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

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.”

Continue reading →

Before Applying A 30-Year-Old Decision To Modern Technology, A New Jersey Court References A Musical From The 1890’s

by: Peter J. Gallagher (LinkedIn)

In Pathri v. Kakarlamath, the issue before the court was whether a witness could testify via contemporaneous video transmission in a divorce trial. The trial court denied the witness’s request to do so and the issue went up on appeal, where the Appellate Division began its decision, naturally, by referencing Gilbert & Sullivan’s “The Major General’s Song” from The Pirates of Penzance:

In most respects, the bench and the bar might – with apologies to Gilbert and Sullivan – proclaim the court rules to be “the very model of a modern” set of civil guidelines. But, in one respect, the rules haven’t quite caught up to the technological revolution. So, feeling “plucky and adventury,” we granted leave to appeal to consider how a judge should assess a party’s request to appear at trial and present testimony by way of contemporaneous video transmission.

Pathri was a matrimonial action. Plaintiff and defendant, both of whom were originally from India, came to the United States in 2007. Plaintiff sued defendant in 2018 and moved back to India shortly thereafter. Defendant countersued for divorce. One week before the scheduled trial, plaintiff requested that he be allowed to appear and testify at trial via “contemporaneous video transmission” from India. He claimed he could not obtain a visa to enter the United States. Plaintiff opposed the request and the trial judge denied it, because it would “inhibit her ability to assess plaintiff’s testimony and credibility.” Plaintiff appealed.

The Appellate Division stayed the divorce trial and heard the appeal on an emergent basis. It vacated the trial court’s decision and remanded the matter back to the trial court with instructions on how to address the issue.

Continue reading →

On Amateur Chihuahua Breeding And Bailments

by: Peter J. Gallagher (LinkedIn)

After reading the opening paragraph of the Appellate Division’s decision in Rivera v. Canseo, I was hooked. Here it is:

[Plaintiff] owns a female chihuahua. Defendant . . . owns a male Chihuahua. [Plaintiff] and [defendant] reached an oral agreement to have their dogs mate. [Plaintiff] was to obtain puppies from the mating and [defendant] was to receive consideration for the use of his dog.

Interesting facts, check. Awkward references to uncomfortable subjects reminiscent of 1950’s health class videos – “obtain puppies from the mating” – check. And what exactly does it mean to “receive consideration for the use of his dog”? Needless to say, I was hooked.

[As it turns out, the consideration question was never answered. Plaintiff claimed that defendant was to receive “the pick of the litter if the mating ultimately resulted in the birth of puppies,” while defendant claimed he was to receive $500, “regardless of whether [plaintiff’s] dog was impregnated.” Because “[t]he exact nature of [defendant’s] expected consideration [was] not material” to the court’s decision, however, the dispute was never resolved.]

In Rivera, after plaintiff and defendant agreed to have their Chihuahuas mate, plaintiff brought her dog to defendant’s home, along with a supply of the dog food to which her dog was accustomed. According to plaintiff, her dog was in good health when she left her at defendant’s home. Clearly a hopeless romantic, “[defendant] placed [plaintiff’s] dog and his dog in the basement together” and locked the door.

Continue reading →

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.

Continue reading →

“But you yada yada’d over the best part!”

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

As any Seinfeld fan knows, you cannot “yada yada” over the best part of a story. But in a recent decision, a New Jersey court did just that.

In Barry v. Melmed Construction Company, Inc., the court spent eleven pages discussing a relatively routine case where defendant waived the right to enforce the arbitration provision in its contract with plaintiffs – defendant waited too long to raise the issue, actively participated in litigation in state court, etc. – but then dropped this bomb at the very end of the decision:

We acknowledge the anomaly of plaintiffs’ assertion that they are not bound by the arbitration clause their counsel drafted and they insisted be included in the contract between the parties, particularly in light of counsel’s apparent admission that he drafted the clause to allow plaintiffs to argue it could not be enforced against them. While not endorsing such conduct, we do not address it in light of defendants’ waiver of an arbitration remedy.

So let me get this straight, plaintiffs demanded that their contract with defendant include an arbitration provision, and then had their counsel draft the provision so that they could later argue that the provision could not be enforced against them?!? And the court waited until the end of the case, in a footnote no less, to bring this up?!? This was the most interesting part of the case! Reducing it to a footnote on the last page, and then not even discussing it substantively, is the judicial equivalent of “yada yada-ing” the best part of the story.