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After a month’s exposure to New Jersey’s “best practices” — the new rubric designed to standardize case-management practices and provide realistic trial dates — many lawyers remain deeply distrustful. But despite best hopes and intentions, best practices will not go away soon, and lawyers have begun to learn to live with the rules, which went into effect on Sept. 5. Here are some of the ways the state’s attorneys are coping with best practices’ worst features. 1. Starting discovery before the case is filed. Stricter enforcement of discovery deadlines under best practices will force attorneys to build their case files earlier. For plaintiffs’ personal injury lawyers, that means, at least, obtaining medical records, an expert report and information on lost income before filing suit and beginning formal discovery, says Donald Heiner, a Ridgefield Park, N.J., solo. “We’re going to try to have answers to interrogatories completed before we even put the matter into suit,” explains Vincent Ciecka, who heads a firm in Pennsauken, N.J.. Delaying the filing of a case for as long as possible before the statute of limitations runs is especially important if the plaintiff is still receiving medical treatment, says Paul D’Amato, a Linwood, N.J., solo who handles personal injury work on behalf of plaintiffs. Of course, getting discovery from the defendant is problematic if the suit has not been filed. But D’Amato points out that R. 4:11-1 enables attorneys to petition for an order allowing the inspection of documents or property before a case is filed. 2. Filing more discovery motions. Defense lawyers do not have the option of conducting presuit discovery. And because of the strict time limits — 300 days for the standard personal injury case — they say they can no longer be so accommodating when it comes to requests to adjourn depositions or extend the time for answering interrogatories. “If someone adjourns a deposition, we’ll just file a motion right away rather than politely rescheduling it” as in the past, says Heidi Currier, a partner with Roseland, N.J.’s Connell, Foley & Geiser. “My motion practice has almost doubled in the month of September and since then,” says Bruce Helies, who practices insurance defense with Red Bank, N.J.’s Wolff, Helies & Duggan. “I’ve almost had to stop [extending] professional courtesies and, in lieu of that, [start] filing more motions.” Both Currier and Helies lament the loss of civility that may result from an increase in motion practice. But they say they have little choice under the strict deadlines. “If I don’t have answers to interrogatories by the 61st day, says Helies, referring to the 60-day deadline, “I’m going to have to file a motion.” 3. Maintaining civility in spite of No. 2. Civility may suffer not only from the increase in motions but from the refusal to answer discovery after the formal cutoff date, lawyers say. Although parties may engage in informal discovery after the deadline passes, lawyers point out that they may feel obligated in some cases to hold their adversary’s feet to the fire — especially if they think the court will deny further discovery. Not that the new rules necessarily spell the end of professional courtesy. “I assume that attorneys will still cooperate,” says Thomas McGuire Sr., a Cherry Hill, N.J., solo who represents plaintiffs. He thinks that most attorneys will agree to provide informal discovery after the deadline has passed, if only to ensure that they receive the same courtesy in the future. 4. Ensuring expert availability. Under best practices, trials will not be adjourned more than once due to an expert’s unavailability. Lawyers, therefore, are making sure that their experts aren’t on vacation or playing golf when the trial date rolls around. “I’m going to re-evaluate all of my experts and who I’m going to use,” says insurance defense attorney Thomas Hight, of Bloomfield, N.J.’s O’Meara & Hight. Paying for trial testimony in advance is one way to make an expert available, says Hight, but even that is no guarantee. On a couple of occasions, Hight has sent out checks to confirm an expert’s availability for the date of trial, only to be told that the expert had since booked the date. The problem of scheduling experts is exacerbated by “the volume of litigation and the fact that both sides tend to use the same experts,” notes Philip Lezenby Jr., of Barrington, N.J.’s Lezenby & Zane, who does defense work. The only answer, says Frederick Klepp, a Cherry Hill, N.J., solo who handles personal injury cases for plaintiffs, is to either lock in an expert with a lot of advance notice, or else plan to videotape the expert’s testimony. And if you pay an expert to clear his or her schedule for the trial date, be prepared to send another check if the trial is adjourned, adds Cherry Hill, N.J.’s McGuire, who says experts are telling him, “if it’s postponed, you’ll have to pay me again.” 5. Deciding whether to videotape experts. Because they have the burden of going forward with the case, plaintiffs’ attorneys may have no choice but to have their expert’s testimony videotaped and “in the can.” But defense lawyers say they are not yet rushing around with cameras. “I don’t intend to go out and videotape all my experts right away just to have them set,” says Currier. She notes that defense experts have to be able to respond to the trial testimony of the plaintiff and the plaintiff’s expert, so videotaped defense testimony would have little value. Kevin Harrington, who also does insurance defense, agrees that it makes little sense to videotape a defense expert, as opposed to a plaintiff’s expert, in advance of trial. “Generally, defense experts are more readily available,” notes Harrington, of North Haledon, N.J.’s Catania & Harrington. Harrington intends to hold off on videotaping at least until the first trial date. If the case does not settle and if his expert is unavailable, he can still adjourn the trial once to arrange for videotaping. 6. Employing a computerized calendar system. “Do not try to get by with your father’s or grandfather’s system of preparing cases for trial,” instructs Thomas Vesper in the Institute for Continuing Legal Education materials he’s prepared for his lecture on best practices. Vesper, a partner with Atlantic City, N.J.,’s Westmoreland, Vesper & Schwartz, says that attorneys should consider purchasing computer software for case-management and calendar purposes. Other practitioners are also paying more attention to their calendars, now that judges have less discretion to extend deadlines. “I now have a big board in my office trying to keep track of all of this,” says Helies. 7. Dismissing cases without prejudice to extend discovery. Under best practices, notes Vesper, there is no such thing as an “inactive” case. And the new rules don’t address the occasional need to postpone discovery, says Vesper. For example, the defendant in an automobile case may refuse to testify under the Fifth Amendment if criminal charges are pending. One solution is to use stipulations of dismissal without prejudice, which allow cases to be refiled later. Such stipulations can satisfy both the parties’ discovery needs and the court system’s docket concerns, explains Vesper. 8. Not taking the smaller cases, or trying to settle them earlier. Both plaintiffs’ and defense lawyers say that the need to videotape experts will affect smaller cases the most. Videotaping experts in the standard personal injury case could cost between $3,000 and $5,000 if the fee for testifying is factored in, say practitioners, making the smaller case — say, $15,000 or less — harder to justify. The smaller cases will also be harder to settle after videotaping takes place, according to Hight. A lawyer with a case worth about $12,000 will now need at least $15,000 to settle, he notes. 9. Hiring help. Many of the solo practitioners who were interviewed complain that the new rules favor the larger firms, which can churn out the forms and paperwork now required. One solo with more than 20 years of experience, who requested anonymity, says that he simply could not adjust to best practices and has given all his litigation matters to another firm. Of course, most solos aren’t going to take such a drastic step. But they do need to take a look at their staff needs, says solo D’Amato. “Each practitioner is going to have to really evaluate whether they have too many cases or whether they need additional help in their office.” 10. Hoping for change, but complying in the meantime. Both plaintiffs’ and defense lawyers question the logic of some of the best practices rules, such as the need to submit proposed jury instructions for the routine automobile case or slip-and-fall. But while they wait to see which rules are enforced and which are relaxed, practitioners say they are complying, making sure that they are not the ones who are sanctioned, or the ones whose case is dismissed. “I don’t want to be the first example,” says Hight.

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