Not An Open-Ended Issue: Judge’s Failure To Ask Open-Ended Questions During Voir Dire Is Reversible Error.

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

 Jury (pd)
In 2006 and 2007, the Administrative Office of the Courts issued directives addressing jury voir dires. The directives require, among other things, that trial judges ask jurors at least three open-ended questions that are designed to elicit a narrative response to which "appropriate follow up questions [can] be asked." These questions must be "posed verbally to each juror to  elicit a verbal response." The purpose of this requirement is to "ensure that jurors verbalize their answers so the court, attorneys and litigants can better assess the jurors' attitudes and ascertain any bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be impartial." The importance of the Administrative Office's directives was highlighted in two recent decision from the Appellate Division, both of which overturned verdicts rendered by jurors who were not asked at least three open-ended questions during voir dire.

In Heredia v. Piccininni, plaintiff sued after being injured in an automobile accident. Before trial, defendant stipulated liability, thus the only issue for the jury was damages. In advance of jury selection, Plaintiff submitted the following open-ended questions to be asked during voir dire:

  1. What are your feelings regarding the proposition that accidents resulting in serious damage to a vehicle may result in no bodily injuries and accidents resulting in little damage to a vehicle may result in serious bodily injuries?
  1. Describe by way of an example an experience in your life that illustrates your ability to be fair and open-minded in this case.
  1. Who are the two people that you least admire and why?
  1. What would you do about the homeless situation?
  1. What would you do about those without medical insurance?

The court did not include any of plaintiff's proposed questions in the list of questions used during voir dire. Instead, the trial judge asked each juror "multiple biographical questions required by the [Administrative Office]," including how they received their news, what their favorite television shows were, what bumper stickers they had on their cars, and how they spent their time. None of these were open-ended questions. Plaintiff's counsel used two of her six peremptory challenges during jury selection and, at the end of the process, advised the court that the jury was satisfactory.

After trial, the jury returned a verdict of no cause on plaintiff's non-economic losses (e.g., pain and suffering damages) but awarded plaintiff her economic damages, representing the full value of her outstanding medical bills. Plaintiff appealed, arguing, among other things, that the trial judge failed to ask any open-ended questions during voir dire.

Continue reading “Not An Open-Ended Issue: Judge’s Failure To Ask Open-Ended Questions During Voir Dire Is Reversible Error.”

No Pay, No Play: Defendant’s Failure To Advance Arbitration Fees Is A Material Breach Of Arbitration Agreement And Precludes Enforcement Of Agreement

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

Arbitration (pd)One of the more vexing procedural issues in arbitration arises when the other side refuses to pay its share of the arbitration fees. The arbitrator won't work for free so you are faced with a dilemma, advance the fees for the other side and try to recover them through the arbitration or have your arbitration dismissed. And, if you opt for the latter approach, can you then sue in court notwithstanding the admittedly valid and binding agreement to arbitrate? The New Jersey Supreme answered one aspect of this question in Roach v. BM Motoring, LLC, holding that defendant's refusal to advance arbitration fees as it was required to do under an arbitration agreement with plaintiffs was a material breach of the contract that precluded defendant from later trying to enforce the agreement.

In Roach, plaintiffs each purchased used cars, at separate times, from defendant. As part of their purchases, each signed a Dispute Resolution Agreement, which provided that "any and all claims, disputes or issues" would be resolved through arbitration. It further required that the arbitration be conducted "in accordance with the rules of the American Arbitration Association before a single arbitrator who shall be a retired judge or attorney," and that defendant would "advance both party's [sic] filing, service, administration, arbitrator, hearing, or other fees, subject to reimbursement by decision of the arbitrator."

After purchasing her car, Plaintiff Jackson filed an arbitration demand against defendant, alleging that defendant violated the Consumer Fraud Act. The AAA advised defendant that it was required to pay the applicable filing fees and arbitrator compensation, but defendant never did. Accordingly, the AAA declined to administer the claim and further advised (1) that it would not administer "any other consumer disputes" involving defendant as a result of defendant's failure to comply with the AAA's rules, and (2) that defendant should remove the AAA name from its arbitration agreement. Jackson never received a response from defendant's to her arbitration demand.

Continue reading “No Pay, No Play: Defendant’s Failure To Advance Arbitration Fees Is A Material Breach Of Arbitration Agreement And Precludes Enforcement Of Agreement”

Dismissal With Prejudice Too Harsh A Remedy For Expert’s Unavailability

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

Gavel (pd)There is often tension between a court's need to effectively manage its docket and the overriding objective that a lawsuit be resolved on its merits and not because a party (or its counsel) misses a deadline. Courts establish deadlines. If they are ignored, can the court — as a sanction, and in the interest of managing its docket — dismiss the lawsuit with prejudice? According to the Appellate Division in a recent unpublished decision, Trezza v. Lambert-Wooley, the answer to this question is "no," unless the noncompliance was purposeful and no lesser remedy was available to the court. 

In Trezza,plaintiffs sued defendants for medical malpractice. Three years after the lawsuit was filed, the court set a peremptory trial date. This was rescheduled when the court did not reach the case on the trial date. The trial did not take place on the rescheduled date or a subsequent rescheduled date, both times because defendant's designated trial counsel was unavailable. Thereafter, the Presiding Judge issued a sua sponte order scheduling trial for approximately four months later and setting forth "specific and stringent terms as to the course and conduct of the case relative to trial." The order mandated that: (1) the trial date would not be adjourned to accommodate the parties' or counsels' personal or professional schedules; (2) counsel was required  to monitor the schedules of their parties, witnesses, and experts, and if one or more were not going to be available on the trial date, arrange for a de bene esse deposition ahead of trial; and (3) if designated trial counsel was not available on the trial date, alternate counsel would have to be found, whether or not from the same firm.

Five days before the scheduled trial date, plaintiff's counsel requested that the trial be carried for four days due to the unavailability of plaintiff's liability expert, which he only learned about a few days prior to the request. Defendants' counsel consented to the request. The judge assigned to the case considered the request but, in light of the Presiding Judge's order, determined that he did not have the authority to grant the adjournment. He sent the parties to the Presiding Judge, who denied the request and directed the parties to proceed to trial. "Predicated upon the terms of the order, the age of the case, and plaintiff's expert's unavailability, the judge [then] dismissed the complaint with prejudice." Plaintiffs appealed.

Continue reading “Dismissal With Prejudice Too Harsh A Remedy For Expert’s Unavailability”

Does a judge have to explain the “empty chair” to the jury when there was never anyone sitting there in the first place?

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

Empty chairA recent trial court decision, Hernandez v. Chekenian, dealt with a minor, but significant, twist on a common scenario involving the so-called empty chair defense. This defense does not literally involve an empty chair. Rather it refers to the situation when defense counsel argues to a jury that someone else, someone not sitting at the defense table, is to blame for plaintiff's injuries. That party is usually, but not always, missing because they settled with the plaintiff.

The New Jersey model jury charges contain two settling co-defendant instructions. One is very short, and simply notifies the jury that a defendant settled and that "[t]he effect of that settlement on the parties still [t]here is of no concern to you at the present time and you should not speculate about that." The second is more detailed. It similarly notes that the jury should not "speculate as to the reasons why the plaintiff and defendant settled their dispute" and "should not be concerned about the amount, if any, that may have been paid to resolve the claim," but then instructs the jury to consider "whether or not the settling defendant was negligent and a proximate cause of the accident," and, if it does, to then "apportion fault in terms of percentages among/between the settling defendant(s) and the remaining defendant(s)." 

Hernandez involved a three-car, chain reaction crash. Plaintiff was the passenger in the middle car. He sued the driver and owner of the first car, the driver and owner of the middle car (in which plaintiff was a passenger), and the driver of the third car. Prior to trial, plaintiff dismissed the claims against the driver and owner of the first car and the claims against the owner of the second car. He then settled the claims against the driver of the middle car. That left only the claims against the driver of the third car for trial. Counsel for the one remaining defendant requested that the court give the jury a settling co-defendant charge.  

Continue reading “Does a judge have to explain the “empty chair” to the jury when there was never anyone sitting there in the first place?”

Reminder to Judges: No talking to jurors during deliberations

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

Jury (pd)
All lawyers know, or should know, that you are not allowed to have ex parte communications with a judge. A similar prohibition applies to judges, who are prohibited from having ex parte communications with jurors after the jury is empaneled. The unforgiving nature of this prohibition was at the forefront of Weber v. Patel, a recent unpublished Appellate Division decision.

Weber was a personal injury case. After hearing the evidence, the jury deliberated for approximately 90 minutes before purporting to return a 4-2 defense verdict. The judge responded: "Not a valid verdict. Five to one or six to zero. You've got to go back." The jury deliberated for a few more hours that day but went home without reaching a verdict. They returned the next morning at which point the judge had an ex parte conversation with them. According to the judge, one of the jurors asked the judge what would happen if they remained deadlocked. The judge responded that he would "worry about that in three days."

The judge told counsel about this conversation after it happened, but then confided that he would not really let the jury deliberate for three more days. Instead, he indicated that if the jury did not reach a verdict by the end of that day, he would likely find the jury "hung" and declare a mistrial. A little more than one hour after the judge spoke with the jurors, however, they returned a unanimous defense verdict.

Continue reading “Reminder to Judges: No talking to jurors during deliberations”

Citing Springsteen

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

Springsteen 2
Continuing with a Bruce Springsteen themed week as I return to regular blogging . . .

A few years ago, I wrote an article — Courts Can Make Better Use of 'The Boss" — about judges citing Bruce Springsteen's music. Here are the opening paragraphs:

Springsteen usually comes in third — behind Bob Dylan and the Beatles and slightly ahead of Paul Simon — on the list of musicians whose lyrics are most frequently cited in legal articles and judicial opinions. Several law review articles, and at least one symposium, have been dedicated to the characters in his songs, particularly those on the margins, living in the darkness on the edge of town.

These individuals are appealing to law professors and commentators, particularly those interested in social justice, because, as professor Abbe Smith noted in her article “The Dignity and Humanity of Bruce Springsteen’s Criminals,” Springsteen “takes the least popular, least sympathetic among us, and offers up their stories to teach us something about ourselves.” However, when judges cite Springsteen, something seems to get a little lost along the way.

The article then noted how one judge used the lyrics to "No Surrender" to describe a party's approach to discovery and another quoted "Badlands" in an insurance dispute about bags of coffee. Since I wrote this article, a few more judges have quoted Springsteen in their opinions, with mixed results.

One of the recent cases involved a repeat player! In my article, I noted that, in a 2011 decision, a Florida federal court judge had compared a party’s aggressive approach to discovery to the song "No Surrender" from "Born in the U.S.A.": “A ‘no surrender’ mentality may be perfectly appropriate for a Bruce Springsteen rock and roll song, but it is frequently unhelpful in litigation, as illustrated by the unfortunate scenario here.” Four years later, the same judge made a similar comparison in a different case: 

In the well-known “No Surrender” song released on his “Born in the U.S.A.” album, Bruce Springsteen noted, “Well, we made a promise we swore we'd always remember, no retreat, baby, no surrender.” Springsteen's “no surrender” philosophy may be fine for a rock and roll song about the importance of being true to one's own dreams and beliefs, but it is frequently unhelpful in litigation. It is particularly inapplicable and inappropriate here.

Miami Yacht Charters, LLC v. Nat'l Union Fire Ins. Co. of Pittsburgh Pennsylvania, 2015 WL 520846 (S.D. Fla. Feb. 9, 2015). Kudos to the judge for citing Springsteen, but I am still not sure if the comparison fits. 

In several other recent cases, however, the references to Springsteen were a better fit:

  • a California judge referred to "57 Channels (And Nothin' On)" when sympathizing with cable customers in a putative class action against the cable companies, among others, over licensing fees that increased the customers' bills: "With apologies to Bruce Springsteen, we appreciate the lament of cable television subscribers who feel that although they now receive 10 times 57 channels or more, mostly nothing's on that they wish to view." Fischer v. Time Warner Cable Inc., 234 Cal. App. 4th 784, 798 (2015); and
  • a federal judge in Pennsylvania cited "Glory Days" as an example of "a middle-aged man's wistful recollection of his youthful vigor." Flood v. Nat'l Collegiate Athletic Ass'n, 2015 WL 5785801 (M.D. Pa. Aug. 26, 2015).

As I was a few years back, however, I remain surprised at the lack of references to Springsteen's music from New Jersey state or federal court judges.

“Here’s the mail it never fails . . . :” Judge Posner Criticizes “Rhetorical Envelopes” In Which Judicial Opinions Are “Delivered To The Reader”

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

Judge (pd)[Apologies for the Blue's Clues reference in the title to this post.]

In his concurring opinion in a recent Seventh Circuit decision — United States v. Dessart — Judge Posner agreed with the majority's conclusions, but wrote separately to express his "reservations about some of the verbal formulas in the majority opinion." He did not "criticize the majority for reciting them" because, as he noted, they are "common, orthodox, even canonical." But he did criticize the "verbal formulas" themselves as being "inessential and in some respects erroneous" and thus, he urged, "ripe for rexamination."

What were the "verbal formulas" that Judge Posner was so keen to criticize? Just some of the legal standards that we see recited in opinions every day. For example, the commonly-used "abuse of discretion" standard, of which Judge Posner appears not to be a big fan. In his concurring opinion, Judge Posner noted that the majority defined this standard as including "among other missteps, 'material errors of law.'" This apparently did not jibe with Judge Posner's understanding of discretion and its abuse, as he explained:

Of course, material errors of law are potentially very serious, but what has that to do with discretion or its abuse? Common as the term "abuse of discretion" is in opinions dealing with appeals from district court decisions, I find it opaque. If the appellate court is persuaded that the trial court erred in a way that makes the trial court's decision unacceptable, it reverses. What has discretion to do with it? And "abuse" seems altogether too strong a term to describe what may be no more than a disagreement between equally competent judges – the trial judge and the appellate judges – that the appellate judges happen to be empowered to resolve as they see fit.

Similarly, he challenged the majority's similarly well-settled statement that an appellate court, when reviewing a trial court's decision to issue a search warrant, must afford that decision "great deference." (Among the issues in the Dessart case was whether a search warrant was supported by probable cause.) Judge Posner acknowledged that the standard comes from a Supreme Court decisions holding that "[a] magistrate's determination of probable cause should be paid great deference by reviewing courts," but questioned it nonetheless. First, he questioned why "great" deference should be afforded to such decisions since "warrants [are] usually issued by the most junior judicial officers – and often police or prosecutors can shop among magistrates for one who is certain or almost certain to respond affirmatively to a request to issue a warrant." Second, Judge Posner noted that "[n]othing in the [Fourth] amendment requires warrants – ever," therefore it was not fair, in Judge Posner's opinion, to conclude, as is often concluded, that the Constitution expresses a preference for searches conducted pursuant to warrants or to afford great deference to a trial court's decision to issue one.

Continue reading ““Here’s the mail it never fails . . . :” Judge Posner Criticizes “Rhetorical Envelopes” In Which Judicial Opinions Are “Delivered To The Reader””