Monday, February 15, 2016

Civil Model Jury Charge 1.23 PRELIMINARY INSTRUCTIONS REGARD NJ

Civil Model Jury Charge 1.23 PRELIMINARY INSTRUCTIONS REGARD

Civil Model Jury Charge 1.23 PRELIMINARY INSTRUCTIONS REGARDING JURORS QUESTIONS

In this trial, after the lawyers have asked their own questions of each witness, I will give you an opportunity to write out any additional questions you may have for that witness. Any questions you submit should be to clarify the testimony the witness has given. Your questions should not state an opinion, make critical or favorable comment, or express any view about the case. You may not argue with the witness through a question.

The Court Officer will collect your written questions and give them to me. I will then excuse the jury and the witness, while I discuss your questions with the lawyers. If I decide that any additional questions are proper, I will call the witness back to answer those questions in your presence.

Keep in mind that the rules of evidence or other rules of court may prevent me from allowing some questions. I will apply the same rules to your questions that I apply to the questions asked by lawyers. Some questions may be modified or rephrased. Some may be asked just as you have written them, and others may not be asked at all. If a question that you submitted is not asked, you should not take it personally, nor should you attach any significance to my decision not to allow the question. I caution you not to treat jurors questions or the answers to those questions differently than you would treat any other testimony. You are to carefully consider all of the testimony and other evidence in this case before deciding how much weight to give particular testimony.

Remember that you are neutral fact finders and not advocates for either party. You must keep an open mind until all of the evidence has been presented, the lawyers have concluded their summations, and you have received my instructions on the law. Then, in the privacy of the jury room, you will exchange views with your fellow jurors.

Any question you submit should be yours alone and not the product of discussion with any other juror. That is in keeping with my overall instruction that you must not discuss the case among yourselves until you have heard my final instructions on the law, and I have instructed you to begin your deliberations.

Model Civil Jury Charges

New Article of the Week

Civil Model Jury Charge 1.21 INSTRUCTIONS TO JURY IN CASES NJ

Civil Model Jury Charge 1.21 INSTRUCTIONS TO JURY IN CASES

Civil Model Jury Charge 1.21 INSTRUCTIONS TO JURY IN CASES IN WHICH THE COMMISSIONER OF INSURANCE IS IMPLEADED AS A DEFENDANT IN HIT AND RUN CASES

In this case, the Commissioner of Insurance acts as the defendant. The Commissioner is only a nominal defendant. The Commissioner was not involved personally in any way in the events that gave rise to this lawsuit. The Commissioner is named as the defendant because the plaintiff charges that the accident was caused by the negligence of an unknown and unidentified driver, who, therefore, cannot be named as the defendant. In such a situation the law provides that the Commissioner of Insurance be named as the defendant to enable plaintiffs claim to be litigated. This case must therefore be tried just as though the (alleged) unknown and unidentified driver was here.

NOTES The above charge was formulated to cover hit and run cases in which the Commissioner is impleaded as the defendant pursuant

to the statutory right to do so (N.J.S.A. 39:6-78 and 79) and is intended to explain why the Commissioner is a defendant.

It is suggested that the above instructions may be given before counsel open to the jury in order to satisfy the natural curiosity of the jurors who are about to hear a case involving the Commissioner of Insurance as a defendant.

It is also suggested that prior to opening, the court caution counsel, out of jurys hearing, to make no reference to the Fund, or to the fact that any judgment against the Commissioner is payable from the Fund.

The word alleged may be added in the second paragraph if the existence of an unknown and unidentified driver who was involved in the accident is in dispute.

Footnote: 1 Note: In the Dalton v. Gesser, 72 N.J. Super. 100 (App. Div. 1962) reference in the opening to the jury by counsel that he was appearing for the Unsatisfied Claim and Judgment Fund of the State of New Jersey was held prejudicial error because he thereby indirectly informed the jury that the defendant was not insured and that any verdict against such defendant was to be paid out of a public fund.

Model Civil Jury Charges

New Article of the Week

Civil Model Jury Charge 1.21 INSTRUCTIONS TO JURY IN CASES NJ

Civil Model Jury Charge 1.21 INSTRUCTIONS TO JURY IN CASES

Civil Model Jury Charge 1.21 INSTRUCTIONS TO JURY IN CASES IN WHICH THE COMMISSIONER OF INSURANCE IS IMPLEADED AS A DEFENDANT IN HIT AND RUN CASES

NOTES The above charge was formulated to cover hit and run cases in which the Commissioner is impleaded as the defendant pursuant

to the statutory right to do so (N.J.S.A. 39:6-78 and 79) and is intended to explain why the Commissioner is a defendant.

The word alleged may be added in the second paragraph if the existence of an unknown and unidentified driver who was involved in the accident is in dispute.

Model Civil Jury Charges

New Article of the Week

Civil Model Jury Charge 1.20 SUPPLEMENTAL INSTRUCTION AS TO NJ

Civil Model Jury Charge 1.20 SUPPLEMENTAL INSTRUCTION AS TO

Civil Model Jury Charge 1.20 SUPPLEMENTAL INSTRUCTION AS TO FURTHER DELIBERATIONS BY JURY

You have informed me that you have been unable as a jury to reach a verdict in this case. I do not wish to know, and I direct each of you jurors not to tell anyone how your vote stands. Although you have a duty to reach a verdict, if that is possible, I have neither the power nor the desire to compel you to reach a verdict. I do want to emphasize the importance and the desirability of your reaching a verdict in this case provided that each of you can do so without surrendering or sacrificing principle or personal convictions. You will recall that upon assuming your duties in this case each of you took an oath. That oath places upon each of you the responsibility of arriving at a true verdict based upon your own opinion and not merely by agreeing with the conclusions of the other jurors. However, opinions can be changed by discussions in the jury room. The purpose of the jury system is to reach a verdict by comparing views and by considering the evidence with the other jurors. During your deliberations each of you should be open-minded. You should consider the issues with proper attention to and respect for the opinions

of each other. You should not hesitate to reexamine your own views in the light of your discussions. You should consider also that this case must be decided at some time. You are selected in the same manner and from the same source from which any future jury must be selected. There is no reason to suppose that the case will ever be submitted to six persons more intelligent, more impartial or more capable of deciding it, or that additional or clearer evidence will ever be presented by one side or the other. You may retire and take as much time as is necessary for further deliberations upon the issues submitted to you for determination.

Notes: The above is suggested for use following an announcement by the jury that it has been unable to agree.

The Committee is aware that language similar to that contained in the next to the last paragraph of the proposed charge has been disapproved in criminal trials in this State. State v. Czachor, 82 N.J. 392, 294 (1980). However, neither the Czachor holding nor the Courts reasoning has been expressly extended to civil jury trials. But see In re Stein, 11 N.J. 584, 588 (1953), which predates Czachor. In Stein, the Court reversed a verdict in a civil case when a deadlocked jury was instructed on the financial burden of a retrial. In Czachor, the Court cited Stein for the proposition that the instructions in that case were improperly coercive, but

disapproved the language in Stein that assumed the coercive effect of such an instruction could be overcome or balance by language to the effect that no juror should surrender his conscientious scruples or personal convictions. 82 N.J. 401-02.

In the absence of an explicit court decision, the Committee does not have the authority to apply the Czachor holding to civil cases. Nor do we consider it appropriate to delete the next to last paragraph in the above-proposed charge without a court decision. However, members of the Committee feel that the language in 1.21 Alternate Form, which was recommended in Czachor for criminal cases, would avoid any potential problems with the above charge.

1.20 ALTERNATE FORM Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is not necessary that each juror agree on the verdict. Your verdict must be by a vote of 6 - 0 or 5 - 1. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without compromising your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with the other jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender you honest conviction as to the weight or effect of evidence solely because of the opinion of the other jurors or for the mere purpose of returning a verdict.

You are not partisans. You are judges of the facts. Your sole interest is to determine the truth from the evidence in the case.

NOTE:

In State v. Czachor, 82 N.J. 392, 405 (1980), the Supreme Court recommended the ABA model charge in criminal cases where the trial court feels that further deliberations may produce a proper verdict. Id. at 405 n. 4. The Committee has modified the language for clarity without making any material changes in the recommended charge.

Model Civil Jury Charges

New Article of the Week

Civil Model Jury Charge 1.19 BURDEN OF PROOF - CLEAR AND CON NJ

1.19 BURDEN OF PROOF - CLEAR AND CONVINCING EVIDENCE

With regard to (state here the factual issue(s) to be proved) it is the obligation of (state here the party or parties upon whom the burden of proof rests) to prove those allegations by clear and convincing evidence. Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true. It is evidence so clear, direct, weighty in terms of quality, and convincing as to cause you to come to a clear conviction of the truth of the precise facts in issue.

The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true.

Note:

Clear and convincing establishes a standard of proof falling somewhere between the traditional standards of preponderance of the evidence and beyond a reasonable doubt. It is an exception to the rule requiring proof by a preponderance of the evidence in civil cases and proof beyond a reasonable doubt in criminal cases. Although the committee does not recommend it, it nonetheless recognizes that some judges may feel more comfortable in defining the usual civil standard, preponderance of the evidence, as well as the criminal standard, beyond a

reasonable doubt, as an aid to the jury in understanding what clear and convincing evidence means. If such an election is made, the judge should consult the standard civil charge for preponderance of the evidence and criminal charge 1.104 for proof beyond a reasonable doubt. Accordingly, depending on the specific circumstances, this standard is mandated by both case law and statute. The following is a non-exclusive list of the instances where the clear and convincing standard is the applicable burden of proof; please note that most of the following citations involve matters ruled upon by a judge without a jury. They have been listed solely for any research benefit they might provide.

-- to prove a claim under Statute of Frauds, Statute of Wills, or the parole evidence rule. Herman and MacLean v. Huddleston, 459 U.S. 375, 74 L.Ed.2d 548, 549, 103 S.Ct. 683 (1983).

-- the adverse parties are at a gross disadvantage in disputing an allegation. State v. Sugar, 100 N.J. 214 (1985).

-- when the threatened loss resulting from civil proceedings is comparable to the consequences of a criminal proceeding. In re Polk License Revocation, 90 N.J. 550, 563 (1982).

-- before a decision is made to withdraw a life sustaining treatment from an incompetent nursing home patient. Matter of Conroy, 98 N.J. 321, 382 (1985).

-- in a civil commitment proceeding. Addington v. Texas, 441 U.S. 418, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1079).

-- whenever the interests of the natural parents in the care, custody and management of their child are threatened. Santosky v. Kramer, 455 U.S. 754, 71 L.Ed.2d 599, 102 S.Ct. 1388 (1982).

-- where the circumstances or issues are so unusual or difficult that proof by a lower standard will not serve to generate confidence in the ultimate factual determination. In re Polk License Revocation, supra at 568.

-- cases involving defamation or where the defendant has a qualified immunity or privilege. Burke v. Deiner, 97 N.J. 465, 481 (1984).

-- discipline or disbarment proceedings against an attorney, In re Pennica, 36 N.J. 401 (1962); In re Racmiel, 90 N.J. 646, 661 (1982).

-- proving fraud. Minter v. Bendix Aviation Corp., 26 N.J. Super. 268, 274 (App. Div. 1953). When the allegation of fraud is presented as an affirmative defense and is actually a claim of non-entitlement to alleged contractural benefits or is tantamount to a claim of breach of contract on the part of a plain-tiff, the standard of proof is the usual greater weight of the evidence standard. See Italian Fisherman v. Commercial Un. Assur., 215 N.J. Super. 278 (App. Div. 1987) (defendant insurance companys affirmative defense of arson on the part of the insured, as well as the incidental torts of fraud and false swearing involved in the presentation of the claim for fire damage, must be proved by the preponderance of the evidence and not by clear and convincing proof). However, see also Batka v. Liberty Mutual, 704 F.2d 684 (3 Cir. 1983) which held that where insurance company asserts fraud in the inducement to the contract the allegation must be proved by clear and convincing proof.

-- proving a public nuisance. Township of Cherry Hill, N.J. v. N.J. Racing Commission, 131 N.J. Super. 125 (Law Div. 1974), affd o.b., 131 N.J. Super. 482 (App. Div. 1974).

-- challenging special assessments. McNally v. Township of Teaneck, 132 N.J. Super. 441 (Law Div. 1975), mod. 75 N.J. 33 (1977).

-- amending an election petition. Lepre v. Caputo, 131 N.J. Super. 118 (App. Div. 1974).

-- showing that sterilization is in the best interests of an incompetent person and that the person to be sterilized lacks the capacity to consent or withhold consent. In re Grady, 85 N.J. 235 (1981).

-- establishing that officers of a corporation seeking a casino license or an applicant for a casino key employee license possess good character, honesty and integrity. In re Boardwalk Casino License Application, 180 N.J. Super. 324 (App. Div. 1981), mod. on oth. grds. 90 N.J. 361 (1982), app. dism. 459 U.S. 1081, 74 L.Ed.2d 927, 103 S.Ct. 562 (1982); In re Tufi Application, 182 N.J. Super. 631, 638 (App. Div. 1981), certif. den 91 N.J. 189 (1982).

-- demonstrating that persons connected with an applicant for a license for the collection, transportation, treatment, storage and disposal of solid wastes, who have been previously convicted of a serious crime, have since been rehabilitated. N.J.S.A. 13:1E-133.

-- overcoming the presumption that the facts related in a sheriffs return of service are true. Garley v. Waddington, 177 N.J. Super. 173 (App. Div. 1981).

-- demonstrating that government action constitutes a taking of property. Matter of Egg Harbor Associates (Bayshore Centre), 94 N.J. 358, 374, showing that a rent control ordinance has a widespread confiscatory effect upon efficient landlords. Helmsley v. Borough of Fort Lee, 78 N.J. 200 (1978), app. dism. 440 U.S. 978, 60 L.Ed.2d 237, 99 S.Ct. 1178 (1979); Orange Taxpayers Council, Inc. v. City of Orange, 169 N.J. Super. 288 (App. Div. 1979), affd. 83 N.J. 246 (1980).

-- showing that an attorneys extrajudicial speech truly jeopardized the fairness of an ongoing trial. In re Hinds, 90 N.J. 604, 626 (1982).

-- justifying the debarment of a contractor from doing any further business with the State. N.J.A.C. 17:12-7.3(a)5; Keys Martin & Co. v. Director, Div. of Purchase, 99 N.J. 244, 263 (1985).

-- establishing that a contract should be reformed. St. Pius X House of Retreats v. Camden, 88 N.J. 571, 580-581 (1982).

-- overcoming the presumption that the value of a partners interest in a professional partnership is accurately reflected by the value ascribed to it in a buy-sell agreement. Stern v. Stern, 66 N.J. 340, 346-347 (1975).

-- showing that there was inadequate consideration for a mortgage. Continental Bank of Pa. v. Barclay Riding Acad., 93 N.J. 153, 170 (1983), cert. den. 464 U.S. 994 (1983); Federal Beneficial Assn. v. Eastern Land Co., 96 N.J. Eq. 628, 631 (E. & A. 1924).

-- overcoming the presumption that the last of two or more marriages is valid. Newburgh v. Arrigo, 88 N.J. 529, 538 (1982).

-- showing a waiver of the newspersons privilege. N.J.S.A. 2A:84A-21.3B (Rule 27).

-- overcoming the presumption of validity attaching to a certification received by a municipality for its plan for providing for its fair share of low and moderate income housing from the State Council on Affordable Housing. N.J.S.A. 52:27D-317.

-- a trial judge should not set aside a jury verdict as against the weight of the evidence unless it clearly and convincingly appears that allowing the verdict to stand would work a manifest denial of justice under the law. R. 3:20-1; R. 4:49-1(a). The same standard applies to an appellate court which is asked to overturn a trial courts denial of a motion for a new

trial on the ground that the verdict was against the weight of the evidence. State v. Carter, 91 N.J. 86, 96 (1982). See State v. Sims, 65 N.J. 359, 373-374 (1974); R. 2:10-1.

CAUTION: MOST OF THE FOREGOING CASES ARE NON-JURY CASES; THESE CASES ARE BROUGHT TO YOUR ATTENTION AS EXAMPLES OF THE APPLICATION OF THE CLEAR AND CONVINCING STANDARD.

Friday, February 12, 2016

Civil model jury charge 1.12 G GENERAL PROVISIONS in NJ

Civil model jury charge 1.12 G GENERAL PROVISIONS

G. Burden of Proof[1]

The burden of proof is on the plaintiff/each party to establish his/her/their claim by a preponderance of the evidence. In other words, if a person makes an allegation then that person must prove the allegation.

In this action, the plaintiff ( name ) has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

[Explain issues raised by plaintiff.]

The defendant ( name ) has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

[Explain issues raised by defendant.]

[1] T.P.1. - Civil 2.40 Burden of Proof and Preponderance of Evidence, Tennessee Pattern Jury Instructions of the Committee of the Tennessee Judicial Conference (3rd Ed. 11/95).

Civil model jury charge 1.12 E. The Evidence in NJ

Civil model jury charge1.12 E. The Evidence

The evidence in this case consists of [refer to appropriate items]:

1. the testimony that you heard from the witness (including any video-taped testimony);

2. the exhibits that have been marked into evidence;

3. the deposition testimony and answers to interrogatories that were read into the record;

4. the stipulations and admissions that were placed on the record. As you recall, the stipulation and admissions are facts that the parties agree are true. Therefore, you can accept all admissions and stipulations as true in your deliberations.

(Use when applicable)

Any testimony that I have stricken from the record is not evidence and should not be considered by you in your deliberations. This means that even though you may remember the testimony you are not to use it in your discussions or deliberations.

(Use when applicable)

Further, if I gave a limiting instruction as to how to use certain evidence, that evidence must be considered by you for that purpose only. You cannot use it for any other purpose. [You may repeat limiting instructions if appropriate.]

Civil Model Jury Charge 1.11B Prohibition against Discussing the Case in NJ

1.11 PRELIMINARY CHARGE (Approved 11/98, Revised 5/07)

[To be given after the jury is sworn in but before the openings.]

B. Prohibition Against Discussing the Case

This case is very important to all the parties involved. They are entitled to the full attention of the jury throughout the trial and to fair and impartial consideration of the case by the jury. It is important, therefore, that you keep an open mind about this case until the very end when you are in the jury room deliberating. You are not to make any judgments or come to any conclusions about this case, until you have heard the whole story and that means until all the evidence is presented and I have explained the law to you.

You are not to have any contact or discussions with any of the parties, their attorneys or any of the witnesses.

You are not to discuss the case with anyone or permit anyone to discuss the case with you, whether here in the courthouse or anywhere outside the courthouse. If anyone attempts to discuss this case with you or attempts to influence your judgment about the case, you are to report that to me immediately.

If you are to keep an open mind, you must not even discuss this case among yourselves until it is over and you are deliberating. That means, when you convene each morning and as you are leaving at the end of each trial day and during your recesses and breaks you are not to talk about this case among yourselves.

Do not discuss this case with anyone not on the jury. This includes your family and friends. When you go home you may tell your family you have been selected as a juror in a civil case and the expected length of the trial. You should not tell them anything more about the case. Even though a further explanation by you may begin innocently, once you finish talking the other person is not going to just stand there and say nothing. That person will say something and that response may influence your thinking. Your thinking should be influenced only by what you learn in the courtroom.

Civil Model Jury Charge 1.11A Role of Jury, Court and Attorneys in NJ

1.11 PRELIMINARY CHARGE (Approved 11/98, Revised 5/07)

[To be given after the jury is sworn in but before the openings.]

Members of the Jury:

Before we begin, I have a few preliminary instructions for you.

A. Role of Jury, Judge and Attorneys

As the jury in this case, you will be the judges of the facts and you will be the only judges of the facts. You will have to decide what happened. I play no part in judging the facts.That is your responsibility. My role is to be the judge of the law, that is to say, I make whatever legal decisions have to be made during the course of the trial, and I will explain to you the legal principles that must guide you in your decisions on the facts. You are to judge the facts in this case based upon the evidence presented to you and based only on the evidence. This evidence will consist of the testimony of witnesses, the exhibits marked into evidence and any material that we read to you.

As the trier of fact, it will be your job to judge the believability of the witnesses. Size up the witness. Is the witness telling the truth? Does the witness know what he/she is talking about? How good is the witnesss recollection? Is the witness accurate and correct in what he/she is saying?You may also consider the demeanor of the witness, that is, how is the witness behaving and responding to the questions asked. You may believe part of the witnesss testimony and not believe other parts of it.

During the trial, I will be required to rule on the admission or rejection of evidence. You are to give no consideration to any evidence that I rule to be inadmissible and you are not to speculate or guess about what that evidence might have been or what it might have meant.

Do not infer from any rulings I make in this case or anything I say what my feelings might be about the outcome of this case. Even if you knew what my feelings were, you should disregard them, because it is your decisions on the facts that control, not mine.

At the close of the entire case, I will explain to you the law, which applies to this case. You must accept the law as I explain it to you and apply it to the facts as you find them to be based on the evidence.

During the course of the trial, you will hear from the attorneys on numerous occasions. Always bear in mind that the attorneys are not witnesses and what they say is notevidence in the case, whether they are arguing, objecting or asking questions. The attorneys are here as advocates and spokespersons for their clients positions.

Civil Model Jury Charge 1.10I Excusing the Balancing of the Jury after Selection is Complete in NJ

1.10 INSTRUCTIONS TO JURORS BEFORE VOIR DIRE

(Approved 11/98)

[The following suggested jury instructions are offered as assistance to judges in organizing their communications with juries. The Committee recommends that the judge tailor these instructions to the particular case being tried. In the circumstances presented, some of these suggested instructions should be altered, some should be eliminated. In addition, the format or the order in which these instructions are given to the jury should be the subject of the judges option or discretion in each individual case.]

I. Excusing the Balance of the Jury after Selection is Complete

[After the jury has been selected and sworn in by the court clerk, the balance of the jury panel can be returned to the Jury Assembly Room with the following comments:]

The remainder of the jury panel may return to the Jury Assembly Room. Thank you for your service. Please remember my remarks earlier about the importance of jury service to the court system. Your presence here and your availability to serve as jurors are greatly appreciated.

Civil Model Jury Charge 1.10H Particularized Questions in NJ

1.10 INSTRUCTIONS TO JURORS BEFORE VOIR DIRE

(Approved 11/98)

H. Particularized Questions

[At this point, the judge should question the jurors about all subjects that might influence their impartiality. The nature of those questions will depend upon the nature and the specific facts of the case to be tried.]

[In the event the judge anticipates that some jurors may be asked to answer certain questions at side-bar in the presence of only the judge and the attorneys, the following instruction should be considered.]

I may occasionally suggest a conference over here at the side of the Bench because there is a possibility that your comment could influence the other jurors if they heard it. You also might feel more comfortable responding to the questions in some degree of privacy rather than in front of everyone in the courtroom. These conferences will be on the record the same as every other word that is spoken in this courtroom.

Civil Model Jury Charge 1.10G Identification of Potential Witnesses in NJ

1.10 INSTRUCTIONS TO JURORS BEFORE VOIR DIRE

(Approved 11/98)

G. Identification of Potential Witnesses

I will now identify for you all persons who are potential witnesses in this trial. [Give name and address or some identification of each potential witness.]

Because knowing one of the potential witnesses might influence your independent and impartial judgment of the facts of this case, I need to know if you recognize any of the names I just read. Do you know any of the potential witnesses in this trial? [If an affirmative answer, ask the juror to explain.]

Civil Model Jury Charge 1.10F Introduction of Parties, Counsel and Potential Witnesses in NJ

1.10 INSTRUCTIONS TO JURORS BEFORE VOIR DIRE

(Approved 11/98)

F. Introduction of Parties, Counsel and Potential Witnesses

The parties to this lawsuit are as follows: [Give the full name and municipality of residence of each party. If the parties are present in the courtroom, the judge may, in his or her discretion, ask the party to stand so that the jury can identify him or her.]

The attorneys who represent the parties are: [Give the full name of each attorney and the law firm for which he or she appears. The judge should consider asking each attorney to rise upon introduction. The judge might consider the option of asking each attorney to introduce himself or herself and the party represented in lieu of the judge performing the introduction.]

Do any of you jurors know any of the parties to this lawsuit or do you know anyone you believe to be related to or acquainted with any party to the lawsuit? [If an affirmative answer, ask the juror to explain.] Do any of you jurors know any attorney involved in this lawsuit or any member of the firm for which the attorney appears? Have you or anyone close to you ever been represented by any of the law firms whose name I have just given you? [If an affirmative answer, ask the juror to explain.]

Civil Model Jury Charge 1.10E Counsels Right to Peremptory Challenges in NJ

1.10 INSTRUCTIONS TO JURORS BEFORE VOIR DIRE

(Approved 11/98)

E. Counsels Right to Peremptory Challenges

After I have asked you a number of questions which relate to your ability to hear and decide this case with an open mind and with complete impartiality, the attorneys who represent the parties in this lawsuit can exercise the right to excuse one or more of the jurors without giving any explanation or reason. If you are excused in that manner, please do not take it personally. No offense is intended. The law traditionally gives each attorney the right to have a limited number of jurors excused for no expressed reason.

Civil Model Jury Charge 1.10D Number of Jurors to be Selected in NJ

1.10 INSTRUCTIONS TO JURORS BEFORE VOIR DIRE

(Approved 11/98)

D. Number of Jurors to be Selected and Procedure for Taking Position in Jury Box (Approved 11/98)

We are going to select 6 jurors (7, 8 or more)* for the trial of this case. The court clerk will call the names and numbers.Please respond by saying Here and come forward. The (Sheriffs Officer/court aide) will then seat you in the jury box. [Have clerk select six, seven, eight or more jurors.]

*R. 1:8-2 provides for the number of jurors.

Civil Model Jury Charge 1.10C Excusing Jurors for Personal Reasons Based on Length of Trial in NJ

1.10 INSTRUCTIONS TO JURORS BEFORE VOIR DIRE

(Approved 11/98)

C. Excusing Jurors for Personal Reasons Based on Length of Trial

The trial of this case may take approximately _____ days.[Explain effect of weekends, court holidays or motion days, if applicable.] Therefore we expect that the trial will end on (state specific day and date).

If you are selected, tell me if that schedule creates a substantial personal problem for you. If I am satisfied that it does, I will excuse you from service on the jury in this case.

Civil Model Jury Charge 1.10B Duty of Citizens to Serve as Jurors in NJ

1.10 INSTRUCTIONS TO JURORS BEFORE VOIR DIRE

(Approved 11/98)

B. Duty of Citizens to Serve as Jurors

I recognize that serving as a juror is inconvenient, but jury service is an important duty of citizenship. Having jurors available to decide the facts in lawsuits is fundamental to our entire system of justice. The courts cannot function without members of the public offering their time to serve as jurors.

Civil Model Jury Charge 1.10A Welcome and Explanation of Nature of Case in NJ

1.10 INSTRUCTIONS TO JURORS BEFORE VOIR DIRE

(Approved 11/98)

A. Welcome and Explanation of Nature of Case

Good Morning (or Good Afternoon), members of the jury.My name is Judge ). We are about to select a jury for the trial of a civil case.

[Explain the nature of the case. For example:

It arises out of an automobile accident that occurred on Route #1, here in Middlesex County, on ( date ). The plaintiff brings this suit contending that the accident was caused by the negligence or fault of the driver of the other vehicle. She sues to recover money damages for the injuries she says she sustained in the accident. Her husband is also a plaintiff and he sues for money damages to compensate him for his losses. The defendant in the case denies that he caused this accident. The jury will be asked to decide fault for the accident and, if the plaintiffs are entitled to an award of damages. The jury will also be asked to decide on the appropriate amount.]

Civil Model Jury Charge 4.10D FORM OF CONTRACT in NJ

Civil Model Jury Charge4.10D FORM OF CONTRACT

There is no requirement that a contract be in writing, that it be dated, or that it be signed by either party.1It can be entirely oral, or it can be partly oral and partly in writing.

A contract can be made of several different documents if the parties intended that their agreement would include the various documents together.

1Unless the Statute of Frauds or some other statute applies and requires that a particular agreement is in writing.

Civil Model Jury Charge 2.11 WRONGFUL DISCHARGE IN VIOLATION in NJ

Civil Model Jury Charge 2.11 WRONGFUL DISCHARGE IN VIOLATION OF A CLEAR MANDATE OF PUBLIC POLICY1 Model Jury charge NJ

Plaintiff has alleged that he/she was wrongfully discharged from his/her position in violation of public policy. I charge you that the policy of ________________ is a clear mandate of public policy2; you must decide whether plaintiff was discharged:

[choose appropriate option below:]

(1) in violation of that policy; or

(2) for exercising rights protected by that policy; or

(3) for declining to perform an act or acts which require a violation of that policy;

[or] whether, as defendant states, plaintiff was not discharged for a reason related to that policy.

[choose appropriate corresponding option below:]

(1) In order to establish that plaintiff was discharged in violation of a public policy, you must find by a preponderance of the evidence that plaintiffs

1This charge is to be given only if a claim is asserted underPierce v. Ortho Pharmaceutical Corp., 84N.J. 58 (1980).

2Whether there is a clear mandate of public policy prohibiting the conduct is a question for the trial judge.Warthen v. Toms River Community Hospital, 199N.J. Super.18, 25 (App. Div. 1985).CHARGE 2.11Page 2 of 4

discharge violated the [state the public policy]. If plaintiff does not prove this, you need not consider whether plaintiffs discharge was wrongful. If plaintiff does prove that his/her discharge violated the [public policy], then you must consider whether3a determinative factor for his/her discharge was a violation of the [public policy], and not some other reason such as _______________________, which defendant has asserted.

3Erickson v. Marsh & McLennan, 117N.J.539, 560, 561 (1990). This seems tautological, but that is what the opinion says.

4Pierce v. Ortho Pharmaceutical Corp.,supra,at 72.

5Tartaglia v. UBS PaineWebber Inc., 197N.J. 81, 111 (2008).

(2 or 3) In order to establish that plaintiff was discharged for exercising rights under [public policy] or for declining to perform an act or acts which require a violation of the [public policy], you must find that plaintiff has proved by a preponderance of the evidence that he/she:

a. had a reasonable basis for believing defendant engaged in a violation of the [state the public policy];4and

b. brought the alleged violation of the [state the public policy] to the attention of an appropriate governmental outside authority or took other action reasonably calculated to prevent the objectionable conduct.5CHARGE 2.11Page 3 of 4

6Tartaglia v. UBS PaineWebber Inc.,supra,at 109.

7Tartaglia v. UBS PaineWebber Inc.,supra,at 112.

8Although the New Jersey Supreme Court and Appellate Division have held that plaintiffs bringing claims under theNew Jersey Law Against Discrimination(LAD),New Jersey Conscientious Employee Protection Act(CEPA), andNew Jersey Family Leave Act(FLA) need only prove that the unlawful motive was a determinative factor in the adverse employment decision rather than the sole motivating factor,see, e.g., Bergen Commercial Bank v. Sisler,157N.J.188, 207 (1999) (so holding with regard to LAD),Donofry v. Autotote Systems, Inc., 350N.J. Super.276, 293 (App. Div. 2001) (so holding with regard to CEPA), andDePalma v. Building Inspection Underwriters, 350N.J. Super.195, 214 (App. Div. 2002) (so holding with regard to FLA), no reported New Jersey state or federal court decisions appear to have addressed that issue with regard to New Jersey common-law wrongful discharge claims.

Plaintiff must prove that he/she sufficiently expressed his/her disagreement with defendants [state the conduct alleged to be in violation of public policy] to support the conclusion that his/her discharge violates the mandate of public policy and is unlawful. That is to say, a complaint to an outside agency or a direct complaint to senior corporate management will ordinarily be sufficient. On the other hand, a complaint to an immediate supervisor or passing remarks to co-workers generally will not.6

[charge the following in every case]

It is the plaintiffs obligation to prove, by a preponderance of the evidence, that his/her [describe the alleged adverse action in question, such as demotion, firing, etc.] violated a clear mandate of public policy.7, 8In this regard, I remind you that plaintiff was a so-called at will employee, that is he/she did not have aCHARGE 2.11Page 4 of 4

contract of employment. In New Jersey, such an employee can be discharged at the wish of the employer for any reason or for no reason. He/she could be discharged for a false cause, or for no cause at all, provided only that the reason the employer discharged the employee did not violate any clear mandate of public policy. A person fired unfairly, but not fired in violation of a specific public policy, does not have a cause of action for wrongful discharge in violation of public policy.

Civil Litigation in NJ

Kenneth Vercammen, Esq. Our office represents businesses, insurance companies and people involved in civil lawsuits. We provide representation throughout New Jersey. Procedurally, the following events occur in most civil cases. First a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. Your attorney then will prepare a Summons and have the defendants personally served with the Summons and Complaint. The defendant must file an Answer within 35 days.
Interrogatory Questions and Discovery The Answer is followed by a request for written interrogatories. These are questions that must be answered by each party. In Personal Injury cases the plaintiff's attorney will demand the Defendant provide Certified Answers to Uniform Interrogatories Form C, plus C(1) Interrogatories in Auto cases ( or C (2) if this is a non- Auto case), to be answered within 60 days pursuant to Rule 4:17-1 et seq. The Court Rules require plaintiffs provide answers. If answers are not provided your case will be dismissed. You must answer each and every question as detailed as possible. Do not answer any of the questions with, see doctor's report or see bills. We strongly recommend you visit the accident site if possible to refresh your recollection as to distances and buildings nearby. Your attorney will later type up your answers and mail a copy back to you for your records.
Request for Production of Documents Kenneth Vercammen's office will also demand a Request for Production of Documents pursuant R. 4:18-1, which includes a Demand for Discovery of Insurance. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question. In the event you are deposed during the course of this action, you will receive detailed instructions as to procedure and will be requested to watch a videotape. After taking depositions, the case will be set down for an Arbitration. If the parties do not settle after the Arbitration, the case will be given a trial call date. Altogether, these procedures may take from twelve months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice. Court Rule 4:22-1. sets forth the Rule on Request for Admission: A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters of fact within the scope of R. 4:10-2 set forth in the request, including the genuineness of any documents described in the request. Copies of the documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify the answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless stating that a reasonable inquiry was made and that the information known or readily obtainable is insufficient to enable an admission or denial. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial, may not, on that ground alone, object to the request but may, subject to the provisions of R. 4:23-3, deny the matter or set forth reasons for not being able to admit or deny. When we serve the Request for Admissions, the individual statements should be written so that the opposing side must Answer admit after each one.
Superior Court Civil Arbitration All civil lawsuits are required to participate in a Civil Arbitration at the County Courthouse or in a Mediation. In Middlesex County cases, these are held at the Middlesex County Courthouse Building, 1st Floor, 1 John F. Kennedy Square at Bayard Street, New Brunswick, New Jersey. The Arbitration is held before an attorney selected by the Assignment Judge who will read medical reports and statements submitted by the parties, then listen to testimony from the parties for approximately 15 minutes. The Arbitrator will make a decision as to who is responsible and whether damages should be awarded. Most Personal Injury attorney mail a draft of the Arbitration Statement to their clients ahead of time. We recommend clients notify our office immediately in writing with any changes in the Arbitration Statement. We suggest you visit the accident site during the week prior to Arbitration, and call all of your doctors to confirm all bills are paid. We provide a copy of your Answers to Interrogatories to our clients. Personal injury clients should carefully review the answers to interrogatories before the Arbitration. You should be fully familiar with the information which was supplied by way of answers to interrogatories because many of the Arbitration questions will involve the same information. If you cannot locate your copy of the Answers to the Interrogatories, please call your attorney's office and they should forward to you another copy of the Answers to the Interrogatories. You must be present in court and prepared to proceed at that time. You should bring all of your papers in connection with your case to Court. Please call your attorney's secretary approximately 24 hours before this hearing to confirm that the court has not adjourned your hearing. CONCLUSION
If a lawsuit is filed, immediately schedule a consultation with an attorney. Our office represents parties in Civil Litigation cases. If facing a lawsuit, immediately schedule an appointment with a civil attorney. Don't rely on a real estate attorney, public defender or a family member who took a law class in school. When your life and business is on the line, hire the best attorney available.
KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW
2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030
TRIAL AND LITIGATION EXPERIENCE
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He appears in Courts throughout New Jersey several times each week on many personal injury matters, Criminal and Municipal/ traffic Court trials, Probate hearings, and contested administrative law hearings.
Mr. Vercammen served as the Prosecutor for the Township of Cranbury, Middlesex County and was involved in trials on a weekly basis. He also argued all pre-trial motions and post-trial applications on behalf of the State of New Jersey.
He has also served as a Special Acting Prosecutor in Woodbridge, Perth Amboy, Hightstown, Carteret, East Brunswick, Jamesburg, South Brunswick, South River and South Plainfield for conflict cases. Since 1989, he has personally handled hundreds of criminal and motor vehicle matters as a Prosecutor and now as defense counsel and has had substantial success.
Previously, Mr. Vercammen was Public Defender for the Township of Edison and Borough of Metuchen and a Designated Counsel for the Middlesex County Public Defender's Office. He represented indigent individuals facing consequences of magnitude. He was in Court trying cases and making motions in difficult criminal and DWI matters. Every case he personally handled and prepared.
His resume sets forth the numerous bar associations and activities which demonstrate his commitment to the legal profession and providing quality representation to clients.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court) with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Department as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

Monday, February 15, 2016

Civil Model Jury Charge 1.23 PRELIMINARY INSTRUCTIONS REGARD

Civil Model Jury Charge 1.21 INSTRUCTIONS TO JURY IN CASES

Civil Model Jury Charge 1.21 INSTRUCTIONS TO JURY IN CASES

Civil Model Jury Charge 1.20 SUPPLEMENTAL INSTRUCTION AS TO

Civil Model Jury Charge 1.19 BURDEN OF PROOF - CLEAR AND CON NJ

Friday, February 12, 2016

Civil model jury charge 1.12 G GENERAL PROVISIONS in NJ

Civil model jury charge 1.12 E. The Evidence in NJ

Civil Model Jury Charge 1.11B Prohibition against Discussing the Case in NJ

Civil Model Jury Charge 1.11A Role of Jury, Court and Attorneys in NJ

Civil Model Jury Charge 1.10I Excusing the Balancing of the Jury after Selection is Complete in NJ

Civil Model Jury Charge 1.10H Particularized Questions in NJ

Civil Model Jury Charge 1.10G Identification of Potential Witnesses in NJ

Civil Model Jury Charge 1.10F Introduction of Parties, Counsel and Potential Witnesses in NJ

Civil Model Jury Charge 1.10E Counsels Right to Peremptory Challenges in NJ

Civil Model Jury Charge 1.10D Number of Jurors to be Selected in NJ

Civil Model Jury Charge 1.10C Excusing Jurors for Personal Reasons Based on Length of Trial in NJ

Civil Model Jury Charge 1.10B Duty of Citizens to Serve as Jurors in NJ

Civil Model Jury Charge 1.10A Welcome and Explanation of Nature of Case in NJ

Civil Model Jury Charge 4.10D FORM OF CONTRACT in NJ

Civil Model Jury Charge 2.11 WRONGFUL DISCHARGE IN VIOLATION in NJ

Civil Litigation in NJ

About Me

Blog Archive