NEW JERSEY LAWYER

DAILY BRIEFING      03/15/2005


News Briefs

NEW RULES REQUIRE PROMINENCE IN ADVERTISING
Smaller is definitely not better when it comes to distinguishing that lawyers are advertising. The New Jersey Supreme Court has approved the following changes to the guidelines for attorney advertising: The word “Advertisement” required by RPC 7.3(b)(5)(i) must be no smaller than the largest size used in the advertising text; the font size of notices required by RPC 7.3(b)(5)(11 and iii) must be no smaller than the font size generally used in the advertisement; when envelopes or self-contained mailers used for sending direct-mail solicitation are imprinted or stamped with any message relating to the subject matter of the solicitation, they must also bear the word “Advertisement” as required by RPC 7.3(b)(5)(ii and iii). 3-14-05

FEDERAL JUDGE BARS NORRIS, MCLAUGHLIN PARTNER FROM HIS COURT
What’s a judge to do when a defense attorney accuses him of improper action? U.S. District Judge Leonard D. Wexler of the Eastern District of New York banished Joseph J. Fleischman of Somerville’s Norris McLaughlin & Marcus from his courtroom for life, and barred Norris McLaughlin for as long as he remains a partner. The judge claims Fleischman lied in an affidavit that said the judge improperly communicated with a co-defendant’s lawyer, William J. Heller of Newark’s McCarter & English. The accusation so infuriated Wexler that he declared a mistrial, according to a transcript of a March 1 hearing, as reported by New York Law Journal. Fleischman is representing DRS Technologies, a Parsippany maker of defense electronics, in a suit filed in October 2001 by an Alabama-based competitor, Miltope Corp., which claimed DRS and a group of its engineers formerly employed by a Miltope subsidiary, misappropriated trade secrets, infringed patents and breached confidentiality agreements. 3-14-05

STATE BAR AND AOC DISAGREE ON COMMERCIAL COURT BIILL
The New Jersey State Bar Association last week reaffirmed its support of a bill, A-3544, creating a “commercial and technology part” in the Superior Court’s Law Division. The measure, which already has the backing of the Assembly’s Judiciary Committee, would create a new part for cases involving contracts, Uniform Commercial Code transactions, securities, intellectual property issues, banking, insurance and partnership disputes. Each county would assign designated numbers of judges; the parties would waive jury trials. “We want it and we understand that businesses in New Jersey want it as well,” said D. Todd Sidor, the State Bar’s legislative counsel, asserting the change could improve case flow and decision predictability. The New Jersey Corporate Counsel Association also is pushing the bill. That support comes in the face of assertions by the Administrative Office of the Courts that there aren’t enough commercial cases to warrant allocating additional judicial time to them. The AOC estimates commercial cases comprise about 15,000 of the 100,000 pending Civil Part cases. 3-14-05

MUNICIPAL PROSECUTORS GET ORGANIZED
The newly formed New Jersey Municipal Prosecutors Association has chosen Robert J. Pinizzotto of Hammonton as its president. The organization’s focus in part is the Administrative Office of the Courts’ guideline to resolve drunken driving cases in 60 days. The organization was formed, said Pinizzotto, the prosecutor for Hamilton and Bueno Vista in Atlantic County, because “there are numerous issues facing prosecutors in municipal courts throughout the state … that could not be adequately addressed court to court.” Others new officers are David A. Spitalnick of Northfield, vice president; Arun Deshbandhu Lavine of Lawrenceville, treasurer; and Samantha S. Wolf of Linwood, secretary. Pinizzotto said there already are 88 people interested in joining, and he’s aiming for 100 percent membership. 3-14-05

DRINKER BIDDLE & REATH NAMES NEW CHAIRMAN, EXECUTIVE PARTNER
As part of a broadened management structure, Alfred W. Putnam Jr. is the new chairman of Drinker Biddle & Reath, and Alfred Jassner has been named executive partner of the Philadelphia-based firm that has offices in Princeton and Florham Park. Putnam, who handles a variety of civil litigation and commercial arbitration matters, succeeds James Sweet, who spent eight years in management. Kassner was assistant to the chairman since 1996. Both are managing partners. 3-14-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, MARCH 14, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, MARCH 14, 2005.

THE SUPREME COURT has announced that it will release an opinion in STATE v. MUHAMMAD, A-88, on March 15, 2005. The issue on appeal in Muhammad addresses whether the prosecutor’s comments at trial about the defendant’s pre-arrest failure to respond to the victim’s accusations violated the defendant’s Fifth Amendment right against self-incrimination.



APPROVED FOR PUBLICATION
TAXATION
MORONEY v. DIRECTOR, DIVISION OF TAXATION
Appellate Division, A-3424-03T1 and A-3423-03T1, approved for publication March 14, 2005. (22 pages). Facts-on-Call Order No. 92354

When computing the net gain from the sale of rental property for purposes of taxation under the New Jersey Gross Income Tax Act, the federal adjusted basis for the property must be increased by the cumulative amount of the allowable deductions for depreciation that were not used by the taxpayer in computing net income from the property in the years of its ownership, and the amount of unused depreciation is determined by first applying out-of-pocket expenses to income and then applying the allowable depreciation deduction.

DRUNK DRIVING
STATE v. EBERT
Appellate Division, A-4059-03T2, approved for publication March 14, 2005. (14 pages). Facts-on-Call Order No. 92355

In a drunk driving case, (1) the State has the burden of proving beyond a reasonable doubt that a defendant was operating a motor vehicle while intoxicated and (2) “operation” may be proved by the actual observation of the defendant driving while intoxicated, by the observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, or by the defendant’s admission. Furthermore, in this case the defendant’s blood alcohol content of 0.27, along with the fact that she had driven to the parking lot of a restaurant on a major state highway, was sufficient to sustain her conviction for reckless driving.

STATUTORY CONSTRUCTION
STATE v. CANNARELLA
Appellate Division, A-2226-03T4, approved for publication March 14, 2005. (6 pages). Facts-on-Call Order No. 92356

N.J.S.A. 2C:12-1b(5)(d), which elevates simple assault to aggravated assault, does not apply to private school employees.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
GALGANSKE v. ADDONIZIO
Appellate Division, A-5232-03T1, March 14, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17725

Summary judgment for the defendant high school football player and the defendant Board of Education affirmed; the plaintiff football player alleged that the individual defendant and two other football players assaulted him before practice, which resulted in two broken teeth and a split lip; the individual defendant was entitled to judgment as a matter of law because he owed no duty to the plaintiff; the individual defendant was engaged in “a heated discussion” with a fourth player, and the plaintiff chose to “interject himself” because he believed that a fight might break out; as to the Board of Education, the plaintiff failed to satisfy the Tort Claims Act verbal threshold, N.J.S.A. 59:9-2(d).

PREMISES LIABILITY
READING v. COMCAST-SPECTATOR GLOBAL FACILITIES LP
Appellate Division, A-4553-03T1, March 14, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17728

Summary judgment for the defendants in an action for personal injuries arising from a slip-and-fall accident at a rock concert at the Sovereign Bank Arena reversed and remanded for trial; the plaintiff claimed that she injured her knee when she slipped on a wet substance while she was being escorted by an usher to new seats; the trial judge incorrectly held that the mode of operation rule did not apply to the circumstances of this case, and there were questions of fact for the jury as to (1) whether there was a wet substance of the floor, (2) whether it was too dark for the plaintiff to see that substance, and (3) whether the manner in which the defendants operated the Arena made it likely that spillage would occur.

HUSBAND AND WIFE
McCORMICK v. MACCIA
Appellate Division, A-4975-02T3, March 14, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17726

Denial of the plaintiff ex-wife’s application for attorney’s fees in connection with (1) her motion to enforce a property settlement agreement and (2) the defendant ex-husband’s motion for reconsideration reversed and remanded; as to the attorney’s fees in connection with enforcement of the settlement, the Family Part had found that, although the defendant’s agreement to the terms of the settlement was “unequivocal” and the proceedings were occasioned only by his “second thoughts,” it was inclined to give the defendant “the benefit of the doubt,” and it denied attorney’s fees for that reason; as to the reconsideration motion, the Family Part “simply” noted that the defendant inappropriately tried to relitigate the matter, and it awarded $1,000 in fees without further explanation and entirely rejected the balance sought; the Family Part generally referred to some of the factors under Rule 5:3-5(c), but it undertook no analysis of the factors; because the Family Part addressed the application in a “conclusory fashion,” its decision could not be sustained.

PUBLIC EMPLOYEES
McLAUGHLIN v. MERIT SYSTEM BOARD
Appellate Division, A-3969-03T1, March 14, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17727

Final decision of the Merit System Board dismissing the petitioner rehabilitation counselor’s administrative appeal as untimely affirmed; the petitioner received written notice of his termination on October 28, 2003, and his attorney was served with a copy of the notice by way of a letter dated October 24, 2003; according to the petitioner, his attorney attempted to fax his written notice of appeal on November 17, which was the last day of the 20-day period within which to file an appeal, and again on November 18, but the fax machine in the attorney’s office was jammed; the notice was sent by mail on November 19; the record did not support the petitioner’s assertion that he had substantially complied with the time period or that there was good cause to relax the 20-day time period; the petitioner admitted that his attempts to deliver the notice on the 20th day were unsuccessful, and he offered no explanation why he failed to take additional steps, such as using a different fax machine or hand-delivering the notice.


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