Judges should do more to enforce a court rule that lets them disregard a designation of trial counsel if that lawyer’s unavailability will cause unacceptable delays, a state appeals court says.
In Hernandez v. North Jersey Neurosurgical Associates, A-890-12, the Appellate Division held that once designation under Rule 4:25-4 has been waived by the parties or disregarded by the court, formally and with notice, it can no longer be used to adjourn a trial date.
Lawyers, for their part, must line up substitute attorneys to whom they can hand over matters for trial if they are unavailable on the scheduled date, the panel said in a May 14 per curiam ruling.
Nevertheless, it reversed a default judgment against a defendant whose lawyer was tied up in another trial on the scheduled trial date, finding the judge did not make it clear that the date would not be shifted.
Fittingly, the lawyer prompting the ruling was Richard Amdur, whose heavy medical malpractice defense caseload led the Supreme Court to add the "disregard" provision to R. 4:25-4.
Amdur, of Amdur Maggs & Shor in Eatontown, was the designated trial counsel for Dr. Ganepola Ganepola, one of five doctors sued by Pedro Hernandez over allegedly botched leg surgery.
The suit, filed in Hudson County Superior Court on April 10, 2008, had seven trial dates. The first, on Dec. 7, 2010, was pushed back at the request of one of the other doctors. Five more dates after that were adjourned, twice at Ganepola’s request, twice by the plaintiff and once by another defendant.
After the second adjournment, Presiding Civil Part Judge Mary Costello sent all counsel a letter setting a third trial date for May 2011, past the three-year mark when trial counsel designation can be disregarded in Track III cases such as malpractice suits, and stating "the designation of trial counsel is waived" and there would be no more adjournments.
Still, there were four more before a seventh trial date was set for June 4, 2012.
On May 1, 2012, Amdur notified the court that Ganepola would be out of the country from June 10 to 22, but would be available for trial after that.
With no response from the court, Amdur wrote again on May 30, 2012, saying he was in the middle of a trial in Monmouth County, which he expected to finish in mid-June and he could start Ganepola’s case immediately after.
No one objected but Costello did not adjourn. Instead, she asked Amdur to send another lawyer from his firm to start trial on June 4.
Associate Colleen Golin showed up on June 4 and explained she practiced family law and was neither equipped nor authorized to try the case. She asked that it be marked "ready hold" until mid-June, when Amdur would be finished with the other trial.
Costello refused and sent the case to Judge Lourdes Santiago to start trial.
The judge in Monmouth County issued an order confirming that Amdur was in the midst of a multiweek trial there and that he would not release him, and Golin explained to Santiago that she was unable to try the case and that neither Ganepola nor his carrier wanted her to.
Hernandez’s lawyer, Christian Mastondrea, told Santiago he consented to an adjournment because he preferred to wait for Amdur rather than incur the delay and expense of Amdur’s appeal if an adjournment was denied.
But Mastondrea, of Eichen Crutch-low Zaslow & McElroy in Edison, also said that since Costello had already refused to adjourn, he felt compelled to ask for a default, which Santiago granted.
Subsequently, Hernandez agreed to dismiss the claims against the other doctors on the understanding that they could be reinstated if the default against Ganepola was vacated. He explained that his most significant claims were against Ganepola and that he did not want to proceed to trial against the others, allowing them to pin the blame on Ganepola’s "empty chair."
After the Appellate Division granted an accelerated and interlocutory appeal, Costello filed a written explanation of her refusal to adjourn, laying out the series of prior adjournments.
Costello stated it seemed the lawyers had colluded to delay the June 4 trial date, a notion rejected by the appeals court.
Although not precedential, the opinion by Appellate Division Judges Victor Ashrafi, Marianne Espinosa and Ronald Graves was framed in broad language.
They said trial judges should make it clear when a trial date is no longer subject to postponement, giving sufficient notice so that lawyers have time to plan accordingly.
This can be done through a meeting or a specific written response to an adjournment request that is sent to all counsel, and all should have a say in selecting the nonadjournable date.
Because adequate prior notice was not given here, entry of a default judgment was unfair.
"If the court’s intent was to make an example of this case and its delays as guidance to attorneys and litigants, it should have taken that step as a prospective ruling," the panel wrote.
Ganepola’s lawyer on appeal, Gary Riveles, of Dughi, Hewit & Domalewski in Cranford, says the decision "reaffirms the principle that trial courts can waive trial designation but that it should be done on a case-by-case basis." Not accommodating Amdur in this instance has delayed the case by almost a year at this point, he notes.
Amdur calls it "unfortunate" that the court "could not have waited eight days" for him and questions if any doctor or lawyer faced with a malpractice suit would be happy with a last-minute replacement coming in to try the case.
The appeals panel suggested that the Civil Practice Committee "may wish to consider the circumstances of this case, especially as they may be relevant to the manner and timing of enforcing the ‘disregard’ provision of the attorney designation rule and giving notice to counsel of an inflexible trial date."
Scott Leonard, president of the New Jersey Association for Justice-New Jersey, says the committee should "come up with a rule that provides some certainty to trial counsel but also make sure litigants are not adversely affected by a hard-line rule." The disregard provision is especially unfair to solo practitioners and small firm lawyers, says Leonard, of Leonard & Leonard in Morristown.
Marc Saloman, president of the New Jersey Defense Association and a partner at Proskauer Rose in Newark, says it’s a fiction that big firms always have additional lawyers to send in and points out that in large firms, as in small ones, attorney-client relationships are very important and it can cost a client a lot of money to bring new counsel up to speed.
"I understand the frustration that courts face but the reality is that those of us who try cases are busy running multiple cases simultaneously," Saloman says.
Mastondrea did not return a call.