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A Judge’s Guide to Successful Discovery

and Summary Judgment Motion Practice


#1 Each Civil judge in Monmouth
County is responsible for the
pre-trial management of 700-900
cases and must decide an
average of 100 motions every two
weeks.
#2 Given the amount of time that can
be allotted to each motion, it comes
as no surprise that concise, coherent
and complete motions have the
greatest likelihood of being granted.
#3 Unlike law offices where files are
stored in the cabinet outside your
office, all civil files are maintained in
the Civil Division on the First Floor
of the Court House.
#4 The court cannot store all of the
motion papers filed on the 6,500 or
so files that are active at any given
point in time. Once a motion has
been decided, the supporting papers
will often be purged from the court’s
file.
If any aspect of your motion is based
on or refers to a previously filed
Complaint, Answer, motion, brief,
certification or order, you must
attach a copy to your moving papers.
If a document is import to your
argument, provide it to the judge as
part of your papers.
This is important because . . .
#5 Most civil judges do not have time
to read motions in their chambers.
They are usually on trial during the
day and have to review their motions
at home.
If the judge gets to the point in your
motion where reference is made to a
missing certification, order or
pleading, he will probably stop
reading it and move on to another
one.
Judges do not like this.
#6 The problem with your late
submission does not end when the
papers leave your office.
Before any paper reaches the judge, it
must be received by the Civil Division,
logged into the court’s computer system,
delivered to the judge’s chambers,
reviewed by the judge’s law clerk – who is
already deeply engrossed in reading the
other hundred or so motions, oppositions,
cross motions and replies that must be
completed by Friday – and finally delivered
to the judge.
There is still the problem of your
adversary, who filed his motion on
time and now has to scramble to put
together a response and beg the
court to accept it by fax, usually on
Thursday afternoon or Friday
morning.
#7 There is no such thing as a “Motion on
Short Notice.”
The Rules do not provide for such
an animal and they present an
unnecessary burden to the court
and adverse counsel. See #6.
#8 The time to fix the deficiencies in
your motion papers is not on a
motion for reconsideration.
The bar is higher . . .
“. . . The motion shall state with
specificity the basis on which it is made,
including a statement of the matters or
controlling decisions which counsel
believes the court has overlooked or as to
which it has erred.”
“Reconsideration should be utilized only for
those cases which fall into that narrow
corridor in which either 1) the Court has
expressed its decision based upon a palpably
incorrect or irrational basis, or 2) it is obvious
that the Court either did not consider, or
failed to appreciate the significance of
probative, competent evidence....
Alternatively, if a litigant wishes to bring new
or additional information to the Court's
attention which it could not have provided on
the first application, the Court should, in the
interest of justice (and in the exercise of
sound discretion), consider the evidence.”
Cummings v. Bahr, 295 N.J. Super. 374, 401-
402 (App. Div. 1996).
If it wasn’t in the papers to begin
with, but could have been
provided, reconsideration will not
be granted.
And finally - If you are taking the
time to file a motion for
reconsideration . . .
 Attach a copy of the Order in question

AND

 Attach the court’s written opinion or the


transcript of the court’s decision
The single greatest thing you
can do to give your motion the
best possible chance of being
granted is to file it ON time
and at the RIGHT time
ANOTHER BASIC TRUTH
#7 Monmouth County has the HIGHEST
percentage of motions to extend
discovery in the State.
Why do you think that is?
 Lawyers confuse “professional courtesy”
with permitting another lawyer to
squander their discovery time?

 Lawyers believe that they will be granted


an unlimited number of extensions simply
by asking?

 Lawyers believe that their case will not get


on the trial list for years so why rush to
complete discovery?
Maybe it’s because they don’t realize
that a motion to extend discovery is
not always necessary . . .
“Except as otherwise provided by R. 4:17-
4(e) [expert reports], if a party who has
furnished answers to interrogatories
thereafter obtains information that renders
such answers incomplete or inaccurate,
amended answers shall be served not later
than 20 days prior to the end of the
discovery period, as fixed by the track
assignment or subsequent order.”
“Amendments may be allowed thereafter
only if the party seeking to amend certifies
therein that the information requiring the
amendment was not reasonably available
or discoverable by the exercise of due
diligence prior to the discovery end date.”
“In the absence of said certification, the late
amendment shall be disregarded by the
court and adverse parties.”
“Any challenge to the certification of due
diligence will be deemed waived unless
brought by way of motion on notice filed
and served within 20 days after service of
the amendment. Objections made thereafter
shall not be entertained by the court. . . .”
When plaintiff obtains additional medical
treatment after the discovery end date, is a
motion to extend discovery necessary before
answers to interrogatories can be
supplemented with the new report?
Not if there is a valid certification of due
diligence accompanying the amendment.
Does receipt of the amendment constitute
exceptional circumstances for the defendant
who now wants a new IME?
Sure –
but discovery does not have to be extended if
the defendant is satisfied that no new IME or
supplemental report is needed, as might be the
case when the defense is that the injury wasn’t
caused by the accident in the first place.
The Supreme Court has made it clear that
it is their expectation that discovery end
dates are to be enforced and that time
lines established under the Rules will be
followed:
The court can now disregard trial
designation on Track I and Track II
cases pending for more than 2 years
(formerly 3 years)
This is important because . . .
Requesting multiple discovery extensions
may age your case past the 2 year period
and result in the loss of trial designation
before the first trial date is even assigned.
The four tracks and their
corresponding discovery periods
are:
Track I (Expedited) – 150 days.
These are usually non-jury cases
such as book account or collection
matters and contract actions and
other similar cases.
Track II (Standard) – 300 days.
Most personal injury actions
(motor vehicle accidents, fall down
accidents, etc.) fall within Track II.
Track III (Complex) – 450 days.
Construction defect claims,
product liability and professional
negligence actions and other
complex litigation falls within this
track.
Track IV (Individually Managed) –
450 days. Class actions,
environmental cases and other
cases with a large number of
parties that require individual
case management by a judge.
The time period for completing discovery
begins to run on the date the first Answer
to the Complaint is filed or 90 days from
the date the first defendant is served,
whichever occurs first.
The parties may consent to extend the
time for discovery for an additional 60
days by stipulation filed prior to the
expiration of the discovery period.
The 60 day discovery extension by consent
must now be submitted in writing with
the stipulation that all parties have
consented – telephone requests can no
longer be honored
The request MUST be made
before the discovery end date
because . . .
 Cases subject to mandatory non-
binding arbitration will receive
an arbitration date

 Cases not subject to mandatory


non-binding arbitration will
receive a trial date
Motions to add new parties (either by filing
of a third-party complaint or joinder),
motions to consolidate and motions to
compel discovery or impose or enforce
sanctions for failure to provide discovery
must be returnable before the discovery
end date.
Once an arbitration or trial date is
set, the standard by which a motion
to extend discovery is judged changes
from “good cause” to “exceptional
circumstances”.
Motions that are filed and returnable
before the discovery end date are
judged by a standard of “good cause”
(1) the movant's reasons for the requested extension of discovery;
(2) the movant's diligence in earlier pursuing discovery;
(3) the type and nature of the case, including any unique factual issues which may
give rise to discovery problems;
(4) any prejudice which would inure to the individual movant if an extension is
denied;
(5) whether granting the application would be consistent with the goals and aims of
"Best Practices";
(6) the age of the case and whether an arbitration date or trial date has been
established;
(7) the type and extent of discovery that remains to be completed; (8) any prejudice
which may inure to the non-moving party if an extension is granted; and
(9) what motions have been heard and decided by the court to date.
KEY POINTS THAT MUST BE
COVERED IN YOUR MOTION
TO EXTEND DISCOVERY
THERE MUST BE A REASON –
EXPLAIN THE REASON TO THE COURT
“WE NEED MORE TIME”

IS NOT A REASON
“DISCOVERY IS NOT COMPLETE”

IS NOT A REASON
“The defendant recently learned . . .” – WHEN?

“We only just discovered . . .” – HOW?

“Documents have been requested on numerous


occasions” – WHEN AND HOW MANY TIMES?

“The depositions were adjourned” – WHEN AND BY


WHOM?

“The plaintiff is still treating” – WITH WHOM, FOR


WHAT?
Show the court in detail that there is a
valid reason why you have not been able
to complete discovery within the initial
time period and the 60 day extension.
DON’T JUST RECITE WHAT HAS BEEN
DONE – GIVE THE TIME FRAMES THAT
SHOW YOU HAVE BEEN DILIGENT
THROUGHOUT THE DISCOVERY PERIOD
“The defendant has not answered the
interrogatories I served 10 months ago”

is NOT due diligence


If the other side in your case hasn’t
responded to your discovery request in the
time provided under the Rules

PICK UP THE PHONE!!!


Ask the other attorney when you can
expect the discovery and diary it
accordingly. If the other side still hasn’t
provided discovery despite your efforts, file
a motion under R. 4:23-5(a)(1).
“Depositions have been cancelled on
numerous occasions”

is NOT due diligence


Don’t squander your discovery time by constantly
rescheduling depositions on “blind dates”

PICK UP THE PHONE!!!


If the other side does not appear on a mutually
selected date,

FILE A MOTION TO COMPEL THE


DEPOSITION ON A DATE CERTAIN
If the other side files a motion to compel our
client’s deposition, and the date is not
convenient

ADVISE THE COURT BEFORE THE ORDER IS


SIGNED
“Medical records have been requested but not
received”

is NOT due diligence


If medical records have not been received after an
authorization has been served on the provider

SERVE A SUBPOENA

If the medical records still aren’t forthcoming

FILE A MOTION TO
ENFORCE THE SUBPOENA
“If a demand for discovery pursuant to R. 4:17
[interrogatories], R. 4:18-1 [Production of Documents],
or R. 4:19 [IME] is not complied with and no timely
motion for an extension or a protective order has been
made, the party entitled to discovery may, except as
otherwise provided by paragraph (c) of this rule, move,
on notice, for an order dismissing or suppressing the
pleading of the delinquent party. The motion shall be
supported by an affidavit reciting the facts of the
delinquent party's default and stating that the moving
party is not in default in any discovery obligations
owed to the delinquent party. Unless good cause for
other relief is shown, the court shall enter an order of
dismissal or suppression without prejudice.”
Permitting a pleading to remain
dismissed without prejudice does not
stop the discovery period from
running.
BE SPECIFIC

“Plaintiff sustained serious injuries in the


accident”

does not tell the judge why your case is unique


“Plaintiff is still treating”

does not tell the judge much of anything – is the


plaintiff still going for massages or is he having
plastic surgery to repair the scar?
“Plaintiff underwent arthroscopic surgery of her
right shoulder on 2/1/08 and developed a post-
operative infection which delayed
rehabilitation for a period of 3 months (See
office note of Ronald Smith, M.D., dated
5/5/08, attached as “Exhibit B”)

tells the judge exactly why there has been a delay


in obtaining a final report and supports the
statement with medical evidence from the
doctor
 BE SPECIFIC

 AVOID MULTIPLE MOTIONS

 CALL YOUR ADVERSARY


ONE ORDER, WITH REALISTIC TIME
FRAMES ADDRESSING ALL
OUTSTANDING DISCOVERY, WILL
AVOID THE NEED FOR “SERIAL”
DISCOVERY EXTENSIONS
You represent the plaintiff in a fall down accident, and
cannot get your liability expert report until the
defendant has been deposed. The defendant’s attorney
has cancelled the depositions twice due to “no
coverage.”

The solution to this problem is NOT another


90 day discovery extension in the hope that
within that time defense counsel will finally
stumble on a day when she is free.
The solution is a motion to compel the
deposition on a date certain that will
leave you sufficient time to serve
your expert report.
You must show
exceptional circumstances
“I learned last Thursday that my liability
expert retired and moved to Tahiti and I
need to get a new expert.”
“I didn’t think I needed a liability expert
but now that I finally looked at the file, I
realize I can’t get to a jury without one.”
Plaintiff injured her wrist in the accident and
all efforts at conservative treatment have
failed. Plaintiff is scheduled for carpal
tunnel surgery on 7/1/08.
Dr. Smith recommended surgery on
7/1/07 and the plaintiff is deciding
whether to schedule the surgery.
 Serve a timely request for answers to
interrogatories and written discovery

 File a motion to compel discovery well


before the discovery end day if the
requested information is not forthcoming

 Schedule depositions promptly since


information obtained in the deposition
may lead to a need for further documents
or depositions or identify a new party who
needs to be added
R. 4:24-1(c) requires you to attach ALL prior
orders regarding discovery extensions, whether
they were granted or denied . . .

NOT JUST THE MOST RECENT ORDER

Don’t expect the court to hunt down the file to


find the prior orders or to place a telephone call
asking you to follow the Rule!
Unless you are “Miracle Max,”
your motion is doomed to
failure if the facts are against
you.
TIMING IS EVERYTHING
All motions for summary judgment must
be filed AND returnable not less than 30
days before the trial date.
“Lack of planning on your part
does not constitute an
emergency on mine”
1) Every motion for summary judgment must
be supported by a Statement of Material
Facts in which the movant sets forth the
material facts that he claims are not in
dispute.

2) Each fact is to be set forth in a separately


numbered paragraph with a citation to the
record.

3) Motions for summary judgment which do


not conform to the above Rule may be
denied without prejudice.


Plaintiff is moving for summary judgment on the


issue of liability and sets or the following in his
Statement of Material Facts:

1. Defendant admitted at the scene that he made a


left hand turn in front of the plaintiff (see
deposition of Patrolman Bob Smith, dated
7/2/04, 12:22-25, attached as “Exhibit A”).

Compare

1. The defendant negligently made a left turn in


front of the plaintiff.
 The second example is improper, since it is
nothing more than an unsupported
conclusion with no citation to evidence in the
motion record.

 By the time you file your motion for summary


judgment, you and your adversary have been
living with the case for a long time.

 You know all the facts and are familiar with


the legal issues.

 The filing of your motion may be the first time


the judge has ever heard about your case.
 Identify the parties and their relationships
to one another clearly and concisely
 Save your arguments for the brief – the
statement of facts should be credible and
objective
 Use exhibit tabs – do not make the judge
search for a document that may be
important
 NEVER include argument or case citations
in a Certification – that is what a brief is
for

 NEVER refer the judge to a deposition


transcript without a citation to page and
line – the judge will not have time to read
the entire transcript to find the one line
that supports your claim
 If you are referring to one critical page in a
long document, such as an insurance
policy or contract, attach the entire
document as an exhibit and then attach
the important page as a separate exhibit
It is the obligation of the party opposing a
motion for summary judgment to respond to
the Statement of Material Facts in a responding
statement in which he/she admits or disputes
each of the facts set forth by the moving party.
The moving party’s version of the facts will be
deemed to be admitted for the purposes of the
motion unless the opposing party disputes the
facts in the same the form required under
section (a) of the Rule.
This means that it is not enough to simply state
that a fact is disputed or denied – the opposing
party must cite to that portion of the record that
refutes the purported fact and/or creates an
issue of material fact.
BIGGER
IS NOT ALWAYS BETTER
What the judge really wants to hear is

- A clear statement of the facts on which your


motion is based

- A clear statement of the law and how it applies


to those facts
Nothing will undermine your credibility with
the court faster than having the judge find out
that the case you’ve cited to him is no longer
good law.
When it comes to successful motion practice –

 Be concise
 Be credible
 Back up your position with the motion
record
 and