A Judge’s Guide to Successful Discovery and Summary

A Judge’s Guide to Successful Discovery and Summary Judgment Motion Practice

#1 Each Civil judge in Monmouth County is responsible for the pre-trial management of 700-900 cases and must decide an average of 100 motions every two weeks.

#2 Given the amount of time that can be allotted to each motion, it comes as no surprise that concise, coherent and complete motions have the greatest likelihood of being granted.

#3 Unlike law offices where files are stored in the cabinet outside your office, all civil files are maintained in the Civil Division on the First Floor of the Court House.

#4 The court cannot store all of the motion papers filed on the 6,500 or so files that are active at any given point in time. Once a motion has been decided, the supporting papers will often be purged from the court’s file.

If any aspect of your motion is based on or refers to a previously filed Complaint, Answer, motion, brief, certification or order, you must attach a copy to your moving papers. If a document is import to your argument, provide it to the judge as part of your papers.

This is important because . . .

#5 Most civil judges do not have time to read motions in their chambers. They are usually on trial during the day and have to review their motions at home.

If the judge gets to the point in your motion where reference is made to a missing certification, order or pleading, he will probably stop reading it and move on to another one.

Judges do not like this.

#6 The problem with your late submission does not end when the papers leave your office.

Before any paper reaches the judge, it must be received by the Civil Division, logged into the court’s computer system, delivered to the judge’s chambers, reviewed by the judge’s law clerk – who is already deeply engrossed in reading the other hundred or so motions, oppositions, cross motions and replies that must be completed by Friday – and finally delivered to the judge.

There is still the problem of your adversary, who filed his motion on time and now has to scramble to put together a response and beg the court to accept it by fax, usually on Thursday afternoon or Friday morning.

#7 There is no such thing as a “Motion on Short Notice.”

The Rules do not provide for such an animal and they present an unnecessary burden to the court and adverse counsel. See #6.

#8 The time to fix the deficiencies in your motion papers is not on a motion for reconsideration.

The bar is higher . . .

“. . . The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.”

“Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.... Alternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence.” Cummings v. Bahr, 295 N.J. Super. 374, 401402 (App. Div. 1996).

If it wasn’t in the papers to begin with, but could have been provided, reconsideration will not be granted.

And finally - If you are taking the time to file a motion for reconsideration . . .




Attach a copy of the Order in question AND




Attach the court’s written opinion or the transcript of the court’s decision

The single greatest thing you can do to give your motion the best possible chance of being granted is to file it ON time and at the RIGHT time

ANOTHER BASIC TRUTH

#7 Monmouth County has the HIGHEST percentage of motions to extend discovery in the State.

Why do you think that is?




Lawyers confuse “professional courtesy” with permitting another lawyer to squander their discovery time?




Lawyers believe that they will be granted an unlimited number of extensions simply by asking?




Lawyers believe that their case will not get on the trial list for years so why rush to complete discovery?

Maybe it’s because they don’t realize that a motion to extend discovery is not always necessary . . .

“Except as otherwise provided by R. 4:174(e) [expert reports], if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order.”

“Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.”

“In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties.”

“Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court. . . .”

When plaintiff obtains additional medical treatment after the discovery end date, is a motion to extend discovery necessary before answers to interrogatories can be supplemented with the new report?

Not if there is a valid certification of due diligence accompanying the amendment.

Does receipt of the amendment constitute exceptional circumstances for the defendant who now wants a new IME?

Sure – but discovery does not have to be extended if the defendant is satisfied that no new IME or supplemental report is needed, as might be the case when the defense is that the injury wasn’t caused by the accident in the first place.

The Supreme Court has made it clear that it is their expectation that discovery end dates are to be enforced and that time lines established under the Rules will be followed:

The court can now disregard trial designation on Track I and Track II cases pending for more than 2 years (formerly 3 years)

This is important because . . .

Requesting multiple discovery extensions may age your case past the 2 year period and result in the loss of trial designation before the first trial date is even assigned.

The four tracks and their corresponding discovery periods are:

Track I (Expedited) – 150 days. These are usually non-jury cases such as book account or collection matters and contract actions and other similar cases.

Track II (Standard) – 300 days. Most personal injury actions (motor vehicle accidents, fall down accidents, etc.) fall within Track II.

Track III (Complex) – 450 days. Construction defect claims, product liability and professional negligence actions and other complex litigation falls within this track.

Track IV (Individually Managed) – 450 days. Class actions, environmental cases and other cases with a large number of parties that require individual case management by a judge.

The time period for completing discovery begins to run on the date the first Answer to the Complaint is filed or 90 days from the date the first defendant is served, whichever occurs first.

The parties may consent to extend the time for discovery for an additional 60 days by stipulation filed prior to the expiration of the discovery period.

The 60 day discovery extension by consent must now be submitted in writing with the stipulation that all parties have consented – telephone requests can no longer be honored

The request MUST be made before the discovery end date because . . .




Cases subject to mandatory nonbinding arbitration will receive an arbitration date




Cases not subject to mandatory non-binding arbitration will receive a trial date

Motions to add new parties (either by filing of a third-party complaint or joinder), motions to consolidate and motions to compel discovery or impose or enforce sanctions for failure to provide discovery must be returnable before the discovery end date.

Once an arbitration or trial date is set, the standard by which a motion to extend discovery is judged changes from “good cause” to “exceptional circumstances”.

Motions that are filed and returnable before the discovery end date are judged by a standard of “good cause”

(1) the movant's reasons for the requested extension of discovery; (2) the movant's diligence in earlier pursuing discovery; (3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems; (4) any prejudice which would inure to the individual movant if an extension is denied; (5) whether granting the application would be consistent with the goals and aims of "Best Practices"; (6) the age of the case and whether an arbitration date or trial date has been established; (7) the type and extent of discovery that remains to be completed; (8) any prejudice which may inure to the non-moving party if an extension is granted; and (9) what motions have been heard and decided by the court to date.

KEY POINTS THAT MUST BE COVERED IN YOUR MOTION TO EXTEND DISCOVERY

THERE MUST BE A REASON – EXPLAIN THE REASON TO THE COURT

“WE NEED MORE TIME” IS NOT A REASON

“DISCOVERY IS NOT COMPLETE” IS NOT A REASON

“The defendant recently learned . . .” – WHEN? “We only just discovered . . .” – HOW? “Documents have been requested on numerous occasions” – WHEN AND HOW MANY TIMES? “The depositions were adjourned” – WHEN AND BY WHOM? “The plaintiff is still treating” – WITH WHOM, FOR WHAT?

Show the court in detail that there is a valid reason why you have not been able to complete discovery within the initial time period and the 60 day extension.

DON’T JUST RECITE WHAT HAS BEEN DONE – GIVE THE TIME FRAMES THAT SHOW YOU HAVE BEEN DILIGENT THROUGHOUT THE DISCOVERY PERIOD

“The defendant has not answered the interrogatories I served 10 months ago” is NOT due diligence

If the other side in your case hasn’t responded to your discovery request in the time provided under the Rules

PICK UP THE PHONE!!!

Ask the other attorney when you can expect the discovery and diary it accordingly. If the other side still hasn’t provided discovery despite your efforts, file a motion under R. 4:23-5(a)(1).

“Depositions have been cancelled on numerous occasions” is NOT due diligence

Don’t squander your discovery time by constantly rescheduling depositions on “blind dates”

PICK UP THE PHONE!!!

If the other side does not appear on a mutually selected date, FILE A MOTION TO COMPEL THE DEPOSITION ON A DATE CERTAIN

If the other side files a motion to compel our client’s deposition, and the date is not convenient

ADVISE THE COURT BEFORE THE ORDER IS SIGNED

“Medical records have been requested but not received” is NOT due diligence

If medical records have not been received after an authorization has been served on the provider SERVE A SUBPOENA If the medical records still aren’t forthcoming FILE A MOTION TO ENFORCE THE SUBPOENA

“If a demand for discovery pursuant to R. 4:17 [interrogatories], R. 4:18-1 [Production of Documents], or R. 4:19 [IME] is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may, except as otherwise provided by paragraph (c) of this rule, move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. The motion shall be supported by an affidavit reciting the facts of the delinquent party's default and stating that the moving party is not in default in any discovery obligations owed to the delinquent party. Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice.”

Permitting a pleading to remain dismissed without prejudice does not stop the discovery period from running.

BE SPECIFIC “Plaintiff sustained serious injuries in the accident” does not tell the judge why your case is unique

“Plaintiff is still treating” does not tell the judge much of anything – is the plaintiff still going for massages or is he having plastic surgery to repair the scar?

“Plaintiff underwent arthroscopic surgery of her right shoulder on 2/1/08 and developed a postoperative infection which delayed rehabilitation for a period of 3 months (See office note of Ronald Smith, M.D., dated 5/5/08, attached as “Exhibit B”) tells the judge exactly why there has been a delay in obtaining a final report and supports the statement with medical evidence from the doctor







BE SPECIFIC

AVOID MULTIPLE MOTIONS


CALL YOUR ADVERSARY

ONE ORDER, WITH REALISTIC TIME FRAMES ADDRESSING ALL OUTSTANDING DISCOVERY, WILL AVOID THE NEED FOR “SERIAL” DISCOVERY EXTENSIONS

You represent the plaintiff in a fall down accident, and cannot get your liability expert report until the defendant has been deposed. The defendant’s attorney has cancelled the depositions twice due to “no coverage.” The solution to this problem is NOT another 90 day discovery extension in the hope that within that time defense counsel will finally stumble on a day when she is free.

The solution is a motion to compel the deposition on a date certain that will leave you sufficient time to serve your expert report.

You must show exceptional circumstances

“I learned last Thursday that my liability expert retired and moved to Tahiti and I need to get a new expert.”

“I didn’t think I needed a liability expert but now that I finally looked at the file, I realize I can’t get to a jury without one.”

Plaintiff injured her wrist in the accident and all efforts at conservative treatment have failed. Plaintiff is scheduled for carpal tunnel surgery on 7/1/08.

Dr. Smith recommended surgery on 7/1/07 and the plaintiff is deciding whether to schedule the surgery.




Serve a timely request for answers to interrogatories and written discovery




File a motion to compel discovery well before the discovery end day if the requested information is not forthcoming




Schedule depositions promptly since information obtained in the deposition may lead to a need for further documents or depositions or identify a new party who needs to be added

R. 4:24-1(c) requires you to attach ALL prior orders regarding discovery extensions, whether they were granted or denied . . .

NOT JUST THE MOST RECENT ORDER Don’t expect the court to hunt down the file to find the prior orders or to place a telephone call asking you to follow the Rule!

Unless you are “Miracle Max,” your motion is doomed to failure if the facts are against you.

TIMING IS EVERYTHING

All motions for summary judgment must be filed AND returnable not less than 30 days before the trial date.

“Lack of planning on your part does not constitute an emergency on mine”

1) Every motion for summary judgment must be supported by a Statement of Material Facts in which the movant sets forth the material facts that he claims are not in dispute. 2) Each fact is to be set forth in a separately numbered paragraph with a citation to the record. 3) Motions for summary judgment which do not conform to the above Rule may be denied without prejudice.




Plaintiff is moving for summary judgment on the issue of liability and sets or the following in his Statement of Material Facts: 1. Defendant admitted at the scene that he made a left hand turn in front of the plaintiff (see deposition of Patrolman Bob Smith, dated 7/2/04, 12:22-25, attached as “Exhibit A”). Compare 1.

The defendant negligently made a left turn in front of the plaintiff.




The second example is improper, since it is nothing more than an unsupported conclusion with no citation to evidence in the motion record.




By the time you file your motion for summary judgment, you and your adversary have been living with the case for a long time.




You know all the facts and are familiar with the legal issues.




The filing of your motion may be the first time the judge has ever heard about your case.







Identify the parties and their relationships to one another clearly and concisely Save your arguments for the brief – the statement of facts should be credible and objective Use exhibit tabs – do not make the judge search for a document that may be important



NEVER include argument or case citations in a Certification – that is what a brief is for



NEVER refer the judge to a deposition transcript without a citation to page and line – the judge will not have time to read the entire transcript to find the one line that supports your claim




If you are referring to one critical page in a long document, such as an insurance policy or contract, attach the entire document as an exhibit and then attach the important page as a separate exhibit

It is the obligation of the party opposing a motion for summary judgment to respond to the Statement of Material Facts in a responding statement in which he/she admits or disputes each of the facts set forth by the moving party. The moving party’s version of the facts will be deemed to be admitted for the purposes of the motion unless the opposing party disputes the facts in the same the form required under section (a) of the Rule.

This means that it is not enough to simply state that a fact is disputed or denied – the opposing party must cite to that portion of the record that refutes the purported fact and/or creates an issue of material fact.

BIGGER IS NOT ALWAYS BETTER

What the judge really wants to hear is -

-

A clear statement of the facts on which your motion is based A clear statement of the law and how it applies to those facts

Nothing will undermine your credibility with the court faster than having the judge find out that the case you’ve cited to him is no longer good law.

When it comes to successful motion practice –







Be concise Be credible Back up your position with the motion record and