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ADVOCATE The Middlesex County Bar Association Monthly Newsletter
May 2018 · Volume 32, Number 9
The Middlesex
Upcoming Events Annual Installation Dinner Estate at Farrington Lake, East Brunswick
Wednesday, May 23rd
(See page 7 for details)
Reception for 2018‐19
NJSBA President John Keefe Park Chateau, East Brunswick
Wednesday, June 13th
(See page 11 for details)
Annual Track Outing Monmouth Park Racetrack, Oceanport
Friday, July 20th
(See page 13 for details)
What’s Inside Calendar of Events………….... 2
Civil Trial Tips: What Do I
Do Now?
by William Waldron, Esq. …... 3
2018 Lawyer Achievement
Award Recipient ………………. 5
Unsolicited Advice
by Hon. John Jorgensen, JSC … 5
The Tax Cut and
Jobs Act of 2017 ……………….. 6
I Saw Sputnik . . .
by Peter Lederman, Esq. ……... 10
On My Mind
by Linda Lashbrook, Esq. ……. 12
The National Park Prosecutor
by Matthew Knoblauch ………. 15
Scenes from Karaoke Wars III .. 17
There is no question: the law is a serious profession. As lawyers, we deal with issues and situations that deeply affect peoples' lives. Family lawyers deal with some of the most personal issues: domestic distur-bances, child custody, efforts to bring fairness to a parting that was not supposed to happen until death. Probate lawyers take on a similar role in those relationships which have been severed by death, but where heirs and survivors disagree on the distribution of assets. Personal injury lawyers seek fair com-pensation for their clients' injuries due to the negligence of others; defense lawyers pro-tect their clients from unfair claims. The criminal defense lawyer's focus is on his/her client's freedom; the prosecutor's on the protection of the public. Tax lawyers pro-tect their clients from government over-reaching, and society from tax evaders and frauds. And on and on. The law is a serious profession that brings stress, anxiety, and sometimes sleepless nights to its practi-tioners. It is such a joy, then, to see and hear a group of lawyers having fun! Since 2010, the MCBA has set aside one monthly mem-bership meeting to display other talents, let our hair down (well, for some of us, figura-tively, at least) and just enjoy some good, clean fun. We continue to explore different venues for our annual Karaoke night, but there is one constant – a good time is had by all. Such was true of the event held on April 18 at RoosterSpin in New Brunswick, which we shared with our colleagues from the Somerset County Bar Association. As my year as your President winds to a close, I use our recent Karaoke night to illus-trate the exceptional camaraderie that exists in the Middlesex County Bar Associa-tion. Not that we don’t have our disputes: after all, disputes are the life-blood of lawyering. But I thought it was significant in many ways that the opening Karaoke tune chosen was “We Are Family,” made popu-
lar by Sister Sledge. As in all families, we often confront tough issues. Law-yers, by nature and training are intel-ligent, driven, focused, ambitious, and intense beings, who can bring their many talents to bear on those difficult issues, and find solutions. I have seen this happen again and again as I have served this organiza-tion as a member, board member,
and officer, and it continues to amaze and inspire me. It has truly been a pleasure to be, for a year, the Daddy to this multi-functional family known as the Middlesex County Bar Association. As I prepare to pass the gavel of leader-ship to the inestimable Joanne Vos, I must take a moment to comment on another transition that is occurring. Since the end of her presidency in 1999, Linda Lashbrook has penned a column in this newsletter entitled: “On My Mind.” Now, I have considered Linda a friend for many years, although po-litically, our viewpoints often differ. And Linda’s column has generated its share of controversy over nearly two decades. Yet, it was usually the first item I turned to when I received my monthly Advocate. Linda has informed us that she will soon bring her col-umn to a close, and I sincerely mourn its passing. My theme this year, as you probably have noticed, is “The more things change, the more they remain the same.” What you may notice in the Fall is that “On My Mind” has not disappeared from these pages, but merely changed; another past president may take up the challenge of sharing what is on her or his mind with you each month. Maybe a different style, maybe a different perspective. But remember: “The more things change, the more they remain the same.” Stay tuned. It has been an honor and a pleasure to serve as your President. The MCBA has had a great history, and has a bright future as a leadership organization. Be proud of your membership!
MCBA
The Middlesex County Bar Association 87 Bayard Street, New Brunswick, NJ 08901 ♦ www.mcbalaw.com ♦ 732.828.3433
The More Things Change . . . By William P. Isele, MCBA President
Calendar of Events
The Middlesex Advocate 87 Bayard Street
New Brunswick, NJ 08901 Phone: (732) 828-3433 Fax: (732) 828-5862 www.mcbalaw.com
Newsletter Editor Eugene S. Wishnic, Esq.
Letters to the Editor We welcome letters from MCBA members responding to recent articles or to events or issues of general concern to the bar. Commentary Articles Bar members are invited to submit “op-ed” articles, not longer than 750 words, which take affirmative or negative positions on matters of interest to the bar. Practice-Oriented Articles We welcome the submission of substantive law articles, to be limited to 2,000 words or less. News About People & Firms MCBA members are invited to submit announcements and photo-graphs of new firms, new hires, promotions, awards, celebrations and other noteworthy events. Obituaries Obituaries about Middlesex County lawyers may be submitted and should be 300 words or less. Materials submitted for publication in The Middlesex Advocate should be sent to [email protected] and may be edited for style or abridged due to space limits. Photo-graphs must be submitted electroni-cally in jpg format.
Cal
enda
r
Page 2 — May 2018 — The Middlesex Advocate
May 5 – Saturday, 9:00 a.m.
CLEAN UP @ JOHNSON PARK – Johnson Drive,
Grove 5, Piscataway. MCBA Volunteers will meet in
Grove 5 at Johnson Park and collect trash along the
river bank. All litter will be bagged and dragged to
the road where it will be collected by the County. If
you would like to volunteer, please send an email to
[email protected] or call the Bar Office at
732.828.3433, x. 102.
May 7 – Monday, 8:00 a.m.
IMMIGRATION/FAMILY LAW BREAKFAST CLE
(1.5 Credits) – Immigration in Family Court. Speakers:
Hon. John A. Jorgensen, II, JSC; Michael Cennimo,
Esq. and Katie Manton, Esq. Cost: $5‐Law Clerks; $10‐
MCBA Young Lawyers; $15‐MCBA Members; and $30
‐All Others (includes light breakfast).
May 8 – Tuesday, 6:00 p.m.
PARALEGAL ASSOCIATION OF NJ – General
Membership Dinner Meeting, Sills Cummis & Gross,
PC, One Riverfront Plaza, Newark (Free Parking).
Cost: $18 – PANJ Members and $23 – All Others.
RSVP at njpara.org/events or email to
May 9 – Wednesday, 8:00 a.m.
ELDER LAW COMMITTEE MEETING ‐ Topic: TBA.
A light breakfast will be served. There is no cost to
attend. To RSVP call 732.828.3433, ext. 102.
May 9 – Wednesday, 5:00 p.m.
ENVIROMENTAL LAW/REAL ESTATE LAW CLE
SEMINAR (2.0 Credits) – Key Environmental Law
Issues in Residential & Commercial Real Estate Trans‐
actions. Speakers: Lawra Dodge, PG, LSRP & Mat‐
thew Mauro, LSRP, Excel Environmental Services.
Cost: $10‐Law Clerks; $20‐Young Lawyers; $30‐
MCBA Members; and $60‐All Others.
May 11 – Friday, 12:15 p.m.
BOARD OF TRUSTEES MEETING – Bar Members
are welcome to attend. Please call the Bar Office at
732.828.3433, x.102 to RSVP.
May 22 ‐ Tuesday, 8:00 a.m.
TAXATION COMMITTEE CLE SEMINAR (1.5
Credits) ‐ Law Offices of Greenberg & Schulman, 90
Woodbridge Center Drive, Suite 200, Woodbridge.
Speaker/Topic: TBA. Cost: $5 ‐ Young Lawyers and
$10 – All Others.
The MCBA is an approved provider of continuing legal education in NJ and all CLE programs listed above will meet the requirements of the
BCLE of the Supreme Court of NJ. All events will be held at the MCBA Office, 87 Bayard Street in New Brunswick unless otherwise indicated.
To RSVP go to www.mcbalaw.com or call 732.828.3433, ext. 102.
May 23 – Wednesday, 6:15 p.m.
ASSOCIATION & FOUNDATION ANNUAL IN‐
STALLATION OF OFFICERS & TRUSTEES – Estate
at Farrington Lake, East Brunswick. Installation of 2018
‐19 Boards of Trustees. 2018 Arthur H. Miller Lawyer
Achievement Award. See page 7 for details.
June 6 – Wednesday, 12:15 p.m.
YLC CIVIL/CRIMINAL LAW LUNCH CLE (1.5 Cred‐
its) – Common Evidence Issues in Civil & Criminal
Law. Speakers: Hon. Pedro Jimenez, JSC and Hon. Lisa
Vignuolo, JSC. Cost: $10‐Law Clerks; $20‐Young Law‐
yers; $25‐MCBA Members; and $50‐All Others.
June 8 – Friday, 10:00 a.m.
MANDATORY ARBITRATION TRAINING (2.4
Credits) – Middlesex County Courthouse, Jury Assem‐
bly Room, Bayard Street Entrance, New Brunswick.
This program meets the continuing training require‐
ment for R.140‐12(c)Arbitrators. Cost: $25‐MCBA
Members and $50‐All Others
June 13 – Wednesday, 8:00 a.m.
ELDER LAW COMMITTEE MEETING ‐ Topic: TBA.
A light breakfast will be served. There is no cost to at‐
tend. To RSVP call 732.828.3433, ext. 102.
June 13 – Wednesday, 6:00 p.m.
RECEPTION FOR 2018‐19 NJSBA PRESIDENT
JOHN KEEFE, JR. – Park Chateau, 678 Cranbury
Road, East Brunswick. Cost: $90 per person. See page
11 for details.
June 15 – Friday, 8:00 a.m.
YLC CIVIL/CRIMINAL/FAMILY LAW BREAKFAST
CLE (1.5 Credits) – Mistakes That Lawyers Make – A
View From the Top. Speakers: Hon. Joseph Paone, JSC
(Criminal); Hon. Ana Viscomi, JSC (Civil); and Hon.
Peter Barnes, III, JSC (Family). Cost: $5‐Law Clerks; $10
‐MCBA Young Lawyers; $15‐MCBA Members; and $30
‐All Others (includes light breakfast).
June 26 ‐ Tuesday, 8:00 a.m.
TAXATION COMMITTEE CLE SEMINAR (1.5 Cred‐
its) ‐ Law Offices of Greenberg & Schulman, 90 Wood‐
bridge Center Drive, Suite 200, Woodbridge. Speaker/
Topic: TBA. Cost: $5 ‐ Young Lawyers and $10 – All
Others.
July 20 – Friday, 9:30 a.m.
BAR FOUNDATION ANNUAL “DAY AT THE
RACES” TRACK OUTING – Monmouth Park Race‐
track, Oceanport. See page 13 for details.
The Middlesex Advocate — May 2018 — Page 3
There are serious obstacles that prevent many attorneys today from obtaining trial experience that was commonplace not so long ago. You know the stats - - 98% of all cases settle. The 2% of cases that get tried are largely consumed by
medical malpractice and auto liability cases. Nonethe-less, every now and then you will have the perfect case and the professional fulfillment of being "on your feet" at trial. In the present legal environment, factors such as clients, expense, and court backlog all impact the ability to try a case. However, with the overdue influx of new judges in Middlesex County, you might just find yourself "on your feet" sooner than you think.
As a reader of this newsletter, I suspect your trial preparation is second to none; that you are a compe-tent attorney; and that you know how to present your case. You know the jury you want. You know your the-ory of the case. And when it comes to your clients and witnesses, you are well prepared. Opening? Check. Closing? Check. What could go wrong? Well, actually, a lot if you are not prepared for surprises and curve balls that could come your way.
This article will seek to address just the tip of the ice-berg of issues to be prepared for at the time of trial. 1. Jury Selection
You have your ideal jury in mind. You have discussed
juror composition with your senior partners, colleagues, and clients. During jury selection you decide to exercise a peremptory challenge to a juror on purely objective and reasonable grounds. All of a sudden your adversary jumps up and objects to your dismissal of a potential juror on the basis that it is biased and/or prejudicial. The judge looks at you for your response. What do you do?
The challenge is known as a "Batson" challenge fol-lowing the Supreme Court case of Batson v. Kentucky, 476 U.S. 79 (1986). Your adversary making the objection has the burden to make a prima facie case that the challenge was based on the gender or race of the po-tential juror. You must then articulate a race-neutral or gender-neutral basis for the challenge. The Supreme Court stated that "the Equal Protection clause forbids the prosecutor to challenge potential jurors solely on ac-count of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Id. The princi-ples of Batson were extended to civil trials in the interest of protecting each juror's equal protection right to be free from "State sponsored group stereotypes rooted in, and reflective of, historical prejudice." See J.E.B. v. Ala. Ex. Rel. T. B., 511 U.S. 127 (1994).
The New Jersey Supreme Court molded its peremp-tory challenge jurisprudence on the State constitutional right to "trial by an impartial jury drawn from a represen-tative cross-section of the community." State v. Gilmore, 103 N.J. 508 (1986). The Gilmore court set forth a burden-shifting test that begins with the rebuttable presumption that the party exercising the peremptory challenge did so on permissible grounds. This presumption may be re-butted upon a party's prima facie showing that the per-emptory challenge was exercised on constitutionally-impermissible grounds, meaning that the party objecting to the peremptory challenge "must establish that the po-tential jurors wholly or disproportionately excluded were members of a cognizable group within the meaning of the representative cross-section rule." Id. at 535-36. If a prima facie case is established, the burden then shifts back to you [the party exercising the challenge] to pro-vide evidence that the "challenges under review are jus-tifiable on the basis of concerns about situation-specific bias;" that is, you "must articulate a 'clear and reasonably specific' explanation of the 'legitimate reasons' for exer-cising each of the peremptory challenges." Id. You must provide a non-discriminatory reason for excusing a juror. For example, a basis to exclude a juror cannot be specu-lative and/or subjective, i.e. "he/she may be too gener-ous to the plaintiff . . . " You must cite objective factors revealed through voir dire which establish the possibility that your client may not have the benefit of an impartial jury deciding the case should the potential juror remain. The consideration of an impartial jury and a fair trial is the paramount consideration. 2. Learned Treatises
The expert report served on behalf of your client in a
medical malpractice case undermines the opinions of your adversary. Your expert cites to learned treatises and other publications which the other side did not. At trial, your adversary begins direct examination of its own ex-pert and attempts to challenge the opinions of your ex-pert by referencing the learned treatises, scholarly arti-cles, and/or other published opinions and/or theories prevalent in the industry on the issue at hand. The refer-enced publications were never mentioned in that ex-pert's report. The publications were never disclosed in your adversary's interrogatories as something which would be relied upon at the time of trial. Also, the publi-cations were never mentioned or discussed at the depo-sition of that expert.
The standard in New Jersey was established by the Supreme Court in Jacober v. St. Peter's Medical Center, 128 N.J. 475 (1992), when the court held that experts may "refer on direct examination to statements from learned
(Continued on page 8)
TRIAL TIPS: WHAT DO I DO NOW? By William Waldron, Esq.
The Middlesex Advocate — May 2018 — Page 5
Unsolicited Advice for Law & Life by Hon. John A. Jorgensen, II, JSC
Work ethic. The practice of law is not, and
should not be, a 9 to 5 proposition. Be professional. Make it a point to put in the time to make sure that the job is done right. A good bit of advice for law clerks and associates in law firms – be at your desk before the “official” start of the day, and plan on working longer than your boss at the end of the day.
Always practice the Golden Rule. I learned
from my mother at a very early age that you should do unto others as you would want them to do unto you. Yet, hearing the words and actually seeing them in ac-tion are two different things. Mom truly lived that rule on a daily basis. She was always friendly toward every-body, whether she knew them or not. Everybody was treated fairly and with compassion.
FOR LEASE PROFESSIONAL OFFICE SPACE
142 LIVINGSTON AVENUE NEW BRUNSWICK, NJ
Rent includes all utilities, security cameras, alarm system, private gated parking and
access to common conference room and kitchen.
Ideal for law office, accounting, real estate, medical, etc. Courthouse and hospital a few blocks away. Corner of Seaman St. and Livingston Ave.
Contact Beata at 908.581.3322 or Jacob at 732.991.5249
In recognition of his many years of service to the bar, Thomas J. Denitzio, Jr., Esq. of Greenbaum, Rowe, Smith & Davis LLP in Wood-bridge has been named this year’s Arthur H. Miller Lawyer Achievement Award recipient. He will be recognized on May 23, 2018 at The Es-tate at Farrington Lake in East Brunswick, in con-junction with the Association’s Annual Installa-tion of Officers and Trustees Dinner Meeting.
In June of 2012, the Board of Trustees voted unanimously to honor the late Arthur H. Miller by renaming the Lawyer Achievement Award after him. The Award is given annually to the lawyer whose “actions best exemplify what the practice of law is all about and serve as a model for others to emulate.” It is the highest honor bestowed upon any lawyer by the Middlesex County Bar Association. In 1996, Arthur Miller was himself recipient of the Award.
Tom has been practicing law for over four decades. A graduate of Lafayette College, he received his law degree from Cornell University School of Law. He was ad-mitted to practice in New Jersey in 1975, before the United States Supreme Court in 1981, and in New York in 1982. Tom began his career in private practice at Cham-berlin & Hobb in Cranford, and then spent ten years at Sills, Cummis & Gross before joining the Greenbaum firm.
A longtime and active member of the MCBA, Mr. De-nitzio is a Past President of the Association and a former Co-Chair of the Real Estate Committee. He lectures regu-larly at MCBA CLE events, including his annual seminar
on “Recent Developments in Real Estate.” Mr. Denitzio was honored with the MCBA’s Transac-tional Practice Award in 2014. Beyond Middle-sex County, Mr. Denitzio is a member of the New Jersey State Bar Association, the Mortgage Bankers Association of New Jersey Commercial Property Division, and the Appraisal Institute Metro New Jersey Chapter. He was also an ac-tive member of the Scotch Plains chapter of UNICO National. A New Jersey native and lifelong resident, Mr. Denitzio was born in Morristown and raised in
Scotch Plains. He and his wife Susan Buzby are currently residents of Martinsville. He is the very proud father of two daughters, Lauren and Christina.
Mr. Denitzio is a partner in the Greenbaum firm, where he co-chairs the Real Estate Department and serves as Chair of the Real Estate & Commercial Financ-ing Transactions Practice Group. His representation of clients – including commercial lenders, property owners/operators and developers – focuses on the sale, acquisi-tion, leasing and mortgage financing of commercial and industrial real estate holdings. He also represents clients in commercial property tax appeals, mortgage foreclo-sures and workouts, tax sale certificate foreclosures and condemnation valuation hearings.
MCBA 2018 Arthur H. Miller Lawyer Achievement Award Recipient: Thomas J. Denitzio, Jr., Esq.
Page 6 — May 2018 — The Middlesex Advocate
The Tax Cuts and Jobs Act was signed into law on December 22, 2017, with many of its provisions scheduled to take effect on January 1, 2018. The legislation is quite lengthy with over 500 pages of actual law, and another 600 pages of explanation. As with most tax revisions, sim-plification is not a word used to describe the new law. There are many changes to the corporate tax laws, including significant reductions in corporate tax rates and changes to encourage companies to repatriate their earnings being held in overseas locations. This article covers some of the changes that relate to personal taxes. As always, consulting your tax advisor is the best way to fully understand how these new rules may apply to your situation. New Personal Income Tax Rates The new law maintains the progressive rate structure with seven brackets with the top bracket being reduced from 39.6% to 37%.
Favorable treatment of long term capital gains and qualifying dividends is maintained, but the way the lower rates are applied changes somewhat.
Standard Deductions The standard deduction for 2018 has increased to $12,000 for those filing individual returns, and $24,000 for those filing joint returns. Personal Exemptions Personal exemptions have been eliminated. Itemized Deductions
Beginning in 2018: The limit for the state and local tax deduction is
$10,000. This includes income taxes, property taxes and sales taxes.
The mortgage interest deduction was modified to only allow the deduction of interest only on new mort-gages up to $750,000, down from $1 million. The rules on deducting interest on re-financed mortgages are also changed and consulting your tax advisor is essential. De-duction of interest on home equity loans is no longer al-lowed.
Charitable contribution deductions continue to be allowed with some increase on their limit.
The Kiddie Tax Unearned income (interest, dividends and capital gains) of children is now subject to the same rates as trusts, with preferential rates for long term capital gains and qualify-ing dividends. These rules can be complex, and you are encouraged to consult your tax advisor to see how they may apply to your situation.
Pass-through Business Entities Many small businesses are formed as partnerships, limited liability companies or subchapter S corporations with their income flowing through to the partners or share-holders. To bring the taxation of this type of income into line with the changes to the corporate tax rules, the part-ners or shareholders will be allowed to deduct a portion of that income. The rules are complex, and you will probably want to consult your tax advisor.
Section 529 Plans These arrangements provide tax benefits for saving for education. The old rules applied only to funds used for certain college expenses. The new rules allow for funds to be used for kindergarten through high school ex-penses as well with some limits.
Estate Taxes The exemption for determining when an estate is subject to the 40% estate tax has doubled to $11.2 million for 2018.
Alimony Under the new bill, alimony paid by one spouse to the other is not tax deductible, and the spouse receiving the alimony no longer has to pay taxes on it.
Final Thoughts There are other provisions of the new laws related to the individual mandate for health insurance coverage, the potential expiration of certain provisions and a lot more. You should expect that the income tax rules will continue to change in the years ahead and probably not get any simpler. If your tax situation is in any way complicated, the services of a qualified tax professional to assist you will probably continue to be essential.
The Tax Cuts and Jobs Act of 2017 (Submitted by Christina Farmer, Communications Coordinator, Provident Bank)
Income Tax Rate Schedules for 2018
2018 Single Return Rate Schedule
Taxable income levels Tax rate Taxable income levels Tax rate
0 to $9,525 10% 0 to $19,050 10%
2018 Married Filing Jointly Rate Schedule
$9,526 to $38,700 12% $19,051 to $77,400 12%
$38,701 to $82,500 22% $77,401 to $165,000 22%
$82,501 to $157,500 24% $165,001 to $315,000 24%
$157,501 to $200,000 32% $315,001 to $400,000 32%
$200,201 to $500,000 35% $400,001 to $600,000 35%
Over $500,000 37% Over $600,000 37%
Tax rate on long term capital gains and qualifying dividends
Taxable income lev-els for those filing individual returns
Taxable income lev-els for those filing joint returns
2018 Taxation of Dividends and Long Term Capital Gains
0% Under $38,600 Under $77,200
15% $38,600 to $425,800 $77,200 to $479,000
20% Over $425,800 Over $479,000
Annual Installation of 2018-19 Officers & Trustees Wednesday, May 23, 2018
The Estate at Farrington Lake, 16 Patrick Street, East Brunswick
Annual Installation Dinner Meeting - May 23, 2018 Dinner & CLE Dinner Only CLE Only
Name(s):
Address:
Telephone #: Email:
CC#: Exp. Date: Sec. Code:
Amount Authorized: $ Name on Card:
Signature (for Credit Card Payment Only):
Cost to attend: See pricing above. Make checks payable to "MCBA" and mail registration form to: Middlesex County Bar Association; 87 Bayard Street, New Brunswick, NJ 08901. Deadline for advance reservations – Friday, May 18th. To reserve by phone call (732) 828-3433, ext. 102, to reserve by fax send to (732) 828-5862 or to reserve by e-mail send to [email protected].
Method of Payment
Visa
MasterCard
Amex
Check
Date: May 23, 2018
To RSVP go to: www.mcbalaw.com or call 732.828.3433 x. 102
MCBA Member Cost:
$30: CLE Seminar Only $95: Dinner Only $100: CLE Seminar & Dinner
Non-Member Cost:
$50: CLE Seminar Only $115: Dinner Only $120: Dinner & CLE Seminar
* $5 extra at the door and for payment made after the event
Event Agenda
Pre-Dinner CLE Seminar 4:30 p.m.
Cocktails/Networking
6:15 p.m. Open Bar
Hors d’oeuvres
Dinner & Program 7:30 p.m.
Event Sponsors
Rebenack Aronow & Mascolo, LLP Maraziti Falcon LLP | Paone Zaleski & Murray
Couch Braunsdorf Insurance | Provident Bank | Excel Environmental Services
Joanne Vos President
Daria Anne Venezia President-Elect
Jack Gillick Treasurer
Megha Thakkar Secretary
Eugene Wishnic First Vice-President
Edward Testino Second Vice-President
Pre-Dinner CLE Seminar Ethical Considerations in Contested Divorce Matters Installation of 2018-19
Bar Association and Bar Foundation Officers & Trustees
Program Summary: Contested Divorce issues can be difficult to handle. Attorneys often times repre-sent clients who are suffering emotionally and have unrealistic expectations about alimony, child cus-tody, visitation, division of marital assets and various other issues. Guest speakers Hon. Deborah J. Venezia, PJFP, Fredric Shenkman, Esq., and Gary Pinckney, Esq., will focus on the many challenging issues family law attorneys face, the ethical dilemmas they are confronted with and how to best rep-resent their clients within the guidelines provided by the Rules of Professional Conduct.
This program has been approved by the Board on Continuing Legal Education of the Supreme Court of NJ for 2.0 hours of total CLE credit. Of these, 2.0
qualify as hours of credit towards ethics/professionalism. (Please note that Approved CLE Courses in NJ are Recognized for CLE Credit in NY.)
David Greenfield Treasurer
George Shamy, Jr. President-Elect
Robert Goodwin President
Elliot Solop Vice-President
2018 Arthur H. Miller Lawyer Achievement Award
to Thomas J. Denitzio, Jr., Esq.
Greenbaum Rowe
W. Lois Kahagi Secretary
The Middlesex Advocate — May 2018 — Page 7
treatises if they relied on those treatises in forming their opinions." In medical malpractice actions, Uniform Inter-rogatory A(1) requires the parties to reveal and identify any and all treatises by title, author, edition and "pertinent portions" to be relied upon or used at trial. Id. at #10. Be certain to ask this question and establish this point at deposition during the case. Absent any inter-rogatory disclosure or deposition testimony, an objection barring your adversary's expert from citing or relying upon a previously unidentified learned treatise will be sustained and a curative instruction to the jury may be in order. What if your adversary, realizing that his doctor did not rely upon a specific treatise when forming his opinion, and did not mention or disclose a treatise during discovery, and in an effort to circumvent the Rule and engage in gamesmanship, attempts to ask the expert --- with a prop in hand, e.g., a large authoritative-looking book, or a ream of photocopied text – whether trea-tises/articles exist that either agree with the expert's own opinion and/or dispute the opinion of your own expert. Clearly, your adversary is attempting to coax the jury to infer that such publications do exist and that the expert should be believed over your expert. This action of the attorney and the inference to be drawn are improper and prejudicial to your client, particularly where no prior disclosure of any publication was made during discov-ery. Make the objection to protect your client's interests and, if necessary, request that the court admonish the attorney and issue a curative instruction to the jury. 3. Quotient Verdict
You made it through your trial, the jury has been charged by the court, and you are awaiting a verdict. Once the verdict is returned, what should you do? Has the jury been polled? Have the comments of the jurors suggested that they have delivered a quotient verdict?
Quotient verdicts are illegal in this State and in most jurisdictions. Pushcart v. N.Y. Ship Building Co., 85 N.J.L. 525 (S. Ct. 1914). In Pushcart, the court defined a quo-tient verdict as one:
"Where the jury take[s] the sum of each estimate submitted by the jurors and di-vide[s] it by the number of jurors, . . . but in order to hold that the finding of a jury is a quotient verdict it must also appear that there was a positive prior agreement to abide by the result of this process, and even if there may have been such an agreement, if the jury subsequently re-fused to abide by it, and find a verdict greater or less than the quotient, it would not be error. Id. at 527-528.
The objectionable aspect of a quotient verdict and
the "positive prior agreement" is that jurors agree to be bound by the agreement without knowing what the quo-
(Continued from page 3) tient will be. This forecloses the opportunity for further dis-cussion and for comparison and evaluation of individual jurors’ positions that can lead to arrival at a verdict. In-stead, it arrives at a verdict through a process of chance or gambling and is not founded upon discussion, delib-eration, reasoning, and collective judgment in which each juror has an opportunity for individual participation. See 8 ALR 3d at 339-340. Quotient verdicts agreed to by jurors in advance conflict with the jury's function and un-dermine the policy that a verdict should represent the opinion of each individual juror. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. Shankman v. State, 184 N.J. 187 (2005). In Shankman, su-pra, a jury was determining the allocation of liability in a motor vehicle accident. The jury thought that it could not complete its deliberations before the close of business and indicated a willingness to return following the week-end to continue deliberations. However, in an effort to see whether a verdict could be reached, the jurors re-sumed their deliberations and shortly thereafter an-nounced that they had reached a verdict. The jury split liability between two defendants 58% and 42% of the li-ability. Id. The jury was consequently polled as to the li-ability allocation and the jurors stated that they simply estimated the percentages of liability and then added them up and calculated the average as a consensus figure for the jury. The jurors verified that nobody had specifically allocated liability at 58% and 42%. They simply arrived at the liability allocation by averaging the esti-mates of each juror. Such a verdict is illegal. But you must raise the issue of a quotient verdict at the time that the verdict is delivered; otherwise it is waived. Moreover, once it is raised, the trial judge must specifically inquire whether a prior agreement was entered into by the jurors to be bound by the quotient verdict. That is, averaging alone is not problematic, however it is the inference that the jurors would be bound to such averaging rather than setting forth their own, individual, final appraisal on the issue. A quotient verdict is not limited to liability percent-ages but also applies to damages awards, i.e., medical bills, economic damages, etc.
There are many nuances and pitfalls that you will en-counter at trial if you are not prepared for them. Use the experience of this learned Bar Association to prepare yourself for those situations. We are fortunate to have many experienced and talented trial attorneys within the Middlesex County Bar Association. I certainly suspect that they would have even more suggestions for you - - and you should not hesitate to ask them for their thoughts and tips as well. William F. Waldron, Jr. is a shareholder at Marshall Denne-hey Warner Coleman & Goggin in its Roseland, New Jer-sey office. He litigates professional liability and premises liability matters.
Page 8 — May 2018 — The Middlesex Advocate
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Page 10 — May 2018 — The Middlesex Advocate
I SAW SPUTNIK . . . by Peter H. Lederman, Esq. Davison, Eastman, Muñoz, Lederman & Paone, P.A.
Trials in DWI cases are very challenging. Thoughts swirl through my head at counsel table like so many snowflakes in a March Nor’easter! What makes me really crazy though, is when Officers and Troopers try too hard
to make their case. Officers are charged with maintaining the peace
and apprehending offenders. At the same time, they must find a balance with their obligation to support and defend the Constitutional rights of individuals. This balance reflects the fundamental task of what we want government to do and what we will not tolerate in how it is done. Such a balance can be upset when testifying Officers and Troopers try too hard to obtain convictions. This is especially so when the court’s abil-ity to obtain reliable information is diminished because testimony comes from an Officer who is the only avail-able fact witness.
It goes without saying that people are not perfect. Obviously, this would be so for those who pursue ca-reers in law enforcement and testify as witnesses for the State, just as it would for lawyers and weathermen. Officers and Troopers testifying in court, though, are in a position to cause serious punishment to be inflicted by the court when testimony is enhanced to obtain a conviction.
Organizations like MADD incentivize Officers and Troopers by recognizing them through the “Mothers Against Drunk Driving Recognition Award.” The same is true for the New Jersey Division of Highway Traffic Safety’s “Top Gun DWI Enforcement Award.” It might not be surprising that Officers and Troopers seeking career advancement might be inclined to embellish and exaggerate testimony in a DWI trial.
Sometimes though, a well-intentioned Officer or Trooper may be experiencing something as innocent as “confirmation bias.” Confirmation bias generally refers to an inclination to see things consistent with a pre-conceived notion. Events are observed as antici-pated, consistent with the outlook of the observer.
Confirmation bias may be a new term. It is not however, a new phenomenon. I experienced it myself a long time ago.
Back when I was younger than today, our country and Soviet Russia competed to launch the first man-made satellite in orbit around the Earth. I remember the excitement when the first orbiting satellite called Sputnik, was launched by the Soviets. So, on the Satur-day afternoon following the launch, my oldest friend (now an Internist in Lawrenceville) and I positioned ourselves in my back yard, equipped with my Uncle’s Korean War binoculars and an old AM radio that somehow picked up Morse code at the end of the
tuning dial. Sometime in the afternoon, Steve and I must have
seen a bug or some other small object through the binoculars, while the radio was beeping an indeci-pherable message in Morse code. Without more, I concluded that we must have just seen Sputnik and heard its signal! With great excitement and certitude, these two young men called what was then known as the Home News and reported our observations.
Unfortunately, the story appeared the following day, next to the obits in the Sunday edition, where it got a lot of attention. Soon, more people than I care to recall pointed out to me that I could not have seen Sputnik for a number of reasons. My uncle came over to the house and showed me that the satellite was probably on the other side of the world when I made my observation. Others pointed out that most heav-enly bodies were only visible to the human eye at night! For years, other kids would yell, “Hey Lederman, see Sputnik lately!”
Whether Sputnik was overhead or over China, however, was not the point. For me I did see Sputnik because well, I wanted to see it! It didn’t matter whether it was there in reality. Thinking that I saw it was enough to somehow experience an exciting moment in history. I wanted to see it and I believed I did!
Some say that everything happens for a reason. Sometimes when I review discovery with clients, I tell the Sputnik story to explain how the Officer’s state-ment of events as told in his Narrative, could be so dif-ferent from the Mobile Video Recording or my client’s recollection.
The truth is that you cannot filter human emotion from the creation of a Narrative or a Trooper’s testi-mony on the stand. What you can do, however is practice your trade as well as it can be done.
You can challenge the State to justify the stop of the Defendant’s car, the instruction to perform field sobriety tests and his arrest. You can insist on the pro-duction of discovery that tells the story of what hap-pened. You can take the time to review video to make sure it matches what the Officer claims in his Narrative. You can prepare by reviewing and master-ing all of the facts of the case. You can be patient and persistent through the course of trial.
In the most basic sense, you can “work the prob-lem” and confront the witness who is perhaps describ-ing what he thought he should see, in the course of a DWI investigation. In doing so, you will be making a difference for your client and for a moment, becom-ing that shining object passing through the sky. Reprinted with permission from the April 2, 2018 issue of the New Jersey Law Journal© 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Middlesex County Court House, circa 1840, New Brunswick, N.J.
The Middlesex Advocate — May 2018 — Page 11
Reception for NJSBA President John Keefe, Jr. - 6/13/2018
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The Middlesex County Bar Association & Monmouth Bar Association cordially invite you to attend a reception welcoming newly installed
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John E. Keefe, Jr. Wednesday, June 13th @ 6:00 p.m.
Park Chateau Estate 678 Cranbury Road, East Brunswick
So long for a while. . . When I started writing these columns in 1998, I had just taken office as President of the MCBA, and my initial offerings were the “message from the President” sort of things. Our Executive Director,
Jonathan Cowles, appreciated having a little some-thing to fill out the periodical, as it was often hard to ex-tract articles from the membership, so I kept up the practice after my year was over. Little did I know I’d still be contributing 20 years later. Middlesex matters
The subject matter in the early years was pretty pa-
rochial. We had a crisis when the County Clerk’s office switched from traditional recording practices to a com-puterized system. The recording became so back-logged that the Clerk’s office was clogged with boxes of documents submitted for recording, each box la-beled with the date of arrival, in hope that eventually the submissions would become matters of record in the correct order. Sometimes events would occur after the papers had been sent in for recordation but before ac-tion had been taken, and yelps were heard from title companies, lawyers, clients, banks, and especially the title searchers, whose job had suddenly become close to impossible.
Bar members and volunteers and Clerk’s staff all worked and met and negotiated with computer ven-dors, IT people, Freeholders and the searchers, and af-ter many months the system was modified and the bugs worked out. It began to work as anticipated and the backlog was retired. I haven’t done it in a while, but now you can access the system from your office (or home, in my case), and see the deeds and mortgages and other filed documents you need to access.
Attorney education
Every couple of years the Committee on Civil Prac-
tice revises the Rules, so my column tried to make new Rules a bit more accessible. I served on the Committee for many years, and often understood the changes pretty well because I had helped to formulate them. Rule amendments often engendered complaints from the bar, because rules written in committee tend to cause problems when applied to real-world practice. The time limits and definitions of filing and service in mo-tion practice were a frequent focus, and the Commit-tee eventually came up with a structure that worked pretty well. Fortunately, the Committee is always open to considering new ideas, and I advised any lawyer who
observed a conflict between the relevant Rule and the logical procedure to write in. All letters are added to the agenda for the next Committee meeting.
What was really on my mind
Eventually the column broadened out into a more
generally philosophical form. World events, and particu-larly U.S. politics, often had an effect on the work of the bar and seemed (to me) to call for notice. Moreover, I have always felt that being a lawyer means being aware of how our legal and political systems affect eve-ryone – not only the wealthy and the average guy, but also the poor, women and other minorities, workers in failing industries, consumers, young people trying to get an education and succeed, and, especially recently, immigrants and refugees. As the political power passed from the Democrats in the Clinton years to the Republi-cans under Bush II, and then back (sort of) under Obama, the policies that assisted or damaged various groups of society flowed back and forth like waves, and ordinary people simply tried to stay afloat. My reaction was to laud the actions and trends that seemed to benefit the most people, and to decry those that bene-fited those who were already well off and increased the inequalities that bedevil this country so much.
Needless to say, I had to proclaim how glad I was when President Obama and Congress managed to es-tablish the beginnings of a national health system, something I had advocated ever since leaving a coun-try that had one. Then, later, when movements calling themselves conservative did their considerable best to destroy the structures and even the idea of affordable health care for everyone, I was understandably indig-nant.
Life goes on, mostly . . .
Today, I spend much of every day indignant. It
seems to me the country went off the rails in 2016 and continues to careen in all directions except for compas-sionate, people-centered policies that would be paid for by all of us in equitable ways. There’s something al-most obscene in the sight of really, really rich people and corporations raking in the benefits of a tax system tailored to their desires while the rest of the population struggles to make ends meet. The roads and bridges crumble; millions of people spend hours of life every day trying to commute through two pathetic tunnels or on slow, broken-down trains that rarely arrive on time and often encounter even more time-wasting stops, slow-downs, derailments and accidents. Schools, too, are failing their students and teachers; starved of the proper funds, they deteriorate. Underpaid teachers get second
(See On my mind . . ., continued on page 15)
On my mind . . . by Linda Lashbrook
Page 12 — May 2018 — The Middlesex Advocate
The Middlesex Advocate — May 2018 — Page 13
For more information go to www.mcbf.org
or call 732-828-3433, x.102
Place: Monmouth Park Racetrack Turf Club, Parterre Level I
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Cost: $95 per person*
MCBF Annual “Day at the Races” - 7/20/18 Name(s):
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Cost to attend is $95 per person. Make checks payable to "MCBF" and mail registration form to: Middlesex County Bar Foundation; 87 Bayard Street, New Brunswick, NJ 08901. Deadline for advance reservations – Friday, July 13, 12:00 noon. To reserve by phone call (732) 828-3433, x. 102; to reserve by fax send to (732) 828-5862 or to reserve by e-mail send to [email protected].
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Practical Solutions to Ethical Issues in All Practice Areas
Our panelists will talk about the top ethical issues facing their respective practice areas. The program will be moderated by George J. Shamy, Jr., Esq. and has been approved by the BCLE of the Supreme Court of NJ for 2.0 hours of total CLE credit. Of these, 2.0
qualify as hours of credit towards ethics/professionalism. (Approved NJ CLE Courses are Recognized for CLE Credit in NY.)
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9:30a Free CLE Seminar
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Panelists:
2018 Annual Track Outing
“Day at the Races” Friday, July 20, 2018
Co-Sponsored by the Monmouth Bar Association
JosephJ.Benedict,Esq.(Criminal)
EdwardJ.Rebenack,Esq.
(Civil)
Hon.ArnoldNatali,JAD(Chancery)
TaraAuciello,Esq.(MunCt)
JohnP.Paone,Jr.,Esq.(Family)
GeorgeJ.Shamy,Jr.,Esq.
Moderator:
Some opportunities are simply too good to pass up. When I was in my second year of law school, I was given the opportunity to spend the summer as a seasonal federal prosecutor in Yosemite National Park. Yosemite has about 1,100 square miles of ex-clusive federal jurisdiction, and one does not need to be admit-ted to the bar to prosecute mis-demeanors there pursuant to the
local rules. Taking the unpaid position would require me to drive across the country and live in a remote national park, hours from the nearest city. How could I resist?
It turns out that most of the problems faced by the park prosecutors are the same ones faced by any other kind of municipal or county prosecutor: drunk driving, domestic disputes, possession of con-trolled substances, and the like. But, some of the time, park visitors engage in what I like to call “crimes against nature.” One individual dumped many gal-lons of raw sewage adjacent to a pristine glacial lake. He took his case to trial, but the video from the park ranger’s body camera ensured an easy convic-tion. Another seemed to enjoy hunting in national parks, as he faced his third charge for the illegal act. Rumor has it that he was banned from all national parks, forever (an unlikely sentence, with question-able legal footing).
For the legal community in the park, there was no question of what brought them to Yosemite. The fed-eral judge who sat in the park would get antsy if his feet didn’t hit the trail every so often. The two full-time prosecutors occasionally revealed their wisdom on the most secluded places in the park, where one can achieve solitude. The first weekend I spent in the park, my co-intern and I – there were only the two of us – picked an extremely secluded hike at the sug-gestion of our boss. It was so secluded, in fact, that there was almost no discernible trail. Twelve miles later, there were beers with our names on them.
Being a national park prosecutor will likely be the best job I ever had. As I sit in my current office in Tren-ton, I reminisce about when my office used to be a few hundred feet from the tallest waterfall in North America and when I once saw a mountain lion on my way home from work. Well, even though New Jer-sey’s mountain lions have been gone since the 1830s, at least we still have waterfalls. Matthew Knoblauch is a government attorney practicing in Trenton. The views he expresses are his own and not those of his employer. No part of this article is intended to be used as legal advice.
jobs and pay for supplies out of their own meagre funds; class sizes expand; arts and music courses are dropped. Meanwhile, these people who call themselves conser-vatives advocate even more defunding – from Medi-caid and Medicare to food stamps and affordable housing and every program that constitutes part of a safety net for the less fortunate.
All of the progress that was made in cleaning up our air and water, making industry, food and medicine safer, setting aside natural and beautiful lands, and en-suring that fisheries and farming remain sustainable, is currently under attack. The national push to combat climate change has been abandoned, leaving it to states and cities to try what they can do in concert to approach the goals that were agreed to in the Paris accords. Despair is rampant, from immigrants detained in dreadful for-profit jails with no way to achieve a proper life, to a lawyer well known for his work on behalf of the environment and gay rights who burned himself to death on April 14, evidently despairing that his work would ever succeed. Every morning we are blasted with new realizations of how the man at the top keeps ap-pointing “the worst of the worst” to the most important positions – not just the expectable conservatives, but those who are ignorant, unqualified and often affirma-tively dedicated to the demolition of the departments they now head.
In our profession we have traditionally looked to the courts to help those who have been disadvantaged by policies, injured because of weak regulations, discrimi-nated against and robbed of their civil rights, and also to make our elections and representation less biased. But under current conditions, although courts have made sporadic improvements against gerrymandering and arbitrary applications of law and executive action, the chances of reducing the effect of money on elec-tions and religion on legislation seem very slim. The judges and justices appointed by the current admini-stration are not only unlikely to rethink Citizens United, Hobby Lobby, and Ledbetter decisions, they are likely to live a long time. I’m not one for self-immolation, but I do spend moments close to despair.
It’s your turn . . . I won’t be contributing articles any more, just fulmi-nating on my own and boring the people I live with and know personally. So it’s your responsibility now. I encour-age you to write and send your thoughts to Jonathan for The Advocate. If you do, that will be more likely to provide a wider array of opinions. Don’t limit your contri-butions to “nuts and bolts”; include your opinions and feelings and even recommendations for the future. Be well; make your work count; make your opinions known. Working in the law is a powerful medium for do-ing good. (The views expressed in this column are those of the author and do not necessarily represent the views of the Association’s Board of Trustees.)
(Continued from page 12) The National Park Prosecutor By Matthew Knoblauch
The Middlesex Advocate — May 2018 — Page 15
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Scenes from Karaoke Wars III RoosterSpin, New Brunswick - April 18, 2018
Page 18 — May 2018 — The Middlesex Advocate
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The Association’s newsletter is published monthly from Sep-tember to May and contains law-related articles, important notices from the court, a calen-dar of events and other news from around the legal commu-nity. Access to current and past editions is available via the
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