2010 Supplemental Report
of the Supreme Court
Civil Practice Committee
March 1, 2010
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION................................. 1
A. PROPOSED AMENDMENTS TO R. 1:21-7 — CONTINGENT FEES ............................................ 1
B. PROPOSED AMENDMENTS TO R. 4:64-9 — MOTIONS IN UNCONTESTED MATTERS .............. 4
II. MATTERS HELD FOR CONSIDERATION................................................................ 7
A. PROPOSED AMENDMENTS TO R. 1:5-6 — FILING ................................................................. 7
B. PROPOSED AMENDMENTS TO R. 1:8-8 — MATERIALS TO BE SUBMITTED TO THE JURY;
NOTE-TAKING; JUROR QUESTIONS....................................................................................... 8
C. PROPOSED AMENDMENTS TO R. 1:21-7 — CONTINGENT FEES ............................................ 9
D. PROPOSED AMENDMENTS R. 4:4-7 — RETURN.................................................................. 10
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I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendments to R. 1:21-7 — Contingent Fees
Rule 1:21-7(c) sets the percentages of contingent fee recovery. Subsection (c)(6) states
that where the amount recovered is for the benefit of a minor or incapacitated individual, the
amount is limited to 25% if the fee is recovered by settlement without trial. A Committee
member requested that the Committee clarify what is meant by the phrase “recovered by
settlement without trial….” In the absence of a definition of the phrase, attorneys may be
tempted to pursue trial to a point where the greater fee would be permitted. It was proposed that
clarification of the phrase would avoid inconsistent rulings by trial judges, unintentional but
potentially unethical behavior by counsel, and the needless risk to a client as a result of the
establishment arbitrary stages in a proceeding that trigger a higher fee. The Committee agreed
that the rule should be amended to clarify that the 25% rate would apply to any settlement that
occurred prior to the close of evidence. At the conclusion of the trial, the attorney will have the
right to apply for an enhancement, under subsection (f) of the rule, and the enhancement would
be limited to the standard rate of recovery, that is 33⅓%. Such clarification will foster
uniformity in the application of the rule and will also encourage settlement at earlier stages of the
proceeding.
See Section II.C. of this Report for proposed amendments to R. 1:21-7 that are being held
for consideration.
The proposed amendments to R. 1:21-7 follow.
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1:21-7. Contingent Fees
(a) …no change.
(b) …no change.
(c) In any matter where a client's claim for damages is based upon the alleged
tortious conduct of another, including products liability claims and claims among family
members that are subject to Part V of these Rules but excluding statutorily based discrimination
and employment claims, and the client is not a subrogee, an attorney shall not contract for,
charge, or collect a contingent fee in excess of the following limits:
(1) 33⅓% on the first $500,000 recovered;
(2) 30% on the next $500,000 recovered;
(3) 25% on the next $500,000 recovered;
(4) 20% on the next $500,000 recovered; and
(5) on all amounts recovered in excess of the above by application for reasonable fee
in accordance with the provisions of paragraph (f) hereof; and
(6) where the amount recovered is for the benefit of a client who was a minor or
mentally incapacitated when the contingent fee arrangement was made, the foregoing limits shall
apply, except that the fee on any amount recovered by settlement prior to the close of evidence at
[without] trial shall not exceed 25%, provided that the fee may be enhanced pursuant to
paragraph (f) of this rule subject, however, to the maximum fee allowed by paragraph (c) of this
rule.
(d) …no change.
(e) …no change.
(f) …no change.
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(g) …no change.
(h) …no change.
(i) …no change.
Note: Source — R. 1:21-6(f), as adopted July 7, 1971 to be effective September 13,
1971 and deleted December 21, 1971 to be effective January 31, 1972. Adopted December 21,
1971 to be effective January 31, 1972. Amended June 29, 1973 to be effective September 10,
1973. Paragraphs (c) and (e) amended October 13, 1976, effective as to contingent fee
arrangements entered into on November 1, 1976 and thereafteR. Closing statements on all
contingent fee arrangements filed as previously required between January 31, 1972 and January
31, 1973 shall be filed with the Administrative Office of the Courts whenever the case is closed;
paragraph (c) amended July 29, 1977 to be effective September 6, 1977; paragraph (d) amended
July 24, 1978 to be effective September 11, 1978; paragraph (c) amended and new paragraphs
(h) and (i) adopted January 16, 1984, to be effective immediately; paragraph (d) amended July
26, 1984 to be effective September 10, 1984; paragraph (e) amended June 29, 1990 to be
effective September 4, 1990; paragraphs (b) and (c)(5) amended July 13, 1994 to be effective
September 1, 1994; paragraph (c) amended June 28, 1996 to be effective September 1, 1996;
paragraph (c) amended January 21, 1999 to be effective April 5, 1999; paragraphs (g) and (h)
amended July 5, 2000 to be effective September 5, 2000; paragraph (c) amended July 12, 2002 to
be effective September 3, 2002; paragraphs (d) and (f) amended July 9, 2008 to be effective
September 1, 2008; paragraph (c)(6) amended to be effective .
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B. Proposed Amendments to R. 4:64-9 — Motions in Uncontested Matters
To encourage the filing of responsive and specific objections to motions in foreclosure
matters, the Office of Foreclosure recommended the addition of language to R. 4:64-9 to clarify
that, for motions to be heard by a judge, the objections must address the subject of the motion
and state the basis of the objection with specificity. The Committee supported the Office of
Foreclosure’s recommendation. Legal Services expressed concern that litigants’ responses to
motions using less than precise legal terminology will not be heard by a judge. It was explained
that the amendment was proposed to encourage more specific responses and to avoid the
necessity of sending motions to judges where the objection presented is unexplained or unrelated
to the subject of the motion. It is intended that any objection, if it is related to the subject of the
motion, will be forwarded to a judge regardless of any drafting irregularities.
The proposed amendments to R. 4:64-9 follow.
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4:64-9. Motions in Uncontested Matters
A notice of motion filed with the Office of Foreclosure shall not state a time and place for
its resolution. The notice of motion shall state the address of the Office of Foreclosure and that
the order sought will be entered in the discretion of the court unless the attorney or pro se party
on whom it has been served notifies in writing the Office of Foreclosure and the attorney for the
moving party or the pro se party within ten days after the date of service of the motion that the
responding party objects to the entry of the order. On receipt of a[n] specific objection or at the
direction of the court, the Office of Foreclosure shall deliver the foreclosure case file to the judge
in the county of venue, who shall schedule such further proceedings and notify the parties or
their attorneys of the time and place thereof.
Every notice of motion in a foreclosure action shall include the following language:
“IF YOU WANT TO OBJECT TO THIS MOTION YOU MUST DO SO IN WRITING
WITHIN 10 DAYS AFTER THE DAY YOU RECEIVED THIS MOTION. ANY OBJECTION
MUST ADDRESS THE SUBJECT OF THE MOTION AND DETAIL WITH SPECIFICITY
THE BASIS OF THE OBJECTION. YOU MUST FILE YOUR OBJECTION WITH THE
OFFICE OF FORECLOSURE, P.O. BOX 971, 25 MARKET STREET, TRENTON, NEW
JERSEY 08625, AND SERVE A COPY ON THE MOVING PARTY. THE OFFICE OF
FORECLOSURE DOES NOT CONDUCT HEARINGS. YOUR PERSONAL APPEARANCE
AT THE OFFICE WILL NOT QUALIFY AS AN OBJECTION. IF YOU FILE A[N]
SPECIFIC OBJECTION, THE CASE WILL BE SENT TO A JUDGE FOR RESOLUTION.
YOU WILL BE INFORMED BY THE JUDGE OF THE TIME AND PLACE OF THE
HEARING ON THE MOTION.”
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Note: Adopted July 9, 2008 to be effective September 1, 2008; amended
to be effective .
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II. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendments to R. 1:5-6 — Filing
The Conference of General Equity Presiding Judges recommended a change to
R. 1:5-6(c)(2). Pursuant to the rule as currently constituted, answers submitted for filing by
defendants against whom default has been entered in mortgage or tax foreclosure actions are
exempt from being stamped “received but not filed” and returned to the filer. The Conference
recommended that the exemption be removed, thus requiring answers presented by defendants in
default in foreclosure cases to be treated as in other cases where a party is in default, i.e.,
returned marked “received but not filed” with notice that the defendant may move to vacate the
default. This proposal was not discussed by the Committee and so will be carried over to the
next rules cycle.
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B. Proposed Amendments to R. 1:8-8 — Materials to be Submitted to the Jury;
Note-taking; Juror Questions
The Supreme Court in State v. O’Brien, 199 N.J. 127 (2009) asked both the Civil and
Criminal Practice Committees to consider whether there should be a more detailed standard to
guide judges in exercising their discretion to submit a copy of written instructions to a jury under
R. 1:8-8(a). Specifically, the Court said
The purpose underlying Rule 1:8-8 is to authorize the judge to
provide the jury with written instructions where it would be helpful.
Deciding what to do requires an exercise of discretion based on the
particular facts of the case. That does not include the adoption of a
blanket rule regarding the provision of written instructions that the judge
applies in every case. Thus, at trial, a judge should make an
individualized decision regarding the submission of written instructions to
the jury on the basis of what is before him and not on any preconceived
policy rationale.
Because the rule is silent regarding the kinds of considerations that
should inform such a determination, we refer the matter to the Civil and
Criminal Practice Committees for consideration of a more detailed
standard to guide judges in exercising their discretion. By way of
example, but not limitation, the committees should consider whether, if
there is a request, there should be a presumption that instructions that are
immediately available will be provided; whether there should be a
contrary presumption that instructions that are not immediately available
will not be provided; whether a definition of “immediately available”
should be adopted; and what kinds of considerations regarding the nature
of the case should factor into the judge’s Rule 1:8-8 calculus.
Slip Opinion at 40 and 41.
This matter will be considered by the Committee at the first meeting of the next rules
cycle.
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C. Proposed Amendments to R. 1:21-7 — Contingent Fees
In the course of discussing a proposed amendment to R. 1:21-7, the Committee members
also questioned whether the recovery percentages should be raised or if there were some other
way to enhance recovery, e.g. by raising the caps on the recovery amounts. A subcommittee was
established to consider this issue. The recommendations of the subcommittee will be considered
by the Committee at its first meeting of the next rules cycle.
See Section I.A. of this Supplemental Report for an amendment to R. 1:21-7 that the
Committee recommends.
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D. Proposed Amendments R. 4:4-7 — Return
The Committee agreed to propose an amendment to R. 4:4-7 to provide that where
service of process in the Law Division - Civil Part is made by registered or certified mail and
simultaneously by regular mail, the return receipt card or the printout of the electronic
confirmation of delivery by the U.S. Postal Service shall be filed as part of the proof of service.
The Conference of General Equity Presiding Judges suggested that the rule be further amended
to allow a photocopy of the return receipt card to be filed as part of the proof of service. The
judges would like to give the party the option of submitting a copy if, for whatever reason, the
original is misplaced. This issue will be presented to the Committee during the next rules cycle.
See Section I.A. of the 2010 Report of the Supreme Court Civil Practice Committee for
an amendment to R. 4:4-7 that the Committee recommends.
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The Civil Practice Committee notes with deep sadness the passing of the Honorable
Sylvia B. Pressler, our longtime chair. We shall miss the intelligence, efficiency and wit with
which she presided over our meetings, as well as her unparalleled knowledge of the rules and her
sensitive insights into the policies behind them. We send our deepest sympathy and condolences
to her family.
Respectfully submitted,
Hon. Sylvia B. Pressler (Ret.), Chair
Hon. Stephen Skillman, P.J.A.D., Vice-Chair
Hon. Allison E. Accurso, P.J.Cv.
Dean John S. Beckerman
Hon. Eugene J. Codey, Jr., P.J.Cv.
Risa M. David, Esq.
Dawn M. DuVerney, Esq.
Hon. Faustino J. Fernandez-Vina, P.J.Cv.
Stacy A. Fols, Esq.
Amos Gern, Esq.
William S. Greenberg, Esq.
Robert B. Hille, Esq.
Craig S. Hilliard, Esq.
Kenneth S. Javerbaum, Esq.
Hon. John C. Kennedy, J.S.C.
Linda Lashbrook, Esq.
Gary J. Lesneski, Esq.
Howard J. McCoach, Esq.
Hon. Anne McDonnell, P.J.Cv.
Melville D. Miller, Esq.
Hon. Elijah L. Miller, Jr., P.J.Cv.
Vincent J. Nolan, III, Esq.
Hon. Thomas P. Olivieri, P.J.Ch.
John R. Parker, Esq.
Hon. Edith K. Payne, J.A.D.
Gary Potters, Esq.
Arthur J. Raimon, Esq.
Dean Andrew J. Rothman
James A. Schragger, Esq.
Willard C. Shih, Esq.
Jonathan D. Weiner, Esq.
Jane F. Castner, Esq., AOC Staff
Mary F. Rubinstein, Esq., AOC Staff
Dated: March 1, 2010
LMJG
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