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Why your Personal Injury Claims Require Immediate Attention from an Attorney?

Wed, 22 Aug 2018 05:51:08 GMT

New Jersey Standards for Appellate Review

John S. Holston. Jr. JAD (Ret)

In New Jersey, most personal injury actions (auto accidents, slip and falls, dog bites, medical malpractice, assaults, civil rights matters, and other claims) have a two year statute of limitations. This means you usually have two years from the date of the incident to file suit. However, there are often very important reasons that your personal injury claim will require the immediate attention of an attorney.

First, in many personal injury actions, the cause of the injury (for example an accident scene or a defective condition that was a tripping hazard) is evidence. As soon as the incident takes place, various things can happen that can change the evidence. It is the job of the attorney to take all reasonable steps to preserve the evidence so it can be accurately depicted and used later to pursue the client’s claim for damages. This may involve obtaining an investigator, securing photographs or video, or sending notice to potential defendants requiring them to preserve evidence.

Second, if a public entity (i.e. a municipality, county, the State, or any other government entity) is potentially liable for your injuries, your attorney may need to notify those entities within 90 days from the date of the incident, with very particular information about your claim. This allows the government entity to investigate what happened. The failure to adhere to this procedural requirement could result in you being unable to pursue any claim for damages at all.

Finally, with almost all personal injury claims, it is important for your attorney to gain an understanding of your case early in the process. Often, if an attorney can assemble and prepare your case well in advance of the statute of limitations date, it allows time for direct negotiation with the defendants and/or their insurance companies – thus permitting a good chance that your case could settle without the need of proceeding through a lengthy court process.

If you were injured and you believe another party may be responsible, you should call an attorney immediately in order to have your claim reviewed.

At Holston, MacDonald, Uzdavinis & Myles, we handle all types of personal injury claims – including: auto accidents, motorcycle accidents, slip and falls, medical malpractice, wrongful death, brain injury, dog bites, assaults, civil rights violations, product liability, and many other types of matters.

New Jersey Standards for Appellate Review

Wed, 02 Dec 2015 07:12:09 GMT

New Jersey Standards for Appellate Review

John S. Holston. Jr. JAD (Ret)

Once a trial judge or state administrative agency has executed a final judgment or order and a notice of appeal has been filed, the Appellate Division must look at the record below to determine whether error has occurred and whether, if error was made, appellate intervention is required. In making that determination, appellate judges must first determine the standard of review to be applied. This article principally addresses those standards in the context of trial court decisions in civil actions.

First, there can be no appeal from an oral opinion, only from a final judgment. Second, any evidence not before the trial court may not be submitted to the Appellate Division. Third, an appellate court will generally decline to decide an issue not raised below. See: Needer v Royal Inden Ins Co., 632 NJ 229,234 (1973). The reason is that an appellate court only reviews decisions that have already been made. Generally, the standard of review is based on the degree

of deference to which the allegedly erroneous decision of the trial court is entitled. As a general rule, questions of law addressed to the trial court are not entitled to deference and an appellate panel’s review of legal issues is de novo. See Manalapan Realty v Tnsp. Committee, 140 NJ 366, 378 (1995). Conversely, findings of fact and issues of credibility are required to be deferred to the court below if supported by sufficient credible evidence in the record. See: State v Locurto,

157 NJ 463, 470-71 (1999); Rova Farmers Resort, Inc v Investors Ins. Co., 65 NJ 474, 483-84 (1974). Lastly, the numerous rulings made during the litigation process, if they are within the trial court's discretionary authority, are measured against the standard of "mistaken exercise" or "abuse of discretion." Thus, an appellate court must defer to the trial courts exercise of discretion unless the trial judge pursued a manifestly unjust course, Gillman v Bally Mfg. Corp, 286 NJ Super 525 528 (App Div 1996), and the mistaken exercise prejudices the substantial rights of a party. Morning Ledger v Sports and Expo., 423 NJ Super 140, 174-175 (App Div 2011).

Therefore, if an appellant claims error and if the error was brought to the trial court’s attention, the appellate court determines whether there was error by applying the standard of review that governs that type of error. If the appellate panel determines there was error then it must decide if the error was harmful. If it was not, the appellate court will not reverse. If the alleged error was not raised at trial, the court first decides if there was error and then decides if it was plain error. Harmful and plain error are essentially the same and require the error to be “clearly capable of producing an unjust result.” R 2:10-2. A mere possibility of an unjust result is not sufficient. In the jury trial context, the possibility must be “sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.” State v Macon, 57 NJ 325, 336 (1971); Navarro v George Koch & Sons, 211 NJ Super 558, 570-71 (App Div 1986).

When error is alleged in the charge to the jury, the charge has to be read as a whole. The court will not read just the portion alleged as error. What is necessary is that the charge as a whole be accurate. State v Thompson, 59 NJ 396, 411 (1976). The issue for a court reviewing a jury charge is to determine whether the charge conveyed the law to be applied by the jury without being misleading or confusing and the ultimate test is whether the charge was clearly capable of producing an unjust result or prejudicing substantial rights. Magull v CB Commercial Real Estate, 162 NJ 449, 466 (2000).

An exception to the trial court discretion rule is if a judge makes a discretionary decision but does so under a misconception of the applicable law, The court need not grant the usual deference in such a situation but must consider the trial court’s action in light of the applicable law in order to avoid a manifest denial of justice. Kavanangh v Quigley, 63 NJ Super 153, 158 (App Div 1960).

However, non exclusive examples of discretionary decisions which are unlikely to be grounds for reversal include (1) a decision to grant or deny a motion for mistrial, (2) request for adjournment, (3) a decision to read or refuse to read testimony to the jury, (4) decisions on the admissibility of photographs, (5) a decision on sequestration of the jury; (6) decisions on recesses of the jury, (7) decisions on whether to send a jury back for further deliberations when it has stated it is deadlocked, (8) decisions on allocation of the assets available for equitable distribution, (9) decisions excluding or admitting evidence, (10) granting or denying motions for recusal, (11) decisions on motions for reconsideration, (12) decisions on whether to remove a trustee, (13) a decision to reopen a case after summations but before jury change, (14) decisions on whether to dismiss on forum non conveniens grounds, (15) decision on municipality's rejection of a bid that does not conform to specification or a formal requirement in non material aspects, (16) decisions to vacate a judgment, (17) decisions to award or deny attorneys fees, punitive damages or prejudgment interest (18) determination on how to try a malpractice case e.g. “trial within a trial” or some other recognized way, (19) a decision on what sanctions to impose for failure to obey a court order, (20) decisions on whether to extend the discovery period under Rule 4:24-1 (e), and (21) decisions regarding the admission or exclusion or expert testimony. The above non exclusive list of discretionary trial court decisions is generally committed to the sound discretion of the trial judge and they are reviewed on the “abuse of discretion” standard. What is required is that the judge must exercise sound discretion. Thus, the judge’s discretion is not unbounded and is not based on the particular predilection of the particular judge. What the appellate court does is review the trials court’s discretionary rulings for arbitrariness i.e. a decision not supported by a preponderance of the evidence in the record and where to sustain the decision a grave injustice would occur. In other words, the appellate court will reverse where the discretion has been “abused.”

As to the standard of review for error on questions of law, issues involving the interpretation of statues, ordinances, and contract terms are questions of law reviewed de novo. The same is true of whether to apply a statute retroactively. See: Troutman v Christie, 418 NJ Super 559, 566 (App Div 2011); Maeker v Ross, 430 NJ Super 79, 86 (App Div 2013); Kieffer v Best Buy, 205 NJ 213, 222 (2011).

Additionally, in reviewing a summary judgment order the validity of a trial court’s order is a legal not a factual decision and is considered de novo. Fernandez v Nationwide Mutual Ins, 402 NJ Super 166, 170 (App Div 2008). The same is true of review of motion orders to dismiss for failure to state a claim for which relief can be granted under Rule 4: 6-2 (e) (See Seidenberg v Summit Bank, 348 NJ Super 243, 250 (App Div 2002)) and a courts’ decision on involuntary dismissals under Rule 4:37-2 (b), motions for judgment under Rule 4:40-1 and the determination of whether to submit a punitive damages issue to the jury. See Luczak v Twp of Everham 311 NJ Super 103, 108 (App Div 1998); Frugis v Bracigliano, 177 NJ 250, 269 (2003); Dong v Alape, 361 NJ Super 106, 111 (App Div 2003).

Municipal Court decisions are appealed first to the Law Division. R 7: 13-1. The review by the Law Division is de novo on the record. The issue in the Appellate Division is whether there is sufficient creditable evidence in the record to uphold the findings of the Law Division. Rule 7:13-1. The issue in the Appellate Division is whether to uphold the findings of the Law Division, not the municipal court. State v Johnson, 42 NJ 146, 163 (1964).

As to a trial court's upholding or reversing a decision of a local body or board, the general standard for review is the abuse of discretion standard. The trial judge starts by recognizing that the legislature has vested the municipality with the discretion to make the decision involved, and that a rebuttable presumption exists that the municipality has properly executed its discretion, (Harvard Enterprises Inc v Bd of Adj of Madison, 56 NJ 362, 368 (1970). Thus, the trial court may not substitute its judgment for that of the municipal body, unless it is proven that the action was arbitrary, unreasonable or capricious. See Kramer v Board of Adj of Sea Girt, 45 NJ 268, 296-97 (1965).

The appellate court must therefore give deference to the municipality’s broad discretion and reverses only if the municipal action was arbitrary, capricious or unreasonable. Booth v Board of Adj of Rockavery, 50 NJ 302, 306 (1965). The general rule stated above applies to judicial review of decisions by municipal bodies in zoning variance cases.

There are two exceptions to the general rule requiring that a court defer to the municipal body’s discretion and reverse only for arbitrariness. First, where the municipal body has not made a discretionary decision but has merely interpreted an ordinance. No discretion is given because the interpretation of the law is a legal decision not a factual one. Cherney v Zoning Bd of Adj of Matawan, 221 NJ 141, 144-45 (App Div 1987). Second, a planning board is often called upon to review applications for site plans, subdivisions and conditional uses (as opposed to variances). These types of applications are based on municipal ordinances which provide definite specifications and standards. If these standards are met, a planning board lacks authority to deny approval. PRB Enterprises, Inc v South Brunswick Planning Board, 105 NJ 1, 7 (1987). Thus, the appellate court gives deference to the planning board only if the ordinance confers discretion to the planning board.

This article is a capsule of the standards of review an appellate court employs in reviewing a lower court’s final judgment or order. The application of the standard of review is how an appellate court decides whether error has occurred and, if it has, whether it warrants reversal or modification.

Matters to Consider When Contemplating an Appeal to the Appellate Division from an Interlocutory Order

Wed, 02 Dec 2015 06:46:43 GMT

New Jersey Standards for Appellate Review

John S. Holston. Jr. JAD (Ret)

Before one can appeal to the Appellate Division from an interlocutory order, leave to appeal must be granted. R. 2:2-4. If an appellant files a notice of appeal from an interlocutory order without leave, the appellate court usually dismisses. However, the court need not dismiss an appeal from an interlocutory order erroneously filed as of right. It can grant leave to appeal nunc pro tunc in its discretion. Ibid.; Kerr v Kerr, 129 NJ Super 291, 293 (App Div 1974). Nonetheless, leave to appeal will not be readily granted, particularly where the appellant files a notice of appeal before

seeking leave. Frantzer v Howard, 132 NJ Super 226, 227 (App Div 1975).

Applications for leave to appeal are made by Motion for Leave to Appeal in accordance with Rule 2:8 -1. An original and 3 copies of the motion along with a brief conforming to the requirements of Rule 2:6-2 (a) with appendix attached in accordance with the requirements of Rule 2:6-10 must be filed with the Clerk of the Appellate Division within 20 days after service of the order being appealed. (Remember that there must be an Appealable judgment or order before the Appellate Davison has jurisdiction to consider the motion. Therefore, the party seeking to appeal must apply to the trial court for an order memorializing the ruling being appealed). Cross-Appeals from an Order as to which leave to appeal has been granted must be filed within 10 days after services of the Order of the Appellate Division allowing the appeal. Remember also that an application for leave to appeals does not stay automatically either the order being appealed from or continuation of the trial proceeding. However, the trial court can grant a stay and the trial court’s refusal to stay can be reversed.

The motion also must be filed on the trial judge or administrative officer who entered the order being appealed. The judge or administrative officer has 5 days, if no verbatim record was made, to file a written statement of reasons for the ruling embodied in the order and may amplify any previously made statement of reasons.

Rule 2:2-4 sets forth the standard of review for granting leave to appeal. The motions are decided by 2 judge panels. Rule 2:8-1. Rule 2:2-4 provides that the Appellate Division may grant leave to appeal from interlocutory orders “in the interest of justice.” The power to grant is “highly discretionary” and is exercised only “sparingly.” Interlocutory appeals from evidentiary rulings or discovery orders are almost never granted. The reason is that piecemeal review runs counter to the judicial philosophy that favors an uninterrupted proceeding at the trial level with a single and complete review of a final judgment or order (except where there is a double jeopardy consequence in a criminal action). To have a final order appealable as of right the order or judgment must generally be final as to all issues and to all parties.

The denial of a motion for leave to appeal does not prejudice the right to review the issue when there is appeal from a final judgment. Also, if an appeal is granted, it is limited to the order before the appellate panel and not other orders entered in the action. Additionally, in deciding whether to seek leave to appeal, review Rule 2:2-3 (a) (3) which specifies certain types of matters which will be treated as final judgments for appeal purposes and will be considered as appeals as of right.

The bottom line is that because interlocutory adjudications are appealable only on leave granted pursuant to Rule 2:5-6, consideration should be given to the following factors before deciding whether to seek leave to appeal from an interlocutory order.

An interlocutory appeal is not appropriate to correct minor injustices. When leave is granted there must be the possibility of some grave damage or injustice resulting from the trial court's order. Examples would be where a trial court grants, continues, modifies or dissolves an injunction, appoints a receiver, refuses an order to wind up an existing receivership, or refuses a protective order involving trade secrets or businesses customer lists. See Romano v Maglio 41 NJ Super 561, 567-68 (App Div 1956).

An interlocutory order may also be granted where the appeal, if sustained, will terminate the litigation and thus very substantially conserve the time and expense of litigation and the courts. Examples are where the appeal will resolve a fundamental procedural issue such as jurisdiction of

the court, federal preemption, lack of in personam jurisdiction or an order that effectively dismisses a party’s claim or defense.

The caveat is that the moving party must establish at a minimum that the appeal has “merit” and “justice” calls for interference by an appellate court. See Brundge v Estate of Carambro, 195 NJ 575, 598-600 (2008).

Behind the Scenes Process for Deciding Appeals in the Appellate Division

Wed, 02 Dec 2015 06:34:40 GMT

New Jersey Standards for Appellate Review

John S. Holston. Jr. JAD (Ret)

Twelve appeals arrive at each Appellate Division judge’s chambers every week, usually in 3-4 boxes. The 8 Appellate panels, known as parts, consist of 4 judges each. The appeals are assigned by the presiding judge of each part to three judges on the part. The reason is because every fourth week is a “free week” given to the judge not assigned appeals that week so that judge can finish writing the judge’s outstanding opinions. It is known among the appellate judges as a “catch-up week”.

Each judge is assigned by the Appellate Division Part’s presiding judge 9-10 of the twelve appeals to review. Each judge, at a minimum, before oral argument reviews for each appeal the Notice of Appeal, the trial judge’s opinion, either written or a transcription of the judge’s oral opinion, the appellant’s and respondent’s briefs, and the pertinent exhibits in the appendices relevant to the issues on appeal.

The judge for the more complicated appeals and those with a voluminous record (multiple transcripts) will also have the advantage of a Central Research memo or a law clerk memo. Central Research is a group of career lawyers (16+) employed by the Appellate Division Clerk’s office. The lawyers are generally specialists in the particular areas of the law in which they author a memo. The memos are provided to each of the judges assigned to review the appeal to which the memo pertains. The same is true of the law clerk memos. The presiding judge of the panel assigns to each appellate division law clerk for the judges on the panel, the responsibility to write a memo for the appeal assigned to him or her. The clerk writes the memo not only to the judge for whom he/she is clerking but to every other judge on the panel.

Both the Central Research and law clerk memos make specific reference to the record, statutory and case law citations for the rule of law suggested as applicable to the issue on appeal and contain a recommendation as to how the appeal should be decided and why.

Each judge emails the judge’s “pinks” to his/her side judges. The day or night before the scheduled oral argument, each judge reads the pinks from the judge’s side judges, the Central Research or law clerk memos, if there is one, and rereads his/her own “pink” in preparation for the conference among the side judges, which is held 1 1/2 to 2 hours before the start of the scheduled oral arguments. (Several of the appeals will not have a Central research or law clerk memo). The judges discuss with each other, not only the appeals to be orally argued, but also those appeals submitted for decision without oral argument. After discussion, the judges assigned to each appeal preliminary arrive at a consensus as to how each issue on appeal should be decided.

If, as among themselves, questions still exist as to how the appeal should be decided, the judges discuss the questions they believe should be directed to the attorneys at oral argument and they make certain those questions are answered during the oral argument.

After the argument, the judges again conference with each other as to whether the argument has changed in whole or in part their preliminary assessment as to how the appeal should be decided. When they finally arrive at agreement, the presiding judge assigns each judge 4 opinion to write. If a judge strongly disagrees with his/her side judges, the judge can write a dissenting opinion or is he/she agrees but for a different reason, a concurring opinion. A dissenting opinion creates an appeal as of right to the Supreme Court. Rule 2:2-1 (a) (2).

Sometimes, while writing an opinion, which necessarily requires a closer analysis of the law to the facts, the judge assigned to write the opinion may decide the panel’s initial determination was incorrect and is not sustainable. The judge then calls his/her side judges and they re-conference the appeal via telephone. Sometimes, the resolution of the appeal changes, is modified, or after further discussion, remains the same.

After the judge assigned to write the opinion drafts it (called a “green” because it is on green paper) but before he/she submits it to the judge’s side judges for approval (called “signing-off”), the judge gives it to his/her clerk for editing. The law clerk checks the accuracy of citations, the opinion for history and factual accuracy, (this requires checking trial and deposition transcripts), sentence structure, spelling, punctuation, juxtaposition of the paragraphs within the opinion and clarity to the reader. This often requires limiting the opinion to the facts on appeal unless the panel seeks to make a broad new statement of the law, which will be cited in the future as precedent as to the issue involved in the appeal.

When satisfied with his/her “green” after 2-4 revisions, the judge submits it to the “side” judges seeking to have them “sign-off” on the opinion. The side judges generally call the judge who authored the opinion, discuss the opinion, usually suggest and sometimes require as a condition of their “sign-off” changes. Some suggested changes are substantive and others simply stylistic. Some deal with choice of words, grammar, or punctuation e.g. placement of a comma and some concern the substantive law applicable to the issues on appeal.

After each side judge (2 if a 3 judge opinion and 1 if a 2 judge opinion) signs off, the judge authoring the opinion converts it to a “white”, (meaning on white paper) with the side judge’s suggested changes incorporated in the opinion and submits it to the Appellate Division clerk for filing and distribution to the attorneys or pro se parties on the appeal. If the presiding judge approves and it is a 3 judge opinion, (the presiding judge decides before the “pinks” are written whether the issues warrant a 3 judge or 2 judge opinion) the opinion can be published. The authoring judge can ask that it be published or the presiding judge may suggest its publication. However, before it can be published all of the side judges must agree the opinion is worthy of publication. Occasionally, publication is rejected because it is thought to simply represent the application of well established law to the facts on appeal and not the establishment of a new procedural or substantive rule of law or clarification of an unclear legal principle. If the opinion is published, it is a signed opinion. Non-published opinions (the vast majority of the 110 ± opinions written by each judges during the court year) in the Appellate Division are per curium and do not bear the name of the judge who wrote the opinion.

Every Appellate Division opinion is written by the judges themselves, not their law clerks. It is a tedious process designed to produce the most thoughtful and accurate opinion. Every judge writes 100 ± opinions between September and June and an additional 10 ± opinions during the summer session. The judge reviews 220 ± opinions written by the judge’s “side” judge. On occasion, the judge through an opinion becomes

involved in the development of the law because the opinion addresses a heretofore uncharted area of the law.

holstonlaw

Why your Personal Injury Claims Require Immediate Attention from an Attorney?

﻿ New Jersey Standards for Appellate Review ﻿

New Jersey Standards for Appellate Review

﻿ New Jersey Standards for Appellate Review ﻿

Matters to Consider When Contemplating an Appeal to the Appellate Division from an Interlocutory Order

﻿ New Jersey Standards for Appellate Review ﻿

Behind the Scenes Process for Deciding Appeals in the Appellate Division

﻿ New Jersey Standards for Appellate Review ﻿

New Jersey Standards for Appellate Review

New Jersey Standards for Appellate Review

New Jersey Standards for Appellate Review

New Jersey Standards for Appellate Review