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Dennis Cipriano seemed in good health as he stood to speak at Appellate Division hearings in New Jersey last week. But as he poured himself a glass of water before introducing himself, the bottle trembled visibly in his hand. Cipriano had been sick for most of the week before his appearance for oral arguments. “It started out as an allergy and developed into infected sinuses,” he says. He’d even taken Thursday and Friday off from his solo practice in West Orange, N.J., to recuperate and rehearse. He had good reason. He was entering the case cold. Cipriano’s quixotic client, Brett Prince, had gone it pro se thus far in a suit against his former lawyers. He’d even written his own appellate brief. Cipriano came on board to make the argument. Appearing pro se can be a wild card. Judges can give the litigant the benefit of every doubt, or, alternatively, they can feel put out at having to wade through amateur gibberish. But Appellate Division Judges Sylvia Pressler, Dorothea Wefing and Arthur Lesemann were in an indulgent mode, perhaps because they were convened not in a courthouse but in the bright, modern and circular Baker Trial Courtroom at Rutgers Law School-Newark, giving students a real-time demonstration of appellate advocacy. Pressler leaned forward on the desk and appeared fascinated no matter how eccentric the argument, as with all the lawyers she saw that day. Wefing hunched forward in her chair as if watching a baseball game from the bleachers. Lesemann, who at times leaned so far back in his chair with his hands behind his head that he disappeared from view behind the bench, pounced forward when a lawyer pushed the right buttons. In Prince v. Garruto, Galex & Cantor et al., A-006776-99-T3, Cipriano argued that his client’s medical malpractice lawyers failed to name a drug company in a suit against doctors who prescribed tetracycline, an antibiotic that prevented Prince from going deaf but left him with stained teeth. A jury had no-caused him, by which time he was time-barred from suing the drug’s manufacturer. On the face of it, not naming as many defendants as possible seems a fatal error, especially with New Jersey’s hard-and-fast entire controversy doctrine hanging like a sword of Damocles. But the firm’s lawyer, John North, a partner with Greenbaum, Rowe, Smith, Ravin, Davis and Himmel in Woodbridge, N.J., had convinced a trial judge that it was impossible to sue both the doctors and the drug company because providing evidence against one defendant had the effect of exonerating the other. Thus, the doctrine of judicial estoppel forced Garruto, Galex to pick and choose. Pressler noted that Prince had rejected a settlement that could have been as much as $25,000. Cipriano responded that Prince “was a more sophisticated litigant” because “he’d read that [litigated] settlements were up to $65,000.” That brought a smile from Pressler, who might have been mentally substituting an entirely different word for “sophisticated.” Nonetheless, she did seem to take Cipriano’s point. “I don’t think that the negligence of one precludes the liability of the other, necessarily,” she said during her interrogation of North. The panel spent very little time on the estoppel argument and more time rehashing the varying possible levels of liability between the drug company and the doctors. Overall, Cipriano got a relatively sympathetic ride. HALF OF ADVOCACY IS SHOWING UP Lawyers for the state of New Jersey set a bad example for students in DEP v. National Transfer Inc., A-000955-00-T1. When the case was called at 10 a.m., one of their number, Assistant Bergen County Counsel Paul Gallagher, hadn’t showed up, so the appeals were taken out of turn. Two cases later, Gallagher arrived. “Finally, we’re ready for the Department of Environmental Protection,” Pressler said in as neutral a voice as she could muster. (Gallagher declined to tell a reporter where he had been, except to say “it was personal.”) National Transfer has operated a waste-processing station in Lodi for decades. It has expanded its capacity and wants to handle up to 350 tons of garbage a day. The DEP argues that the expansion occurred without the required permits. National Transfer, represented by Alan Rich and Marc Friedman of Rich & Friedman in Parsippany, says the DEP’s incompetence led them to believe they were within the law, and even if they weren’t, they’d like a full trial on the matter. The case has dragged on for years, and it felt that way in the courtroom, too. Gallagher may have ticked off Pressler by arriving late, but Deputy Attorney General Susan Vercheak, who did most of the talking, took most of the flak. Vercheak didn’t help herself when the judges got into the issue of whether public hearings had been held in the past 12 years. That drew Pressler out of her magnanimous mood into something approaching derision. Pressler wanted to know whether the DEP had held any public hearings. “There was a hearing a couple of days ago in Lodi,” Vercheak said. “A couple of days ago!” Pressler repeated, her point evident. Later, Vercheak said she thought Pressler and the other judges were well aware that there have been numerous forums for Lodians to express their rage, adding, “I think she understood.” IN FAIR VERONA Tuesday’s session ran less than two hours, but tempers on the bench and at the lectern were starting to fray. Things got personal with the case of Willie and Clarence Bradley v. Verona Properties et al., A-001960-00T1. Arnold Shurkin, a Passaic solo practitioner and a partner in Verona Properties, argued he should win attorneys’ fees for defending his company in a suit over an incident that took place before he had bought the property. Shurkin said the claim was frivolous and thus that the Frivolous Lawsuit Act applied. Lesemann sat up and grilled Shurkin for not having made a claim for fees after the initial summary judgment, reminding him forcefully that the Supreme Court had ruled clearly on the issue. “You don’t get fees under the frivolous claims act [if you're late],” Lesemann said. “It’s not some technical question that you can pass off and say, ‘I don’t care.’” Shurkin said afterward that his fee claim was part of his counterclaim and thus was timely. The plaintiff’s lawyer, Stephen Gold, an associate at Freeman & Bass in Newark, was the subject of an equal level of displeasure from Wefing for suing the wrong property owner. Gold attempted to argue that liability was transferable from one owner to the next, but Wefing interrupted him. “Do you know of any case that has applied the principle of equitable conversion to tort liability?” she scoffed. Although Gold was still in Wefing’s cross hairs, Shurkin failed to capitalize on the advantage and managed instead to draw an admonishment. “I don’t want to beat up on my opponent,” he said, standing to press his point, “but I guess that’s what we lawyers do … “ Wefing cut him off before he could get any further. “No. That’s not what we do. I don’t want any of these students to walk out of here thinking that’s what we do.” Shurkin backed off, explaining that “it’s a very annoying situation.” “I can tell that,” Wefing replied. And on that note, the calendar ended. Retired state Supreme Court Justice Daniel O’Hern, seated in the audience, persuaded the judges to come back out and take questions. Pressler noted that she had broken with tradition that morning by introducing all the cases with a brief summary of the facts instead of plowing straight into the minutiae, for the benefit of the gallery. She then said that she found the practice useful and might consider doing it on other occasions.

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