September 2005, No.1

September 2005, Vol. VI, No. 1

Backlog, what backlog? The New Jersey Lawyer recently published statistics showing that the backlog of civil cases has decreased from 32,603 in 2000 to 14,029 in 2005. Both judges and lawyers should be applauded for the reduction in the civil backlog. Case are now reached earlier and trial dates have real meaning. That said, the significant reduction in the backlog along with the decrease in newly filed cases mandates that we reexamine certain aspects of the current system to alleviate pressure for both judges and lawyers. We advocate an amendment to the rules to permit an automatic adjournment by consent of counsel for all cases that are younger than two years. Also, in order to alleviate the stress from both judges and lawyers, we believe that no jury trials should be held in August or the last two weeks of December. This break would allow judges and lawyers to focus on other areas and to catch their breath from the hectic nature of trials.

Can parties in a civil trial agree to have a jury decide the case by less than 5/6ths majority? If you said no, you would be wrong. Despite many trial lawyers' and judges' practice of requiring a jury of more than 6 decide the case by greater than 5/6ths, i.e., 7 out of 8 jurors, the Supreme Court recently stated that a civil jury of eight could decide a case by 3/4ths majority. See LaManna v. Proformance Ins. Co., 184 N.J. 214 (2005). The problem with this opinion is that Article 1, Paragraph 9 of the New Jersey Constitution provides that "[t]he Legislature may provide that in any civil cause of action, a verdict may be rendered by not less than five-sixths of the jury." Yet, the majority held that N.J.S.A. 2B:23-17, which permits parties to agree to have a jury of less than 5/6ths decide a case, was constitutional because parties may always waive constitutional rights. Justices Albin and Long dissented stating that changing the jury structure alters the nature of the trial and is not a waiver of a right. The majority's reasoning is flawed because the Legislature has exceeded its authority under the Constitution, and the statute should have been held unconstitutional.

Are post-accident repairs performed by plaintiff's employer admissible against a manufacturer? Once again, not so easy. In Sell v. Ingersoll-Rand Co., 2005 U.S. App. LEXIS 12935 (3rd Cir. 2005), the Third Circuit held that Federal Rule of Evidence 407 does not bar such evidence when a non-party makes the repair. See Diehl v. Blaw-Knox, 360 F.3d 426 (3d Cir. 2004). The Court of Appeals later stated that such evidence is relevant to whether alternative designs were feasible at the time of the accident. In Sell, the plaintiff was injured when a pipe hit him on the head as a result of the defective design of a drilling rig. After the accident, the plaintiff's employer installed a bracket that could have prevented the accident and was available prior to the accident.

Test your knowledge on restrictive covenants. Here are the facts: an institute at a hospital and a doctor enter into an employment agreement that includes a restrictive covenant precluding the doctor from working in any medical field within thirty miles from the institute for two years after the separation of his employment. QUESTION 1: Are restrictive covenants in contracts between doctors reasonable and enforceable? Yes because doctors are no different than any other business. QUESTION 2: Was the thirty mile area too broad? In this case, the Court found that the thirty mile area should be reduced because the doctor had a found a community thirteen miles away that desperately needed his services. Thus, the Supreme Court concluded that enforcing the thirty mile area would be injurious to the public interest. The Supremes reasoned that restrictive covenants are disfavored in the law, and given the public interest, the geographic scope had to be reduced. See Community Hosp. Grp. v. More, 183 N.J. 36 (2005).

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]

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