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Webinar - Navigating the Default Judgment & Beyond
Michael T. Hensley, Esq. Bressler, Amery & Ross, PC (Florham Park) Willard C. Shih, Esq. Member, Supreme Court Civil Practice Committee Wilentz Goldman & Spitzer, PA (Woodbridge) Lauren Fenton-Valdivia, Esq. Bressler, Amery & Ross, PC (Florham Park)
IWCIV000416
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NAVIGATING THE DEFAULT JUDGMENT
AND BEYOND
NAVIGATING THE DEFAULT JUDGMENT AND BEYOND
It’s not Watergate Spygate, or Bridgegate. Instead, it’s Tunnelgate.
TUNNELGATE
Jersey Flowers, a wholesaler of flowers in New Jersey, supplies its merchandise to many bodegas in the fictional State of Old York. Its open-air trucks run every morning from 5 am to 7 am through the Roosevelt Tunnel. Six months ago, the operators of the Roosevelt tunnel closed down all inbound lanes in the tunnel for a week between the hours of 5 am and noon. It was later discovered that they did so because they wished to appease the leaders of Old York, who were becoming increasingly upset that its businesses were being supplied by foreign companies, and to curry favor with Old York businesses like York Flowers.
TUNNELGATE
Jersey Flowers filed suit against the operators of the Roosevelt Tunnel, Old York, the Governor of Old York, York Flowers, and the owner of York Flowers. All answered the complaint except York Flowers. You received notice from the court that claims Against York Flowers will be dismissed for non-prosecution if no action is taken soon. What happens next?
SECURING THE DEFAULT JUDGMENT
When Is A Default Judgment Available?
If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order, or if the answer has been stricken with prejudice, the clerk shall enter a default on the docket as to such party.... N.J. Court Rule 4:43-1 • Failure to plead or otherwise defend, e.g., failure to answer. • Failure to provide discovery, e.g., answer stricken with prejudice
When is a Default Judgment Not Available?
“Otherwise defend as provided by these rules or court order.” N.J. Court Rule 4:43-1 Not “any” court order. “A nexus between the violation of rules and orders and an underlying failure to
comply with the responsibilities of a litigant is central to the entry of a default based upon the failure to comply with an order.”
“Thus, the rule's reference to a failure to ‘defend as provided by these rules or court order’ is fairly read to authorize default only when the rule or order in question concerns the party's obligation to defend.”
New Jersey Div. of Youth and Family Svcs. v. M.G., 427 N.J. 154 (App. Div. 2012)
How to Obtain a Default Judgment?
Two-step process: Entry of Default Default Judgment
How to Obtain Entry of Default?
[T]he moving party shall make a formal written request of the clerk for the entry of the default, supported by the attorney's affidavit. The affidavit shall recite the service of the process and copy of complaint on the defendant or defendants (if more than one, naming them), the date of service as appears from the return of the process, and that the time within which the defendant or defendants may answer or otherwise move as to the complaint, counterclaim, cross-claim, or third-party complaint has expired and has not been extended.
Rule 4:43-1
When to Obtain Entry of Default?
The request and affidavit for entry of default shall be filed together within 6 months of the actual default, and the default shall not be entered thereafter except on notice of motion filed and served in accordance with R. 1:6 on the party in default.
Rule 4:43-1
Serving Entry of Default
If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process.
Rule 4:43-1
Serving Entry of Default
Impact of a failure to serve: “a matter of fairness.” [N]either the rules nor any applicable case law impose a penalty for failure to provide such notice. Here, it appears that little if any prejudice…. Nonetheless, we are satisfied that failure to provide the notice required by the last sentence in R. 4:43-1 raises an issue that requires examination by the trial court of whether sufficient excusable neglect was established to permit relief from the judgment under R. 4:50-1(a).
Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280 (App. Div. 2005)
Converting Entry Of Default Into A Default Judgment
Apply to the clerk of the court Conduct a proof hearing
Application To Clerk Of The Court
If the plaintiff's claim... is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit setting forth a particular statement of the items of the claim, their amounts and dates, a calculation in figures of the amount of interest, the payments or credits, if any, and the net amount due, shall sign and enter judgment for the net amount and costs against such defendant...
Rule 4:43-2(a)
Application To Clerk Of The Court
Preferred approach Speed and efficiency Cost No opportunity to defend: If the application for entry of default judgment is made after the expiration of six months following the entry of default, notice thereof shall be given to the defendant by ordinary mail, and proof of service thereof shall accompany the application.
Rule 4:43-2(a)
Application To Clerk Of The Court
Client affidavit – not attorney affidavit Form provided by the judiciary:
http://www.judiciary.state.nj.us/prose/10914.pdf Submit form of judgment (not required)
Proof Hearings
[T]he party entitled to a judgment by default shall apply to the court therefor by notice of motion pursuant to R. 1:6, served on all parties to the action, including the defaulting defendant or the representative who appeared for the defaulting defendant.
If, to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court, on its own motion or at the request of a party on notice to the defaulting defendant or defendant's representative, may conduct such proof hearings with or without a jury or take such proceedings as it deems appropriate.
Proof of service of the notice of motion and notice of any proof hearing is required.
Rule 4:43-2(b)
Proof Hearings
Issues to Consider: When? Consider multi-party cases. Who attends? Burden of proof. Judge or jury?
Proof Hearings
Burden of Proof – Damages? Since the plaintiff did not present adequate proofs at the default
hearing, the matter was rescheduled and the plaintiff was directed to serve the defendant with a notice of the new hearing date.
Clementi v. Clementi, N.J.Super. (Ch. Div. 2014)
Proof Hearings
Burden of Proof – Liability? Rule 4:43-2(b) grants a trial court the discretion to require proof
of the quantum of damages as well as entitlement to relief, prior to entry of default judgment.
EnviroFinance Group, LLC v. Environmental Barrier Co., LLC, 440 N.J. Super. 325 (App. Div. 2015)
“[T]he trial court has the discretionary power to require proof of liability.”
Kolczycki v. City of East Orange, 317 N.J. Super. 505 (App. Div. 1999)
Proof Hearings
“Where the trial court, undertakes to exercise such discretion, the court should ordinarily apply the prima facie standard to plaintiff's proofs, thus not weighing evidence or finding facts but only determining bare sufficiency.”
Kolczycki v. City of East Orange, 317 N.J. Super. 505 (App. Div. 1999)
DEFAULT JUDGMENT IN CIVIL VERSUS SPECIAL CIVIL
Civil Division Special Civil Part
To obtain a default pursuant to R. 4:43-1, the proponent must submit:
1) A Request for Default; and 2) Affidavit (with Proof of
Service)
To obtain a default pursuant to R. 6:6-2, the proponent is not required to submit anything (the Court enters default automatically after the 35 day timeframe to respond to the Complaint has expired.
Obtaining a Default Judgment in Civil versus Special Civil
Civil Division Special Civil Part
Default Judgment: Entered by the Clerk: Only in
cases where it is for a “sum certain” Affidavit of Proof Must be Filed
Where not for a “sum certain,” the proponent must make application to the Court. Proof Hearing Required.
Default Judgment: Entered by the Clerk either
where it is a judgment for money where it is for a “sum certain” or judgment for possession (landlord/tenant matters).
Where not for a “sum certain” or possession, the proponent must make application to the Court. Proof can be made via affidavit.
Obtaining a Default Judgment in Civil versus Special Civil
Civil Division Special Civil Part
Proponent must seek default judgment within 6 months or the court must dismiss the action. After 4 months court must
send written notice to proponent.
Application post 6 month notice to defendant by regular mail.
If the proponent makes application for default judgment 6 months or longer since entry of default, it must be made via motion.
Obtaining a Default Judgment in Civil versus Special Civil
Obtaining a Default Judgment in Civil versus Special Civil
In both Civil and Special Part, Default Judgment can be obtained where the Court has stricken the
defendant’s Answer (constitutes “default”). Proponent is required to file an Affidavit regarding the defendant’s
military service (protection for active duty military. Failure to file the Affidavit renders the judgment voidable (rather than
void), and then only a defendant who is on active duty or absent from duty for a lawful reason. (Comment 2.4 to Rule 4:43-2).
COLLECTING ON A DEFAULT
JUDGMENT
Methods of Collecting on a Judgment
Writ of Execution (Rule 4:59-1 (Civil) and Rule 6:7-1 (Special Civil Part)) Required format is Appendix XII-D and XII-E. Must be directed to the sheriff and must be returnable within 24
months after the date of issuance. Judgment-creditor must serve a copy of the fully endorsed writ,
personally or by ordinary mail, on judgment-debtor after levy made by sheriff no less than 10 days prior to the turnover of the property to the creditor (except for Special Civil Part)
Order of Property: execution first made out of personal property (before proceeding to real property) of the party primary liable.
Methods of Collecting on a Judgment
Wage Execution Judgment creditor can seek issuance of an execution against
Wages Debts Earnings Salary Income from Trust Funds Profits of Judgment Debtor
Methods of Collecting on a Judgment
Wage Execution Must be on Notice to the Debtor Required format is Appendix XII-D and XII-E. Must be directed to the sheriff and must be returnable within 24
months after the date of issuance. Judgment-credit must serve a copy of the fully endorsed writ,
personally or by ordinary mail, on judgment-debtor after levy made by sheriff no less than 10 days prior to the turnover of the property to the creditor (except for Special Civil Part)
Methods of Collecting on a Judgment
Wage Execution Notice Must State
That the application will be made for an order directing a wage execution to be served on the judgment debtor’s named employer;
The limitations on the amount of judgment debtor’s salary which may be levied upon;
That the judgment debtor may notify the court and plaintiff of its opposition to the execution and why such an order should not be entered;
That if judgment debtor notifies the clerk, the application will be set down for a hearing
That judgment debtor may object to the wage execution or apply for a reduction at any time after the order is entered and a hearing will be held within 7 days after such request is filed.
Methods of Collecting on a Judgment
Supplementary Proceedings (Post-Judgment Discovery pursuant to 4:59-1 (f), including) Order for Discovery (R. 6:7-2)
Court, upon good cause shown, can make an order requiring any person who may possess information concerning property to appear for a deposition.
Methods of Collecting on a Judgment
Supplementary Proceedings (Post-Judgment Discovery pursuant to R. 4:59-1(f), including) Information Subpoenas
Judgment Debtor can be served without leave of court, in the format of Appendix XI-L (no more than once in 6 month
period without leave of court).
Person/Entity Other than Debtor Upon Bank (without leave of court) and/or Employers or account-debtors (upon ex parte
application). Judgment debtor must have failed to answer its information subpoena for a period of 21 days and
Court must find both that the subpoena is reasonably necessary for obtain recovery and third party has relevant information.
Methods of Collecting on a Judgment
Property Subject to Levy? (N.J.S.A. 2A:17-1 et seq.) Bank Deposits Real Property (but must seek to execute out of personal property first,
and does not apply for Special Civil Part judgments) Partnership or Joint Venture Property Retirement Accounts & Pensions PIP Benefits Worker’s Compensation Welfare Benefits
Methods of Collecting on a Judgment
Property Subject to Levy? (N.J.S.A. 2A:17-1 et seq.) Stock (even in a closely held corporation where shareholder’s
agreement prohibits alienation) Trademark Widow/Widower Elective Share Public Property (i.e. property of a government entity) Reverse Mortgage Payment Right to Receive Rent (capable of assignment)
Methods of Collecting on a Judgment
Executing on Real Property Judgment Creditor is required to first execute out of personal property. If personal property is insufficient or unable to be located, then the
judgment credit can make a motion to the Court. The motion must be
On notice to the debtor; Submitted as a standalone motion; Supported by a certification specifying in details the attempts to locate and execute on personal
property (“supplementary proceedings” as discussed in Advanced Post-Judgment Remedies); Accompanied with a note that states that if the motion is not successfully defended, the judgment
debtor’s real property will be subject to sale; Accompanied with a listing of Legal Services Office and Law Referral Offices.
Methods of Collecting on a Judgment
Executing on Real Property “The debtor’s denial alone will ordinarily satisfy the creditor’s obligations to proceed
first against personality.” Comment 1.2.3 to R. 4:59-1. The credit must make reasonable efforts to locate personal property first pursuant to
N.J.S.A 2A:17-1.
Borromeo v. DiFlorio, 409 N.J. Super. 124 (App. Div. 2009) Judgment creditor’s efforts to levy on personal property were reasonable where
it conducted a judgment search and issued interrogatories to which debtor answered he had “no bank accounts, physical assets, accounts receivable or automobiles.”
Pojanowski v. Loscalzo, 127 N.J. 240, 242 (1992) Judgment creditor’s efforts to levy on personal property were reasonable where
debtor evasively answered at deposition regarding personal property.
Advanced Post-Judgment Remedies
Rule 4:59-1(f): Supplementary Proceedings:
“The court may make any appropriate order in aid of execution.”
Advanced Post-Judgment Remedies
Arrest Warrant for Failure to Comply with Information Subpoena or Discovery Order If a judgment debtor fails to comply with an information subpoena, failed to
appear on the return date of a motion to enforce, and the Court has entered an order to enforce litigant’s rights, the Court may issue an arrest warrant pursuant to R. 4:59-1(f) and R. 6:7-2 if the debtor has failed to comply within 10 days of the date of entry of the order. Made upon judgment creditor’s certification. Can only be executed between the hours of 7:30 AM and 3:00 PM on a day when court is in session. Must be executed at the address where the motion and order to enforce litigant’s rights were served. Debtor must be brought before Superior Court judge and released upon compliance.
Advanced Post-Judgment Remedies
Arrest Warrant for Failure to Comply with Information Subpoena or Discovery Order New Century Fin. Services v. Nason, 367 N.J. Super. 17 (App. Div.
2004) “The deprivation of liberty will be minimal in duration and limited in
scope. The debtor will not be placed in a holding cell or jail. He or she will not be ‘processed’ as are traditional arrestees by fingerprinting, photographing and the like. Upon answering the questions, the person may leave. Although this is an arrest, and indeed a temporary deprivation of liberty, it is designed to be a minimally intrusive means of compelling compliance with court orders.”
Advanced Post-Judgment Remedies
Order Forbidding Transfer or Other Disposition of Money or Property (N.J.S.A. 2A:17-65)
Judgment creditor can make application, upon “proof by oath” that
judgment debtor has property and or that a person owes debtor property, for an order prohibiting the transfer or other disposition of money until further order of the Court.
Advanced Post-Judgment Remedies
Executing against a Corporation: Putting the Burden on the Corporation’s Officers (N.J.S.A. 2A:17-74) Judgment creditor must only serve a writ of execution on one corporate
officer. The corporate officer may then request information from all officers and
agents and anyone who does not comply via neglect or refusal is liable to creditor for the entire amount of the execution.
Advanced Post-Judgment Remedies
Levying on Investment Securities in the U.S. Judgment Creditor can seek satisfaction through the debtor’s interest in
securities pursuant to N.J.S.A. 12A:8-112. “A creditor whose debtor is the owner of a certificated security,
uncertificated security, or security entitlement is entitled to aid from a court of competent jurisdiction, by injunction or otherwise, in reaching the certificated security, uncertificated security, or security entitlement or in satisfying the claim by means allowed at law or in equity in regard to property that cannot readily be reached by other legal process.”
N.J.S.A. 12A:8-112(f).
VACATING A DEFAULT JUDGMENT
Vacating the Default Judgment
The trial court's determination under the rule warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion.
US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449 (2012).
Excusable neglect Meritorious defense
Vacating the Default Judgment
Excusable Neglect
"Excusable neglect" may be found when the default was "attributable to an honest mistake that is compatible with due diligence or reasonable prudence."
US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449 (2012)
"[M]ere carelessness or lack of proper diligence on the part of an attorney is
ordinarily not sufficient to entitle his clients to relief from an adverse judgment"
Baumann v. Marinaro, 95 N.J. 380 (1984)
Burden Of Proof
With entry of default, relief may be granted on a showing of good cause.
“[C]learly a less stringent standard than that imposed by R. 4:50-1 for setting aside a default judgment.”
Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:43-3
With a default judgment, the party seeking to vacate the
judgment must meet the standard of Rule 4:50-1.
Grounds To Vacate A Default Judgment
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the
judgment or order and for which by due diligence could not have been discovered in time to move for a new trial under R. 4:49;
(c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(d) the judgment or order is void;
Grounds to Vacate a Default Judgment
(e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or
(f) any other reason justifying relief from the operation of the judgment or order.
Rule 4:50-1 The rule is "`designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Mancini v. EDS, 132 N.J. 330, 334, 625 A.2d 484 (1993) (quoting Baumann v. Marinaro, 95 N.J. 380, 392, 471 A.2d 395 (1984)).
Grounds to Vacate a Default Judgment
4:50-1(d): Make sure service was proper. Compare: “Even substantial deviations from the prescribed
procedures may be insufficient to require vacating a default judgment based upon flawed service if rights of an innocent third party have intervened.”
With: But, even without a violation of due process, a default judgment will be set aside for a substantial deviation from the service of process rules. Sobel v. Long Island Entertainment Products, Inc., 329 N.J. Super. 285 (App. Div. 2000)
Grounds to Vacate a Default Judgment
4:50-1(f): Any other reason. Because of the importance that we attach to the finality of
judgments, relief under Rule 4:50-1(f) is available only when truly exceptional circumstances are present.... The rule is limited to situations in which, were it not applied, a grave injustice would occur.
US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449 (2012)
Vacating the Default Judgment
Although there are enumerated grounds for vacating a default judgment in the Rule and such an application requires a showing of excusable neglect and a meritorious defense, the comment is very instructive in telling us that “an application to vacate a default judgment is ‘viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.” Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 4:50-1.
Vacating the Default Judgment
Even if a first application to vacate the default judgment is denied, it does not preclude a second timely application under Rule 4:50. Prof’l Stone Applicators v. Carter, 409 N.J. Super. 64, 68-9 (App. Div. 2009). Equitable principles permitted the trial court discretion to grant a second motion to vacate a
default judgment to prevent injustice where movant had failed to supply the required certification as to failure to respond in his first motion, but provided same certification in his subsequent motion.
But note that the reversal in Carter was centered on the fact that the initial application had not been decided “on the merits” and that Defendant had acted reasonably at all times.
Compare Check X. Change, LLC v. Columbia Expresso Travel, Inc., 2015 N.J. Super. Unpub. LEXIS 416 (App. Div. Mar. 2, 2015) (affirming denial of second motion to vacate default judgment where the first motion to vacate had been decided on the merits and the second motion failed to demonstrate that defendant had acted reasonably in failing to respond).
Vacating the Default Judgment
Special Circumstances Warranting Relief (Comment 4.2) If Plaintiff failed to prove a right to relief, the default judgment may be
vacated. Morales v. Santiago, 217 N.J. Super. 496 (App. Div. 1987)(vacating default
judgment where plaintiff had produced inadequate proof at the hearing); Bank v. Kim, 361 N.J. Super. 331 (App. Div. 2003)(vacating default judgment in
foreclosure where it was obtained in violation to a bankruptcy stay); Arrow Mfg. Co., Inc. v. Levinson, 231 N.J. Super. 527, 534 (App. Div.
1989)(vacating default judgment even where principal shareholder of corporation admitted evading service upon himself and the corporation where “the sanction of piercing the corporate veil and entering a judgment against him individually for the corporate debt was far too severe for that conduct”).
Speaker Contact Information
Michael T. Hensley, Esq. Bressler, Amery & Ross, PC (Florham Park)
Lauren Fenton-Valdivia, Esq. Bressler, Amery & Ross, PC (Florham Park)
Willard C. Shih, Esq. Wilentz Goldman & Spitzer, PA (Woodbridge)
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New Jersey New YorkPhone 973.514.1200 Direct 973.937.6724 Fax [email protected]
Lauren Fenton-ValdiviaAssociate
Overview News & Publications Speaking
Lauren Fenton-Valdivia is an associate in the firm’s Litigation department. Lauren has represented clients in a variety of litigation matters, includingthose involving complex commercial, professional liability, labor andemployment, and environmental disputes. Lauren has experience in largescale, multi-district class action matters, and routinely practices in the courtsof New York and New Jersey.
PracticesLitigation
EducationSeton Hall University School of Law, J.D., 2011
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Prior to joining the firm, Lauren was an associate at McElroy, Deutsch, Mulvaney & Carpenter,LLP in its Commercial Services Group. Lauren also served as Law Clerk to the HonorableThomas M. Moore, J.S.C.
Lauren received her B.A., cum laude, in Political Science from Rutgers University, RutgersCollege in 2008, where she was a member of the Honors Thesis Program, Phi Beta Kappa,Phi Sigma Iota and was a Henry Rutgers Scholar and Carr Scholar. Lauren received her J.D.from Seton Hall University School of Law in 2011. At Seton Hall, Lauren was a PresidentialScholar, Dorothy Day Scholar, and a student lawyer in the Civil Litigation Clinic.
Lauren is admitted to practice in the states of New Jersey and New York and the United StatesDistrict Court for the District of New Jersey and the Southern and Eastern Districts of NewYork.
Rutgers, The State University of New Jersey, B.A.,2008
Bar AdmissionsNew Jersey, 2011New York, 2011
Court AdmissionsU.S. District Court, District of New Jersey, 2011U.S. District Court, Southern District of New York,2015U.S. District Court, Eastern District of New York,2015
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New Jersey New YorkPhone 973.514.1200 Direct 212.235.6436 Fax [email protected]
Michael T. HensleyPrincipal
Overview Experience News & Publications Speaking Awards & Honors
Michael T. Hensley’s litigation and trial experience is diverse and spanscomplex commercial, environmental, labor and employment, and professionalmalpractice matters. Michael is retained by some of the largest companies inthe world for their high stakes litigation.
Michael’s natural ability to present complex facts and concepts in a easily understandable wayis cited by clients as to why he is consistently retained for major exposure litigation. They
PracticesCommercial LitigationEnvironmental LawLabor and EmploymentProfessional Liability
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respect not only his proven and successful record of aggressively trying many cases toverdict, but also his creativity in settling matters where appropriate. In addition to hisreputation as a formidable litigator and lead trial attorney, Michael is also a known andrespected appellate advocate who has successfully argued before multiple state AppellateDivisions and U.S. Courts of Appeal.
The New Jersey Supreme Court recently appointed Michael to the New Jersey Board of BarExaminers’ Committee on Character. Michael is routinely selected as a Super Lawyer “RisingStar” in both New York and New Jersey, and is a very active member of the New York StateBar Association’s Commercial Division Committee.
EducationSeton Hall University School of Law, J.D.University of Delaware, B.A.
Bar AdmissionsNew JerseyNew YorkPennsylvania
Court AdmissionsU.S. District Court, District of New JerseyU.S. District Court, Southern District of New YorkU.S. District Court, Eastern District of New YorkU.S. District Court, Northern District of New YorkU.S. District Court, Eastern District of PennsylvaniaU.S. District Court, Western District of TexasU.S. Court of Appeals, Third Circuit
Professional AffiliationsThe Association of the Federal Bar of New JerseyNew York State Bar Association- Member, Commercial and Federal LitigationSection- Member, Committee on Commercial Division
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1.855.WILENTZ
Willard C. Shih Print Page
Contact me Phone: 732.855.6016 Fax: 732.726.6682 Email: [email protected]
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New York and the United States District Courtfor the Districts of Southern and Eastern NewYork, 1997New Jersey and the United States DistrictCourt for the District of New Jersey, 1998Eastern District of Michigan, 1999
Education:
J.D., Fordham University School of Law, cumlaude, 1996B.A., Columbia University, 1993
Willard C. Shih - Commercial & Business Litigation Attorney NJPRACTICE AREAS
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In the United States, only two or three out of every 100 civil lawsuits result in atrial on the merits. If there is a possibility that your case might be one of thevery few only resolved by trial, you want to do what you can to stack the oddsin your favor. As lead trial counsel, Mr. Shih has an unblemished recordwhen it comes to securing victories for his clients when trial is unavoidable. The favorable verdicts have been achieved both on the plaintiff and defenseside and in all forms of litigation—bench and jury trials and arbitration. It’sneither the side of the “v” nor the label of the fact finder that dictates Mr. Shih’sapproach, because in every case it’s the client that matters. His ability andresolve to quickly grasp the root of the issues in dispute, and how thoseissues affect his client’s business, allow him to litigate a variety of claims forclients in a number of industries—the very essence of a commercial litigator.
In the other 98% of cases, Mr. Shih is equally adept at securing pre-trialdismissals, frequently prevailing on motions to dismiss and motions forsummary judgment to extricate clients from otherwise damning allegations. Mr. Shih understands that for his clients, litigation is an unwelcomedistraction and expense from their businesses and lives, and thus, healways counsels clients on the possibility of settlement or alternate disputeresolution and does what it takes to negotiate an end to the case. Mr. Shih’stop priority is the right and most expeditious resolution to the case.
In his commercial litigation practice, Mr. Shih represents businesses andindividuals in cases involving corporate and partnership disputes, unfaircompetition and consumer claims, trademarks and trade secrets, restrictivecovenants, investment claims, and a variety of other complex businessmatters. He also represents closely held corporations in cases in which theowners have disputes pending in family court and probate court, as well asfamily members involved in estate disputes.
As a shareholder on the firm’s Professional Liability and Responsibility team,Mr. Shih regularly represents national, regional and local law firms in casesinvolving claims of professional negligence, breach of fiduciary duty, fraud,and civil conspiracy, among others. The attorneys he defends practice in avariety of disciplines, yet Mr. Shih makes it a priority to understand theirpractice so that he can better mount their defense. To the extent the specialtyis especially arcane—as in the case of “total return swaps” or “qualifieddomestic relations orders” to name a few—there is a strong likelihoodWilentz has attorneys who practice in that area, allowing Mr. Shih to drawfrom that experience to better defend the claim.
Mr. Shih is committed to serving the legal profession. Appointed by the NewJersey Supreme Court, he has been served on multiple panels and
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committees including: Civil Practice Committee and the committee on Rulesof Evidence. The New Jersey Supreme Court has also charged him withinvestigating and adjudicating wrongdoing by attorneys, serving as PanelChair of a Fee Arbitration Committee and as Vice-Chair of a District EthicsCommittee. He has also served on the Court’s Complementary DisputeResolution Committee.
In the community, Mr. Shih is a legal advisor and former Deacon of Legal andCommunity Affairs for the Rutgers Community Christian Church. He hasalso served as an elected officer and board member of the Asian PacificAmerican Lawyer’s Association of New Jersey, and as co-chair of itsProfessional Development Committee.
Representative Matters:
Jury verdict of over $10 million in favor of a biotech company alleging a theftof trade secretsVerdict in a bench trial in favor of client sued for undue influenceJury verdict for a real estate investor alleging violation of the New JerseyConsumer Fraud ActJury verdict defending a law firm sued for professional negligenceJury verdict defending a general contractor sued in tort and contractArbitration decision defending an adult day care center and several of itsmembers in an ownership dispute with a minority memberMultiple arbitration decisions defending an automobile dealership sued forviolations of the New Jersey Consumer Fraud Act
Awards and Recognitions:
Professional Achievement Award, Asian Pacific American LawyersAssociation of New Jersey, 2015Best Lawyers® in America, since 2013New Jersey Super Lawyers®, “Super Lawyer,” since 2013, and “RisingStar,” 2006–2012Best Under 40 by the National Asian Pacific American Bar Association,2011Forty-under-40 award by the New Jersey Law Journal, 2011Forty-under-40 award by NJBIZ, 2006Professional Lawyer of the Year by the New Jersey Commission onProfessionalism in the Law, 2011 and 2015Outstanding Legal Achievement Award by the New Jersey ChineseAmerican Chamber of Commerce, 2008
Speaking Engagements:
“The Right Expert: How Hard Can It Be?,” American Bar Association,Lawyer’s Professional Liability Committee, Sept. 2015“In-House Counsel Seminar” covering international litigation, New JerseyLaw Journal, 2015
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Law Journal, 2015“A Lawyer’s Worse Nightmare: The High Stakes Claim Against Counsel,”American Bar Association, Lawyer’s Professional Liability Committee, Apr.2015“You Claim You Would Have Gotten A Better Result? Prove It,” AmericanBar Association, Lawyer’s Professional Liability Committee, 2014Mock Hearing on Summary Judgment Motions, 2014Expert Witness Examination Skills Workshop, 2014“Calling For Help: What To Do When You’re The Subject Of An EthicsComplaint And How To Stay Out Of Trouble,” New Jersey State BarAssociation, 2013“How To Get Disbarred,” National Asian Pacific American Bar Association,2013“How To Be A Young Lawyer And Excel At The Profession,” MiddlesexCounty Bar Association, 2013“Professionalism and Technology; The Advantages And Pitfalls,” MiddlesexCounty Bar Association, 2013Civil Court Rules Update, New Jersey Institute of Continuing LegalEducation, 2012New Jersey Civil Trial Preparation, New Jersey Institute of Continuing LegalEducation, 2005–2006
Publications:
“Suing Predecessors, Successors, Co-Counsel,” New Jersey LawyerMagazine, 15 NJL 1787, Aug. 28, 2006
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