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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Jump Back! Parent Lacks Apparent Authority to Bind Someone Else’s Child To Trampoline Park Waiver

By: Peter J. Gallagher (LinkedIn)

When the history of arbitration agreements in New Jersey is written – OK, maybe that is an “if” more than a “when” – it will owe a great debt to trampoline parks. Over the past several years, New Jersey courts have issued numerous decisions regarding the enforceability of arbitration agreements at these parks. I have written about several of them – “Court Bounces Trampoline Park’s Arbitration Provision“, “Bounce Around the {Court}Room: Trampoline Park’s Arbitration Provision Deemed Unenforceable“, and “Arbitration Provision Bounced Again, Even After Kindred Nursing Decision“. (Note: These titles prove, if nothing else, that I am not very original.) In Gayles v. Sky Zone Trampoline Park, we have another entry on the list.

The plaintiff in Gayle was a child who attended a birthday party at the defendant trampoline park. The birthday boy invited several friends to the party, including plaintiff. The birthday boy’s parent told the other children’s parents that they could drop their children off and she would drive them to the party. Plaintiff’s parent took plaintiff’s mother up on the offer and dropped plaintiff off at the birthday boy’s house on the day of the party.

When the birthday boy’s mother arrived at the trampoline park with the children – her own and the other party-goers, including plaintiff – she was directed to a “waiver station,” where she completed and signed a waiver that included an arbitration provision. She testified at deposition that this process was “quick” and that she “completed the Agreement without reading it fully and without assistance from defendant’s staff.”

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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.

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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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Reason Number 2,345,789 To Have A Will

[Full disclosure: I don’t have a will. I know I should. And everyone tells me I should, even my doctor who reminds me, every year, at my annual check up that I need one. Yet I still don’t have one. But this post is not about me.]

In Estate of Travers, the trial court provided yet another reason why everyone should have a will. In that case, decedent passed away unexpectedly (and far too young). He died without a will, without a spouse, and without any children. His parents, who were divorced, agreed on every aspect of the administration of his estate except one — whether decedent should be cremated or buried. Because they could not agree, the court had to resolve the issue.

At the outset, the court noted that both parents had presented “reasonable explanations for their respective positions that [were] very personal to them and emotionally charged.” But, under New Jersey law, it was the “wishes and desires of the decedent, not the parents,” that governed.

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