Practice tip: Don’t coach your witnesses . . . during a break at trial . . . on tape . . . after the trial court warns you not to.

For a while, people enjoyed sharing interesting, and often cautionary, tales from Zoom hearings and trials. (Who can forget Zoom cat lawyer?!?) That doesn’t seem to be as much of a thing anymore, perhaps because we have all become more accustomed to and adept at virtual hearings. But a recent unpublished decision from the Appellate Division shows that there are still lessons to learn.

In Hernandez v. La Fortaleza, Inc., plaintiff sued defendant after she allegedly slipped on an “uneven and raised . . . walking surface” at defendant’s restaurant. The case was bifurcated and proceeded to a virtual trial on liability. Before trial, the judge instructed counsel on the logistics of the virtual trial, including where witnesses could be seated, who could be in the room with them, who could speak with them, and how exhibits would be presented to them. Plaintiff’s counsel indicated that plaintiff would be his first witness and that counsel would not talk to plaintiff about her testimony during her testimony, “even if they broke for lunch.”

During plaintiff’s testimony, plaintiff’s counsel shared his screen with plaintiff to show her a picture of defendant’s property. Counsel asked plaintiff to use the cursor on her computer to identify the location of the fall. Plaintiff had trouble doing so and it appeared to the trial court that someone else was in the room helping her. When asked, plaintiff confirmed that it was her husband. Because he was a co-plaintiff, the trial court allowed him to stay in the room but instructed him to stand where he would be visible on the screen. When plaintiff continued having trouble using the cursor to identify where she fell, the trial court recessed for lunch and instructed plaintiff’s counsel to “straighten out” the issues “with the exhibits and the utilization of the cursor.”

This is when things took a turn for the worse, at least for plaintiff and her counsel.

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So can I call myself a Super Lawyer or not? Either way, can I still wear my cape?

By: Peter J. Gallagher (LinkedIn)

You know it’s “award season” – at least the legal world’s version of it – when your social media starts to fill up with posts that sound like this: “So honored to be included as one of the ‘Worlds Most Awesome Patent Lawyers’ with 43 other members of my firm.” The question for New Jersey lawyers is whether otherwise innocent humblebrags like this actually run afoul of our Rules of Professional Conduct. Somewhat surprisingly, most of these posts do.

Under RPC 7.1, lawyers cannot make false or misleading statements about their services. It used to be that any statements comparing one lawyer’s services to other lawyers’ services were deemed false and misleading. And since superlatives like “best,” “super,” “preeminent,” “distinguished,” “top,” “leading,” and “top-rated” are inherently comparative, this meant that no lawyer could advertise that they were included on a list of, for example, “New Jersey’s Best Lawyers.”

This changed about a decade ago when RPC 7.1 was amended to allow attorneys to advertise about winning comparative/superlative awards like this, but only if: “(i) the name of the comparing organization is stated, (ii) the basis for the comparison can be substantiated, and (iii) the communication includes the following disclaimer in a readily discernible manner: ‘No aspect of this advertisement has been approved by the Supreme Court of New Jersey.’”

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Arbitration Award Vacated Because Arbitrator Hid Ownership Interest In Arbitration Service

by: Peter J. Gallagher (LinkedIn)

Arbitration awards are rarely overturned. The standard to vacate an award is high, and judicial review of awards is often unexacting. So when a court overturns an award, it is usually worth a closer look. And one recent decision from the U.S. Court of Appeals for the Ninth Circuit, Monster Energy Company v. City Beverages , LLC, is definitely worth a closer look. In Monster, the court vacated an arbitration award based on the “evident partiality” of the arbitrator. The main evidence of the arbitrator’s “evident partiality” was his ownership interest in JAMS, a fact he did not disclose before the arbitration. At the risk of revealing my own ignorance, I did not know that JAMS is owned, at least in part, by some of the neutrals who mediate/arbitrate cases through JAMS. But it is, and after Monster, those owners should disclose that relationship to the parties before beginning an arbitration.

The defendant in Monster was a beer distributor. In 2006, it signed an agreement with plaintiff to be the exclusive distributor of plaintiff’s energy drinks for 20 years in a specific geographical territory. But the agreement contained an out for plaintiff – it could terminate the agreement without cause if it paid a severance fee to defendant in an amount agreed upon by the parties in the agreement. Eight years after signing the agreement, plaintiff exercised this clause, paid the severance fee, and terminated the agreement. Defendant objected, arguing that the termination violated Washington’s Franchise Investment Protection Act.

The agreement between the parties contained an arbitration provision, requiring that any dispute be resolved by JAMS Orange County. After plaintiff served its arbitration demand, JAMS provided the parties with a list of seven neutrals. The parties chose their arbitrator from this list. The chosen arbitrator then provided a disclosure statement, which included the following: “I practice with JAMS. Each JAMS neutral, including me, has an economic interest in the overall financial success of JAMS.” The arbitrator also disclosed that he had arbitrated one matter for plaintiff in the past five years, and that he had ruled against plaintiff in that case, which involved a dispute between plaintiff and another distributor.

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Fee Dispute Between Counsel Inspires Court To Bemoan The Death Of The Practice Of Law As A Profession

by: Peter J. Gallagher (LinkedIn)

In the final scene of the movie Scent of a Woman, Al Pacino’s character defends Chris O’Donnell’s character, who is about to be expelled from the (fictional) prestigious Baird School. Among many other things, Pacino’s character exclaims: “I don’t know who went to this place. William Howard Taft. William Jennings Bryant. William Tell, whoever. Their spirit is dead, if they ever had one.” Similarly, although slightly less dramatically, a fee dispute between counsel in Meister v. Verizon New Jersey Inc. led the trial court to eulogize the law as a profession:

This unfortunate fee dispute, coming as it does in the midst of seemingly final negotiations of a settlement, should resolve, with certainty, any lingering doubt that the practice of law, that storied profession of Marshall and Jefferson and Lincoln, is really now just another capitalist enterprise.

The court walked these comments back, slightly, by acknowledging that “[t]he practice of law is not a hobby” and “[h]ard working and industrious counsel who take risks to advance a client’s case and to maximize a client’s recovery should be rewarded.” But it then immediately returned to its original thesis:

However, while lawyers may indeed make a client’s life better through their advocacy and vigilant protection of that client’s interests, they are uniquely able to make it seem as though they are not doing so when quarreling, as they are here, over who gets to spell out how much they should be paid from their paralyzed client’s recovery and why one is more entitled to do so than another.

This is probably not how the lawyers in the case hoped the court would start its opinion.

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Third Circuit Answers The Question: Can a Texan Living In Georgia Sue Two Dozen Florida Defendants In New Jersey Federal Court?

by: Peter J. Gallagher (LinkedIn)

I don’t usually write about personal jurisdiction because it is . . . well . . . a little boring. But I do enjoy creative legal arguments (including creative arguments about jurisdiction), so I am going to make an exception here.

The Third Circuit recently issued its decision in in Robinson v. Section 23 Property Owner’s Association, Inc., which is the latest in what appears to be a running battle between plaintiff and more than two dozen defendants arising out of the foreclosure of defendant’s mother’s home. The district court described the various lawsuits plaintiff filed as follows:

The subject of all of [plaintiff’s] cases, including this case, arises out of his residence at his mother’s home in Florida. Beginning with disputes over the enforcement of deed restrictions, such as parking and property maintenance, Plaintiff’s cases have evolved into claims against essentially every person or entity that has been involved either directly or indirectly in the ultimate foreclosure of the . . . house and his resulting eviction from the property. The main thrust of Plaintiff’s claims is that all the Defendants have conspired to illegally purchase his mother’s home and steal all of his personal and intellectual property inside. Plaintiff alleges that Defendants have done so to quash his investigation of their international money laundering and fraud scheme.

If this sounds like a Florida-centric dispute, it is. None of the defendants had any meaningful connection to New Jersey, so they all moved to dismiss plaintiff’s lawsuit for lack of jurisdiction. In response, plaintiff made several, traditional jurisdictional arguments, including that defendants were subject to jurisdiction in New Jersey because his mother currently lived in New Jersey and because she had filed for Chapter 7 bankruptcy in New Jersey and listed the Florida property as an asset in her bankruptcy petition.

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