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If 240 lawyers lubricate their tongues with drinks before a bench-bar dinner, at least one litigator will loosen up and tell a judge what he really thinks, as Hudson County, New Jersey’s civil presiding judge, Maurice Gallipoli, well knows. Last Tuesday, as Gallipoli stepped to the podium at Puccini’s Restaurant in Jersey City, N.J., and asked over the clank of cutlery, “Can you hear me in the back?” a lawyer shouted with impeccable timing, “No, but that’s OK.” It got a big laugh. But if the heckler was seriously not listening, the joke soon will be on him. Gallipoli was talking about the “best practices,” no-nonsense statewide civil procedures that take effect on Sept. 5 with the aim of speeding litigation and ending the myriad, quirky vicinage practices in New Jersey. His message to the Hudson County lawyers that steamy night was direct and simple: Come September — I kid you not — the new procedures will be enforced. “At some point, I am going to have to hurt a lawyer who does not understand the implications of these changes,” Gallipoli warned. “I’m not looking forward to it, but I’m not reluctant to do it.” “We are going back to being a rule-based court system,” he concluded. These are common refrains these days, from Hackensack to Cape May Court House, as civil presiding judges live or on videotape are explaining the changes at seminars such as the one at Puccini’s, the largest turnout in years for a meeting of the Hudson County Bar’s Civil Practice Committee. An Institute for Continuing Legal Education session the night before at the Radisson Suites in Fairfield was so crowded that 200 of the 500 prospective attendees had to be turned away. “The turnout was extraordinary,” says one of the lecturers, Peter Doyne, the civil presiding judge in Bergen County. Chief Justice Deborah Poritz is scheduled to sign the final version of the rules within a few days, though some last-minute housekeeping was still going on last week. Perhaps the most important late development in adoption of what is formally known as “Best Practices” was the promulgation of an interpretation of the rules on mandatory arbitrations. Revised Rule of Civil Procedure 4:21A-1 et seq. will require “parties” to attend all arbitrations or face dismissal or a right to a trial de novo — a stricture that frightens many practitioners, particularly insurance defense lawyers whose clients are often missing in action or uncooperative. To practitioners’ relief, rulemakers among the judges and officials of the Administrative Office of the Courts have decided that a lawyer is also considered to be a “party” under the rules, says Jane Castner, the AOC’s assistant director for civil practice. Such adjustments aside, the new rules will be the same as published last August [157 N.J.L.J. 583] after two years of preparation by the Conference of Civil Presiding Judges and kibitzing by bar groups and the New Jersey Supreme Court’s Civil Practice Committee. If the session in Jersey City was typical, lawyers are likely to find that the new rules with the deepest impact include R. 4:36-3(b) and (c), which establishes standard procedures for adjournments of trial dates. Requests for such adjournments must be made in writing as opposed to being aired at a supplementary calendar call like the one typically held Monday afternoons in Essex County, N.J.. The rule says no adjournments should be granted for incomplete discovery, barring “exceptional circumstances,” a tougher standard than the more lawyer-friendly concept of “good cause.” As Gallipoli explained it, wryly, “exceptional circumstances” don’t apply when “it’s a lawyer’s screw-up.” Lawyers get only one adjournment for unavailability of an expert witness, and even that might not be granted if the application is made far into the newly mandated eight-week period between notice of trial and trial. If a witness becomes unavailable a second time around, that expert would have to be videotaped for the trial. A defense lawyer complained to Gallipoli that the rule would hurt his side of the aisle because it would mean the plaintiff’s expert would be the last live expert heard by the jury. There appears to be a consensus that the rules will have their most profound effect on solo practitioners with fewer resources to track cases and to prepare the detailed trial memoranda required by the rules. Before opening statements, lawyers are required to submit stipulations, special voir dire questions, proposed jury instructions, witness lists and other fine points. These requirements, familiar to lawyers who practice in federal court, will impose a burden on lawyers who take a seat-of-the-pants approach to trials. “People are going to say, ‘this is just a rinky-dink auto case,’ but you are going to treat it like the biggest case in your office,” Gallipoli said. Kevin Harrington, of Haledon’s Harrington & Lombardi and a member of a lawyers’ committee that worked on the new rules and one of the ICLE lecturers on the subject, says the rules on settlement conferences will please lawyers in counties like Bergen where there’s been an emphasis on such conferences. Jo Anne Peterson, the civil division manger in Burlington County, says lawyers in her vicinage have been told that judges will adhere strictly to new rules requiring trials de novo within 90 days of arbitrations rather than the current three- to six-month lag. The talk of strict enforcement has not squelched the feeling among practitioners that it might be possible for courts in the least crowded vicinages to retain some previous practices that differ with the new rules. Brian Smith, president of the 105-member Warren County Bar Association says, for example, “If push comes to shove, counties like Warren and Cape May might see some relaxation informally.” Not by Gallipoli’s reckoning. Though all these the rules were created by consensus among the civil presiding judges rather than “Trenton on high sending this down to you,” there will be a central monitoring effort, which Gallipoli jokingly referred to as “compliance police.” Because the goal was to rid vicinages of local rules that worked to the disadvantage of lawyers trying a rare case in a particular county, lawyers will be able to blow the whistle if they don’t like old peculiar practices that resurface in any county, Gallipoli said. With the advent of more realistic rules, like an end to the blanket, 150-day discovery deadline, lawyers will have less excuse to violate the rules, which means stricter enforcement and sanctions for those who do, says Union County Civil Presiding Judge William Wertheimer. Even so, alterations will be engineered if glitches arise. “If something doesn’t work or is unjust or proves to be too onerous, I’m sure it will be changed,” Wertheimer says. In the meantime, though, the idea of massive change doesn’t sit well with a lot of practitioners, including some influential ones. The chairman of the Hudson County Bar’s Civil Practice Committee, Joel Leyner, of Secaucus’ Chasan, Leyner, Bariso & Lamparello, said at Tuesday’s seminar in Jersey City that the new rules are wonderful for the court system, but ignore the tough realities of legal practice. Leyner, who chaired the State Bar panel that studied the rules and recommended modifications, decried the idea of compliance police, which he called “brownshirts,” and termed the rules “a cure for which there was no disease.” The changes don’t take into account “the human failures of lawyers,” he said. Gallipoli’s response, which judges all over the state were echoing last week, boiled down to three words: Get over it. Michael Booth, Mary Gallagher and Sandy Lovell contributed to this article.

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