This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.
The Supreme Court issued omnibus rule changes that affect several practice areas and become effective on Sept. 1. The New Jersey State Bar Association submitted comments on a number of the changes when they were proposed, many of which were considered and adopted.
Appellate Practice
The Supreme Court agreed with a number of recommendations proposed by the Court’s Civil Practice Committee in connection with appellate filings, including an NJSBA-supported change to rename the “presiding Judge for Administration” to "Chief Judge of the Appellate Division.” While many of the adopted amendments clarify existing practices in the Appellate Division, some introduce new rules, such as expanding the categories of appeals as of right, including the addition of orders granting or denying class certification. The changes address procedures for electronic filing in the Appellate Division and include new brief requirements, shortening the length of briefs for both initial and response submissions.
The NJSBA urged reconsideration of the page limits, which the Court declined to do, but included in changes is the ability to file a motion allowing for a more expansive brief, so long as the movant certifies the request is not simply for purposes of delay.
Civil Practice Rules
Included in changes to the Civil Practice Rules are amendments to Rule 4:22-1 adopting the federal rule on requests for admissions by adding the phrase “or opinion” with regard to the basis on responding to requests for admissions. The NJSBA supported the adoption of the federal rule, but cautioned that, without further clarification, the additional phrase goes farther than what the federal rule permits. “Specifically, [the federal] rule does not permit requests to admit the truth or accuracy of all opinions (including, most importantly, expert opinions), but only those that ‘relate to statements or opinions of fact or of the application of law to fact,’” said the NSJBA to the committee. The Supreme Court did not adopt the NJSBA’s recommendation.
Ambiguities in connection with offers of judgment in cases with multiple defendants were also addressed in the adopted changes, including clarifications about the time or manner of making and accepting the offer, the consequences of non-acceptance, and the payment of an accepted offer. The NJSBA supported these amendments as “well reasoned.”
In addition, form interrogatories were amended to include additional questions regarding the consumption of alcoholic beverages, drugs or medication prior to the subject incident. They also replace references “accident or occurrence” with “your version of the alleged occurrence, incident, accident, or act of negligence asserted.” The NJSBA voiced concerns about the first amendment because there is no timeframe referenced and because the question asks about consumption of not just the subject individual, but also “any occupant of the vehicle” which information the individual may not have. With regard to the second amendment, the NJSBA cautioned that “act of negligence” is a legal term of art that may not be properly appreciated by an individual completing the interrogatory.
A number of other recommendations of the Court’s Civil Practice Committee were adopted, including changes addressing the interplay between the appointment of a guardian for an alleged incapacitated person and the appointed of a Guardian ad Litem for a litigant, as well as clarifications in connection with the service of name change applications.
Child Support Guidelines
Recommendations made by the Family Practice Committee and generally supported by the NJSBA in connection with the child support guidelines are included in the omnibus order. The recommendations are part of a quadrennial review required by federal law that is meant to, among other things, set accurate child support obligations based upon a parent’s ability to pay. The Association offered additional language changes in the area of imputed income to ensure consistency and clarity throughout the proposed amendments. Among the recommendations were the removal of language to avoid confusion about the imputation of income and to reference statistics outside of New Jersey to ensure fairness in considering the income of parents who work outside of the state.
An additional recommendation was made to remove the word “average” in the section regarding the imputation of earnings for a person’s usual or former occupation. “Requiring an ‘average’ removes the Courts’ discretion to use the high-end or low-end of the earnings statistics based upon the facts unique to the dispute at bar,” said the NJSBA.
The Supreme Court adopted these recommendations.
Jailhouse Informants
The rule amendments address adds to R. 3:13-3 to outline the discovery obligation related to jailhouse informants. The rule was drafted as a response to the Attorney General Law Enforcement Directive Number 2020-11, which set forth procedures to “provide additional clarity to prosecutors when deciding whether to call a jailhouse informant as a witness.” After a review of issues throughout the country and the rule change by the Florida Supreme Court that requires prosecutors to provide information on any deals made with the informant witness as part of their discovery obligation, the committee recommended adoption of a new paragraph (K) to the rule to detail the specific information to be provided when the state expects to call a jailhouse informant at trial.
The NJSBA supported the rule change with one recommendation to eliminate language where a prosecutor “intends” for an informant to testify. The recommendation was not accepted by the Supreme Court.
Additional Amendments
Additional amendments to the Rules governing practice in the Special Civil Part and the Tax Court were also adopted.