NJ Laws Email Newsletter E107

Ken Vercammen's NJ Laws email newsletter October 20, 2002 #107

In this issue:

1. Tips for a Personal Injury case- Do not discuss the case
2. Criminal- Domestic Violence
3 "THE NEED FOR A COURT RULE RESOLVING MUNICIPAL COURT SCHEDULING CONFLICTS " Proposed article
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1. Tips for a Personal Injury case- Do not discuss the case
The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.

Obviously, we cannot stress too strongly that you not discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.

If any person approaches you with respect to this accident without your attorneys permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorneys office.
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2. Phone call creates Jurisdiction in DV. A.R. v. M.R. 351 NJ Super. 512 (App Div. 2002)
The New Jersey courts may exercise personal jurisdiction over a defendant who subjected his victim to domestic violence in another state, threatened to pursue her if she left him, and attempted to contact her in New Jersey by telephone when she came here for safety. Source: 11 NJL 1259
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3 "THE NEED FOR A COURT RULE RESOLVING MUNICIPAL COURT SCHEDULING CONFLICTS " Proposed article
During the past several years it has been my good fortune to publish 85 articles on litigation-related topics in National and New Jersey Legal Publications. The following is my proposed article entitled dealing with Municipal Court scheduling conflicts.
I would respect your professional opinion as to the article and anyway in which I can improve the article. I would value any comments you have on this proposed article. We have found experts in the field are more qualified to review articles for content rather than journal editors.
This article would benefit attorneys who wish practical ideas on better serving their clients. It has been my goal to provide other lawyers with basic non-law review articles and suggestions on improving the practice of law. Thank you for your assistance.

THE NEED FOR A COURT RULE RESOLVING MUNICIPAL COURT SCHEDULING CONFLICTS

By Kenneth Vercammen, Esq.

There is a need for a Court rule resolving conflicts when attorneys are scheduled for two courts on the same date and time. Currently, defense attorneys are at the mercy of Municipal Court Administrators and Judges in seeking adjournments of a case. For example, an attorney may have a DWI case in Somerville at 9am and Linden at 9am. Where should an attorney go if both courts will not adjourn? If both courts refuse to adjourn the cases or mark the matter "ready-hold", does the attorney risk contempt or other sanctions if they go to the closest court first?
The AOC and Presiding Judges have looked at the adjourn only issue, not the resolving conflict issue. A proposed "mandatory adjournment form" has been drafted. This would require defense attorneys to fill out a form and submit it to the court each and every time an adjournment is requested.

I oppose the mandatory requirements that a form be used for the purposes of requesting an adjournment. A letter should be sufficient as long as it contains the requisite information. I recommend that the procedures for Municipal Court adjournments be set forth in a Court Rule to establish greater predictability and consistency on a statewide basis. In the Civil Court rules, the procedures for resolving our conflicts between Civil/ Personal Injury advises us generally to appear for the oldest case first.
For example, priority given to cases in municipal court could be as follows:
A. Initial requests for adjustment should be routinely granted except in extraordinary circumstances.
B. Discovery not received at least 7 days prior to the scheduled court date from either party shall necessitate the granting of an adjournment. In a review of the proposed "adjournment form" drafted by the AOC, it appears the form only applies to defense attorneys, not prosecutors, police or pro se defendants.
If a Rule or procedure is going to be established, the Courts must apply rules equally against both Prosecutors and defense counsel. Justice must be equal. There are not two separate standards- one where a defendant is refused an adjournment despite being on vacation, and a different standard where courts are, on their own motion, adjourning cases to help the police and prosecutor.

When an adjournment is denied to a defendant, it should also be denied to the state. Justice is equal, not pro police. The courts role is not to prosecute people, it must be just.
In DWI, criminal and other serious cases, court administrators sometimes refuse to adjourn cases where the State Police has failed to provide the mandatory discovery to the Prosecutor. A defense attorney who has paid for, but not received discovery, should not be forced by a court administrator to waste their time and clients money by traveling to a court to ask for an adjournment which is the fault of either the State Police or the Prosecutor.
The roles of the judge, prosecutor and defense attorney are distinct. The attorneys are advocates for the respective sides, while the judge is to be the neutral adjudicator. State v. Avena, 281 N.J. Super. 327, 336 (App. Div. 1995). The judge must remain impartial and detached and may not "take sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div. 1993). The trial judge possesses a broad discretion as to his or her participation in the trial, but simultaneously must also maintain an atmosphere of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). See STATE OF NEW JERSEY v TROY SWINT, __ NJ Super. ___ (App. Div. ) A-5131-97T3
Preparation of the States case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987).
A suggestion for a Rule has been if conflicts exist between several cases their priority should be, giving deference to the oldest case in each instance,: (1) a 39:4-50 case, or a criminal matter; (2) traffic and all other matters before the court; (3) for police officers of the court: illness or vacation; (4) pro se illness/ vacation with certification.

Alternative to Adjournment: A statewide policy of ³ready/hold² shall be established whereby a court at its discretion may with regard to all matters to allow an attorney to indicate that he or she is ready to proceed on a case at a time certain during the scheduled session pending a disposition being reached in a matter in another court. After receiving such notice, the judge shall mark the matter ready/hold. The attorney shall have the obligation to communicate to the court as soon as possible if this commitment can not be met so that the case may be in the alternative be adjourned. Cases which are not marked ready/hold because of a conflict under this policy shall be adjourned.
One of my esteemed colleagues in the Mercer bar noted that a mandatory, strict form seems more concerned with docket control, not litigants rights. The AOC would require their form be submitted in all cases more than 4 days before the date. There is no procedure if an attorney is suddenly called to another court by a Superior Court Judge. I try Personal Injury cases. We are sometimes telephoned at 2pm to start a jury trial the next morning. We need a court rule to resolve these conflicts, but not forms forbidding adjournments. Courts should be instructed to adjourn matters for good cause regardless of the date the adjournment request is made.
The Supreme Court should also eliminate or relax the non-Court rule 60 day requirement of trying DWI cases. In contested DWI cases, especially DWI blood and drug cases, discovery sometimes takes two months to be supplied by the state police lab. A strict "refusal to adjourn" policy ignores this reality.
The AOC "form" proposal would also require defense counsel to call the adversary prior to asking for the adjournment. The municipal prosecutor works part-time in the court, often only at night for a few hours. They have their "real" office to serve their own clients. Most do not want to be bothered in their private office which simple adjournment requests or issues usually resolved by the discovery / records clerk in the police department. Why make underpaid municipal prosecutors handle more calls and do more work?

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Thank you for reading our newsletter!
Kenneth Vercammen
(Phone) 732-906-2180
(Fax) 732-906-2155
website: www.njlaws.com
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