preparation. New Jersey has the usual liberal pleading rules. You might remember in law school, the Dia Gordy case in 1941, where a very crudely written complaint passed muster. It's called notice pleading. However, you cannot go on and on with endless boiler plate and not mention facts, like you can in some jurisdictions, like New York. Every pleading has to have a statement of facts. You'll see in your written materials on page 004, 452, "A claimant for relief shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief and a demand for judgment for the relief to which the pleader claims entitlement." And as elsewhere, you can make alternative theories that are contradictory. But you can do that in the pleading stage, you simply can't do that at trial. But before then, you can. One distinctive feature about New Jersey practice. As you know, in a workplace accident case, the employee cannot directly sue the employer because of the Worker's Compensation Bar. However, in New York, you are allowed to sue the employer directly as a defendant, for discovery purposes. There are no allegations made against the employer, but you can get early discovery from the employer. Which is very handy because instead of waiting for him to be joined as a third party defendant sometime down the road, the employer often knows a lot about the facts of the case. And then you could depose the people on the site, the employees. Get discovery from the employer as to documentation of the accident and the necessary contracts, et cetera, and you can do that right away. Again, there's no allegations. And once you get the discovery, you're supposed to immediately dismiss them from the case. The leading case on that as developers is continental casually. It is in your written materials on page 007, et cetera. Another distinctive thing about New Jersey practice is that when you bring a lawsuit, you have to fill out a civil case information statement, and that is on page 009. There are three tracks for discovery in New Jersey law for most cases, there's some exceptions. But there's track one, which has cases such as forfeiture, tendency, real property, PIP coverage, uninsured mortgage coverage. Those are track one, they have 150-day discovery deadline running from the date that the answer is served. Track two, construction accident cases, employment cases, personal injury, other kinds of torts. that's 300 days. Track three is 450 days. That's civil rights cases, assault and battery, medical malpractice, product liability, et cetera. These will be listed on the second page of the civil case information statement. And the way New Jersey works is you have those deadlines and that's it, that's the end of discovery. It's automatically ready for trial. You don't serve a special notice of trial or notice of issue as you do in other places. You can ask for extensions and they are routinely granted, but you do have to ask for them to have some kind of a reason why the extension is necessary. Document discovery is similar to other states, except in New Jersey, you have to serve standard interrogatories for auto-cases. There are standard interrogatories for other cases. It's a list of the typical questions that you would ask at deposition, and some other things too. You can serve supplemental interrogatories. The interrogatories have to be sworn by the client, sworn to by the client. And that also means that they are admissible at trial so long there is no problem with hearsay or anything else like that. The answers can be on knowledge and belief, or information and knowledge. But if they are direct knowledge kinds of answers, they can be read into evidence as impeachment, in case the witness at trial tries to testify otherwise. And of course you have notices for discovery and inspection like you do in other places. You have to respond within the time allotted. It's 30 or 60 days, depending upon the demand. And the faults are serious, I learned this early on. One, a response is not made, and your at default of the court order to provide it, you're automatically stricken. Your pleading is automatically stricken, they don't give you any leeway. You have to make a motion to vacate the default, and you have to show that you have in the meantime, fully and timely answered the necessary discovery. And you have to pay a $100 restoration fee, which is kind of embarrassing. It's hard to explain that to a client, that why you have to pay that, and it was pretty embarrassing to me some years ago when I had to first do that. It's not like New York, and it's not like federal practice, and it's not like a lot of states. You are in default and you have to make a motion to undo the default. In New Jersey, there's a two-step process as far as late discovery responses. First, the demander moves to dismiss without prejudice, and that hopefully will wake up your adversary. And if it does not, the order is granted dismissed without prejudice. It is then up to the responder to move to vacate that dismissal. Or if still more time has gone by, it is up to the demander to make another motion under 4235 to dismiss with prejudice. The entire process is on pages 17 to 19 of your materials. Even then, my experience is that as elsewhere, judges do not like to penalize clients for the inaction of their attorneys, and so they give them every possible leeway. I had a case once where there was egregious failure to respond. Endless adjournments it seemed like, a dismissal without prejudice motion. That was adjourned, it was granted. The responder did nothing, then we made a motion to dismiss with prejudice. Adjourned three times, responder did nothing. And several months later, claiming that the previous law firm fell down on the job, a new law firm came in and made a motion to vacate. Now, I didn't put this in the materials, but Rule 4:50 allows the court to vacate a prior order. It's similar to in other jurisdictions. By mistake, fraud, which was not the case, or excusable neglect. And the responder, which in that case was the defendant in our action, successfully got the judge to vacate a dismissal with prejudice which had been awarded almost a year before. But the judge awarded cost of attorney's fees, which came to about $20,000. But still, that was a penalty against the law firm, not against the client. In New Jersey, depositions like elsewhere, the objections just to keep the deposition going, objections are reserved for trial, except as to form. The reason as you know, for not withholding the form objections, is that if there's something wrong with the question, the questioning attorney can fix it. And there's some back and forth off the record as to how maybe the attorney forgot to ask something first. Maybe it was a vague question, a compound question. You know, we know the objection to form. And so that's why you have to object on the record and try to get it fixed. One thing unusual in New Jersey, is that you cannot confer your witness during depositions. All the time in New York and frequently in federal court, you can say, "Can we have a break?" Because your witness is tired, a little confused, something came up that needs some more prep time on. And as long as there's no question pending, you can take that break. You can't do that in New Jersey, unless you are discussing a privilege issue. That's on page 21 of your written materials. Another difference, which is not true in many places is that instead of serving the transcript on the witness, the witness meets with the reporter to do the corrections and do the attestation. Obviously it's better if the attorney is around. This is a little bit different now in the age of COVID and Zoom depositions. But still, it is something you should be aware of. And as in other jurisdictions, you can use depositions, testimony at trial for basically any purpose except to establish your case in chief. There are exceptions as to non-available deponents, which we are aware of, that holds true in New Jersey court also. In New Jersey, like in most jurisdictions, you're entitled to depose the experts of the other side. It's not true in New York where you can only depose an expert as to the facts if there's no other way of getting that information. For example, if it's a product liability case and the expert examined the product and the product somehow got lost after that, you can depose the expert as to what she observed and maybe get the broad data as to her examination. But even then you cannot ask her, her opinions. Most places, including New Jersey, you can depose the expert and so you also get the experts reports. And these are important things to do because they functionally take the place of trials in many cases. You know what they're gonna say, you know what the strength of the other side is. And you can depose experts. However, my experience personally is that unless it's a really big case, deposition of experts is often waived. You get their reports and that's good enough, you work from that. Another type of deposition, which has a special name in New Jersey is the Deboness deposition. That is where you depose a treating physician, because it's expensive to bring him into trial and pay him, you know, $7,000 for half a day. And so you depose him usually at his office, and it's on tape these days. When there's an objection, the tape is stopped and the objections are gone into on the record. And then when the objections are resolved, you go back on tape. And these days, of course, they use it as a video at trial, it is a big cost saver. And in the case of a treating physician, where you can get back and forth on cross during that deposition, it does save a lot of time as far as settlement goes. In New Jersey, in a lot of cases they send you into compulsory arbitration. It's true of auto-cases, and it's true for a lot of other cases too, you have to do it. And well, in my experience, mostly I've been on the defense side. And my experience has been going into auto-arbitrations. And call me biased, but in my view, most of the arbitrators come from the plaintiff's bar, and tend to lean on the side of the plaintiff when they make their award. But all is not lost, sometimes adjusters take these arbitration awards too seriously. You can reject it. You can reject it with... The arbitrator is supposed to give a decision within 10 days. Although often at the arbitration, at the conclusion of both parties presentations, he might give you an idea of what he's gonna do. But anyway, he has to submit his decision in 10 days. You have 30 days to reject the decision and go onto trial. Although if you do that, they sock you for 200 bucks. Motions in New Jersey courts are similar to other places, but the supporting papers are called certifications. There's a certification by the attorney, which is often a vehicle for the exhibits which talks about the procedural developments in the case. And the certification by the client, which is necessary in almost all cases. That has to be under oath, there is a memo of law that you do. And one question that comes up and it comes up everywhere really, is what about on appeal? I'm not gonna go into appellate practice in this presentation, but does the memo of law get into the record on appeal? And I think it should. Common practice is to leave it out, but I think it should, because sometimes you can make a new argument on appeal and sometimes you can't. What if you're the respondent and the appellant is making a new argument on appeal and it's improper? How can you point out that it's a new argument unless the memos of law from the trial court are in the record on appeal? That's my view. Anyway, my recommendation is to always put the memos of law, either on your side or the other side into the record on appeal when appeal time comes. Frequently in New Jersey, there are informal letter motions written to the judge, and that's not true everywhere. The rules in New Jersey say that with every motion, you have to submit a proposed order. But that is kind of a pointless rule because you never know what's gonna happen during oral argument. And you don't know what kind of order the judge will end up fashioning, like elsewhere. New Jersey courts, at least the Supreme Court and above, the judge has a lot of equitable power. And she can make a ruling that might go a little bit far afield from the scope of the motion, might kind of compromise, you know, split things in the middle. So I've been in front of judges who say, "Well really, we don't really look at the proposed order. What you should do really, is submit the proposed order after the argument, so you can see what I said." Still the rule says, "Submit a proposed order with the motion," so you do that. It is a pleasure being in front of New Jersey judges. I'm not gonna be too harsh here, but having practiced in Kings County, New York, and Queens County, New York, and places like that for a long time, it's such a relief to step into a New Jersey courtroom and deal with a judge who has read the papers, who has understood the facts and sometimes have researched the law. I was in argument in front of a judge, and I don't mind saying it, judge Thurber, in Bergen County, who not only had read the papers, but she had done her own research. And she had questions about a case that I had cited in passing in my memo of law. And to her, she had looked it up and it seemed like a relevant case. And I had not looked at it, my adversary had not looked at it. And I said, "Well, can we have like 10 minutes to look at this?" And so she said, "Sure, sure." We probably both felt kind of embarrassed. So we looked at the case, it was fortunately not a long decision, and we got back onto the Zoom call with her and hashed it out. This is something that you see in federal court often. My experience is you don't see that too much in other state courts. Summary judgment motions in New Jersey, you've got to have a statement of facts. And the best practice, it doesn't say this in the rule, but the best practice is to have one fact per paragraph. Make it choppy-looking, short paragraphs. Not two or three, just one fact per paragraph. It doesn't matter if you go on to 100 paragraphs or more. And what I do if it's a summary judgment motion, I put in undisputed facts, which I know my adversary can't really dispute. And then I put after that, disputed facts. And if I'm the movement, as you know, a good summary judgment motion is simple as possible. You're telling the judge, "This is a simple case, nothing for a jury to look at." But you wanna be aware of your adversary who's gonna throw everything that they can into their opposition papers saying, "Well Judge, what about this issue?" "What about that issue?" "What about this witness?" "What about that witness?" All these disputed facts. What I do is I put the disputed facts in a separate section. And my attitude in the memo of law is, "These disputed facts are not relevant to the legal issues here," that's what I do. Summary judgment motions have to be made with a return date at least 30 days before the... Also of course, you have to cite to the record on a summary judgement motion. Judges hate it when you do not cite exactly to the record. And in fact, I think the better practice is to quote from the record at all possible. If you're quoting deposition testimony, quote the Q, quote the A, quote the next Q, quote the next A. That way, the judge doesn't have to go to the exhibits and find out for herself. The return date has to be at least 30 days before the trial date. Now, you'll get a trial date, and these days it's never the real trial date. You cannot take a chance though. Every time you get... The first time you get a date that's called the trial date, make sure you make... It'll be about four months ahead of time, you'll have time to do this. Make sure the return date is at least 30 days before the trial date. And you have to give at least 28 days lead time between the time you serve it and the return date. You can make a partial summary judgment motion clearing away only certain facts, and I think that is an underused device. That is in the rule of 4:46. And if it's something that your adversary is probably not going to oppose, it is a good idea to make that motion. We all assert legal theories that, you know, we have the stronger ones and the weaker ones. You're told in law school and it is true. Make every argument you possibly can because you might be surprised, something that might be a weak argument turns out to be a strong argument as discovery progresses. But when it comes time to finish discovery, the 300 days are up or whatever it is, your adversary might realize that, "You know, this particular claim I can get rid of, I'm not gonna really oppose it." We have to sense that. And I think it's a good idea to make a motion, to knock out the claims that they're not going to oppose, it clears things away. So we can make a motion only as to certain facts. Another thing distinctive in New Jersey practice, which is welcome I think, is that the judge by rule has to in the decision deciding to settle her judgment motion, state what she understands be the facts and her conclusions. You can't get what you do in some of the courts where it's a hand scrolled, one sentence motion for summary judgment denied fact issues. She's got to actually say what the fact issues are. And in my experience, they adhere to this rule. And it is very helpful on appeal and also very helpful when you go into trial and you go into settlement discussions, to see what the judge has decided as the facts, because those are binding on the rest of the case. A motion to dismiss on the pleadings also has to be returnable at least 20 days after you make the motion. In my experience in New Jersey, what almost always happens, you make a motion on a pleading saying, "Look, even as read, the complaint doesn't state a cause of action." It's gonna turn into a summary judgment motion because your opponent is going to put in fact issues, make a motion to amend. Anyway, some people do it anyway. You never know, if you get the feeling that the plaintiff is not too hot on this case, they might let it go and only argue with you on the pleadings. But in my experience, they gonna come at you with more facts. You might just wait for the discovery process to go forward and make sure you have all the questions answered. One recent amendment is that motions in limine to exclude evidence during trial, must be made together with the summary judgment motion, right. That's Rule 25-8. And it's a new rule, there is some uncertainty about it. The uncertainty is, well, does the motion in limine have to be related to the issues on the summary judgment motion? My advice is just make all the motions in limine with the summary judgment motion, just be on the safe side. Other the motion days, the return date has to be 16 days afterwards. At the end of discovery, seven days before trial, and again, this is seven days before the first trial date that is given to you, you are to make a pre-trial exchange. And in the written materials, the pretrial information exchange is on pages 55, 56. And it has a list of witnesses, the exhibits, thank goodness this is not like New York state practice where you can be sprung by total surprise, and a lot of judges will let it in. I tried to case the verdict in New York a couple years ago, where after the opening statements, after the opening charge conference... We were in conference, my adversary and I and the judge, and he said, "Oh, by the way, I found a new witness. I'm not sure what his testimony will be, but I wanna depose him by subpoena over the weekend and present him at trial." And I argued against it, the judge let him do it. Well, she gave him permission to do it, which is pretty remarkable. It was all bluster, he didn't do the subpoena, he didn't present this witness. But she gave him a big favor, that does not happen in New Jersey practice. If you have a witness not listed on the pretrial exchange for example, they're not gonna let them testify. Well, almost never. If the witness has already been... If you look at the case law on this statute, on this rule, you'll see that if the witness has already been deposed and it's not a surprise witness, the court will let that witness testify even though they were not mentioned in the pretrial exchange. I didn't mention this before, but the functional purpose, the functional result of New Jersey pretrial practice and the pretrial exchange is to make it look like federal rule of evidence, Federal Rule Procedure 26. Now, if you practice in federal court, you know that Rule 26 requires you to... Without it being demanded, requires you to produce all the information that supports your case. Everything that will support your claim or your defense, all the witnesses, all the documentation. So that the other side can have a chance to depose them and examine them, that's the functional... There's no rule like that in New Jersey, but that's the functional effect of the New Jersey procedural rules. Let's go into jury selection. So what cases do you have a right to jury? Well, I did my law review article on the Seventh Amendment to the Constitution. It wasn't printed in law review because it was so boring. But the Seventh Amendment says that in a civil case, the right to trial by jury shall be preserved in all cases that it has been up until now. Which means that when the Seventh Amendment was adopted in 1791, at that point, you had a right to a jury trial in legal causes of action, for example, breach of contract. But not in equitable causes of action, for example, unjust enrichment. Courts today are still struggling with that historical analysis. You have a contest or an argument as to whether a jury trial is of a right or not, and the judge will be forced to look into what happened in 1791. I think it's madness. In practice, it's not that much of a frequent issue though because it's hardly ever where you see a case where it's strictly equitable, they find some way to throw a legal theory in. Anyway, Rule 181 fudges the issue, just says, "Where you have a right to jury trial, you have a right to jury trial." Unlike in some states where you have to wait until the case is on the calendar to demand a jury trial. Or unlike federal practice where you have to demand it along with the complaint. In New Jersey, you have to make the jury trial demand within 10 days after the last pleading is served, which usually means within 10 days after the answer by the defendant. Like in most cases, in New Jersey, a civil trial jury is typically six jurors with two alternates. You can ask for 12 on a showing of good cause. I don't know what a showing of good cause would be to ask for 12 jurors. I've never heard of it, I've never seen it, but you can do it. I have to note that in New Jersey, which is not true at all locations, but I get the sense that most judges don't like to try cases. It's not that they're lazy. Before, I told you that they tend to have fingertip knowledge when you go in front of them to argue a motion. But they'd rather have you work things out. In New Jersey courts, voer is done by the judge, and it's on the record. This is not like in New York where it's done by the attorneys and is not on the record. You might be aware that when it turns out later that a juror lied in response to a question. For example, let's say a juror in a malpractice case says she doesn't know the defendant lawyer. It turns out that, that's her doctor too. She should have been stricken for cause, but she lied during voir dire There's a large body of case law on that in New York, and it attempts to invalidate the verdict. These always get denied because there's nothing on the record about it. She lied but it's not on the record, it's just an attorney saying that she said that she didn't know defendant. In New Jersey it's different. It results I believe in better, less attackable verdicts because the judge is on the record, everyone's on the record, you have to tell the truth. The judge works from, or he's supposed to work from a series of model questions. And you might see in your written materials, Directive 407, which came out back in 2007. It's from the Administrative Office of the New Jersey Courts, and it is an attempt to impose some kind of uniformity on voir direar. The judge is supposed to stick to a certain script and certain established questions, certain open-ended questions, things to avoid. One question that they have is, "What kind of bumper stickers do you have on your car aside from political bumper stickers? What kind of bumper stickers do you have? It's kind of out of left field question, but you know, it's something they can ask. The attorney can submit supplemental questions for a good cause, there has to be a good reason. But usually there is. For example, if it's a nursing home case, you're defending a nursing home. And there's nothing about nursing homes in the Directive 407 questions, and you say to the judge, "Well, could you please ask this juror..." They're called venire persons actually, 'cause they're not jurors yet. Ask them if they have any bad experiences in nursing homes, Ask them do they have any relatives in nursing homes. And if they have had a bad experience, well you can do a sidebar. Sometimes the judge will let you directly question that person. That's very good, you should try to take advantage of that. Each side in New Jersey gets six peremptory challenges, you can object without giving a reason. Six on each side, that's an awful lot. Most places, it's three. And as in other places, if there's more than one defendant, they have to split up the six between them. There were attempts to cut the six down to three because that would speed up the process a lot. Mot successful so far. So a surprising thing to me was that you have all of six fores to use in a New Jersey trial. And as you probably know, Batson versus Alabama, you cannot in a criminal case use peremptory challenges to exclude people based on race, whether it's white or black or something else. That also applies nationwide to civil cases, and there's the cite for that. Edmonson versus Leesville Concrete Company, I'm surprised how many trial attorneys do not know that. In New Jersey, trials are typically unified. You can bifurcate on motion if it's a prejudicial, you have a very badly injured plaintiff testify as to injuries. When liability's at stake and they'll contaminate the jurors, who would prejudice the juror against you, you can do that. Also, if it's a punitive damages trial, I am one of the few attorneys who had experience of defending a punitive damage trial, you can bifurcate it simply on the defendant's request. Trial in New Jersey, the process is similar to other places. There's the charge conference, the plaintiff's attorney goes and gives an opening statement, then the defendant. At the end of the trial, the defendant makes the first closing statement, then the plaintiff makes the second closing statement. I say it's because, I learned this as a mock trial judge a couple years ago. In some jurisdictions, the plaintiff closes first and then the defendant closes last. A difference in New Jersey is that you're told elsewhere that in your opening statement you can be argumentative. You can say, "My witness's testimony will be great, and their witness's testimony will suck," or something like that. Well, not those words. But in New Jersey, you're not supposed to advocate in your opening statement, you're supposed to give a very bloodless roadmap. As you know, an opening statement is a roadmap to what the jury will be hearing. And hopefully it's an accurate roadmap, don't over-promise. I've had an experience once or twice when I said, "My witness will testify to blah, blah, blah," and then they don't. I learned not to do that, don't over-promise. On closing of course, you can be argumentative. As in other places, to preserve questions for trial, you have to object. You're allowed to give an offer of proof. And they're quite strict on offer of proof, that's good for a defendant. The rules of evidence in New Jersey courts basically follow the federal rules, there's some minor differences. Federal Rule Of Evidence 609, you could admit convictions to impeach a witness only if they're probative. New Jersey Rule 609 is similar, but the way the courts have construed it, is there's basically no time limit on it. The analysis is the same no matter how old the conviction is. Federal Rule 702, you might know that there is the Daubert case in Federal Court. New Jersey Rule 702 was originally as simple as Federal Rule 702. It basically said expert testimony is admissible. But with the Daubert opinion, the Supreme Court set up a four-step process, which we won't go in here but it got codified in Federal Rule 702. Federal Rule 702, dealing with expert evidence, now tracks the Daubert analysis. They did not change New Jersey Rule 702, but in the recent Accutane litigation case you see there, New Jersey Supreme Court decided we will follow that guideline without necessarily being bound by the case law in Daubert. Federal Rule of Evidence 803, "Statements in ancient documents at least 20 years old are admissible for the facts they contain. It's an exception to hearsay." That means all kinds of internet crap that was put up in 2002 or earlier, now gets in, you have to rebut it which is a pain in the butt. New Jersey, thankfully it's 30 years old, 1992. So we won't have to deal with the internet problem in New Jersey yet, but the time is coming. New Jersey, a one party consent state for recording conversations. You can secretly tape a conversation if you are in the conversation. And as in other places, in a civil case, it doesn't matter how evidence is obtained, there's no fruit of the poisonous tree. You can send someone to burglarize your adversary's house and grab pictures, and it's admissible. I'm not telling anyone to do that, but just in case your adversary tries to do that, beware. In closing, you can't suggest a total of dollar value, but you can suggest a time limit unit calculation. That's a weird rule, but that's what the rule says. It's the opposite of what's in other jurisdictions. You need five jurors outta six to agree on a verdict. You can proceed with less jurors if both parties agree. Let's say someone gets sick. If you have five or four, both sides agree, that's okay, you can go on. New Jersey is a contributory negligence state. In other words, if plaintiff is 51% at fault or more, she walks away with nothing. That applies to both economic and non-economic loss. Pre-judgment interest is available in personal injury actions. The rate is calculated every six months. It's a complicated formula, it has to do with market value. The judicial conference does it. Last time I checked, it was four and a half percent. But you have to demand it in the complaint. It runs from six months after date of accident or from the date of filing, whichever is earlier. Which is an encouragement to file as early as possible, that's good. New Jersey has only one appellate division, there are not three or four or five judicial districts. It's 32 judges, they sit in twos and threes. Like most places, you have to go to final judgment to appeal. And you can get a certification as to a non-final order to appeal, but that's unusual, and you don't want to piss off the trial judge by asking for it. My experience looking at the case law, is that the Appellate Division of New Jersey pretty much tends to leave verdict amounts alone. They don't do a whole lot of decreasing or increasing, like they might in some other places. Finishing up on procedure here, I recommend this publication. It's by Chief Justice Rabner, he has been chief justice for I think 15 years. It's about a hundred pages. Doesn't tell you much about customer practice, but it tells you what the rules are, it's well written. Let's talk about substance. These are the statute limitations for some common cause of action. The surprise is trespass. Most places, it's one or two or three years. In New Jersey, it's six. The no-fault threshold in New Jersey does not apply if the tort fees is a commercial vehicle. I found that out by surprise the first time I defended a case involving a commercial vehicle. No matter how trivial the injury is, plaintiff can still sue. In any question where there's an auto injury, the plaintiff has to provide a doctor's certification that the injury crossed the threshold, and he's gotta do that within 60 days of the answer being served. You can get full damages for breach of contract provided insurance, it's not true everywhere. There's no strict construction site liability. Nursing homes in other states, there is a rather important statute that allows you to serve nursing homes for violations of various regulations. In New Jersey, it was basically defanged by the New Jersey Supreme Court in a Lodzinski case, that's in your written materials. State liability, you can serve the state for a negligent highway design, it's a two-year statute of limitations that came up in a case I had recently. Child Victims Act like in a lot of states, they can sue up to age 55 over I think seven years of discovery that the injury was due to abuse. That was a law that went to effect in 2019. New Jersey has a small case law database, so it's easy to research things. A lot of appellate division cases are unpublished because of a Rule 136, which, it's an outdated rule, it dates when only certain attorneys had access to court opinions. And the rule basically says, "You can only publish an opinion if it says something new." But in fact, a lot of times, many times, most of the time, the case you're dealing with, the only on-point case is unpublished. So I hope they change that rule soon. Finally, I'm going to talk about electronically stored information. This is critically important these days. Because there's a small case law database, there's hardly any New Jersey law on it. But with the small database, I've noticed that New Jersey courts often cite out-of-state authority. And so you can cite out-of-state authority in front of a New Jersey court if there were questions as to ESI. You've heard the expression, "the internet of things." The universe of evidence available, discoverable and relevant and admissible, has exploded in recent years. Just think of the things that are connected to us. Smartphones, social media, internet, wearables, fitness tracker. Before I go in more and more on this, going through this list, you have to think what is your case about, right? If the case is about a conversation someone had at a certain place with somebody, well then smartphone evidence is important. It tells you who the call was made to, where it was. If the case is about personal injury, where somebody might be claiming an injury that in fact is not a true injury, you can go onto the person's private social media pages. And in almost every jurisdiction, the court will let you get an authorization for that. So you can prove that his claim of injury is not true. Of course it works both ways. He can also prove that it is true by showing even more photographs of him in a wheelchair on the social media private pages. Wearables are important as far as a medical injury that somebody is claiming or not claiming. Medical monitoring devices can tell you not only the condition of the person who is wearing them, but also ambient information, time and place. Fitment trackers are the same. If someone's fitness tracker shows that she ran five miles a day, well, that calls into a question her broken ankle injury claim, doesn't it? There was a case a few years ago in Pennsylvania, where this woman charged somebody with raping her at 2:00 AM in her house. And when the police came in afterwards to look around and get evidence, they saw a fitness tracker on the floor. And when they went to the data for the fitness tracker, they found out that at the time and place of the supposed rape, she was elsewhere. The result was that she got charged with filing a false rape charge. Smart houses these days, they have automated temperature controls, front door cameras with facial recognition. You can tell whether someone was or was not visiting. If he denies visiting, well, there's his face on the smart front door camera. Bluetooth in cars. If someone denies that they know somebody, and in fact the Bluetooth system in their car has their phone on its list of available devices, well that impeaches his testimony onto that. Smart watches are the same. Video games, well, a lot of them have places for comments. There have been cases where pedophiles have been entrapped by comments, invitations made in that Xbox field to the right of the game. And it's just amazing to me when I read up on the case law, how much some of these folks divulge about their name, their age, where they are. "Let me meet you at 123 Main Street." Things they would know better. But that was available evidence on a Xbox comment field. Laptops and browsing history we know are important. Black boxes in vehicles, particularly commercial vehicles. There have been cases where truckers have an overtime claim that got denied because the black box in their vehicle showed that in fact, they did not drive their vehicle more than 40 hours. Alexa and Google Home have been relevant in cases involving what conversations took place in a house. You say, "Alexa," and it turns on. But you can say a word that sounds like Alexa, and it turns on. You might notice that really cute video of this two-year old girl in a kitchen saying, "Alexa, play 'Baby Shark'. Alexa, play 'Baby Shark'." And the Alexa plays songs with titles that sound like "Baby Shark". Finally, her mother comes in and says, "Alexa, play 'Baby Shark'." And the kid starts dancing, it's really cute. But if you notice that video at the very beginning, this two year old girl, when she said, "Alexa," it's not very clearly said, "Alexa." She could have said a word that sounded like Alexa, and it would've still turned on. Alexa and Google Home, they have a series of hot words they call 'em, that it doesn't have to be Alexa or Google Home. It could be some other word like, "Give me this," or, "What's this about?" Things like that turn the thing on. There was a case in New Hampshire a few years ago, a murder conviction was overturned because the defendant got a hold of an Alexa recording in the kitchen of the victim, which showed that he was not there. Somebody else was in that kitchen and that man was the actual murderer. Got the conviction vacated. GPS devices tell you where something was. There was a famous case having to do with drug deals outside of the United States waters or inside. The government claimed it was inside, the defendant claimed it was outside. Using the GPS... The guy was in a boat, I forget the name of the case. But the government's expert showed the jury that according to the GPS, this man was within American waters, and therefore his argument as to jurisdiction was rejected. Google Earth. Unfortunately some states including New York, have a rule that makes Google Earth photos admissible, and you have to rebut them. That's really a pain in the butt. You cannot use Google Earth of course, to establish transient conditions, like whether there was snow blocking the road at a certain time. But it has been used to show a street layout, the existence of trees. There's a Google timestamp on each photo, and some of these are several years old. I mean, the street could have changed since then. You have to find a way to rebut this now that it's in evidence. Applications on smartphones are from third-party vendors, and you have to subpoena them. Most of them do not object to subpoenas. They hardly can claim lack of jurisdiction because these are all worldwide used applications. They usually have a fax number or an email that you can send the subpoena to and they will honor it. As long as it's not overly broad, and as long as it does not demand what they consider to be proprietary or copyrighted information. Geotags, as you probably know, every photo taken on a phone has meta tagged in it, showing the date and location where it was taken. This is important on a certain kind of case. Also there's office ESI. Emails, documents created in the office, which were attached to the emails. You have the problem with parent child chains, and what exactly was being attached. Document management software creates its own problems. 'Cause in my experience, a lot of it is kludgy, particularly on the cloud. I mean, I have a friend who works in a firm and she says, "I'm a fast typer, but you know, I have to wait 30 seconds for a document to come up. And I save it, I have to wait 30 seconds for it to be saved. I do most of my work offline." Well I think that's a common situation, and it's true in law firms and businesses. People put things offline just to get the work done, and they upload it when it's finished. Or maybe they don't, or maybe they keep a draft offline. Which in a certain case, the draft might be important and more important than the final document. There might be information in the draft that was deleted. You have to ask about whether material was created offline. Another problem with ESI is de-duplication, there are several versions of a document. You're supposed to only keep the final, but we know that doesn't happen. There are several drafts, which ones do you delete? Computerized search programs are great for situations where you have millions of documents. But remember these are computerized programs, these are robots. They might not pick up misspellings, they might not pick up words that are chopped in half, they might not pick up things written by people who are expressing something in an original way. I think sometimes that we're encouraged to be more and more boring and uninventive. That way, our words are more likely to get picked up by search programs. Logic code, Google Analytics are the two most popular. I'm going to refer you to a case that's in the written materials. In "RE: Morgan Stanley Data Security Litigation", and it's a long decision, but it goes through the various kinds of file types that are involved. In that case, it was millions of pages of documentation. And the question was, "Can we agree on what format we'll exchange it in? Can we agree whether it will be admissible or not?" Judges, in particular with ESI, they want attorneys to agree on what's producible, what's admissible. And that opinion has a lot of the current terminology. It has a good review of what a judge will accept and will not accept. It has a good review of how common problems like I've just identified as far as deduplication, et cetera, get addressed in actual litigation. So I recommend you curl up with that, spend you know, 15, 20 minutes and give it a good read. Medical records and business records present their own problems, because many cases and increasingly, they are entered with software that is proprietary and that outsiders could not buy. I do a lot of medical malpractice work. And to get Medicare and Medicaid funding, medical establishments now have to have their medical records in electronic form. EMR, electronic medical records. And it's online, you sign in. They don't let lawyers buy the software 'cause we don't know how to work it. You think that lawyers would be able to buy the software, at least make up some fictitious patients so we can find out how this stuff works. But no, if you're lucky, your client will let you have a read-only password. And you sign on and they'll be on the phone and they'll say, "Okay, how do I get to this information? How do I get to that information?" Important thing with medical records and business records is to look at the audit trails, they show you when changes were made. Sometimes it shows fabrications or suspicious deletions, but more often it just shows you that, that is corrected or changed in a medical record. A diagnosis was changed so that now a different kind of drug will be indicated and the old drug contraindicated. Also doctors. Reading orders, reading films by their cell phones, that's part of the chart. Also supposedly, the most common programs there are called DrFirst and TigerConnect. And supposedly, they leave no trace on the cell phone. For confidentiality purposes, that's important. I don't know about that, but that stuff gets put into a different part of the EMR chart. Also, another problem with charts like that is that, what if somebody transfers to another facility? Well, the EMR chart cannot integrate the records in the old facility because the password is different, it's proprietary confidentiality. What tends to happen is that the chart gets reduced to a PDF format, and that gets uploaded into the chart for the new facility. The PDF format looks nothing like the original chart. I've had cases where my nurse could not authenticate her own note, because on the PDF printout presented at deposition, it didn't look anything like what she saw on the screen at the kiosk on the unit when she imported the information. This means that you cannot produce them in the normal course of business. EMR materials are inadmissible, unless you somehow get into the courtroom with a laptop and a projector, and you have the online capability. And you sign in and you show the jury exactly what was kept. That's often impossible because once the chart is closed, once the patient leaves the facility, the software loses a lot of its functionality. A lot of things you can't get into anymore 'cause they're grayed out. For example, if it's a pressure sewer case, the CNA who turned and repositioned the patient every two hours, if she put the Xs into the little chart. That's all grayed out, you can't get to it anymore after the patient leave the facility. These are problems that have not yet been faced in reported case law, either in New Jersey or elsewhere. We'll eventually get to some kind of understanding. The important thing again is just confer and agree to everything possible with your adversary. And hopefully you'll have a judge who is not a stickler, who will say, "Okay, even though it's technically not a normal course of business, we will treat this PDF printout as if it was admissible business record evidence." Document retention is now effortless, in the old days... Well, New Jersey, it's seven years, you're supposed to keep business records for seven years. Accountants somewhat longer, other people shorter maybe. I think medical, it was six years. All that is by the boards now. Those rules were from the era of warehouses, now there is no reason to purge old information. I did calculation once where in a hospital, you can keep a surveillance camera trained on a nursing station, 24/7 for an entire year. Not motion activated, continuously running. And that will take about two gigabytes of storage using the R265 current technology, and there is no reason why that cannot be kept. Someone who purges electronic information, it now looks suspicious. Sometimes it's unavoidable, you change the platform. If you are changing platforms, the wise party will call in a technician and get everything that was on that platform saved. Otherwise, within 30, 60, 90 days, it all goes into cyberspace somewhere. That happened to MySpace a few years ago, they lost millions of photos. So anyway, the laws as to purging information are now irrelevant. I'm coming towards the end now. To repeat, what's your case about? You can focus on the correct parts of the internet of things for your case. Demand the materials in a focused way, asked about through a deposition. Mention obsolete programs. Litigation involves stuff that happened in the past, sometimes many years in the past. Ask someone not about just Facebook, "What about your MySpace platform?" "What about GeoCities?" "What about Deja News?" "What about Alta Vista?" Yahoo Groups, Tripod, Lycos, these are words in the past. And if you ask them in that form, it might jog their memories, "Yes, I did have a Lycos account in 2008," or something like that. Instead of just asking them, "Did you have a social media account in 2008?" Use the names. You're unavoidably gonna be using technicians, there are now certified digital forensic examiners that's certified by the Department of Homeland Security, who will go into the guts of a file, of an ESA file, and be able to certify that this is a true copy. New Jersey Rule of Evidence 901 is similar to the federal rule. Anyone who's qualified can authenticate a record. And increasingly it is not the user of the record who can do that, it's someone else who knows about the software. I mentioned subpoena non-party vendors, this is something that I think is underused. If there's a chance that something might be relevant on a third-party, non-party rather vendor, demand to amend the authorization. If they resist, go to the judge about it. You just don't know, the universe of admissible, discoverable, relevant information is now so great, it's better to be safe and sorry on these things. And with now I'll come to a close, thank you for your time. There's my phone number, there is my email address, contact me anytime if you have any question. And take care of yourselves, bye-bye.

Presenter(s)

Dan Schiavetta
Of Counsel
Russo & Gould LLP

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