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A 2-inch thick raft of changes to the New Jersey rules of court is set to go into effect Sept. 3, giving litigators, their adversaries and judges much to chew on. Most of the measures merely tidy up existing rules, but a few are substantive and some will raise eyebrows. Among the highlights are rules that will: � allow jurors to ask questions in civil trials; � allow the New Jersey Supreme Court to suspend judges more easily; � more closely scrutinize attorney trust accounts; � shield initial drafts of expert reports from the pretrial discovery process; � describe in more detail the process for stays pending appeal of the death penalty; � raise the dollar limits of suits in small claims and special civil courts; and � modernize the language courts use to describe the mentally ill. The biggest change for judges and the trial bar will be R. 1:8-8(c), which allows members of juries to ask questions of trial witnesses in civil cases. The rule came about after changes in other states allowed juries to ask their own questions of witnesses during trial. The change is intended to achieve two things: to make sure juries understand what they are listening to and to improve juror morale, says Judge Barbara Byrd Wecker, who chairs the Jury Subcommittee of the New Jersey Supreme Court’s Civil Practice Committee. A pilot program involving 11 judges and 127 cases in 2000 was given an overwhelmingly positive reaction by the judges. “The jurors were uniformly more focused on the evidence … . [T]he questions that they wanted to be asked were by and large relevant and in some cases significant,” said one judge who participated in the test. The bar was more apprehensive, with some envisioning Henry Fonda wannabes in white suits taking over the adversarial process, as in “12 Angry Men.” Those fears proved unfounded, says Alan Medvin of Newark, N.J.’s Medvin & Elberg, a member of Wecker’s panel. Juror questions tended to be detail-oriented and aimed at clarifying expert testimony. “They were essentially benign,” he says. “Many lawyers were reassured, after going through a trial where juries were allowed to submit questions, that the benefits outweighed the burdens,” Wecker adds. JUDGES ON THE EDGE A less-talked about rule change is that of R. 2:15-17(a), which allows the New Jersey Supreme Court to “order the immediate temporary suspension of a judge … if the court finds probable cause to conclude that the judge has violated the Code of Judicial Conduct, case law, or other authority … [and] poses a substantial threat of serious harm to the administration of justice.” Interestingly, the rule did not arise from the Advisory Committee on Judicial Conduct, two members of that panel say. “The court is the constitutional authority over the judges, so I presume it’s just tidying up the procedure,” says former Justice Daniel O’Hern, vice chair of the ACJC and now of counsel at Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione. Nonetheless, the old rule did not explicitly authorize the supremes to defrock a judge. The justices had to wait until a presentment was made and then offer the judge a chance to show cause why he or she should not be removed. The new rule follows a string of conspicuous incidents involving badly behaved New Jersey judges, such as Lyndhust Municipal Court Judge James Breslin Jr., who was kicked off the bench in May for accepting an envelope full of money in an attempted bribe and not reporting it quickly enough; former Somerset County Judge John Richardson, who resigned in February over his failure to report to the IRS a $160,000 real-estate deal; Somerset County Judge Rosemarie Williams, who was suspended in 2001 for three months for lying to police following an altercation with an ex-lover; former Jersey City Municipal Court Judge James Boylan, who pleaded guilty to fixing traffic tickets for sexual favors in 1998; Superior Court Judge Michael Imbriani, who was removed in 1995 after pleading guilty to failing to make required disposition of property to partners in a real-estate deal; Middlesex Superior Court Judge Edward Seaman, who was suspended in 1993 for sexually harassing a law clerk; Superior Court Judge Thomas Yaccarino, removed in 1985 after a host of violations including an attempt to buy a beach house at below market value from two parties attempting to litigate the ownership of the house before him; and Superior Court judge Peter Coruzzi, convicted of accepting bribes in criminal cases. ANTI-ATM MEASURE R. 1:21-6, which adds oversight measures on attorney trust accounts, came about following the Office of Attorney Ethics’ ongoing series of random audits. Its new text will prohibit overdraft protection on trust accounts, eliminate ATM withdrawals from trust accounts and prohibit electronic transfers from such accounts by persons who are not attorneys. One random audit revealed that an attorney’s staff had been siphoning money from the trust account. “The attorney indicated he was unaware that money was being transferred,” says OAE director David Johnson. The new rule, which also requires trust accounts to be reconciled monthly instead of quarterly, now states, “Each electronic transfer out of an attorney trust account must be made on signed written instructions from the attorney to the financial institution.” SHELTERING EXPERTS R. 4:10-2(d) creates a safe harbor for early drafts of expert reports, rendering them untouchable by discovery. Recommended by the Civil Practice Committee, the rule came after a study concluded that attorneys and experts were jumping through increasingly irksome hoops in order to avoid creating any kind of record that could be discovered in a fishing expedition by opposing counsel. Such maneuvers included the expert reading the report to the attorney orally in order to prevent a record of a draft, or a lawyer having to travel to the expert’s office and read the report on a computer screen and then delivering oral advice before it is finished. “Myriad practices have grown up to effectively minimize any discovery of the collaborative process between attorney and expert,” the panel’s report said. “Lawyers should be free to work with experts to put reports in an appropriate form without having to worry that every suggested change or word was going to be subject to discovery,” says Medvin, who also worked on the draft report proposals. CLAIM LIMITS RAISED Other noteworthy changes in the new rulebook include: � R. 6:1-2: This rule will raise the maximum amount of money in lawsuits that are able to be heard by the Special Civil parts and the Small Claims sections. Special Civil rises from $10,000 to $15,000, and Small Claims increases from $2,000 to $3,000. � R. 2:9-3: The old rule said simply, “a sentence of death shall be stayed if an appeal is taken.” The new text lays out the various methods of staying an execution order across a multitude of appeals avenues in both federal and state courts. � Throughout the new rules, the term “mentally incompetent” has been replaced by the kinder phrase “mentally incapacitated.” The change was made pursuant to N.J.S.C. 3B:1-2, which was passed four years ago.

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