CIVIL BEST PRACTICES
July 1, 2000

The report to the Supreme Court of the New Jersey Judiciary Strategic Planning Committee, issued March 31, 1998, stressed the themes of unification and accountability. The committee identified three goals that must be attained before New Jersey can achieve a fully unified court system. The third of these goals calls for the standardization of operations to provide a uniform system of justice and consistency in quality of service statewide. The committee took the position that, in order to attain this goal, the Judiciary should, among other things, "develop statewide consistency in case management systems for the Civil, Criminal, Family, and Probation Divisions."

In accordance with the report of the Strategic Planning Committee, and at the direction of Chief Justice Deborah T. Poritz, the Judicial Council, at its two-day retreat in April 1998, charged the Conference of Civil Presiding Judges with developing a standard, statewide civil case management system. This charge was memorialized in the Chief Justice's letter of June 26, 1998 to the Hon. Robert E. Guterl, chair of the Conference of Civil Presiding Judges. Specifically, the letter directed the Conference, among other things, to make recommendations concerning the development of operating standards for a statewide civil case management system, including assignment to tracks, discovery practice, dismissals, arbitration practice, settlements, motion practice, and trial calls.

The Conference met monthly to meet this charge, and in the process sought the views of the State Bar, various other statewide bar associations, the county bar associations, the Civil Practice Committee and the Conference of Civil Division Managers. The Conference of Civil Presiding Judges' report was issued in March 1999 and contained a total of 66 individual recommendations, based on an identification of "best practices", that addressed the entire civil caseflow process from initial track assignment through trial management. The report was published for comment in the April 5, 1999 issues of the New Jersey Law Journal and New Jersey Lawyer. After considering the many thoughtful comments that were submitted, the Conference amended a number of its recommendations and delivered the revised report to the Supreme Court for consideration at its June 22, 1999 Administrative Conference.

Many of the comments received tended to focus on the exceptional circumstances that may legitimately arise to delay some cases. What the Civil Presiding Judges attempted to do was to build a standard system, based on best practices, that will provide the flexibility needed to deal with true exceptions, i.e., problems that are beyond an attorney's control. The Civil Presiding Judges recognized that the court must retain the discretion to address such exceptions, but would not build a standard, statewide system around them.

The Supreme Court thoroughly reviewed the Civil Presiding Judges' report, all the comments its publication generated and the revisions made to accommodate many of those comments. The Court approved the report, as revised, in its entirety and directed the Civil Practice Committee to draft the necessary rules and rule amendments to implement the "best practices" recommendations. The Supreme Court approved the rules and rule amendments at its Rules Conference on May 18, 2000, for adoption on September 5, 2000. Thus, all cases filed on or after September 5, 2000 will be subject to the "best practices" recommendations and the rules implementing these recommendations will apply.

What follows is a summary of the various recommendations, reference to the implementing rules, and a brief discussion of what implementation will involve, from a practical or operational perspective. Reference to the particular recommendation as approved by the Supreme Court is provided when no rule or rule amendment was deemed necessary for implementation, and a copy of the approved recommendations is attached. In those instances in which the language of the implementing rule does not precisely reflect that of the corresponding recommendation, the language of the rule controls.

Section 1. Tracks - Assignment

For purposes of managing the voluminous civil caseload, it is essential to break the caseload down into discrete categories. Cases will be assigned to a track upon the filing of

the complaint. The track assignment is based on case type as noted on side 2 of the Case Information Statement (CIS) and each track provides a specific discovery period based on the presumed discovery needs of the case types allocated to the particular track. See Rules 1:5-6 and 4:5-1; 4:5A-1, -2, -3; new CIS form.

The four tracks and the discovery period and case types associated with each are:

Track I - 150 days' discovery

Track II - 300 days' discovery

Track III - 450 days' discovery

005 Civil Rights

Track IV - Active Case Management by Individual Judge/450 days' discovery

Mass Tort (Track IV)

With respect to particular case types:

Actions in lieu of prerogative writ. See R. 4:69-4.

Complex Commercial Cases

Track Assignment Notice. See R. 4:5A-2.

The court will mail the Track Assignment Notice (TAN) to the plaintiff with the docketed copy of the complaint or within 10 days of the filing of the complaint. The TAN will advise plaintiff of the track, team, and judge to which the case has been assigned.

Changes of Track Assignment. See R. 4:5A-2.

It is possible to change track assignment either at the outset of a case or as the case develops.

Section 2. - Judicial Case Management/Calendaring

One goal of the best practices systems is to ensure that every case on Tracks I, II and III is handled by the same "pretrial judge" from filing through discovery, and for cases on Track IV by the same "managing judge" from filing through trial, barring exceptional circumstances. See R. 4:5A-1, -2.

Track IV cases will receive early judicial intervention:

In cases on any track:

Section 3. - R. 1:13-7 Dismissal

The current practice under R. 1:13-7 places a tremendous burden on the civil system. Each month, staff must generate and mail (at 33¢ each) thousands of dismissal notices statewide. In response, attorneys must prepare and the court must read thousands of affidavits stating why service has not been effected. This goes on month after month until finally a case is dismissed. The Civil Presiding Judges sought to remedy this costly and labor-intensive practice while ensuring due process to the parties. Under the best practices system, the dismissal procedure is streamlined. See Rules 1:13-7 and 4:43-2.

-- an answer is filed with the court OR

-- proof of service is filed with the court OR

-- a motion is filed, showing exceptional circumstances why the case

should not be dismissed.

Section 4. - Inactive Cases

The Rules of Court do not provide for the "inactivation" of cases, with the exception of cases placed on the military list pursuant to R. 1:13-6. Accordingly, cases should be considered active and managed accordingly; dismissed without prejudice when beyond the ability of the court to process; or placed on the military list and monitored by the court. (Recommendation 9.0)

-- cases in which an appeal is pending;

-- civil forfeiture cases in which resolution of the underlying criminal matter is still pending;

-- federal preemption of a cause of action brought in state court;

-- the case has been referred to mediation.

Section 5. - Discovery

The present 150-day discovery period is rarely observed; attorneys are routinely granted extensions and the discovery end date is rarely enforced. Under the best practices system, only Track I cases are restricted to 150 days of discovery. The lengthier discovery periods permitted cases on Tracks II, III and IV, if enforced as intended, will actually result in less protracted discovery than is now the case. Please note that for cases filed prior to September 5, 2000, the new track-based discovery periods will not apply.

Calculation of Discovery Period. See R. 4:24-1(d).

Late Served and Newly Added Parties. See Rules 4:8-1 and 4:24-1(a) and (b).

Extension of Time for Discovery. See R. 4:24-1(c).

With respect to the last point, the Civil Presiding Judges recognized that the parties may conduct additional discovery by consent, even after an arbitration or trial date is set. Such consensual discovery, however, must not delay any proceeding date fixed by the court, nor will it be enforced by the court.

"Automatic" Discovery. See Rules 4:17-1, -2, -4.

Non-Compliance with Discovery Request. See Rules 4:18-1, 4:19 and 4:23-5.

To relieve an aggrieved party from having to apply to the court to compel certain discovery to which it is entitled, R. 4:23-5 procedures are applied to non-compliance with discovery requests made under Rules 4:18-1 and 4:19.

-- the adverse party may require the party whose physical or mental condition is in controversy to submit to an exam by serving notice upon that party, stating with specificity when, where and by whom the exam will be conducted, as well as the nature of the exam and any proposed tests;

-- at least 45 days' notice of the exam must be provided;

-- a party seeking a protective order must apply therefor within the 45-day notice period;

-- reexamination may be made by consent, or if the party to be reexamined does not consent, by court order.

Section 6. - Motions

The civil justice system is awash in motions. Well over 210,000 civil motions are filed annually. Many of the best practices procedures are designed to facilitate a more streamlined motion process.

Assignment of Motions. See R. 1:6-2.

Reserved Motion Decisions

Scheduling Motions/Oral Argument

N.B. This practice may become obsolete by the time the best practices system is implemented in September 2000, as motion calendar/disposition/oral argument status will be posted on the Internet.

Section 7. - Trial Information Statement (TIS). See Rules 4:36-2 and 4:25-4; new TIS form.

If the overarching goal of best practices is to provide credible trial dates then the TIS is the key to achieving that goal. The TIS is the mechanism whereby attorneys advise the court that discovery is complete and the case is ready to be scheduled for trial or arbitration. The TIS also requires attorneys to designate, or confirm previously designated, trial counsel and to advise the court of dates when they, their clients and their experts will be unavailable.

Failure to File TIS

-- designation of trial counsel will be deemed waived (even if previously made),

-- the court will assume that discovery is complete,

-- the case will be scheduled for arbitration or trial, and

-- no adjournment of the scheduled arbitration or trial date will be granted for incomplete discovery, absent exceptional circumstances.

Section 8. - CDR

The best practices system both standardizes the use of arbitration and promotes increased use of mediation.

Arbitration. See R. 4:21A-1 et seq. and Uniform Arbitration Statement of Facts Forms.

-- all auto negligence cases, regardless of amount in controversy;

-- all personal injury cases, regardless of amount in controversy, including product liability cases but excluding professional negligence cases;

-- all PIP cases;

-- all book account cases and actions on a negotiable instrument; and

-- all other contract and commercial cases that, after screening by the teams, are deemed appropriate for arbitration (standardized screening guidelines will be prepared).

Mediation

Section 9. - Settlement Events. See R. 4:5B-3.

The best practices system seeks to encourage meaningful settlement events. The term "settlement events" is intended to include judicial settlement conferences and bar panels; it is not intended to include settlement discussions with a judge or the day of trial.

Section 10. - Calendar Practiced/Trial Calls. See R. 4:36-3 (a).

The best practices system is intended to deliver standardized calendaring and trial call procedures that should provide the court and the bar with a high degree of certainty as to when cases will go to trial.

Scheduling and Noticing Cases for Trial

Relisted Cases

This is intended to put a stop to telephone notice of rescheduled trial dates, which makes the entire trial process unpredictable for attorneys, litigants and witnesses.

Appearance of Attorneys

Section 11. - Trial Adjournments. See Rules. 4:36-3(b) and (c).

Best practices calls for a standard procedure for requesting an adjournment of a trial date.

How an Adjournment Request is Made

-- state the reason for the request,

-- state that all parties have consented to the adjournment, AND

-- include a proposed trial date agreed upon by all parties.

Why an Adjournment Request is Made

When an Adjournment Request is Made

Videotaping Unavailable Expert

Section 12. - Trial Management. See Rules 4:25-7 and 4:35-4; New Pretrial Information Exchange form.

The best practices system seeks to ensure more effective trial preparation by attorneys and more effective trial management by the court.

Pretrial Exchange of Information

-- any stipulations reached on contested procedural, evidentiary and substantive issues; and, in jury trials,

-- special voir dire questions,

-- proposed jury instructions, with specific reference to the Model Civil Jury Charges, if applicable,

-- a proposed jury verdict form that includes all possible verdicts the jury may return.

Continuous Trials

Bifurcation of Liability and Damages

Section 13. - Civil Backlog Measures

Under current definitions, a civil case is in backlog if it is over twelve months old. Redefinition of civil backlog measures was necessary if civil statistics are to reflect the age of the civil caseload with any accuracy. Accordingly, as of September 2000, backlog and inventory definitions will be tied to the four case management tracks. Thus,

Track Backlog Measure

I (150 days' discovery) 12 months

II (300 days' discovery) 18 months

III (450 days' discovery) 24 months

IV (450 days' discovery) 24 months


Notices to the Bar Re Best Practices