A Fine Mess Involving the Designation of Trial Counsel Rule

Hernandez v. North Jersey Neurosurgical Assocs., 2013 N.J. Super. LEXIS 1146 (App. Div. May 14, 2013).  This decision, in a medical malpractice case, was designated as not precedential, but perhaps should be reconsidered for publication.  It involves the decision of a Presiding Judge of the Law Division to disregard Rule 4:25-4, the designated counsel rule, and require a defendant to go to trial represented by an associate of the designated counsel who specialized in family law, and who admittedly had no expertise in medical malpractice.  The rule itself authorizes disregard of a designation of counsel in proper circumstances.  The judge made that decision in connection with a request to adjourn the seventh (yes, seventh) scheduled trial date, because defendant’s counsel was on trial in a case in another county.  Previous adjournments of trial dates that were stated to be inflexible were granted on requests from both sides, for various valid reasons, including the health of counsel and plaintiff himself.  The request to adjourn the seventh trial date was apparently the last straw.  Once the adjournment request was denied, defendant declined to proceed with its concededly unqualified substitute counsel, and a default was entered against it.

The Appellate Division granted defendant leave to appeal and reversed the decision that forced it to go trial without its designated attorney.  The panel observed that trial judges have discretion in granting or denying adjournments, and that only an abuse of discretion that causes a party a “manifest wrong or injury” will be reversed.  The opinion contains a detailed discussion of the history of and rationale for the designation of trial counsel rule.  It also painstakingly recounts the procedural history that preceded the denial of an adjournment of the seventh trial date.

The decision is well worth reading by anyone who tries cases, and it is likely to be used as guidance by courts despite its not precedential status.  It is evident that the panel struggled with what to do here, expressly noting that it was necessary to “navigate a course between,” on the one hand, punishing a litigant for the unavailability of its designated trial counsel and, on the other hand, managing the calendar and bringing cases to trial for resolution.  Ultimately, however, the panel found the prejudice to defendant (especially in a medical malpractice case, where an adverse verdict would have to have been reported to the Board of Medical Examiners and might have hindered defendant’s ability to obtain medical malpractice insurance) to be too great to accept.  The Law Division’s decision was reversed because, unlike what was done in regard to prior trial date adjournments, “there was insufficient notice to counsel that the seventh trial date was inflexible and would not be subject to the availability of counsel.”  In future cases, the court suggested, sufficient notice might result in a desgination of counsel properly being disregarded.  As a result, the panel warned that arrangements should be made for competent substitute counsel to handle the matter.

There is very little law on the subject of the designated counsel rule, and the opinion cites very few cases.  One of the only cases in the area, cited by the panel, is Harmon Cove II Condo Ass’n, Inc. v. Hartz Mountain Indus., 258 N.J. Super. 519 (App. Div. 1992).  [Disclosure:  I participated in that case].  The panel’s opinion here observed that “[t]he trial attorney designation rule and its ‘disregard’ amendment have not been previously interpreted and applied in an appellate decision to authorize entry of a default judgment against a party whose attorney is committed to another trial.”  The future may hold precisely such a result in a proper case.