Interim Best Practices Report - October 2001
Table of Contents
A. 4:5A Case Tracks
B. 4:17 Interrogatories to Parties
C. 4:23 Failure to Make Discovery; Sanctions
D. 4:24 Time for Completion of Discovery and Other Pretrial Proceedings
E. 4:36-3 Assignment for Trial in Superior Court
Daniel M. Waldman, President
Bruce Evan Chase
M. Marion Clough
Ad Hoc Committee on the Implementation
Heidi Willis Currier, Co-Chair
John M. Blume
Terry Paul Bottinelli
In 1998, in response to the Committee on Efficiency Report II, the Judiciary adopted a Strategic Planning Report in which it advanced the following mission statement: "We are an independent branch of government constitutionally entrusted with the fair and just resolution of disputes in order to preserve the rule of law and protect the rights and liberties guaranteed by the Constitution and laws of the United States and the State of New Jersey". In furtherance of this mission statement, the Judiciary developed what have been generally referred to as "best practice" standards that presumably could be applied in a uniform fashion within the Superior Court, Law Division. These "best practice" standards were eventually finalized and adopted by the Supreme Court in 1999. Pursuant to the order of the Supreme Court, the effective date of these rules was September 5, 2000.
In response to the request of the Bar for input, the Judiciary agreed to form both a Statewide Implementation Committee and local implementation committees. The Statewide Implementation Committee was composed of an equal number of members of the bench and bar. Through this committee, several refinements of the proposed rules were accomplished, however, the Bar maintained the position that further changes to the proposed rules were required.
At its 2001 Annual Meeting held in May of 2001, the NJSBA held a Public Hearing in order to secure from the bar their observations and concerns regarding the new rules.¹ The hearing was also intended to provide the Judiciary with an opportunity to learn, first hand, the concerns of the practicing attorneys. To that end, the Judiciary permitted the Judges serving on the Statewide Implementation Committee to serve on the panel at this public hearing. In what the NJSBA believes was a display of sincerity and interest, this public hearing was also attended by Chief Justice Deborah T. Poritz and Administrative Director of the Courts Richard J. Williams. At the time of this hearing, many members expressed their concerns regarding the new rules which involved issues related to professionalism, civility, realistic expectations of both the bench and bar as well as issues related to the quality of the practitioner's personal and professional life.
Following this Public Hearing, both the outgoing President of the NJSBA, Barry D. Epstein, and the incoming President, Daniel M. Waldman, appointed an Ad Hoc Committee on the Implementation of Civil Best Practices to further explore the issues raised at this hearing, as well as any other issues that may be subsequently disclosed, regarding the new rules. In the interim, in recognition that the practical experience of the bar (as expressed at the time of the Public Hearing) had disclosed some immediate changes that were required, the Court adopted some immediate changes to the existing rules. These modifications addressed the following issues: (a) the Trial Information Statement requirement was eliminated (instead, parties will receive a notice within 60 days of the end of discovery); (b) the pretrial exchange of information required by Rule 4:25-7 may be waived by mutual consent of counsel provided that the materials are submitted to the court on the day of trial; (c) an extension of discovery of up to 60 days from the end of the initial discovery could be had by an informal application to the Civil Division Manager or Team Leader, upon consent of all counsel, in lieu of a formal motion; (d) with the consent of all parties, a de bene esse deposition of an expert may be read to the jury in lieu of the expert appearing live or by videotape.
Although the modifications noted above, which were both necessary and appropriate, were welcomed by the bar, the position of the NJSBA remained that other areas of potential difficulty still needed to be examined. The Judiciary of this State has long been committed to the principle that parties are entitled to their "day in court." A long-standing practice in furtherance of this principle is that the courts of this State, to their credit, will almost always place substance ahead of form. The bar has likewise always promoted these principles as well. The fundamental predicate to our discovery rules is that there be a full and fair disclosure of relevant information so that all of the relevant evidence may be brought before the trier of fact. It is the position of the bar that the Rules of Court are a means by which to facilitate these lofty principles and should not become an encumbrance to achieving such principles. In some instances, however, it is the concern of the bar that the "best practices" place a greater premium on "good administration" rather than the true interests of justice in affording the litigants the opportunity to have their meaningful "day in court."
Furthermore, the Judiciary of this State has long been committed to the promotion of professionalism and civility among the members of the bar. The NJSBA has in the past, and continues into the future, to support this admirable goal. There is a very real concern, however, that some of the practices and procedures mandated by "best practices" are at odds with these objectives as well.
In light of the above, the NJSBA created the aforementioned Ad Hoc Committee on the Implementation of Civil Best Practices whose purpose was to examine and evaluate the current civil "best practices" rules and procedures as well as the concerns of the bar related thereto. The Committee was further charged with the responsibility to recommend to our Supreme Court appropriate rule changes in the event that it was found that the same were necessary. In identifying these areas of concern, the NJSBA relied not only upon the testimony at the time of the Public Hearing in May of 2001 but also upon comments submitted, in response to a request for same, by the various county bar associations and also by individual practitioners.²
Through the input received by the NJSBA regarding the experience of the bar thus far to "best practices", certain general observations were drawn in addition to those noted above. First, although "trial date certainty" is certainly something of interest both to the bench and bar, there currently are not sufficient judicial resources available to achieve this goal. The fact that the new rules do not take this fact into consideration is of great concern to the bar. In essence, practitioners often feel that they are being unduly pressed, at the expense of civility and their quality of life, to complete discovery only to then wait for a trial date which, in some instances, may be years away.
Finally, there was almost uniformly expressed the concern that, although discovery is being completed in a more rapid fashion, the new rules accomplish this at the potential cost of the litigant's rights to full and complete discovery. The new rules in many instances infringe upon judicial discretion to manage and have discovery conducted in a fashion required by the individual case and further in light of the conditions then existing with regard to the available judicial resources.
Although the experience with "best practices" has been for a limited period of time, the NJSBA has determined that certain changes should be implemented as of the present time. These recommended changes are outlined within this report. The need for these changes has already been demonstrated. As the experience with "best practices" becomes greater over time, it may become evident that additional changes should be considered. Those additional changes will be recommended as the need for the same become evident.
It is the fervent hope of the NJSBA that these recommendations are received by the Judiciary in the manner in which they were intended. For the better part of a century, there has always been a spirit of partnership and cooperation between the bench and bar. This spirit dates back to the time of Arthur T. Vanderbilt who was an officer of the NJSBA, President of the ABA, chair of New Jersey's first Judicial Council and who ultimately was appointed first Chief Justice of our Supreme Court under the 1947 State Constitution. This spirit continued through the 1990s with the establishment of a bench/bar communications protocol under the direction of Chief Justice Robert N. Wilentz. Today, this spirit of bench-bar involvement is evident in the interaction between the bench and bar on the practice committees, in educational ventures, and public outreach programs. The bench and the bar are inextricably linked as stakeholders in New Jersey's judicial system. This report is intended to represent one more step toward positive interaction between the bench and bar. It is the hope that these recommended changes will assist in the advancement and improvement of our system of judicial administration so that the true "interests of justice" of our citizens, as well as the long-standing goals of professionalism and civility within our honored profession, will be properly served.
¹The transcript of this Public Hearing is incorporated within the Appendix to this report.
²Incorporated within the Appendix to this report are some of the comments submitted by the various county bar associations.
4:5A-2(b) Change of Assignment for Good Cause.
A motion for change of track assignment made thereafter may be granted only on a showing of good cause.
Comments: The Rule at present allows the Court to change a track assignment sua sponte for good cause, but allows a change by a party only on a showing of exceptional circumstances. The Committee sees no reason for this asymmetry, and recommends that all changes in track assignment "made thereafter" be subject to a showing of good cause. Bearing in mind the admonition that track assignments are not to be changed to accommodate the discovery requirements of a party, it is not unusual for a case to change significantly in scope and substance as a case progresses beyond the relatively narrow time frames set forth in Rule 4:5a-2(a). As information is developed through formal and informal discovery, theories and claims may be modified and the case may become substantially more or less complicated than may appear upon filing of initial pleadings. Existing mechanisms for extension of the applicable discovery deadline may not suffice to accommodate the requirements of the parties where the case has grown in scope, even with the changes proposed to Rule 4:24-1(c) set forth below. The Rules, and in particular the track assignments, should give greater recognition to the often unpredictable progression of a case. For this reason, the Committee recommends reducing the stringent "exceptional circumstances" standard to one of "good cause."
4:17-4 Form, Service and Time of Answers
(b) Service of Answers; . . . . [Consent orders enlarging time are prohibited].
Comments: The bracketed language should be deleted. The Bar questions the need for strict deadlines which cannot be extended by consent of the attorneys. It is the attorneys who are working to represent the interests of their respective clients and are knowledgeable about their cases. The system of justice should meet the needs of the litigants, and, if counsel agree to extensions of time, the Court system should not place an obstacle to it. This is especially true in light of existing circumstances in which in many vicinages matters are not actually reached for trial for many months (often in excess of one year) following imposed deadlines.
The Bar seeks an amendment of this Rule for consistency with other "Best Practices" Rules. See, e.g., counsel can consent to extension of the discovery end date period.
4:17-7 Amendment of Answers
Except as otherwise provided by Rule 4:17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than twenty (20) days prior to the end of the discovery period, as fixed by the track assignment or as otherwise extended by Rule 4:24-1.
Comments: The Bar seeks to delete the second sentence of this Rule and to eliminate the requirement for a Certification for any further amendments to interrogatories. This Rule should be read in conjunction with the amendments the Bar seeks to make to Rule4:24-1.
4:23-5 Failure to Make Discovery
This Rule should be amended with the following supplement: If a demand for discovery authorized by these Rules is not complied with, in addition to the following remedies, the movant may, by motion and on notice to all parties, seek to compel compliance with such discovery requests by or on a date certain. Said motion may contain a provision in the Order compelling discovery that failure to provide same in accordance with the Order will result in dismissal pursuant to paragraph (a) herein.
Comments: The Bar requests the amendment indicated above so as to include the ability of the movant to choose to either act to compel the discovery authorized by the Rule by or on a date certain or to move for dismissal. This too would be available in connection with Rule 4:18 as well as Rule 4:19.
The Bar has voiced its concerns over the last year with regard to the impact of the new Best Practice Rules on the civility and professionalism of the Bar. The Bar is of the view that the main objective of Rule 4:23-5 motions is to compel the discovery rather than to dismiss the case. With this amendment, the Bar seeks to reinstate the power of the courts to compel discovery which is the desired result of the motion.
4:24-1 Time for Completion of Discovery
(c) Extensions of Time
Any party may extend the time for discovery for an additional sixty (60) days. This may either be done in writing or by telephone conference with the Team Leader set forth on the track assignment notice. If a longer extension is sought, the time period for discovery may be extended beyond its applicable end date upon the agreement of counsel and such agreements, when reduced to writing, will be enforced by the court. To the extent a party cannot obtain the agreement of an adversary, a motion for an extension of discovery should be filed and should be granted in the interests of justice.
Any party may move for an extension of the discovery period after an arbitration or trial date has been set upon a showing of good cause. In determining whether good cause exists, the court should consider the following factors: the impact of the requested extension on the clients, the court system and on the actual trial date; the potential for the lack of discovery to impact the outcome of the trial and the history of prior requests by the same party now seeking extensions of time in meeting or violating court imposed discovery deadlines and such other factors as the court in its discretion may consider.
Upon such a finding of good cause, the court may direct that a new arbitration or trial date be assigned upon consultation with the parties and discussion of the discovery schedule.
Comments: With regard to the initial request for an additional sixty (60) days, it is the Bar's position that one need not seek the consent of the adversary. Since the sixty (60) days are supposed to always be granted by the Team Leader and/or Civil Case Manager, it alleviates paperwork and telephone calls on the part of an attorney to contact his adversary for consent. Oftentimes, telephone calls are not returned or many days are consumed in attempting to reach out to one's adversary.
The greatest criticism of the Best Practices Rules and what has caused the most unrest amongst attorneys has been the requirement to file a motion for additional discovery time prior to the discovery end date and the Rule's elimination of any further discovery after an arbitration or trial date has been fixed.
The Rules indicate that discovery may continue by consent following the scheduling of an arbitration or trial date. This has caused an erosion of civility amongst counsel as a party has to be fully confident that if she accepts some discovery from an adversary that that adversary will, in turn, accept further discovery from her. In practice, discovery will not proceed that way and this Rule must be amended to continue the level of professionalism so enjoyed amongst New Jersey litigators and to eliminate counsel second guessing the move of their adversary.
The preparation of the case should be returned to the lawyers who are handling the case. The number of motions clogging a trial court's schedule has drastically increased simply for extensions of discovery. This discovery could continue with the consent of both parties without the need to file a motion thus allowing judicial resources to be used more wisely.
The Bar seeks to amend this Rule to permit discovery to be extended despite the scheduling of a trial or an arbitration date for good cause shown. The Rule presently in place bears the standard of exceptional circumstance and will cause matters to be dismissed and re-filed or unwarranted appeals to be filed both of which will result in longer delays of trial.
This Rule provides that if the court does grant a motion and permits additional discovery to take place and thereby adjourns a scheduled arbitration or trial date, then at the time of the hearing of that motion the court may direct a new date be assigned upon consultation with the parties and with the court's knowledge of the discovery schedule.
4:36-3 Trial Calendar
(c) Adjournments Due to Unavailable Expert; Videotaping Expert Testimony. If a request for an adjournment because of the unavailability of an expert witness is made within three weeks prior to the initial trial date, the court shall hold a conference with the parties, which may be by telephone, to set a new trial date. [The order setting the new trial date shall provide that if the unavailable expert does not appear on the new trial date, either in person or on videotape pursuant to Rule 4:14-9, no further adjournments based on that expert's unavailability shall be granted. If appropriate, given the circumstances of the particular case, the court may order that no further adjournments will be granted for the failure of any expert to appear.]
Comments: On September 5, Rule 4:36-3 on expert unavailability became effective with additional court rules applying civil best practices standards to the New Jersey Judiciary. With the enactment of this rule, attorneys and the court have become aware of the added expenses attendant to videotaping depositions. These expenses range from an additional $2,000 to $5,000 per case. Given such expenses, law firms and solo practitioners have been forced to adjust their representation criteria accepting a case from between $5,000 and $10,000 before the rule change, to between $15,000 and $50,000 after the rule change. As a result, the client is the true victim of these new court rules because attorneys are refusing to accept small cases since after expenses are taken into account the client will receive next to nothing. Potential clients then are left to the devices of more educated and powerful adversaries, particularly in the case of insurance companies where in low damage cases they are forced to accept the settlement the company offers with little recourse. Further, attorneys are cognizant of a growing practice among doctors which intentionally schedule a full complement of clients on days when they are scheduled to testify in court in order to require that the videotaped deposition take place. As a result, a doctor may receive compensation for the equivalent of two days work from the videotaped deposition, and also avoid the necessity of testifying in court. This rule does not serve the interests of justice.
In the civil courts, New Jersey has varying statutes of limitation ranging from two years in a wrongful injury case to six years in a contract case. As a result of this new rule and the added expense associated with it, the economics of the situation will cause the statute of limitations to run on the former type cases prior to further rule amendments being made unless some immediate action is taken to eliminate the new videotaping costs. If the statute of limitation does run, access to the courts will have truly been denied to many citizens. This cannot be the intent of the Judiciary in standardizing practices. If so, the bar would strenuously object to the court's preference for better case administration over the need for justice and access to the courts by all citizens no matter the value of their case.
While we continue to have serious reservations regarding the efficacy of the entire rule, the NJSBA has previously expressed concern with the phrasing of the last sentence in Rule 4:36-3(c) because it expresses a predisposition toward denying further adjournments. As a result, the sentence should be eliminated. In addition, the second to the last sentence should be deleted as well.
Matters bracketed "[thus]" are deletions.