Section 1. Tracks - Assignment
Recommendation 1.0. There should be four tracks, defined by the discovery period provided:
Track I - 150 days for discovery
Track II - 300 days for discovery
Track III - 450 days for discovery
The discovery periods provided for cases on Tracks I, II and II may be enlarged by the court for good cause shown, provided application for such enlargement is made before an arbitration or trial date is set.
Track IV - Case types designated for assignment to Track IV on the Civil Case Information Statement (CIS) as well as such other cases that, in the judgment of the Civil Presiding Judge or his or her designee, are so legally complex as generally to require active management by a judge, who shall also be assigned to try the case, barring exceptional circumstances. Cases on this track shall have a presumptive discovery period of 450 days. This presumptive period may be shortened or enlarged by the managing judge, only for good cause shown.
Recommendation 1.1. Cases will be assigned to a track at the time the complaint is filed; such assignment will be presumptive, based on the case type indicated on the CIS.
Recommendation 1.2. Summary actions need not be placed on a track, as such actions are likely to be resolved on the return date of the order to show cause. If not so resolved, these cases will not be assigned to a track, but will receive judicial case management as appropriate and will be timely scheduled for a hearing.
Recommendation 1.3. Rule 4:67 should be revised to set forth a categorical mechanism to identify those cases that may be resolved in a summary action.
Recommendation 1.4. Cases brought under uninsured and underinsured motorist policies (UM and UIM cases) should be presumptively placed on Track I.
Recommendation 1.5. Prerogative writ actions should be presumptively assigned to Track IV, where they will receive individual judge management.
Recommendation 1.6. When a prerogative writ case, or any case to be heard on the record below, is filed, it must be accompanied by a certification that any necessary transcripts have been ordered.
Recommendation 1.7. Although there will be no need for discovery in most prerogative writ actions, the managing judge should hold an informal conference with the attorneys involved -- either in person or by telephone -- within 30 days of joinder, to establish a briefing schedule, with the goal being the prompt disposition of the case.
Recommendation 1.8. In lieu of a formal pretrial conference (as is now mandated under R. 4:25-4) and in anticipation of the informal conference (pursuant to Recommendation 1.7, above), each party must submit to the court at least five days in advance of the informal conference a statement of facts and legal issues.
Recommendation 1.9. A course in handling prerogative writ actions should be offered at the Judicial College.
Recommendation 1.10. A "complex commercial" case type should be created for presumptive assignment to Track IV, where such cases will receive active management by a judge, who shall also be assigned to try the case, barring exceptional circumstances.
Recommendation 1.11. Cases that are administratively or procedurally complicated are not necessarily Track IV cases; such cases should be placed and remain on the track to which they are presumptively assigned based on case type.
Recommendation 1.12. Disputes with respect to initial track assignment must be brought to the court's attention within 30 days of joinder.
Recommendation 1.13. Any party disputing an initial track assignment must submit to the Civil Presiding Judge or his or her designee and serve on the adversary a certification with a five-day order.
Recommendation 1.14. The Civil Presiding Judge or his or her designee may, on a party's motion or sua sponte, remove a case from the track to which it has been presumptively assigned, if the court finds for good cause shown that such assignment is inappropriate, and reassign the case to the appropriate track.
Recommendation 1.15. Track assignment should not change to accommodate a party's (or the parties') need for a longer discovery period; rather the party(ies) may apply to the pretrial judge for an extension of the discovery end date, which may be granted in accordance with criteria established by the Presiding Judge. (See Recommendation 4.3, below.)
Recommendation 1.16. Individual judge management may be available to cases on Tracks I, II and III, if the court determines it to be necessary, either on the request of a party or sua sponte; this degree of management, however, should not result in reassignment of the case to Track IV.
Section 2. Judicial Case Management/Calendaring
Recommendation 2.0. At the filing of the complaint, each case shall be assigned to a designated judge, who shall handle all activity in the case, including motions and management conferences, until the discovery end date and the filing of the TIS. Thereafter, the Presiding Judge or such other judge as the Presiding Judge may designate will handle all applications and assign the case for trial. With respect to Track IV cases, every effort shall be made to assign these cases to the managing judge for trial, barring exceptional circumstances. One example of such exceptional circumstances may be the mass tort cases that have been centralized in Middlesex County by Supreme Court order, for case management purposes.
N.B. This recommendation is not intended to preclude a judge other than the designated pretrial or managing judge from handling a settlement conference in any case; nor is it intended to preclude block scheduling of settlement conferences (e.g., "settlement days" involving many cases from a designated carrier).
Recommendation 2.1. The initial case management conference for cases assigned to Track IV, other than prerogative writ actions, shall be held as soon as practicable after joinder but in no event, barring exceptional circumstances, beyond 60 days after joinder.
Recommendation 2.2. The number of case management conferences that may be scheduled for any case is within the discretion of the managing judge.
Recommendation 2.3. The case scheduling plan/case scheduling order procedure is not recommended for standard, statewide use and should be abandoned in that county now using it.
Section 3. Rule 1:13-7 Dismissals
Recommendation 3.0. After 120 days of inactivity, the court will issue a notice to counsel advising that the case will be dismissed without prejudice in 60 days unless one of the following occurs within that period:
a) an answer is filed with the court OR
b) proof of service is filed with the court OR
c) a motion is granted, showing exceptional circumstances why the case should not be dismissed.
If none of the above occurs in the 60-day period, the case will be dismissed without prejudice and the order of dismissal will be sent to the parties; thereafter, reinstatement may occur only on formal motion, with notice to all parties.
Recommendation 3.1. Dismissal for lack of prosecution may occur as to individual parties, allowing the case to continue against other defendants.
Section 4. Discovery
Recommendation 4.1. The rules should state the discovery period for each track, and make it clear that once the discovery period is over and an arbitration or trial date is set, no more discovery should occur, unless authorized by the court on a showing of "exceptional circumstances."
Recommendation 4.2. Current Rules 4:8-1 and 4:24-1 should be amended to provide that when the court authorizes the addition of new parties to a case, by whatever mechanism -- amended complaint, impleader, third-party complaint -- the party bringing in the new party must furnish all discovery obtained to date to the newly added party within 10 days of the filing of the new party's pleading. Further, the rules should articulate the presumption that a newly added party or a party that is served late is entitled to an extension of the discovery period, as may be necessary and appropriate given the circumstances of the case, upon application to the court. Such application may be formal (i.e., by motion) or informal (i.e., by letter or telephone call).
Recommendation 4.3. The Presiding Judge should establish criteria for the granting of discovery extensions in cases on the respective tracks.
Recommendation 4.4. An automatic discovery procedure should be adopted for cases on Tracks I, II and III. Discovery issues for cases on Track IV are to be handled in the initial case management order.
Recommendation 4.5. Automatic discovery requirements shall apply to all case types for which uniform interrogatories have been developed.
Recommendation 4.6. The plaintiff shall be required to serve its answers to the form interrogatories within 30 days of the filing of the answer; the defendant shall be required to serve its answers to the form interrogatories within 60 days of filing its answer.
Recommendation 4.7. With respect to those types of discovery, other than interrogatories, to which a party is entitled under the rules -- e.g., depositions, physical exams, production of documents and things, inspection of land -- the party seeking such discovery may obtain it upon reasonable notice and demand; if the other party does not comply, the aggrieved party need not seek an order to compel the discovery but may move to dismiss or strike the delinquent party's pleadings in accordance with the procedure set forth in R. 4:23-5.
Section 5. Motions
Recommendation 5.0. Civil Presiding Judges should be knowledgeable as to which motion decisions are reserved, and address delays on a judge-to-judge basis, as needed. The Civil Practice Committees of the county bar associations should be encouraged to discuss with their Civil Presiding Judges problems with long-reserved decisions. In addition, any attorney involved in a case in which a decision on a motion has been reserved may make application to the Civil Presiding Judge to have that motion decided on a timely basis.
Recommendation 5.1. Motions must always be assigned a return date; if no return date is indicated in the notice of motion, then the motion should be assigned to be heard on the next available motion date.
Recommendation 5.2. Motions should not be adjourned without being assigned another hearing date.
Recommendation 5.3. Oral argument on motions shall be permitted as R. 1:6-2 now provides.
Recommendation 5.4. Oral argument will be confirmed by the court two days prior to the return date. Confirmation shall be made to the moving party, whose obligation it is to advise all other parties.
Recommendation 5.5. The practice of posting tentative motion decisions in advance of the return date may be continued or implemented as a local prerogative.
Recommendation 5.6. The court should make every effort to accommodate attorneys' requests to schedule oral argument on motions at a particular time.
Recommendation 5.7. The use of the telephone to hear oral argument should be encouraged, and attorneys' requests for telephone argument should be accommodated where possible.
Section 6. Trial Information Statement (TIS)
Recommendation 6.0. All parties must file a Trial Information Statement (TIS) by the discovery end date. In default of filing the TIS, discovery will be deemed to be complete and no adjournments of a scheduled arbitration or trial date will be granted for incomplete discovery, absent a showing of exceptional circumstances.
Recommendation 6.1. One ACMS-generated TIS reminder notice shall be sent to all parties by the court 60 days before the discovery end date.
Recommendation 6.2. Designation of trial counsel must be confirmed in the TIS; if it is not so confirmed, it will be deemed waived (even if it was previously indicated pursuant to R. 4:25-4).
Section 7. Complementary Dispute Resolution (CDR)
Recommendation 7.0. A mandatory, non-binding arbitration hearing will occur within 60 days following the end of the discovery period, except for summary actions, name changes and professional malpractice, environmental, insurance coverage, Law Against Discrimination and prerogative writ cases, and shareholders' derivative suits. Condemnation cases will be arbitrated within 60 days following the notice of appeal from the report and award of the commissioners.
Recommendation 7.1. The current practice whereby northern counties use single arbitrators and southern counties use two-arbitrator panels should be abandoned; the single arbitrator model should be adopted statewide.
Recommendation 7.2. The mandatory scheduling of arbitration in most civil cases should not preclude the use of other CDR procedures at any time.
Recommendation 7.3. Increased use of mediation at the earliest possible time in the progress of a case should be encouraged. Mediation should be available at any stage of the proceedings, either at the parties' request or on the court's order, pursuant to R. 1:40-4.
Recommendation 7.4. Early mediation should be considered for all fee-shifting cases (e.g., cases brought under the Law Against Discrimination) as well as for all fund-in-court cases.
Recommendation 7.5. When a case is arbitrated and a trial de novo requested, a trial date shall be set to occur within 90 days of the date of the trial de novo request.
Section 8. Settlement Events
Recommendation 8.0. The court should make every effort to accommodate attorneys' requests for settlement events (i.e., a bar panel or a conference with a judge) in advance of the trial date.
Recommendation 8.1. Except in individual judge-managed Track IV cases, the court may mandate no more than one settlement event (with a judge or before a bar panel) in advance of the trial date.
Section 9. Inactive Cases
Recommendation 9.0. Cases should be considered active, and managed accordingly; dismissed without prejudice when beyond the ability of the court to process; or placed on a "military list" pursuant to R. 1:13-6, and monitored by the court.
Section 10. Calendar Practices/Trial Calls
Recommendation 10.0. Trial date (or at least trial week) certainty is the goal.
Recommendation 10.1. As a matter of policy, no county shall hold an advance calendar call.
Recommendation 10.2. On the day of the call, attorneys should be released by early afternoon unless their cases are sent out for settlement discussion or trial, or can reasonably be expected to be sent out for settlement discussion or trial that day.
New Recommendation 10.2a. Attorneys need not appear at trial calls subsequent to the initial call for their case in the trial week unless the case can reasonably be expected to be sent out for settlement discussions or trial on that subsequent date.
Recommendation 10.3. Cases may be listed for trial call on the first three days of a trial week.
N.B. This recommendation is not intended to preclude other non-trial proceedings, such as proofs and friendlies, from being listed for the remaining days.
Recommendation 10.4. In no event shall the number of cases listed during a trial week exceed the number that a county can reasonably expect to reach in that week.
Recommendation 10.5. Counsel shall be given no less than 8 weeks notice of the initial trial date.
Recommendation 10.6. Cases scheduled for trial shall be ready to proceed that week; if not reached within the trial week, they will be recycled and relisted after consultation with counsel. No case shall be relisted for trial sooner than 4 weeks from the prior trial date unless counsel agree to an earlier date. Counsel will receive written notice of new trial dates for relisted cases.
Section 11. Trial Adjournments
Recommendation 11.0. Personal appearances to request adjournments of a scheduled trial date should not be routinely required. All adjournment requests must be made in writing and with the consent of all parties. If such consent cannot be obtained, the written adjournment request must explain why and a conference call held with the requesting party and the party whose consent was not obtained. The request for adjournment must also include a proposed trial date, agreed upon by all parties, to occur as soon as possible after the problem resulting in the adjournment request is resolved.
Recommendation 11.1. Adjournment requests shall be sent to the Civil Division Manager's office.
Recommendation 11.2. Requests for adjournment should be made as soon as the need is known, but in no event, absent exceptional circumstances, shall a request for adjournment be made later than the close of business on the Wednesday preceding the Monday call.
Recommendation 11.3. No trial adjournments shall be granted to accommodate dispositive motions that are returnable on or after the scheduled trial date.
Recommendation 11.4. Trials should not be adjourned because of an expert's unavailability, barring exceptional circumstances. When a case is reached for trial, the expert must appear either in person or on videotape in accordance with R. 4:14-9. There is no need to videotape an expert who has indicated he or she can meet the first scheduled trial date. If that expert cancels unexpectedly, the trial will be rescheduled. Thereafter, no further adjournments for that expert's unavailability will be granted.
Section 12. Trial Management
Recommendation 12.0. Rule 4:25-7(b) should be amended to require that attorneys confer and exchange 14 days prior to trial specified evidential information, including any in limine or trial motions, with supporting memoranda. Such information, expanded to include mandatory standard and special jury instructions as well as stipulations reached on contested evidentiary, procedural and substantive issues, must be presented to the court prior to opening statements. Failure to comply may result in sanctions as determined by the trial judge.
Recommendation 12.1. To the greatest extent possible, all jury and non-jury trials should be continuous and uninterrupted, and should run for the full day, that is, a two-day jury trial should be heard on two consecutive days and not in four half-day segments.
Recommendation 12.2. The court must be bound by R. 4:38-2(b), which permits bifurcation in individual cases only. No county should implement or maintain a policy that calls for routine bifurcation of a particular type of case.
Notices to the Bar Re Best Practices