January, 2011, No. 1

Does The LAD Protect An Employee When She Copies An Employer's Confidential Documents To Support Her LAD Case? Maybe yes, maybe no – kinda of a trick question. In Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010), the Supremes held that when trial courts evaluate whether such activity receives LAD protection, they must consider the totality of the circumstances and seven factors: (1) how the employee obtained the documents, (2) what the employee did with the documents, (3) the nature and content of the documents, (4) whether the company has a clear confidentiality policy, (5) the circumstances related to the disclosure, (6) the strength of the reason why the employee copied the documents, and (7) consideration of the LAD's broad remedial purposes. In Quinlan, the plaintiff filed a claim of gender discrimination based on the allegation that the defendant promoted a less qualified man over her. In support of her claim, the plaintiff copied 1800 pages of confidential documents and provided them to her attorney to support her claims. The Supremes applied the balancing test, and concluded that the jury's verdict on the retaliation claim was proper. With the assistance of the documents, the plaintiff obtained a judgment of approximately $10.4 million. This test provides a great deal of discretion to the trial courts, and the Supremes' ruling should be applauded for creating a common sense approach to evaluating whether this type of conduct is protected or not.

Legislative Update: Many of you may recall our dismay over the Supremes' decision in Fernandez v. Nationwide Mutual Fire Insurance Co., 199 N.J. 591 (2009), which held that a PIP insurer's right to reimbursement against an insurer of a commercial car takes precedence over a plaintiff's lawsuit for damages. Both the Senate and Assembly have responded by passing S-191 to overrule Fernandez. S-191 provides that an insurer's right to recovery "shall be subject to any claim against the insured tortfeasor's insurer by the injured party and shall be paid only after the satisfaction of that claim, up to the limits of the insured tortfeasor's motor vehicle or other liability insurance policy." Three cheers. Just waiting for the Governor's signature.

CLOSING QUIZ: The following questions and answers can be found in Romano v. Stubbs, Slip Op. A-5355-08T3 (App. Div. Dec. 16, 2010).

Question 1. Can You Use Power Point Slides During Your Closing? The simple answer is yes, BUT if you want to use slides to highlight your closing argument, show them to the court and your adversary in advance of the closing. You are permitted to wait until after your adversary closes so that he or she does not know what you are going to say. For those of you saying that you should not need to show the slides, you are wrong. The fact is that you should always show your adversary and the court an exhibit or document before showing it to the jury.

Question 2. Can You Attack the Other Attorney? When you start with the premise that closings are supposed to be arguments premised on the evidence, the answer becomes obvious – NO.

Question 3. Can You Ask the Jury To Send A Message? Similar to #2, and gain, the answer is NO.

Question 4. Can A Plaintiff's Attorney State That Defendant Refuses To Accept Responsibility For Causing An Accident? No because a defendant has the right to defend himself before a jury. A lawyer cannot say that the reason we are in court is that defendant refuses to accept responsibility for causing plaintiff's injuries.

Practice Tip: Romano and other recent decisions on closings make it clear that attorneys may advocate based on the evidence, but that attacks on attorneys or parties are not proper. Thus, you should object when arguments are not based on the evidence, and should oppose any suggestion that a closing is not evidence, but only argument.

Correction: Believe it or not, but our editors missed a grammatical error in last month's update. We want to thank Albert Cohn for noticing the error. We wrote: "You are probably thinking that I am making up trick questions, but it is the Supremes, not me ...." We should have said not I. Thanks to Albert for noticing!

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil related story, please contact me at (201) 918-3560, (f) (201) 845-5973, or e-mail mjepstein@theepsteinlawfirm.com.

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