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.
In the ongoing issue of whether Drug Recognition Experts (DRE) are reliable, the New Jersey State Bar Association urged the Supreme Court to apply the Daubert standard of evaluating scientific reliability of using drug influence evaluations (DIE) in Driving Under the Influence (DUI) matters. In its latest amicus filing in State v. Olenowski, the NJSBA urged the application of the Daubert standard, rather than the Frye standard, and said that the record fails to establish the reliability of the DIE technique and DRE opinion.
“The Daubert standard recognizes that science is always evolving and flexibility is required to determine if the particular technique at issue has moved to the point of being considered reliable,” said the NJSBA in its brief. “By enunciating a range of factors, Daubert provides a roadmap for the types of proofs that trial judges can consider to aid them in making an appropriate evidentiary determination, as opposed to Frye, which simply states a ‘general acceptance’ standard.” NJSBA member John Menzel wrote the brief.
The Supreme Court appointed Special Master retired Appellate Division Judge Joseph F. Lisa to hold hearings and make a recommendation of how to handle DRE evidence in DUI matters. His report this summer opined that DRE evidence was reliable under the “general acceptance” or Frye standard. The NJSBA joined other amici and the parties in submitting briefs in response to special master’s findings. The latest filings came because the Supreme Court raised a new question asking whether the Daubert standards should be applied.
Constructive notice issues in real estate transactions focus of amicus brief
The New Jersey State Bar Association is seeking leave to participate in Fitzpatrick v. Qasim.
In this Appellate Division matter, the NJSBA seeks amicus status to revisit its historical position on the notice provision of a cancellation provision in the attorney review process. In a brief drafted by members Brad Batcha and Matthew Schiller, the Association argued that while a written cancellation notice is a best practice, the principles of equity allows for cancellation in a case where there was a finding of actual notice by all parties.
The position is consistent with the NJSBA’s argument in Conley v. Guerrero, where it also participated as amicus. In that case, the Supreme Court upheld cancellation by electronic mail was valid because all parties received actual notice in a manner that was common in the industry.
In Fitzpatrick, cancellation was made by telephone call, but no ensuing written cancellation was received by the seller. Following the three-day attorney review period wherein the buyer did not receive any written confirmation of the cancellation, the buyer sought to enforce the contract.
The NJSBA took no position on this particular case, but argued that the hallmark purpose of the attorney review clause is consumer protection, and that is ultimately what should be the guiding principle in its application. Analogizing to recent amendments to the statute of frauds allowing certain contracts to be enforced despite a lack of writing, the NJSBA argued that form should not be elevated over substance in disputes involving the valid exercise of rights under the attorney review clause.
Oral arguments have yet to be announced.