The Discovery Stage – Gathering the Evidence

The Discovery stage of lawsuit begins after each party has filed court papers making allegations, imposing denials and asserting defenses. 

In the Discovery stage, each contestant is entitled to extract information from the other using legal referred to as interrogatories, document demands, requests for admissions, depositions, inspections of lands and objects and mental and physical examinations of persons. Not all methods are used in every lawsuit – the lawyers will customize a Discovery plan using these tools to gather relevant information to be used at trial. 

Interrogatories are a list of questions submitted to the adversary who must provide answers.  Typical interrogatories ask for the names of people who are witnesses to the events that form the basis of the lawsuit, a summary of the information known by each such person and whether the adversary has obtained written statements from witnesses.  Interrogatories ask the adversary to itemize and quantify the amount of money the adversary claims is owed and whether there are any other persons or businesses who might also be legally responsible for the harm caused.  Interrogatories ask whether the adversary has hired any experts to render “opinion testimony” at trial, and if so, whether any hired experts have issued a report that summarizes the expert’s opinion.  Experts are discussed in more detail in another article in this series.  Interrogatories are a critical part of the Discovery process for each party to the lawsuit and are virtually always included in each party’s Discovery plan.

Document demands are also critical to each party in a lawsuit.  By demanding that the adversary produce a copy of every letter, email, contract, legal instrument, bank record, receipt, cancelled check and any other writing contained on paper or on a computer, each party gets objective evidence that often clarifies or contradicts an adversary’s verbal version of the events that form the basis fo the lawsuit. In lawsuits involving business disputes, the entire series of events often can be recreated by meticulously piecing together emails, contracts and various other documents. 

Requests for admissions are used to find out those important facts that the adversary does not dispute.  This Discovery tool is used to allow the trial to flow smoothly through those bits of information that are undisputed so that the trial attorneys can concentrate on presenting evidence at trial of those facts that are in dispute.  An adversary’s response to a request for admission can eliminate the need for one or more witnesses at trial since, as a result of the admission, the testimony of the witness is not needed to prove a particular fact. 

Interrogatories, document demands and requests for admission are often referred to as “paper Discovery.”  Submitting these to an adversary, and responding to these submitted by an adversary is all done on paper.  These three tools are usually the first Discovery methods employed by the parties.

After paper Discovery is completed, the parties decide whether to conduct depositions of the persons who are witnesses to the events that took place.  In a deposition, the attorneys for each side meet in a conference room in one of their law offices along with a stenographer and the witness who is to be “deposed.” That witness takes an oath to tell the truth, and then each attorney takes a turn asking the witness questions. The questions typically start with a focus on the witness’s background (where they are from, where they work, where they went to school) and then moves on to questions about the facts of the case itself.  Everything proceeds verbally and the stenographer types every word that is said. Following the deposition, the stenographer prepares a transcript that puts in writing everything that was said.

The purpose of a deposition is to nail down the testimony of the witness.  This assists the lawyers in preparing for trial as the lawyers pretty much know what testimony the witness will give at trial.  It also allows the lawyers to challenge the witness’s honesty if the witness testifies differently in court than in the deposition.  (“You just testified that the light was green, but in your deposition you testified that the light was red.  Are you lying now or were you lying in your deposition?”)

If the lawsuit is a dispute about lands, buildings or objects, each party will be entitled to have access to the lands, buildings or objects to inspect and gather data that may be related to the claim. If the lawsuit is about injuries to a person’s physical or mental health, the adversary will be allowed a medical examination of the injured person. 

The rules followed by the New Jersey state courts fix a deadline for the completion of the Discovery stage.  The length of the Discovery stage ranges from 150 days to 450 days depending on the type of lawsuit. 

During the Discovery stage, the parties may be ordered to participate in Mediation.  After the Discovery stage ends, the parties may be required to participate in Non-Binding Arbitration.  If the matter does not resolve between and among the parties, after the completion of Non-Binding Arbitration, the court schedules the matter for Trial.

Look for other blog posts on the topics of How to Start a Lawsuit, Expert Witnesses, Mediation, Non-Binding Arbitration and the Trial. 

This article is intended as general information and not as legal advice.  If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.

Mediation – Resolution Without Trial

In the New Jersey state court system, the court will require the parties to participate in Mediation at some point after the lawsuit is filed and answered, but before the end of the Discovery stage.

At any time after the lawsuit starts, the parties can discuss the matter, usually through their lawyers, in an effort to reach a settlement.

The court recognizes that sometimes a non-interested neutral third-party may help each side in crafting a settlement that the parties alone cannot seem to accomplish.

For this purpose, the court maintains a list of lawyers and other professionals who have qualified to be mediators.  The court will appoint one of these persons to act as a mediator in the lawsuit.  The attorneys on both sides will confer with the mediator and schedule a date for mediation that is convenient for all parties.

The mediation does not typically take place in the courthouse, but instead in the offices of the mediator, or the offices of one of the attorneys in the case.  The parties attempt to choose a place that is most convenient to all.

Before the date of the mediation, the attorneys prepare their client’s “Mediation Statement.”  In this statement, the attorneys summarize the facts, cite to the statutes and legal precedents that their client’s case is based on, and point out the strengths and weaknesses of the case from their client’s perspective, and from the adversary’s perspective.  The mediation statements are submitted to the mediator only – the other side does not get a copy of the adversary’s mediation statement.

On the day of mediation, the parties meet and the mediator has everyone in the same conference room.  The mediator explains the mediation process which typically proceeds as follows:

  • The mediator will separate the group, putting the attorney and his or her client in one room, and the other attorney and his or her client in a separate room.
  • The mediator will meet with one party to get that party’s version of the facts as well as a sense as to what type of settlement terms would be acceptable to that party.
  • The mediator will go through the same process with the other attorney and his or her client.
  • The mediator will keep all information provided in these sessions confidential and will only disclose the information to the adverse party in the mediator is given permission to do so by the party providing the information.
  • The information will go back and forth between rooms in an effort to find common ground for reaching a settlement.
  • The mediator will provide his or her opinion as to the strength of the party’s case, but will not make a ruling or render any binding decisions.
  • If the parties cannot reach a settlement on terms acceptable to all, the mediation session will end. 
  • If a settlement is reached, the parties will sign a document setting forth the term of the settlement.

If a settlement is reached, after each party has performed what is required by the settlement, the attorneys will file papers with the court asking that the case be dismissed.

If the mediation session lasts more than one hour, the mediator will be entitled to be paid fees based on the time spent by the mediator at the regular hourly rate of the mediator (less credit for one free hour).  Either party may terminate the mediation before the nd of the first hour in order to avoid payment of any fees.

Mediation is an excellent and cost-saving forum by which parties can settle case and end lawsuits.

If the case does not resolve through Mediation or through the efforts of the parties and their attorneys, the parties will complete Discover.  After the end of the Discovery Stage, the parties may be required to participate in Non-Binding Arbitration.  If the matter does not resolve between and among the parties, after the completion of Non-Binding Arbitration, the court schedules the matter for Trial.

Look for other blog posts on the topics of How to Start a Lawsuit, the Discovery Stage, Expert Witnesses, Non-Binding Arbitration and the Trial. 

This article is intended as general information and not as legal advice.  If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.

Expert Witnesses

Prior articles discuss the way a lawsuit is started and the discovery stage of a lawsuit that takes place between the initial filing of court papers and the trial. The purpose of a trial is to allow a fact finder (either a judge or jury, depending on the type of case) to make determinations of the facts, apply the law to those facts and make a decision in favor of one party or the other.

Sometimes the case deals with facts in a specialized area that is outside the common knowledge of the judge or jury.  For example, a judge or jury is not likely to be have enough knowledge of medicine to determine how badly a person was injured in a car accident, or to determine if the conduct of a lawyer arises to the level of legal malpractice, or to determine if the chain saw that injured someone was improperly engineered and unsafe for use.   When a case deals with facts that are outside the common knowledge of a judge or jury, the parties to the lawsuit hire experts in that field of knowledge who will educate the fact finder at trial.  These expert witnesses are allowed to render an opinion based on their particular area of expertise. 

Expert witness testimony is permitted to be submitted at trial by an evidence rule that states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

A person qualifies to be an expert only if it can be demonstrated that the person through education and/or experience has achieved a thorough knowledge of a specialized area such as some science, profession, business, process or occupation. 

Before the trial, during the discovery stage, the expert has to prepare a report stating the expert’s opinion and lays out all the facts on which the opinion is based.  The report also needs to explain enough about the specialized area to demonstrate that the opinion is based not just on the expert’s opinion, but on generally accepted principals in that specialized area.

For example, if an engineer is to provide an expert opinion that the contractor was at fault for the collapse of the outside deck that the contractor built, the engineer would need to have been educated in the area of construction engineering and have experience in construction.  The engineer would need to look at how the contractor built the deck and then point out what the contractor did wrong.  The engineer can not merely say, “well, based on my experience, the contractor should have used more nails.”  Instead, the engineer must say, “the contractor did not use the correct number of nails as was necessary to support a deck of this size.  Using engineering math, and based on engineering treatises and manuals that are used in the universities to train engineers, and municipal construction codes, a deck of this size required ten nails for every three feet and this contractor used only six nails for every three feet.  This created excess pressure on the boards causing the deck to collapse.”

Of course, lawyers say you can always find an expert to give you a complete contrary opinion.  In the deck case, the attorney for the contractor will surely find an engineer to testify that based on new advances in nail technology, only six nails were necessary and the reason that the deck collapsed is because of termites that were not the fault of the contractor.

Experts cost money and parties to a lawsuit often settle a case before that stage of the lawsuit where it becomes necessary to lay out the money to hire the expert.  If the case does not settle and an expert is necessary, a party wants to get the best expert available.  A case often turns on which expert the jury finds to be more believable and more reliable. 

Look for other blog posts on the topics of Discovery, Legal Malpractice, Mediation, Non-Binding Arbitration and the Trial. 

This article is intended as general information and not as legal advice.  If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.

Arbitration in the Superior Court of New Jersey

Arbitration is a process for resolving disputes outside of court. Certain types of cases filed in the New Jersey Court system are handled through arbitration.  If any parties involved in the lawsuit is dissatisfied with the results of arbitration, they can ignore the results of the arbitration and still go to trial and have their day in court.

Arbitration is often effective in giving a party to a lawsuit an unbiased assessment of the strength and weaknesses of that party’s case.

Here is how it works.  The court appoints an arbitrator to the case.  The arbitrator is an experienced attorney who practices in the county where the case has been filed.  Each side submits to the arbitrator a statement which lays out the case from that party’s perspective and includes evidence such as copies of documents, deposition transcripts, interrogatory answers and affidavits.  The arbitration is scheduled and usually takes place in a room in the courthouse, not necessarily in a court room.  The parties and their lawyers sit on the opposite side of a table and the arbitrator allows each side to present its case.  The parties may choose to bring witnesses to the arbitration, but usually the evidence in the statement is what is considered by the arbitrator.  The strict rules of evidence and other court processes do not apply.  The arbitrator may ask some questions and then the arbitrator renders a decision as if the arbitrator is a judge or a jury.  One side wins and one side loses.

The arbitrator’s decision is non-binding.  If either party is dissatisfied with the decision, the party files a paper with the court within 30 days to notify the court that the party has rejected the arbitrator’s decision and instead wants to proceed to trial.

Although the arbitrator’s decision is often rejected by the losing party, the decision is helpful in fostering settlement discussions among the parties and their attorneys.  An unbiased decision has been rendered and that can often educate the parties about the strength and weaknesses of their case.

If neither party rejects the decision within 30 days, the decision becomes final and is binding as a final resolution of the case.  The case does not proceed to trial.

Arbitration is scheduled for lawsuits involving car accidents, slip and fall cases and other matters in which a party is seeking recovery for personal injuries.  It is also scheduled for contract disputes, commercial matters, product liability case and certain insurance cases.  

Look for other blog posts on the topics of Discovery, Expert Witnesses, Mediation, Legal Malpractice and the Trial. 

The Trial

The lawsuit was filed, the parties gathered evidence through the discovery process, each side retained expert witnesses.  The parties participated in mediation but did not settle the case. The parties did not accept the ruling produced through the arbitration process.

Now it’s time for the TRIAL.

Most cases settle or resolve long before trial. But not all.

A trial can bring great anxiety to lawyers and their clients.  It is never proceeds as smoothly as it appears in one-hour television dramas. 

The court schedules a date for trial, but the date almost always gets adjourned a few times before it actually takes place. The court may adjourn it because all the judges are already in the middle of other trials and unavailable to start your trial.  A party may ask for an adjournment because a witness is unavailable.  Coordinating the client, the witnesses and the experts can be a very difficult process for the lawyer.

Once the trial date arrives and the parties are in court, the judge handles pre-trial matters.  Lawyers make motions seeking rulings on whether a particular piece of evidence, or whether certain testimony, should be excluded or included. The judge and the lawyers put together a short summary of the case that the judge will read to potential jurors and a list of questions to ask jurors to determine whether a person may be disqualified from serving as a juror.

Once these and other matters are addressed by the judge and the lawyers, a large group of potential jurors are ushered into the court room.

The judge reads the summary to the individuals and the clerk announces the names of eight randomly chosen individuals to walk up and sit in the jury box.  The judge introduces the parties to the lawsuit and their lawyers then asks the jurors the qualifying questions such as whether an individual knows or is related to any of the parties, the lawyers or courthouse personnel involved.  The judge asks each potential juror to state his or her name, occupation, employer, level of education and home town.  Other questions may be asked to help the lawyers and the parties better understand the background of each potential juror.

The lawyers then tell the judge which individuals the lawyers want removed from the jury.  In a civil lawsuit in the Superior Court of New Jersey, the lawyers are each entitled to eliminate up to six individuals without needing to state a cause for elimination.  Once the lawyers uses up these six elimination requests, a lawyer may only ask that an individual be eliminated “for cause” such as the appearance of a bias from the individual’s answers to the judge’s questions.

The judge usually provides that eight individuals will be chosen with six acting as jurors and two as alternates.  The alternates are not identified until the end of the trial so that each individual juror will pay attention throughout the trial.

Once the jury is chosen, the attorney for the plaintiff (the person who filed the lawsuit) makes an opening statement to tell the jury what facts the attorney plans to prove through the evidence presented, and explains why, at the end of the case, the jury should rule in favor of the plaintiff.

The attorney for the defendant then gives an opening statement as to the facts the defendant will prove through evidence and explains why the jury should rule in favor of the defendant.

The attorney for the plaintiff then puts on the evidence of the plaintiff’s case.  Witnesses are called to the witness stand and are asked questions by the plaintiff’s lawyer.  This is called direct examination.  On completion of direct examination, the attorney for the defendant is permitted to cross examine the witness – ask questions aimed at poking holes in that witness’s testimony. 

The plaintiff’s lawyer may also introduce documents, photographs, diagrams, expert reports and out of court sworn statements into evidence to help prove the facts of the plaintiff’s case. 

Once the plaintiff has presented all the evidence in support of the plaintiff’s case, the plaintiff “rests.”  At that point, the plaintiff cannot introduce any more evidence.

Usually when the plaintiff rests, the attorney for the defendant will ask the judge to dismiss the case, arguing that even if all the evidence is believed by a jury, the plaintiff failed to put into evidence the necessary facts to prove the case.  If the plaintiff’s lawyer prepared for trial properly, the judge will deny the defendant’s request to dismiss.

The defendant then puts in evidence in the same manner as the plaintiff.  The defendant then rests. 

After both parties rest, the attorney for the defendant makes a closing argument that reviews all the evidence and encourages the jurors to believe the truth of the defendant’s evidence and to disbelieve any evidence presented by the plaintiff.   The plaintiff’s lawyer then makes a closing argument to the juror, asking the jury to find in favor of the plaintiff and grant a big cash award for damages.

The judge then gives the jury instructions on the law and explains how the jury is to consider all the evidence, to put together the story of what was more likely to be the actual events that took place leading up to the lawsuit, and to make a decision in favor of granting money to the plaintiff, or dismissing the case.  The jury goes into a separate room, discusses the case, and when the jury reaches a consensus of at least five of the six jurors, the decision is announced back in open court to the lawyers, the judge the parties.  

Look for other blog posts on the topics of Discovery, Expert Witnesses, Mediation, Legal Malpractice and Arbitration.

This article is intended as general information and not as legal advice.  If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.

Tech Companies May Run Afoul of Employment Anti-Discrimination Laws – Is Your Company Compliant?

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Zuckerberg’s sentiments may simply be a reflection of the industry or they may have been a driving force behind its current state of employee recruitment and hiring. Fortune Online has highlighted the alleged preference by tech companies for younger workers over those who are in their 30s, middle-aged, or older. These preferences, as expressed in the employment advertisements, likely violate federal employment law.

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Bill A845 May End Permanent Alimony in New Jersey

The Garden State is notorious for imposing harsh alimony orders on divorcing spouses. The American Bar Association even called New Jersey resident Ari Scochet “the poster child for alimony reform” after his debilitating spousal support debts transformed him from wealthy portfolio manager to destitute prisoner bouncing in and out jail.  Alimony reform groups have spent years battling for more lenient laws, and now, they may finally get their wish, thanks to a new compromise bill introduced by Assemblyman Charles Mainor (D-Hudson).

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Is it Time for Another Lawyer? How to Avoid Being the Victim of Legal Malpractice

Imagine that you or your business runs into a legal problem.  You don’t think you understand enough about the issue to tackle it on your own, so you make the prudent decision to enlist someone who does: you call an attorney.  You willingly give this attorney your time, your money, and your sensitive personal and financial information, because you rightfully trust that he or she is a qualified professional who will treat you and your case with competence and care.  But soon, things start to go wrong.  Return calls are few and far between, until your calls stop being returned altogether.  Documents are lost. Deadlines are missed.  You take a huge financial loss, and struggle to patch up the pieces left behind.  Was it legal malpractice?

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Meticulous Legal Guidance is Essential for Non-Compete Agreements

Recently non-compete agreements have been a particularly hot topic. A recent New York Times Business Day article elucidates how non-compete agreements are no longer something that is the exclusive concern of CEOs, executives, lawyers, engineers and board members. Rather, the non-compete agreement is making its way to numerous positions throughout the service-based economy.  While the non-compete is certainly an effective means of protecting intellectual property when it is properly applied, non-compete agreements may be struck down by a court when they are unreasonable in their restrictions, when the restrictions do not serve a clear and articulable business purpose, or when considerations of equity dictate.

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Which Religions are the Most Likely to Get Divorced?

If you’re a regular reader of the Maselli Warren legal blog, you may have already noticed our ongoing series about marriage risk factors.  So far, we’ve examined the pros and cons of variables like age, education, income, and health; but what about faith?  Are members of certain religions more likely to get divorced?

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