Effective results can be obtained in a municipal court case based partly upon considerations that are not creatures of the law, but predicated upon experience and interpersonal skills.
The Court Administrator and Staff
At a recent ethics seminar, a Superior Court judge made it abundantly clear that the obligation of an attorney to conduct himself appropriately in front of a judge extends to the judge’s law clerk and office staff. I am personally familiar with instances where an attorney acted inappropriately on the telephone to either a court administrator or a member of her office, which resulted in an embarrassing rebuke from the municipal judge the next time that attorney appeared in court. In the majority of municipal courts, the staff probably comprises only a few individuals. They obviously talk among themselves, and it is safe to assume that any adverse experiences or communications with an attorney will be passed on to the judge. This means that even before the attorney walks into the courtroom, his credibility and standing with the judge have been diminished.
Building a solid professional and amicable working relationship with the municipal court staff is one of the best lessons to be learned. In many local courts, the staff is vested with considerable discretion in terms of adjournments, marking matters “ready hold” without the necessity of a formal letter or application, and the like. A mutually respectful relationship can go a long way toward making some of the more maddening aspects of municipal court practice go much more smoothly. By the same token, irritating the staff and developing a reputation as a difficult attorney can only make it more problematic when you need the staff’s assistance on a matter. One would assume that if a lawyer deals with the court staff in a favorable, amiable way, he or she will be able to concentrate on the merits of the case rather than filing unnecessary motions and making unwarranted appearances which could be obviated by simple courtesy and civility.
Once you receive notice of a court date, it is advisable to contact the court a day or so prior and confirm that the matter is going forward, and that the necessary officers (and, if applicable, victims) have been notified. Every practitioner has horror stories of driving two hours to a night municipal court, waiting an hour, only to find that the officer is on vacation or that a necessary victim was not notified. While this step is somewhat onerous, a two-minute phone call may save hours of time. This also eliminates the possibility of bringing paid experts to court, and having to tell your client that he must pay them again for another appearance.
Absent compelling circumstances, it is inadvisable to contact the municipal prosecutor at his private office prior to the court date. He or she probably has no knowledge of your case and may not see the file until the date of the court appearance. Every municipal court has its own local practice regarding meeting with the municipal prosecutor. In some courts, the prosecutor sits in the courtroom throughout the calendar call (something I was never able to understand, especially when there are 10 attorneys waiting to see him). In most courts, attorneys are directed to a separate conference room or other area where they may meet with the prosecutor regarding their matter. Some courts are quite collegial, and a conference room will be full of attorneys who remain present and trade stories with each other, while each speaks with the prosecutor. In other cases, the attorneys wait in line to see the prosecutor on an individual basis. I find it extremely helpful, when appearing in a municipal court whose local procedures I am not familiar with, to either speak with a practitioner who regularly goes there or to approach the court officer and ascertain what the local procedure requires.
Once you have been afforded the opportunity to see the prosecutor, be concise and candid. If your client has a pristine driving record and no prior offenses, now is the time to emphasize it, as the prosecutor may not yet have looked at the client’s drivers abstract. If you have a defense predicated upon the failure of the Motor Vehicle Commission to timely notify the defendant of a suspension, present the appropriate documents (or lack thereof) to facilitate the prosecutor’s review. Tell the prosecutor what you believe an appropriate disposition of the case would be and why. You may be pleasantly surprised at an agreeable response. If you have a controlling court decision that militates in your favor, you should bring several copies of it to court with the appropriate sections highlighted so that a prompt review of your argument can be made by the prosecutor and, later, by the judge, if necessary.
Always remain respectful in tone and do not become argumentative. The prosecutor may have a hundred cases on that day and often has to deal with 10 or 12 attorneys. Now is not the time to try the case or show what a great legal mind has graced the prosecutor’s court. Telling the prosecutor that you are seeking his assistance with a problematic situation puts you somewhat on the same side. Proposing a solution rather than focusing solely on a problem is also a good idea. The defense attorney should also, obviously, be familiar with AOC guidelines governing pleas in municipal courts, which are found in the appendix of the Rules of Court.
One of the biggest mistakes I have witnessed in the local courts is when attorneys attempt to threaten the prosecutor that there will be a trial if their demands are not met. Quite frankly, the prosecutor has to be there all day anyway and such an attorney can bet his bottom dollar that, not only will his trial be the last to be heard, it may be rescheduled altogether. Trials should obviously be reserved where a favorable disposition simply cannot be achieved, whether due to the plea bargain guidelines or some other reason associated with the particular case. Any attorney who attempts to strong-arm the municipal prosecutor into a plea agreement and loudly asserts his experience in trying cases and assuring the prosecutor that the matter will be tried, should probably be doing something else.
I recently had difficulty with a particular prosecutor in one court and had to come back for another appearance. There was a different individual from the prosecutor’s firm handling the case, and I candidly advised him that I had some difficulty with his partner at the prior appearance. He smiled and noted that the file reflected the problem but that he was willing to work with me. In short order, the matter was resolved as satisfactorily as it could have been. A week or so later, I appeared in a municipal court several towns away and encountered the same prosecutor, who alluded to the extremely amicable way we were able to deal with the matter in the other town. In similar fashion, he was of tremendous assistance in bringing the new matter to a most favorable end. It turns out that his firm is the prosecuting authority for at least six or seven municipalities in the county, so the chances are great that I will come across him on many future occasions. The rapport we were able to develop will hopefully be of tremendous benefit to my future clients.
In sum, building and maintaining credibility with the prosecutor is critical, particularly in a court where you will be making regular appearances.
As noted above, there are significant (and sometimes huge) variations in the personalities, demeanor, preferences and practices of many municipal judges throughout New Jersey. If you are not familiar with a particular judge, you should speak to a fellow attorney who is, to attempt to find out the “lay of the land.” For example, some judges react particularly harshly to certain specific offenses, a fact which may result in sentencing difficulties in your case.
One municipal judge was well-known for imposing 20 or 30 days’ incarceration upon first-time shoplifters with no prior criminal record. Even though appellate relief may ultimately be available, the fact is that upon a guilty plea or a finding of guilt, that client is going to be taken away in handcuffs. Significant additional legal work (and expense) will then be necessary to attempt to undo the injustice. Other judges have an extremely difficult time accepting plea agreements in certain types of motor vehicle cases, such as leaving the scene of an accident or driving while on the revoked list. You owe your client an obligation to learn the idiosyncrasies of such judges, so that you do not suggest to your client that you can achieve a certain result only to subsequently learn that the municipal court you are dealing with simply won’t let it happen.
Do not hesitate to request a conference with the judge and prosecutor. On many occasions, I candidly advised the judge in camera of extremely inflammatory aspects of a matter (such as a .32 blood-alcohol reading in a car-accident case). After allowing the judge to vent and assure that he will eviscerate the defendant, things calm down, and a much more favorable disposition is usually discussed and agreed upon. The basic premise is: do not surprise the judge in open court with facts of a case that are certain to provoke an explosive reaction. A brief conference can go a long way toward diffusing what would otherwise be an ugly situation.
Whether you are dealing with a trial, motion or application, particularly in a significant case, always remember that you must make a record. Do not let a cantankerous judge intimidate you from making a necessary objection or legal argument. While maintaining respect and decorum is paramount, you owe it to your client (and malpractice carrier) to say what needs to be said for the benefit of a reviewing court. In extreme situations, you may have to request an opportunity to file an interlocutory appeal. Be courteous, but be firm if a judge is trying to foreclose you from placing your position on the record. •
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