Best Practices Cumulative Update
Beginning with the October 30, 2001 Meeting of the Conference of Civil Presiding Judges, through the June 25, 2002 Meeting
The following is a cumulative listing of the
results of discussions by the Conference of Civil Presiding Judges of a variety
of civil best practices issues and questions that have been presented to the
Conference by members of the bar, civil judges, and civil court staff. The
items listed below represent the Conference of Civil Presiding Judges
consensus as to how the various issues and questions should be handled
statewide, subject to the individual judges discretion exercised within
the context of the facts and legal issues presented in specific cases. The
items listed below do not carry the weight of court rules or administrative
directives; they are not precedential and should not be cited; they are merely
intended as guidelines to assist the court and the bar as civil best practices
are implemented statewide. This listing, which begins with issues discussed
at the October 30, 2001 meeting of the Conference of Civil Presiding Judges,
will be updated periodically.
Issues and items discussed prior to October 30 have been archived.
Section 1.Tracks Assignment
Section 1.Tracks Assignment
In developing the track system for civil cases, it was the contemplation of the Conference of Civil Presiding Judges that track changes occur under two circumstances only: (1) when a case is erroneously marked by an attorney as a certain case type on the CIS or erroneously entered by court staff as a certain case type into the automated system (ACMS); and (2) when, during the course of discovery, the very nature of the case changes, as when a case originally filed as an auto negligence matter (Track II) is revealed in discovery to be primarily a medical malpractice or product liability case (Track III). A track
assignment will not be changed because additional discovery is needed or additional parties are added or because the case requires judicial management. (12/4/01 meeting of the Conference of Civil Presiding Judges)
N.B. A rule amendment to this effect has been proposed by the Civil Practice Committee and is pending before the Supreme Court.
Section 2.Judicial Case Management/Calendaring
In accordance with the Supreme Courts rule relaxation Order of 7/2/01, any application made to the court after the discovery end date shall be made to the Civil Presiding Judge or his or her designee. Thus, the Civil Presiding Judge can designate himself or herself to handle all motions to restore pleadings (or all motions of any other type) when those motions are made after the end of the discovery period. (1/16/02 meeting of the Conference of Civil Presiding Judges)
Convenience of the parties should be a critical element in scheduling proofs and friendlies. As these are not pretrial proceedings, there is generally no need for the pretrial judge to handle them. Accordingly, proofs and friendlies may be scheduled before the pretrial judge or any available judge, at the vicinages option. The exception to this approach is when a settlement involving a minor or mentally incapacitated person occurs after substantial judicial involvement in the case. In such instances, either the pretrial judge or the settlement judge should handle the friendly. (5/14/02 and 6/25/02 meetings of the Conference of Civil Presiding Judges; supersedes Cumulative Update entry on this issue from the 7/26/00 and 9/26/01 meetings of the Conference of Civil Presiding Judges).
Section 3.Rule 1:13-7 Dismissal
There are reported to be substantial differences among vicinages, and even among judges within a vicinage, as to whether to permit reinstatement of a complaint, dismissed pursuant to R. 1:13-7, when service is effected after the matter is dismissed. Some vicinages (or judges) will allow reinstatement in such circumstances, whereas others require the complaint to be reinstated first and then served. The position of the Conference is that service of the dismissed complaint, as a prerequisite to vacating the dismissal and restoring the pleading, is permissible and consistent with civil best practices. This position is supported by Stanley v. Great Gorge Country Club (decided 4/13/02; approved for publication 6/13/02). (6/25/02 meeting of the Conference of Civil Presiding Judges).
Section 4.Inactive Cases
When cases are consolidated, the consolidation order should specify the discovery end date that will apply to all cases within the consolidation. If the consolidation order does not specify a discovery end date, the most distant discovery end date among the cases consolidated will apply to all cases within the consolidation. (10/30/01 meeting of the Conference of Civil Presiding Judges).
As of mid-November 2001, the discovery end date for all pending civil cases will be posted on the Judiciarys website (www.judiciary.state.nj.us). The information posted on the website will be updated nightly from the Automated Case Management System (ACMS). (10/30/01 meeting of the Conference of Civil Presiding Judges).
It appears that some attorneys are making, and some judges are granting, motions brought under R. 4:23-5 to compel more specific answers to interrogatories. The Conference agreed that this is not an appropriate application of R. 4:23-5. Such motions should be brought pursuant to R. 4:17-5. (10/30/01 meeting of the Conference of Civil Presiding Judges).
Rule 4:23-5(a) requires that a party moving to strike or dismiss the adversarys pleading must certify that he or she is not in default on any discovery obligations owed to the delinquent party. The question was raised whether a motion to dismiss for failure to attend an IME might be denied if the movant has not yet answered the delinquent partys interrogatories, even if the time for answering has not yet run. The consensus of the Conference was that, as long as one party is not delinquent in providing discovery, i.e., the time period within which the discovery must be provided has not yet run, that party should be able to obtain relief under R. 4:23-5. (10/30/01 meeting of the Conference of Civil Presiding Judges).
The judge has the inherent authority, in an order granting a good cause discovery extension, to condition any further extensions, even if sought prior to the discovery end date, on a showing of exceptional circumstances. (1/16/02 meeting of the Conference of Civil Presiding Judges).
Once a stay order is entered into the Automated Case Management System as to a specific case, the system automatically extends the discovery end date by the number of days of the stay. (2/26/02 meeting of the Conference of Civil Presiding Judges).
As a matter of uniform practice, if an in limine motion is to be heard by the trial judge in the context of the trial, it need not be entered into ACMS; there should be no fee paid; no return date need be assigned; the motion papers should simply be placed into the file jacket for the trial judges review and handling; and the motion will become part of the trial record. If, however, the motion is submitted with a return date in advance of the trial date, it should be handled as any other motion that is, it should be accompanied by a $15 fee and entered into ACMS. (10/30/01 meeting of the Conference of Civil Presiding Judges).
Too often, motions and orders refer generally to a partys failure to provide discovery, without indicating what specific discovery is at issue. This is a problem as the adversary may not be sure what the discovery is that must be provided, and it becomes difficult for the court to deal with subsequent motions (e.g., to reinstate) if the initial order is not specific as to the original deficiency. If a particular attorney only occasionally fails to provide the necessary specificity in the motion and order, the judges law clerk should call to obtain the information. If, however, an attorney routinely fails to provide specific information as to the delinquent discovery, the motion should be denied and the reason provided in the order. (5/14/02 meeting of the Conference of Civil Presiding Judges).
An attorney inquired whether, in deciding a motion to restore a stricken pleading upon the provision of answers to interrogatories, the court must determine if the specific interrogatory answers are complete and responsive if the adversary alleges they are not. The position of the Conference is that Adedoyin v. ARC of Morris County, 325 N.J. Super. 173 (App. Div. 1999) clearly provides that the answer to this question is yes.
Section 7.Trial Information Statement (TIS) and Case Information Statement (CIS)
N.B. By Supreme Court Order of 7/2/01, relaxing and supplementing Rules 4:25-4 and 4:36-2 and Appendix XXIV of the Rules of Court (see below), filing and serving of the Trial Information Statement (TIS) are no longer required.
Section 8.Complementary Dispute Resolution (CDR)
Pursuant to Rules 4:21A-(d) and 4:36-3(b), once a case is scheduled for arbitration, there should be no adjournments barring exceptional circumstances. This requires a judicial determination; the Arbitration Administrator may not adjourn cases for incomplete discovery. If, however, a judge extends the discovery end date after an arbitration hearing has already been scheduled, the order extending discovery should specify whether the arbitration date is to remain fixed or be rescheduled. (The judge may determine to allow additional discovery without changing the date of the arbitration hearing.) (10/30/01 meeting of the Conference of Civil Presiding Judges).
The issue was raised as to whether a case may be scheduled before discovery has ended for arbitration or trial to occur after the discovery end date (DED). Rule 4:21A-1(d) requires 45 days notice of an arbitration hearing; Rule 4:36-3(a) requires eight weeks notice of trial. Can this notice period start to run prior to the DED?
The Conference agreed, that, pursuant to Section 6 of the Report of the Conference of Civil Presiding Judges on Standardization and Best Practices, the scheduling of a case for arbitration or trial should not occur until the date the discovery period ends, at the earliest. (2/26/02 meeting of the Conference of Civil Presiding Judges).
The Conference considered a variety of issues relating to arbitrating cases in which a defendants answer had been stricken for failure to provide discovery or in which a defendant, who had previously answered or appeared in the case, is in default, and made the following determinations:
- if there is but one defendant and that defendants answer has been stricken or the defendant is in default, the case should not be scheduled for arbitration;
- if there are multiple defendants and one or more (but not all) are in default or have had their answers stricken for failure to provide discovery:
- the case should be scheduled for arbitration;
- the stricken or defaulted defendant(s) should receive notice of the arbitration hearing;
- the stricken or defaulted defendant(s) should be allowed to participate in the proceeding as they would be allowed to participate at trial, that is, they may cross-examine but may not present affirmative witnesses;
- the stricken or defaulted defendant(s) that participate in the arbitration hearing are not entitled to a trial de novo unless that party has moved to vacate the dismissal or default and that motion has been granted before the time to file the trial de novo has run;
- if another party files for a trial de novo, the defendant(s) in default or whose answer(s) have been stricken should get notice and may participate in the trial; and
- the defendant(s) in default or whose answer(s) have been stricken are bound if the arbitration award is confirmed.(5/14/02 and 6/25/02 meetings of the Conference of Civil Presiding Judges).
Section 9.Settlement Events
Section 10.Calendar Practices/Trial Calls
Section 11.Trial Adjournments
Section 12.Trial Management
Rule 4:14-9(f) requires that objections to the videotaped testimony of a treating physician and/or expert be presented to the court within 30 days following completion of the deposition, and the comments indicate that the failure to seek such a pretrial ruling will be deemed a waiver of any objection. The rationale behind the rule is that these objections should be dealt with pretrial so as not to delay the trial, which would be the result if the objections were presented after the trial started. Some judges, however, are apparently taking the position that such motions are actually in limine motions and are refusing to hear them, directing instead that the objections are more properly handled by the trial judge. Such a position may have some validity, but it seems to run afoul of the rule and would result in trial delays.
The Conference agreed that there should be a uniform approach to such motions and that the dictates of R. 4:14-9(f) should be followed, that is, objections to the videotaped testimony should be made and dealt with pretrial. This approach, however, does not apply to the videotaped testimony of experts taken pursuant to R. 4:36-3. (2/26/02 meeting of the Conference of Civil Presiding Judges).