My three-week trial ended late last week, with a successful jury verdict.  But June was a very busy month in the world of New Jersey appellate practice, with numerous important decisions by the federal and state appellate courts.  Some of the more significant cases were: read more

By a 22-16 vote, the Senate passed and sent to the Assembly a bill known as S-2515.  An identical bill, A-3269, has been introduced in the Assembly.  That legislation would confer the title of “Acting Justice” on any judge of the Appellate Division who is assigned by the Chief Justice to fill a vacancy on the Supreme Court and occupies that seat for at least six months.  From the language of the bill, it appears that the title would be earned only once the Appellate Division judge has reached the six-month mark as a temporary Supreme Court appointee, not on the day that the judge is appointed to fill a Supreme Court vacancy.  Judge Cuff, who currently occupies a vacant seat and has done so for more than six months, would immediately take on the title of Acting Justice. read more

Chief Justice Rabner announced yesterday that Judges Currier and Gilson will be elevated to the Appellate Division, effective on August 1, 2015.  Both of those judges had been temporarily assigned to the Appellate Division earlier this year, so these elevations are not unexpected. read more

Yesterday’s New York Times Magazine contained an article titled “Better Judgment.”  The article discussed instances in which famous appellate jurists, including Justice Oliver Wendell Holmes, Judge Richard Posner of the Seventh Circuit Court of Appeals, and the author’s own grandfather, David Bazelon, who sat on the District of Columbia Circuit Court of Appeals, had publicly changed their minds about one of their own landmark decisions.  The author, the Truman Capote Fellow for Creative Writing and Law at Yale Law School and a frequent contributor to, offers some interesting ideas about potential reasons for judicial changes of mind, and her article is well worth reading. read more

I have been involved in a trial that began in early June and will continue until nearly the end of the month.  As a result, posts have been, and will continue to be, intermittent at best until trial concludes. read more

State v. Ross, ___ N.J. Super. ___ (App. Div. 2015).  This characteristically concise opinion by Judge Fisher involved an order by the Law Division in this criminal case that granted a motion by the Public Defender to compel the County of Middlesex to “provide the means by which incarcerated defendants could accept, access and examine electronic discovery.”  The County filed a notice of appeal and then, concerned that the Law Division’s order might not have been final, a motion for leave to appeal.  The Law Division then took other action on the motion.  Ultimately, the County complied with the Law Division’s order. read more

On this date in 2008, the Supreme Court issued its opinion in Sinclair v. Merck & Co., Inc., 195 N.J. 51 (2008).  In that case, a majority of the Court, speaking through Justice Wallace, held that “the definition of harm under our Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11, does not include the remedy of medical monitoring when no manifest injury is alleged.”  The Court reversed the decision of the Appellate Division in this regard.  The Supreme Court also ruled that plaintiffs could not rely on the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (“CFA”), as a means of asserting a medical monitoring claim when the PLA forbids it.  The Appellate Division had not reached that issue. read more

In re Petition of Fishermen’s Atlantic City Windfarm, LLC, 2015 N.J. Super. Unpub. LEXIS 1265 (App. Div. May 29, 2015).  This not precedential decision, issued last Friday, May 29, addresses issues relating to whether the decisions of the Board of Public Utilities to reject an application of the petitioner under the New Jersey Offshore Wind Economic Development Act, N.J.S.A. 48:3-87.1 to -87.2, were arbitrary, capricious, or unreasonable.  The Appellate Division concluded that they were not and affirmed those rulings. read more