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

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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Words of Warning: “If you promise the police that you will take charge of a drunk driver and his or her car, you will be counted on to do so.”

By: Peter J. Gallagher (LinkedIn)

From the Appellate Division comes another case that sounds more like a law school hypothetical than real life. Here is the scenario: A driver is pulled over for a traffic offense. Signs point to the driver being intoxicated, but the police don’t conduct a field sobriety test. Instead, the officers allow the driver to call a friend to drive him home. The driver’s friend arrives and assures the offices that he will take the driver and his car “safely to a residence” (note: whether the friend promised to take the driver “home” is not clear). Unfortunately, on the way to the “residence,” the drunk driver convinces his sober friend to let him drive again. The friend agrees and leaves the car. The driver takes control and later gets into a serious accident. The question is whether the friend can be civilly liable for the accident along with the drunk driver and others. The answer from Diaz v. Reynoso . . . maybe.

In Diaz, four friends – Reynoso, Dominguez, Gonzalez and Paredes – went to a rooftop party in Fort Lee and then an Argentinian restaurant in Englewood. Reynoso admitted to having at least two cocktails, a shot of tequila, and two beers at the restaurant. When they left the restaurant, the four friends split up – Reynoso left in his car with Gonzalez as a passenger, while Paredes left in his van with Dominguez as his passenger.

Shortly thereafter, police officers stopped Reynoso’s car after they observed it travelling the wrong way down a one-way street. After speaking with Reynoso , one of the officers asked Reynoso if he felt capable of driving. He said he did, but also offered to call someone to pick him up. The officer “responded that would be preferable.” The officers did not administer any field sobriety tests on the driver.

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Zoom! Zoom! Zoom! Only One Witness In The Room (For Remote Trial Testimony)

By: Peter J. Gallagher (LinkedIn)

Just before the pandemic turned nearly all New Jersey courtrooms virtual, the Appellate Division issued its decision in Pathri v. Kakarlamath, which dealt with the standards trial courts should use to assess a party’s request to appear remotely for trial. I wrote about it here “Before Applying a 30-Year Old Decision to Modern Technology, A New Jersey Court References A Musical From the 1890’s.” Who knew at the time how timely that decision would become?

Now the Appellate Division has revisited the issue (minus theatrical references). In D.M.R. v. M.K.G., the Appellate Division acknowledged the issues courts have faced since Pathri , and addressed the challenge of ensuring that remote hearings are as fair as possible:

Little did we know that within two months our entire court system would begin to rapidly transform from in-person to virtual court proceedings, utilizing various remote video and telephonic platforms, in an effort to continue operations amid the social distancing measures necessitated by the COVID-19 pandemic. Since that time, New Jersey Courts have operated primarily remotely via platforms like Zoom, Microsoft Teams, and telephone conferences, with the goal of preserving the quality of justice our courts have traditionally striven to provide when court was conducted in-person. Trial courts and staff have undertaken a herculean effort in rising to this unprecedented challenge. However, despite their efforts, the formality of the courtroom can fall away. Everyone may not have the same access to technology. These proceedings often involve unrepresented litigants unfamiliar with court proceedings, which presents its own challenges now amplified by the virtual proceeding. Moreover, judges do not have the same mechanisms to control the proceeding that they would have in a live courtroom

It was “through this lens” that the Appellate Division addressed the issues in D.M.R.

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The “D” in DWI may not mean what you think it means.

by: Peter J. Gallagher (LinkedIn)

The Appellate Division recently invoked the great Inigo Montoya in a decision on New Jersey’s law against “operating a vehicle while under the influence.” (For those who don’t know Inigo Montoya from The Princess Bride or are unfamiliar with his famous observation – “You keep using that word. I do not think it means what you think it means” – shame on you, but also click here.) In State v. Thompson, defendant argued that he could not be convicted for operating a vehicle while under the influence because he was only sleeping in his car when police found him, not driving the car. The court rejected this interpretation of the key word, “operating,” and published its decision because defendants continue to make this same argument even though the Supreme Court and Appellate Division have consistently rejected it.

In Thompson, police were called to a 7-11 after a man was observed sleeping in his car in the parking lot. The engine was running. When the officers approached, they noticed a half-eaten sandwich and several prescription bottles on the front seat. They also smelled “a strong odor of alcoholic beverage.” Defendant said he had been sleeping for 30-40 minutes and admitted having had a “couple of drinks.” After he failed several field sobriety tests and was taken to the police station, he acknowledged that he was under the care of a physician and had been prescribed Methadone, Hydrocodone, Xanax, and Cymbalta. He also confirmed that he had two drinks in a three-hour period.

Based on all of this, the Appellate Division was convinced that a reasonable juror could conclude that defendant was intoxicated when he was sleeping behind the wheel of his parked car. The only question was whether sleeping in a parked car with the engine running qualifies as “operating” a vehicle while under the influence. As the Appellate Division observed: “Although a violation of N.J.S.A. 39:4-50(a) is commonly referred to as a DWI violation (‘driving while intoxicated’), the statute actually makes no mention of ‘driving’ as a fact that must be proven in order to convict an individual for this offense.”

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“This case is about the mattress and a pen”

by: Peter J. Gallagher (LinkedIn)

Maybe it is because I was a journalism major in college, but I am a sucker for a good lede. The district court’s decision in West v. Emig has a great one. It begins:

Christopher H. West is an inmate who has frequently ingested inedible objects. During his incarceration, he has eaten the foam from inside his mattress, and he has also swallowed writing instruments, including pens. This case is about the mattress and a pen.

I was hooked, but then it got even more interesting.

Plaintiff claimed that, at two different prisons, employees removed the mattress from his cell “after he ingested foam from inside [the] mattresses.” Instead of following the grievance policy, which is typically required before an inmate can sue, West sued two former prison employees in federal court in Delaware, seeking $5 million in damages from each. He argued that he could not pursue his administrative remedies because, you guessed it, “the prisons denied him a pen needed to complete the prison grievance form – albeit for his own safety.” In other words, they removed his mattress because he ate the mattress foam, but he could not file a grievance about that because they previously removed his pen because he had a habit of eating his pens.

When plaintiff sued, defendants moved for summary judgment. They raised four defenses, including failure to exhaust administrative remedies. The district court only addressed that defense, and granted defendants’ motion based on it. Plaintiff appealed, and the Third Circuit reversed.

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