Capitol Report

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June 8, 2020

NJSBA weighs in on proposed civil practice rule amendments

The New Jersey State Bar Association (NJSBA) last week commented on proposed rule amendments at the annual state Supreme Court public hearing. 

President Kimberly A. Yonta thanked the Court for holding the hearing. 

“This provides a meaningful opportunity for a free and open exchange between the organized legal community, the public and the Court on the recommendations of the Court’s rules committees, which help to shape the landscape of the legal system and administration of justice in New Jersey,” Yonta said.

Yonta addressed the Report of the Supreme Court Special Civil Practice Committee issued earlier this year, and lent support to the report on tax matters. NJSBA Treasurer William H. Mergner Jr. testified on rules affecting civil practice and relating to requests for admissions, motions in limine, form interrogatories and a proposed track V.

Special civil and small claims limits

Yonta addressed proposed amendments to Rule 6:1-2 concerning increases to the monetary limits in the Special Civil Part and Small Claims Section, which the NJSBA supports. Yonta urged the Court to consider raising the limits to $5,000 for small claims and $25,000 for special civil claims, to advance judicial expediency and expand access to the courts for litigants who may be deterred from filing these claim.

Proposed amendments to Rule 4:22-1—requests for admissions

The committee recommended that Rule 4:22-1 be amended to align with Federal Rule of Civil Procedure 36(a). While the NJSBA supports this concept, it recommended additional language to clarify that the rule does not permit a request for an admission of an expert or lay opinion as to the law, but to “opinions of fact.” The addition of the words “of fact” would align the New Jersey rule with the federal rule’s aim to eliminate requests to admit to the truth or accuracy of all opinions.

The justices engaged in an exchange with Mergner, specifically Justice Anne M. Patterson, asking whether this rule would not apply to expert witness opinions. Mergner focused on statements of facts within the opinion, stating that attaching an expert opinion and requesting an admission as to the opinion would not comport with the aim of the federal rule.

Proposed new Rule 4:28-5—motions in limine

Generally supportive of the new rule, the NJSBA highlighted a concern not addressed in the proposed rule, which requires dispositive motions to be decided prior to trial or to require motions to be heard in a “predictable, uniform matter.” In prior rounds debating this rule, the NJSBA submitted proposed language to separate in limine motions into simple and complex matters, to be treated accordingly. Such an amendment to the rule would “remove the inconsistency that can result” from referring these motions to judges who will not be trying the substantive case.

“Guidance is critical so that a predictable framework for litigating these issues is reliably available,” said the NJSBA in its comments to the report. “Otherwise, uncertainty about these issues will persist.”

Form A (personal injury) and A(1) (medical malpractice interrogatories)

The NJSBA urged the committee to reconsider its determination that a uniform request for a plaintiff’s Social Security number does not serve a legitimate court-related need. The committee’s recommendation to remove the request from form interrogatories could be problematic for defendant insurance carriers to meet their reporting obligations under the State Children’s Health Insurance Program (SCHIP), for example, or Health Insurance Portability and Accountability Act (HIPAA) releases to obtain medical records or to perform searches for prior accident claims.

Proposal for a track V in Law Division–Civil Part

Support was given to the proposal for a track V in the Law Division to allow for longer discovery periods, as had been requested by the NJSBA as a result of its Practice of Law Task Force. The NJSBA expressed gratitude for the committee’s consideration of this track, which would provide a limited application of the new track for complex cases. To further this aim, the NJSBA recommended a change that would require consent of the parties to extend discovery, rather than requiring a motion to end the extended discovery period and remove the matter from track V. Mergner recommended there be an end date to the extension of discovery deadlines, unless there is consent to extend it to both allow a fair resolution of the case and to limit the extensions for an efficient disposition of the matter.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.