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New Jersey Practice
Rutgers University, Newark School of Law
Rothman, Andrew James

NJ Practice
Dean Rothman
Fall 2011
·         Supreme Court à Appellate Division à Civil (special civil max $15k, small claims max $3K) & Gen Equity & Fam & Crim à Municipal R. 4:3-1 (divisions of the court)
·         We will cover General Civil Practice Trial and Appellate: part 1, 2, & 4.
·         Purpose and Roles of Judges
o   Purpose of civil litigation is to leverage settlement. 99% of cases settle
§  Fee shifting provisions: In almost all cases, each party pays their own attorney fees, which helps encourage settlement. Only certain types of claims allow for fee shifting (LAD, CEPA, Consumer fraud). Also, court has discretion to shift fees as it sees fit and for punishment.  
§  To leverage settlement- you’re not going to get justice, it is about improving prospects of settlement
o   Purpose of judge is to do justice and get case off the docket
o   Chief Justice is responsible for administration of the courts- just one person!
§  Supreme Court delegates to a committee to draft, amend, and create the rules (50/50 bench/bar)
o   Assignment judge in charge of all cases in the vicinage
o   Presiding judge oversees all cases in particular court (law, criminal, general equity and family)
o   ROTHMAN’S FAVORITE RULE R. 1:1-2 judges can get rid of rules if it is in the interest of justice
·         NJ Constitution: 1947
o   Equity v. Law (equity is the power to force people to do stuff)
§  Equity à
·         One of few jurisdictions that have plenary practice with regard to rule making; nobody but NJ Supreme Court makes rules.
·         Can seek non-monetary relief like revocation or enforcement of a contract.
·         Generally does not hear jury trials, but has authority to.
§  Determination of whether to proceed under equity or law will be based on a fair reading of the initial pleadings.
·         If principle relief is equitable in nature, then belongs in equity with no jury (even if ancillary claims are law claims).
·         If you want a jury, then make sure law claims are in initial pleading, you can add equity claims later (be careful not to be shady though).  
·         Questions to ask before starting case
o   When to sue (statutes of limitation)
o   What does client want (money, contract execution, etc.)?
o   Where should the case be brought (type of court and geography)? And can we get the case there?
o   Determine whether a jury is important
o   If the most the client can win is $75k or less, then it is not worth it to go to trial and you should try to settle.
o   Entire Controversy Doctrine: still concerned about naming all parties but don’t seem to actually sue them (R. 4:5-1(b) certification)
§  But any party you do name, you MUST name all claims (or else you are barred)!
§  But if something hasn’t happened yet à you can’t do it.
·         Once something happens à amend complaint (will be granted with good cause and no undue prejudice) this is timely (bring it asap)
§  R 4:30A Must bring all claims against any party you are naming in the suit.
·         Rule format: x:x-x(a)(1)(A)(i)
·         How do we count time? R. 1:3-1
o   All times in rules refer to calendar days (including weekends and holidays) if time period is > 7 days.
o   Don’t count today à start with tomorrow as Day 1
o   No Sat, Sun, or legal holiday
o   7 days or more is calendar days
·         Venue R. 4:3-2
o   If suing a public person or entity, then case must be brought where that person or entity is (e.g. if suing city of Newark, then must be brought in Newark).
§  Applies even if the incident occurs elsewhere.
o   Real property dispute must be brought where property is located.
o   Otherwise, can sue where any party to the suit lives.
o   Generally, try to bring it wherever it will help leverage settlement.
·         Winberry v. Salisbury (1950)
o   P charged with crime but not indicted. He was embarrassed and brought libel charges but case was dismissed
o   You have 45 days to bring this appeal; here, appeal wasn’t brought until 62 day.
o   Court says: Supreme Court makes the rules “subject to law” (substantive law doesn’t make them do something else)
·         EXAMPLE: Casino Sale: breach of contract; what do you do? Mitigate damages! Find a new buyer!
o   Penthouse (owner) – Sands (buyer) – Trump (mitigate damages)
o   This case turns on whether there will be a jury à specific performance = equitable relief = no jury
·         EXAMPLE: Bank wants to back out of agreement to buy 7 acres for $2m, because they decide they want a different property and the property assessment wasn’t completely accurate.
o   Bank should buy other property.
o   Bank should go to closing on first property and make “time is of the essence clause”
o   Can’t close quickly because cloud on the title (property line was not exactly what contract said.
o   File in equity because you want recession of contract. No damages requested.
Pleadings R. 4:5-1

tell the story!)
·         Count 1: NJ LAD
·         Count 2: NJ CFRA
·         Count 3: State tort law- IIED
o   What about ADA? This is a federal statute, federal questions. Do we want this removed to federal court? Why would you want or not want federal court? Very efficient discovery! You will lose tools. Federal court does not have interrogatories
·         Allege a single fact in each count
§  Need to have a theory of law here and assert facts that, if proven, would satisfy requirements for theory.
§  **Complaint should represent jury instruction** (?)
o   Addamnum clause: “Wherefore, P demands as follows… & relief.” Plaintiffs relief sought. Can include this at the end of complaint or after each count.
·         What do you attach to the complaint?
o   Discretionary
§  R. 4:25-4 Designate trial counsel!
·         Last day to designate trial counsel is 10 days after the close of discovery
§  R.4:35-1 Jury demand (if you think you want a jury)
·         Last time to demand this is 10 days after the filing/service of last responsive pleading
o   Mandatory
§  Certification that this case is the only one (not going on in any other court). Also certify that all defendants are included (or attach list of parties left off that may be included later). Need to include all parties that may have an interest in the litigation R 4:25-4
§  Must file the Case Info Statement & pay $200 à if you don’t do this it’s not really filed (Important for statute of limitations)
·         Includes: What kind of case, who is lawyer of record, parties/addresses (including all possible parties)
·         ID case type: 3 digit depending on your track
o   Track determines amount of time for discovery: you have X amount of time for discovery, depending on type of case.
·         After you file complaint
o   File complaint à clerk sends you notice, docket number, and track assignment
§  R. 4:4-1 summons must be issued 15 days from assignment of track (do it online à put names in)
§  Clerk assigns track, other side can challenge