May, 2011, No. 4

Can a Trial Judge Reduce (Remit) a Verdict Based on Its Feel of the Case? According to a 3-2 Supreme Court, yes. In He v. Miller, 2011 N.J. Lexis. 573 (2011), the plaintiff claimed that she sustained spinal injuries from an automobile accident with the defendant. The jury returned a verdict for plaintiff, and compensated plaintiff for (1) $110,000 for past wages, (2) $500,000 for future lost wages, (3) $1 million for pain and suffering, and (4) $100,000 for the husband's lost consortium. The trial court granted defendant's motion for a remittitur, and reduced the verdict for pain and suffering to $200,000 and the lost consortium to $20,000. The trial court reached this conclusion because it found that the plaintiff did not seem to be affected by her injuries during the trial and because the plaintiff did not have the surgery that was recommended. The Appellate Division reversed and remanded for more specific findings. On round 2, the trial court reviewed two cases that it had presided over and six verdicts submitted by the defendant. Although the trial court acknowledged that the cases differed from the case before it, it maintained its remittitur based on its "feel of the case," experience as a trial attorney, and the cases reviewed. The Appellate Division reversed again. The Supremes granted certification, but Justices Long and Lavecchia recused themselves. Judge Stern, temporarily assigned, recused himself, and Judge Skillman heard the oral argument with Justices Hoens, Rivera-Soto, Rabner, Albin. After oral argument, Judge Skillman was replaced by Judge Wefing – for those of you who need a scorecard, I AGREE. For a significant case that changes the jurisprudence on remittitur, the Supremes were comprised of 4 justices and an Appellate Judge. Well, the Supremes reversed 3-2 with Judge Wefing being the deciding vote. In reversing the Appellate Division, the Supremes determined that the trial court provided a sufficient basis to reduce the verdict. The Supremes explained that remittitur is reserved for those cases that shock the judicial conscience, and is not to designed to impose the trial court's view of the case for a generous jury award. The Supremes specifically ruled that the feel of the case is a proper consideration when evaluating motions for remittitur along with cases with similar injuries and facts. Although the decision maintains the shock the judicial conscience standard, the Supremes have opened the door to more motions for remittitur and for no "real" standard. The problem with feel of the case and the trial court's observations of the plaintiff is that they are inconsistent with the jury's findings and not evidence and not in the record. Moreover, no database exists that addresses what cases are worth – unless and until we have a true comparison of injuries based on a person's age, it is very difficult to compare cases. If this case stands, expect to see many more motions for remittitur, and more appeals to have the Appellate Division determine whether the value is appropriate.

Break in Trials in August. Discussions between the Civil Practice Committee of the Bergen County Bar Association and Civil Presiding Judge Robert L. Polifroni, have produced some good news for civil trial practitioners. This summer, Judge Polifroni has determined that there will be no civil trials during the two weeks preceding Labor Day. During the week of August 15, 2011, jury trials will occur, but preference will be given to expedited cases and short trials where all parties are ready to proceed. Counsel are encouraged to contact the Civil Assignment Office if all involved would like to take advantage of the opportunity to have their cases listed that week. Judge Polifroni's decision is great news to the bench and bar as it provides a short break for the court and lawyers to schedule vacations, and refresh before the hectic Fall calendar. On behalf of the Bar Association, we thank Judge Polifroni for this accommodation!

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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