December 2004, No. 5

December 2004, Vol. II, No. 5

When Can an Expert Report Be Served After the Discovery End Date? (A) When your adversary consents, (B) When exceptional circumstances exist, (C) No objection or motion is made, (D) All of the above. The answer is D. But more importantly, in Zadigan v. Cole, 369 N.J. Super. 123 (Law Div. 2004), our own Judge Walsh explained that under R. 4:24-1c, a motion to extend the discovery end date will be denied unless a party can demonstrate exceptional circumstances. Thus, if an expert report is not furnished by the end of discovery, a motion to be bar will be granted unless the delinquent party shows exceptional circumstances, which Judge Walsh defined as (1) counsel was diligent in pursuing the discovery, (2) the additional discovery is essential to the case, (3) the reason for the failure to file for an extension of discovery is provided, (4) the reasons for the failure to provide the discovery are beyond the control of the attorney. See id. at 133. Judge Walsh's opinion provides a thorough history of R. 4:24-1c, and his ruling properly applied the rule to a case where the defendant dentist failed to explain why the report was late, that the report was essential to the case, that the attorneys were diligent, and why no motion to extend was timely made.

What Is the Significance of the Decline in New Cases? On November 8, 2004, the New Jersey Lawyer wrote an article indicating that new case filings fell from 160,465 in 1990 to 123,904 in 1998 and to 99,855 in 2004. That means that our system is seeing 38% fewer new cases than in 1990. In the same time frame, cases resolved by trial went from 2,836 in 1990 to 3,070 in 1998 to 1,936 in 2004. Although we have not seen the actual numbers, this report is staggering, especially when we consider that many courts apply Best Practices with a rigidity akin to being in military school. With all due respect to the AOC and the courts, how can we attribute the decline in the backlog to Best Practices when the front end of the system is in such a radical decline? Moreover, we have more judges today statewide than in 1998 or 1990, yet they are seeing fewer trials. These numbers support the need to change certain aspects of the practice to improve the relationship between the bar and bench and to provide a better quality of practice to litigators. Namely, we advocate the following changes: (1) grant any request for an adjournment where the parties consent, (2) grant any request for an extension of discovery when the parties consent regardless of whether the request arrives after the discovery end date, and (3) eliminate jury trials in August and the last two weeks of December. For those of you who have additional suggestions, please forward them and we will publish them next month.

What Discipline Is Appropriate for a Lawyer Who Lies to a Client about a Settlement When the Case Was Never Filed? Permanently disbarred, censure, suspension? Need more info. OK, here it is: In re Philip Morell, after four years, Mr. Morell advised a client that a medical malpractice suit had settled for $1.1 million, and that it was not a problem if the client bought the car of his dreams. Mr. Morell had the client sign a release, and based on Mr. Morell's advice, the client purchased a luxury vehicle with a loan. Mr. Morell defaulted in the disciplinary action. At the time of the default, Mr. Morell was serving a one-year suspension for lying to a client and fabricating a settlement statement for the client's signature. By a 7-0 vote, the DRB surprisingly imposed only a two-year suspension. We find these facts reprehensible, and the lawyer to be a disgrace to our profession. By failing to disbar Mr. Morell, the DRB missed an opportunity to send a message that such conduct will not be tolerated. We ask the DRB to act more strongly in the future.

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 [email protected].