Last week, the New Jersey State Bar Association held its annual convention in Atlantic City. Over 2,500 judges, lawyers, law clerks and law students headed down the shore in search of CLEs and the scoop on emerging legal issues. In the following post, NJCJI’s Emily Kelchen reveals her insights on issues of interest to the civil justice community that were discussed at the convention.
State of the Judiciary
It should come as no surprise that the best-attended events of the entire conference were the state of the judiciary addresses given by New Jersey Supreme Court Chief Justice Stuart Rabner and Chief Judge Jerome B. Simandle of the U.S. District Court for the District of New Jersey.
New Jersey Supreme Court
Chief Justice Rabner focused his remarks on recent rule changes. He explained that the court’s recent adoption of the Uniform Bar Examination, admission by motion, and new rules metadata in electronic documents reflect the court’s desire to keep up with the realities of practicing law in the modern world.
After touching on some of the developments on the criminal side of things, Rabner thanked the Governor, the Senate President, the Senate Judiciary Committee and its Chair, and the entire Senate for taking action on judicial vacancies. He reminded everyone that the court will not be able to comply with the new speedy trial law, or put its bail reform efforts into place, without a full judicial branch.
U.S. District Court for the District of New Jersey
Chief Judge Simandle reminded the audience that New Jersey’s state courts are not the only ones with vacancies. New Jersey’s federal courts are technically considered to be in a state of judicial emergency since there are three vacancies. The court is also seeing more cases despite having vacant seats. Last year, Simandle reports, the court had over 10,000 filings, which is the most it has ever had. This is somewhat unusual since other districts did not see a growth in their filings.
While other district courts have about 400 cases per judge, our district averages about 700 cases per judge. Despite the high volume, half of the cases filed are wrapped up within 8 months. However, 6% of pending cases have been languishing for more than three years.
Simandle suggested that one of the reasons the NJ district is so busy is because of patent filings. NJ is the third busiest court for patent cases due to the fact that so many pharmaceutical companies are located here.
More on the Judiciary
The “State of the Judiciary” addresses were not the only session that gave attendees insight into the inner workings of New Jersey’s court system.
After the State of the Judiciary Addresses wrapped up, the room emptied of all NJ Supreme Court Justices except Rabner, and a heated discussion of judicial independence began. Although the panel, which included Senator Tom Kean Jr. and Senator Nicholas P. Scutari, chair of the Senate Judiciary Committee, touched on judicial vacancies at both the state and federal level, it was abundantly clear that the focus was really on New Jersey.
The moderator flashed the following quote from Gov. Christie on the screen: “The least important person in the judicial nominating process is the governor. The governor begs and cajoles and pleads with petulant state senators who think they get to pick.” Judging from the audience’s reaction, there are still tensions in the legal community over Governor Christie’s decision to not reappoint Justice Wallace.
Rabner was apparently at the conference for quite a large chunk of it, since the day before his state of the judiciary address, he appeared on a panel with Justice Jaynee LaVecchia for an discussion of New Jersey Supreme Court practice and procedure moderated by David Kott of McCarter & English.
It was really interesting to hear how the justices work through cert petitions (Each justice is responsible for reviewing about 20 petitions at a time, and then presenting a summary and recommendation on whether to take the case to the other justices. If 3 justices want to hear a case, they take it up.), and what documents they actually have on hand to review when they are deciding a case (They have a copy of anything filed by the parties or amici, the appellate record, and if they want to see it, the trial transcript. LaVecchia noted that the court only has access to the exhibits that are given to it.).
Kott asked Rabner about the value of amicus briefs, and Rabner indicated that they are very valuable, particularly when they focus on broader themes and issues and leave the specific details of the case to the parties. LaVecchia echoed this sentiment, and said that the high court must consider the impact a case will have beyond the parties immediately before the court.
When writing any brief to the court, the justices recommended focusing on the issues and not criticizing the lower court’s decision. Rabner also said that he has the justices remove as many adverbs as possible from their decisions, so that is something to keep in mind.
Rabner saved his discussion of recent court rulemaking activity for his state of the judiciary address the next morning, but he did encourage the audience to get involved with a court committee, and to engage when rules are being made or revised.
Panel Discussions Highlight Issues of Interest to the Civil Justice Community
While there were many panels during the convention that touched on topics of interest to NJCJI, two really stood out.
The Business Court: One Year Later
The Complex Business Litigation Program (CBLP) has now been in place for over a year, but according to the panel I attended, it is still underutilized. There are only 163 cases in the CBLP right now, which is up from 60 cases at this time last year, but is apparently fewer cases than the court anticipated would go into the program when it was created.
In the spirit of spreading the word about the program, which the judges on the panel requested attendees do, here are a few key takeaways that have emerged as the program has been implemented:
- The judges and practitioners on the panel think the most important aspect of the program is that parties can largely be guaranteed that the judge the case is assigned to will see the case through to completion.
- It has not been announced whether new judges will rotate into the CBLP, but the judges on the panel said they had no indication that they would not be serving as the designated complex business dispute judge for the foreseeable future.
- Motion practice is critically important to the cases in the program. Having the judge be more hands-on in these cases really helps.
- Management of discovery, and e-discovery in particular, is emerging as one of the major benefits of the program. One of the judges on the panel actually holds off on deciding discovery disputes and then does them all on the same day, which he says has been well-received by the lawyers in the cases.
- There was some discussion about whether consumer class actions should be put into the CBLP, and it seemed like members of the audience thought it would be a good idea, but the panelists did not. One judge on the panel remarked that there are too many class actions in his county to put them in the CBLP.
The Evolving Nature of Class Actions in New Jersey
It should come as no surprise to followers of NJCJI’s recent work that the rising tide of TCCWNA lawsuits was one of the main topics of discussion during the panel on class action trends. All of the panelists said they are eager to see what happens as our state courts begin to work through all of the pending TCCWNA case, particularly the ones related to website terms of service. The panelists think that the courts will ultimately have to determine what qualifies as an injury in a TCCWNA case in light of the recent United States Supreme Court ruling Spokeo Inc. v. Robins.
Another area of class action law that has seen a lot of development in the past year is on the issue of ascertainability of the class during the certification stage. Law360 has a full summary of the panel’s discussion of the development of the law and the split between circuits and the split between the Third Circuit and the New Jersey courts that I recommend reading.
The panelists also have an eye on all of the arbitration cases that are being filed right now. Will focusing on the formation of the underlying contract continue to be enough to distinguish New Jersey’s case law on arbitration from the federal case law, which focuses on unconscionability? If it is, New Jersey is going to develop case law that is quite a bit different from the federal body of law.
Constitutional Changes a Hot Topic
This November, voters here in New Jersey might be deciding more than who should be President. We might also be voting on whether there should be casinos in North Jersey, how legislative redistricting is done, what taxes on fuel sales can be spent on, and the funding of public workers’ pensions. Each of these topics is the subject of a constitutional amendment that legislators hope to have voters consider. Whether such changes are wise was a hot topic at the bar meeting.
Lt. Governor Kim Guadagno urged attorneys to speak out against using the constitution as a veto avoidance mechanism during her keynote address at the Bar Association’s business meeting. She noted that very few amendments had been passed between our current state constitution’s adoption in 1947 and the addition of her position, Lieutenant Governor, in 2006.
During the Inside Trenton panel the political nature of the currently proposed amendments was on display. Assembly Minority Leader Jon Bramnick and Deputy Minority Leader Anthony M. Bucco, both Republicans, were against amending the constitution as proposed, suggesting that it ties the hands of future legislatures. The Democrats on the panel agreed that amendments should be done sparingly, but Assembly Majority Leader Louis Greenwald said we have to do something to ensure public pensions are paid, while Assistant Senate Majority Leader Linda R. Greenstein said the transportation funding issue must be addressed.
I look forward to getting more involved with the state bar over the coming years, particularly since I’ll be serving as the editor of the Young Lawyers Division’s newsletter this year.