Remember:
Parties:
Counter claim – party directly across from you à П v. Δ
Cross claim – co party to original claim Δ v. Δ
3rd Party Claim – when bring in anther party not in original case.
Standards for Preliminary Injunction:
· Irreparable Harm
· Likelihood of ultimate success
· Balance of Hardships
Contempt:
· Enforce Subpoena à If don’t show up or failure to abide by subpoena without adequate excuse = Contempt of Court
o R. 1:9-5 = Failure to Appear
· Affidavits Made in Bad Faith à Contempt of Court
o R 4:46-5 = Affidavit
· Failure to Comply with Order for Discovery
o R. 4:23-2 – Failure to Comply With Order
o If a deponent fails to be sworn or to answer a question after being directed to do so, the failure may be considered contempt of that court.
Jury:
Civil – 6 unless you request 12
Criminal – Grand jury members à 23/ Indictment à 12
Class Action:
You’re in a class unless you opt-out.
Venue: Special Civil – П/Δ – only where Δ lives
What’s In Complaint/Pleading:
· Statement of facts on which claim is based, showing pleader is entitled to relief demand for judgment for relief to which pleader is entitled.
· Relief in alternative or of several different types may be demanded.
· If unliquidated money damages are claim in any ct, other than Special Civil Part, the pleading will demand damages without specifying that amount.
o Def. Unliquidated Damages – such damages can’t be ascertained. No interest will be allowed on unliquidated damages (according to legal definition.)
Requirements for 1st Pleadings:
· CIS (Appendix XII) required, except in civil commitment actions and actions in probate, foreclosure and all other general equity actions.
· Each party will include with the 1st pleading a certification as to whether the matter in controversy is the subject of any other action pending in any court or of a pending arbitration proceeding, or whether any other action or arbitration proceeding is contemplated; and if so, the certification will identify such actions and all parties thereto.
· Each party will disclose in certification the names of any non-party who should be joined in the action pursuant to R. 4:28 (Joinder of Parties) or who is subject to joinder pursuant to R. 4:29-1(b) (Permissive Joinder – Joinder by the Court) b/c of potential liability to any party on the basis of the same transactional facts.
· Each party has continuing obligation during litigation to file and serve all parties and with the court an amended certification if there’s a change in facts in the original certif.
· Ct. may require notice of action to be given to any non-party whose name is disclosed in accordance with rule or may compel joinder pursuant to R. 4:29-1(b).
o If party fails to comply with its obligation under this rule, ct may impost appropriate sanction, including dismissal of successive action against party whose existence wasn’t disclosed or imposition on non-complying party of litigation expense.
o Successive action won’t be dismissed for failure of compliance unless failure of compliance was inexcusable and the right of the undisclosed party to defend the action was substantially prejudiced by not being identified in the prior action.
NEW JERSEY CONSTITUTION, Article VI 1947 (Handout)
SECTION I
· Judicial power vested in Supreme Ct, Superior Ct and other cts of limited jurisdiction.
· Jurisdictions can be established, altered or abolished.
SECTION II
· Supreme Ct includes 7 justices: (Chief Justice + 6 associate justices)
o 5 members of ct = quorum
· Supreme Ct. is court of last resort
· **Supreme Ct. has jurisdiction over admission to the practice of law and the discipline of persons admitted.
SECTION III
· Superior Ct. will consist of # of judges as authorized by law, each of whom will have the power of the court based on the rules of the Supreme Court.
· Superior Ct. will be divided into:
o Appellate Division
o Law Division & Chancery Division, which includes a family part
(No SECTION IV)
SECTION V
· The Supreme Court can take appeals when:
o Question about U.S. or state constitution
o Dissent in App. Division of Superior Court
o Capital causes
o On certification by Supreme Ct to the Superior Ct, and where provided by rules of Supreme Ct to inferior cts.
o In causes as may be provided by law.
· Appeals Division can take appeals of the Superior Court:
o From the Law & Chancery divisions of the Superior court and in such other causes as provided by law.
· Prerogative writs are superseded and, in lieu of them, review, hearing and relief will be afforded in Superior Court provided by the rules of the Supreme Court, except in criminal causes where such review is discretionary.
o Def. Prerogative Writ – when suing a govt entity to obligate that govt entity to do something. (def. Given by Billy.)
SECTION VI
· Governor will nominate & appoint, with advice and consent of the senate:
o Chief Justice and associate justices of the Supreme Court
o Judges of the Superior Court
o Judges of the inferior courts with jurisdiction of more than 1 municipality
· Supreme Ct justices and Superior Court judges will be admitted to practice law in the state for at least 10 years
· Supreme Ct justices and Superior Court judges will hold offices for initial 7-year term and upon reappointment remain in office during good behavior for tenure.
o Justices & judges will retire at 70YO
o Pensions of justices and judges will be made by law
· Justices & judges are subject to impeachment.
o A justice or judge impeached won’t exercise his office until acquitted.
o Justices & judges also are subject to removal from office by Supreme Court “for such causes and in such manner as shall be provided by law.”
· When Supreme Court certifies to Governor that justice or judge is incapacitated and substantially can’t perform his duties, the governor will appoint a commission to investigate the matter and upon their recommendation, the governor can retire the justice or judge from office on pension.
· Justices & judges can’t practice law or other gainful pursuit while in office.
· Justices & judges can’t hold other office or position of profit under the state or U.S.
o Any justice or judge who becomes a candidate for elective public office must forfeit his judicial office.
SECTION VII
· Chief Justice is administrative head of courts.
o He appoints administrative director
· Chief Justice assigns judges of Superior court to divisions and parts of Superior Court and can transfer judges from one assignment to another when needed.
· The clerk of the Supreme Court and Superior Court will be appointed by the Supreme Court for such terms and at salary as provided by law.
SECTION VIII
· Judicial fees and probation fees collected are paid to State Treasury
R. 1:20 DISCIPLINE OF MEMBERS OF THE BAR – AKA DISCIPLANARY RULES
Winberry v. Salisbury, 5 N.J. 240
IMPORTANCE: Supreme Court has sole exclusive authority to regulate conduct of lawyers & our court.
FACTS: Winberry (P) sued Salisbury (Δ) to expunge an alleged libel against the P from a report of a grand jury. The Superior Court’s Law Division decided in favor of the Δ and the P appealed toe h Appellate Divison of the Superior Court. The Δ moved to d
defamation.
●However, if you say the same thing outside the courtroom, it’s considered libel, slander or defamation, and you are open to being sued under “Frivolous Litigation.”
●As long as you constrain yourself to the pleadings, you can’t be held for liable, defamation or slander.
●However, you can be in trouble if you give the complaint to a reporter even though it’s considered public info. This considered going outside the papers. ß Be careful of this
R. 1:20A-3 FEE ARBITRATION
R. 1:20A-3 Fee Arbitrations
CLASS:
· If a client has a dispute with an attorney & thinks he/she is being treated unfairly, the client can institute a fee arbitration.
· An attorney can’t institute a fee arbitration!
· Before an attorney sues a client to get money, an attorney must send a letter to client telling her she has right to go to fee arbitration. If she doesn’t go to FA, then she waives right.
· Fee Arbitration is supposed to be fast, fair.
· Ct. has right to create FA system b/c this within discipline of lawyers and under exclusive domain of Superior Court of NJ.
· Billy says FA is best for lawyers than clients b/c:
o FA isn’t appealable & FA can be converted to judgment if they don’t pay.
o It’s fast, can be done in an hour.
o There’s no counter claim for malpractice.
RULE BOOK:
R. 1:20A-3(a)(1) Submission. Request Form. (p. 296)
· Fee dispute can be arbitrated only on written request of client or 3rd party.
· Fee committee considers these requests, whether attorney already received fee and regardless of attorney’s standing (eg. suspended, disbarred, resigned, etc.)
· File fee arbitration requests on prescribed forms with Office of Attorney Ethics.
· Filing of fee arbitration stays all pending court actions for collection of fee.
R. 1:20A-3(b)(1) Procedure. Hearing Panel; Burden of Proof. (p. 297)
· All arbitration will be heard before hearing panel of at least 3 members of fee committee, (majority of them are attorneys)
o If total fee charged is < $3000, hearing may be held before a single attorney member at direction of chair.
· Quorum for hearing when fee charged is >= $3000 is 3 members of fee committee.
· As long as quorum is present, the majority of the panel can make the decision.
· If there’s absence, disability, or disqualification of panel member so there’s fewer than a quorum, arbitration can proceed with two-person panel with consent of client and attorney.
· Burden of Proof is on attorney to prove reasonableness of fee by preponderance of evidence.
· Client has right to withdraw from proceedings by notifying secretary within 30 days after the docketing of a request for fee arbitration. After that time, client can’t withdraw from proceeding.
o Once proceeding withdrawn, client can’t resubmit it to fee arbitration.
R. 1:20A-3(c) Appeal (p. 298)
Neither client nor attorney can appeal determination of Fee Committee unless he alleges:
