Category Archives: Criminal Defense

The Motor Vehicle Safety Act of 2010

New Jersey’s multitude of turnpikes, highways and streets present a host of dangers to motorists. Drunk, distracted or reckless drivers create a constant need for defensive driving and good sense. Blind intersections, perilous curves, poorly maintained road surfaces, inadequate signage and markings, bad weather — all of these conditions pose challenges to even the most diligent drivers.

But those are all factors that drivers can anticipate and understand. When faulty automobile equipment leads to a motor vehicle accident, you are betrayed by the very equipment that you trust to deliver you and your family safely on your daily rounds. There are basically two ways by which our society regulates the safety of motor vehicles: by creating standards for safe manufacture and maintenance, and by empowering citizens to pursue legal action when they have been harmed due to an auto defect. Federal regulation of automobile safety is getting a close look this summer in legislation currently before Congress.

The Motor Vehicle Safety Act of 2010

The National Highway Traffic Safety Administration (NHTSA) oversees many aspects of American automobile safety, and it has maintained an Early Warning Reporting (EWR) program to detect emerging vehicle safety issues since 2000. But as this past year’s series of Toyota auto defect reports revealed, a stronger EWR system would put necessary pressure on manufacturers to launch timely recalls when problems become apparent. More information about production irregularities, consumer claims and performance issues serves the public interest. The House version of the Motor Vehicle Safety Act of 2010 (HR 5381), was recently approved by the House Energy and Commerce Committee and may receive full attention before the end of this year. One important provision would improve the EWR system by making more data public on a quarterly basis. Other provisions involve a host of safety issues, including:

  • Electronic data –  Semis and other commercial vehicles have long been required to preserve data that may provide clues to the cause of a crash. The new law makes progress on requiring vehicles sold in the U.S. to be equipped with a data recorder that allows law enforcement to investigate the cause of accidents, but automakers successfully lobbied against a clear deadline for this improvement.
  • Reducing drunk driving – The bill funds research for the development of on-board sensors that measure the alcohol in a driver’s system and prevent intoxicated drivers from being able to start their cars. Commercial viability of such systems may be more than a decade away, however.
  • Unintended acceleration – The bill would require installation of a brake override in new vehicles that will reduce power in the event that the accelerator sticks. Other technical improvements include new standards for push-button electronic starting systems and improvements to transmission shifting systems.
  • Automaker accountability – Automakers are not currently required to disclose data that they deem a confidential part of business operations. Under the 2010 law, the scope of the EWR system would be expanded in favor of maximum public availability of safety information. Maximum civil penalties would increase over tenfold from the $16.4 million Toyota was required to pay, and federal safety regulators would be granted the authority to order immediate recalls.

Former NHTSA administrators from the Bush, Clinton and Carter administrations have stated their support for the bill, arguing that “additional resources for NHTSA are crucially important because the motor vehicle safety program has been underfunded for years, and indeed is losing ground to additional requirements imposed on it and to inflation.” Henry Waxman, the Democratic chairman of the House Energy and Commerce Committee, issued a statement that the bill “will dramatically improve the safety of motor vehicles.” He defended the compromises from the original version, claiming that “through this process we were able to earn broad support from our membership.” The bill will now go to the full House for debate. A similar bill (S 3302) is under consideration in the Senate, and further compromise of safety measures is likely.

Asserting a Claim of Negligence

Clear evidence of an automobile defect can play a vital role in motor vehicle accident litigation. Airbags that fail to deploy, vehicles that roll during the slightest evasive maneuver, and tires in seemingly good condition that suddenly rupture can all lead to unexpected tragedy. For accident victims and their families who believe that a faulty part or design flaw contributed to a catastrophic injury or highway fatality, a knowledgeable personal injury attorney can provide clear insights about all available legal options and a plaintiff’s prospects for recovery of damages.

Our New Jersey personal injury attorneys keep flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.

Common Reasons for Fatigue of Commercial Truck Drivers

Long hours on the open road. Pressure to meet deadlines. Extreme loneliness. Commercial tractor-trailer operators must endure harsh conditions which often lead to unsafe exhaustion. Studies show that fatigued driving could be as dangerous as drunk driving. A combination of fatigue plus a thousand pounds of metal equals a deadly mix for other drivers on the road. Our New Jersey truck accident attorneys see these types of crashes all too often — and we are here to help if you have fallen victim to a fatigued driver.

Common Reasons For Exhaustion

Our New Jersey truck accident lawyers often see these reasons for exhaustion in commercial truck drivers:

  • Exceeding driving hours – According to the Federal Motor Carrier Safety Administration, commercial truck drivers may drive a maximum of 11 hours after 10 consecutive hours off duty. When drivers exceed the legal amount of driving hours, they put themselves at risk for fatigue.
  • Not taking breaks – Truck drivers work long hours and need frequent breaks to refuel. In an effort to log more miles, drivers may try to avoid resting when needed.
  • Improper training – If a driver isn’t adequately trained on safety precautions and battling fatigue, he or she could fall victim to fatigue. Drivers needs to know when to rest and when to keep going.
  • Eating poorly – Truck drivers are always on the go, and nutrition is not always a priority. Inadequate intake of vitamins and minerals could led to fatigue and decreased focus.

A tractor-trailer operator may drive in spite of exhaustion to earn extra money by driving extra miles, or to meet tight delivery deadlines. An unscrupulous company may even order a driver to keep going despite the driver’s complaints of exhaustion.

When investigating your truck accident claim, an attorney at Aiello, Harris, Marth, Tunnero & Schiffman, P.C. will examine the driver’s logbook to see if the correct number of hours were worked and proper breaks were taken. We stop at nothing to ensure we build a solid case against the negligent party or parties.

Our personal injury attorneys in New Jersey keep flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.

What courts have jurisdiction in New Jersey?

Without jurisdiction over both the subject matter of the case and the defendant(s), a court may not proceed. The New Jersey Constitution gives the Superior Court subject matter jurisdiction over virtually all types of cases. N.J. Const., Art. VI 3, 2; see Chapter I. In general, the Law Division of Superior Court has subject matter jurisdiction over cases that involve primarily a claim for monetary damages, while the Chancery Division has jurisdiction over cases that entail primarily claims for non-monetary relief such as specific performance, an injunction, or other equitable relief. See R. 4:3-1(a). The Special Civil Part has jurisdiction over cases in which damages do not exceed $10,000. R. 6:1-2(a) (1).

In cases involving claims under a federal statute or the United States Constitution, the United States District Court for the District of New Jersey has subject matter jurisdiction. 28 U.S.C. 1331. Additionally, the District Court for the District of New Jersey has jurisdiction where the plaintiff(s) are all from a different state than all defendant(s) and the amount in controversy exceeds $75,000. 28 U.S.C. 1332. Sometimes either the federal court or the state courts may have subject matter jurisdiction. Though federal litigation is beyond the scope of this book, you need to consider carefully whether to choose federal rather than state court as the place to file this case. Two indispensable resources for federal litigation practice are Gann Law Books’ annotated New Jersey Federal Practice Rules, written by Allyn Z. Lite, and New Jersey Law Journal Books’ New Jersey Federal Civil Procedure, edited by Robert E. Bartkus.

Our NJ lawyers keep flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.

How is venue determined in New Jersey?

The New Jersey Court Rules address venue very specifically. R. 4:3-2 discusses which county is the proper place to file a case. R. 4:3-1 contains directions as to whether the Law Division or the Chancery Division is appropriate. In general, venue is proper in the county in which the cause of action arose, or in which any party to the action resides at the time the action is instituted or, in case of a nonresident defendant, the county in which the summons was served. Exceptions include actions affecting title to or other interests in real property, where the only proper venue is the county in which the property is located, actions against public agencies or officials, which must be brought where the cause of action arose, and receivership, attachment, family, probate, and Special Civil Part cases, all of which have their own venue rules. See R. 4:53-2 (receivership); R. 4:60-2 (attachment); R. 5:2-1 (family); R. 4:83-4 (probate); R. 6:1-3 (Special Civil Part). Furthermore, for venue purposes, R. 4:3-2(b), deems a corporation to reside in the county in which its registered office is located or in any county in which it is actually doing business.

When more than one venue is appropriate for a particular case, you must consider the nature of the case, whether a jury trial will be sought, how quickly case calendars are moving, and other factors that may lead to a choice of one county over another. If the case is to be filed in the Chancery Division, where one judge normally handles the matter for its entire duration, you may wish to consider the identities of the particular judges involved in making decisions about where to file. Forum-shopping and judge-shopping, though condemned by many in the abstract, are venerable tactics that every good lawyer should use reasonably to aid his client.

Our personal injury law firm in New Jersey keeps flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.

What does a complaint contain in New Jersey?

  1. Factual Allegations

Every claim for relief “shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement.” R. 4:5-2. The Rules require that “[e]ach allegation of a pleading shall be simple, concise and direct,” and “no technical forms of pleading are required.” R. 4:5-7. Thus, such things as malice, intent, knowledge, other states of mind, and performance or occurrence of conditions precedent may be alleged generally. R. 4:5-8(a), (b). However, allegations of  “misrepresentation, fraud, mistake, breach of trust, willful default or undue influence” must be pleaded with special particularity. R. 4:5-8(a). The gist of each cause of action must be alleged in complaint, and the defendant must be apprised of the nature of the claim. Gorbart v. Society for Useful Mfrs., 2 N.J. 136 (1949).

Our NJ personal injury counsel keeps flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.

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What is a summons?

Every complaint that is to be served must be accompanied by a summons. The summons must be issued within ten days of the filing of the complaint. R. 4:4-1. Failure to issue the summons timely may result in the dismissal of the case without prejudice, though dismissal is quite rare unless the defendant is prejudiced by the delay. Id.; see, e.g., Vines v. Orange Memorial Hospital, 192 N.J. Super. 496 (App. Div. 1984).

The form of the summons is described in R. 4:4-2. Once again, the annotated New Jersey Court Rules contain an actual form of summons that may be used. Forms may also be purchased from commercial firms as well. The docket number of the case, once received, must be placed on the summons, and counsel should sign the name of the Clerk of the Superior Court (you can find the Clerk’s name in the New Jersey Lawyer’s Diary). As noted above, a copy of the track assignment must be attached to the summons. R. 4:5A-2(a). Once the summons is ready, counsel must then arrange for service of the summons and complaint upon each defendant.  

Our New Jersey personal injury advocates keep flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.

What is an answer?

After complaint served defendant must file an answer. Under R. 4:6-2, every defense, legal or equitable, in law or fact, to an affirmative claim must be asserted in the answer. Certain defenses, however, may at the option of the pleader be asserted by motion, with briefs. These defenses are (a) lack of jurisdiction over the subject matter, (b) lack of jurisdiction over the person, (c) insufficiency of process, (d) insufficiency of service of process, (e) failure to state a claim, discussed above, and (f) failure to join a party without whom the action cannot proceed, as required by R. 4:28. Defenses (b), (c) and (d) are waived if they are not asserted in the answer and raised by the motion within 90 days after service of the Answer. R. 4:6-3; R. 4:6-7. This is designed to prevent a party from keeping such largely technical defenses in its “hip pocket” for presentation at a strategic point later in the case when the parties and the court have already invested substantial time, energy and resources in the case. If you believe that such defenses are available, they should be presented immediately.

The defenses of lack of subject matter jurisdiction, failure to state a claim, and failure to join a party required by R. 4:28 may be raised at any time before trial. These defenses go to the power of the court to hear the case or to the fundamental merits of the claims asserted. For that reason, these defenses are not waived if not immediately presented. Normally, however, there is no reason to withhold them once counsel learns of their possible existence. Neither clients, who may have paid substantial sums to litigate the case, nor the court, which will have invested its time in the matter, will be happy to see a motion to dismiss the case that could have been brought months or even years earlier. You are well-advised to evaluate the availability of dispositive defenses such as these at the outset of the case, and to re-evaluate these issues periodically prior to trial in order to avoid overlooking this resource.

Other threshold motions that must be evaluated are motions to change venue or to transfer the case to another court. If a change of venue within the Superior Court is to be sought, that must be done within ten days after the last permissible responsive pleading or objections to venue are waived. R. 4:3-3(b). The ten day time period may be enlarged in the rare case where there is “substantial doubt that a fair and impartial trial can be had in the county where venue is laid.” Id. Transfers other than between the Law and Chancery Division are covered by R. 4:3-4. Unlike R. 4:6-2 motions or a motion for a more definite statement, venue or transfer motions do not alter the time by which a responsive pleading is due.

Our NJ lawyers keep flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.

What is discovery in New Jersey?

There are essentially six methods of discovery permissible under R. 4:10-1: (1) interrogatories, (2) document requests, (3) inspection of property and other things, (4) physical and mental examinations, (5) requests for admissions and (6) depositions. Each will be considered in turn.

However, before considering particular discovery devices, it is essential to understand the scope of discovery. Our discovery rules are intended to “eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments rest upon real merits of the causes and not upon the skill and maneuvering of counsel.” Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, Inc., 139 N.J. 499,512 (1995), quoting Olivero v. Porter Hayden Co. , 241 N.J. Super. 381, 387 (App. Div. 1990). Consistent with that view, R. 4:10-2 (a) permits discovery of all matters, not privileged, that are relevant “to the subject matter involved in the pending action.”

Our New Jersey personal injury lawyer keep flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.

What are depositions in New Jersey?

Depositions are the most important method of pretrial discovery. A deposition permits you to question a witness under oath to obtain facts, with minimal interference from your adversary. Unlike answers to interrogatories, which are often crafted by attorneys, a deponent must answer your questions without any assistance from his lawyer at the deposition. As a result, a deposition offers a preview of how a witness will perform at trial.

Depositions may be taken of both parties and non-parties. R. 4:14-1. Absent leave of court, a plaintiff must wait thirty-five days after the defendant is served with a copy of the Summons and Complaint before scheduling a deposition unless the defendant has already sought discovery. Id.

It is the obligation of the attorney scheduling the deposition to obtain the court reporter. While you may delegate that task to a secretary, it is your obligation to make sure that it is done.

There are two primary methods to schedule the deposition of an individual: (1) a Notice to Take Oral Deposition (or a deposition notice), which is served on parties and (2) a Subpoena, which is served on non-parties. Though both result in a deposition, there are important procedural differences. Each will be considered in turn.

  1. Deposition of Parties

To schedule the deposition of a party you must serve a deposition notice upon your adversary and all other parties who have entered an appearance at least ten days prior to the deposition. R. 4:14-2. As to individual parties, R. 4:14-2 provides that the deposition notice shall include:

  • the name and address of the person who is to be deposed, if known, or if not known, a general description sufficient to identify the person or group of persons to which the person belongs; and
  • the time and place for taking the deposition

Occasionally, one may wish to depose a representative of a corporation or governmental body but do not know the name of the individual(s) with relevant knowledge. In that case, pursuant to R. 4:14-2, one should name the particular entity as the deponent and state “with reasonable particularity the matter on which examination is requested.” The organization named in your notice will then select one or more individuals to testify as to the matters at issue. A drawback to this is that it permits the entity being deposed to designate a particularly canny witness for the deposition, but that comes with the territory.

There is no requirement as to where a deposition will occur except that it be “reasonably convenient for all parties.” Id. Typically, an attorney scheduling the deposition of a party will schedule the deposition at her office. Thereafter, the attorney issuing the deposition notice and the attorney for the deponent will discuss where the deposition will actually occur. In many cases, the attorneys agree that the deposition shall occur at the offices of the attorney defending the deposition. However, that is subject to modification depending upon the location of the parties, the attorneys and the volume of documents that may need to be transported. Above all, the attorneys should cooperate to ensure that common sense prevails.

Cooperation also applies to the timing of depositions. As noted above, depositions must be scheduled upon ten days’ notice. However, the date noticed for a deposition may be inconvenient both for the prospective deponent and one or more of the lawyers in the case. Thus, counsel must work together to schedule the deposition that is convenient for all involved. Once a new date is selected it should be confirmed in writing.

A deposition notice may also include a demand for the production of documents. R. 4:14-2(c). A party will then be compelled to bring the requested documents to the deposition.

While obtaining the documents on the date of the deposition is permissible under the rules, it is not recommended in all but the simplest cases. As discussed below, a preparation is the most important part of a deposition. Preparation requires that you be familiar with the relevant documents. It is impossible to understand the nuances of documents if you are presented with them for the first time at a deposition. Remember, your goal is to know more about the documents than the deponent. Thus, in all but the most routine case, you should obtain the documents pursuant to a formal document request well before the deposition.

Our NJ personal injury law firm keeps flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.

What are motions?

A motion is a request that the court enter an order. The types of motions that may be filed are limited only by the creativity of counsel, though certain kinds of motions are expressly authorized by Court Rules. Many of these motions have been mentioned in other sections of this book, E.g., R. 4:6-2 (motions to dismiss complaint); R. 4:6-4(a) 9motion for more definite statement); R. 4:23-1(a) (motion to compel discovery). Discovery motions were discussed in Chapter IV.

GENERAL RULES

Any pretrial motion should be brought by the way of written notice of motion. R. 1:6-2(a) As its name implies, a notice of motion gives notice to the court and other parties and counsel of the fact that your client is filing and serving a motion. R. 1:6-2(a) requires that the notice of motion state the time and place when the motion is to be presented to the court, the grounds on which it is made, and the nature of the relief that is being sought. For the ease of persons receiving the notice of motion, the title of that paper should identify the type of motion being filed and the party filing it (for example, “Plaintiff’s Notice of Motion for Summary Judgment”; “Defendant John Doe’s Motion to Compel Answers to Interrogatories”) rather than simply being titled “Notice of Motion.” See R. 1:4-1(a)(1). Moreover, a notice of motion must state whether oral argument is requested or is being waived. You may reserve the right to request oral arguments until after you see your opponent’s response.

Motions are heard on fixed days, normally every other Friday in most courts. The New Jersey Lawyers’ Diary, the New Jersey Law Journal, and the New Jersey Lawyer newspaper publish lists of scheduled motion return dates. You should consult those lists to determine when a motion may be heard in a particular court, since some courts have different motion hearing schedules. If your notice of motion purports to schedule a motion for consideration on a date that is not designated for motions, the court will normally unilaterally reschedule the motion for the next scheduled motion day. You can avoid inconvenience, or even embarrassment, by ensuring that notices of motion list a recognized motion day as the return date for any motion.

A party filing a notice of motion must also submit a proposed form of order. R. 1:6-2(a). The proposed form of order should contain the exact wording for the relief that the movant wishes the court to order. R. 4:42-1(a) contains the formal requirements for an order. You should always ensure that any proposed order submitted to a court conforms to those provisions. When submitting an order or proposed order, you must always include a self-addressed stamped envelope for the court’s use in returning a copy of the entered order stamped “filed” to the attorney. R. 4:42-1(e). This is not only a requirement of the Court Rules but, as a practical matter, it is a cost-saving measure for the court, which shifts the cost of mailing entered orders to the parties. Some judges will not mail an entered order to counsel without a self-addressed stamped envelope.

In the Chancery Division, or in the Law Division where a particular judge is assigned to all motions in the case, as will be so under “Best Practices” for all cases filed after September 5, 2000, R. 4:5B-1, 4:5B-4, the originals of the notice of motion and any affidavits or certifications are to be filed with the Motions Clerk of the county, and the original brief, an original and two copies of the proposed form of order, and copies of the notice of motion and any affidavits or certifications are to be filed with the judge. In those Law Division actions that predate “Best Practices” in which a particular judge has not been assigned to the case for all purposes, all of the original papers should be filed with the Motions Clerk. The Clerk will then assign the motion to a judge and transmit the papers to that judge’s chambers.

Our NJ personal injury lawyers keeps flexible office hours, with weekend appointments available, and we can meet you in your home or hospital room if you cannot travel to our office. Call us today, or contact us online, we’re standing by to assist you at (908) 561-5577.