In this edition of the series, TSDL will comment on the condition of litigation in the Garden State. While I am discussing New Jersey, these thoughts could very well apply to your state and to any location with concentration of lawsuits in a few counties. In New Jersey, we have very busy litigation counties in the North (Bergen, Hudson, Essex, and Passaic) along with Middlesex County (more central Jersey) and Camden County across from Philadelphia. Many of the other vicinages “Down the Shore” and in the Western part of the state are much quieter.

In my recent conversations with individuals close to the New Jersey Court System suggest that the plan to handle the litigation backlog is that there is no plan. Yes, there are some online proceedings that are starting in a limited fashion. However, keep in mind, that many of the busy counties were under water before we went off the rails. The cruel truth is that the chances of a jury trial in Hackensack or Newark in 2020 is as slim as a getting at table at Holsteins (after the final Sopranos episode made it famous). As a gloomier landmark, you can easily see the hospital in Newark from the courthouse, where so many of our neighbors have succumbed to the virus. We need to stop the hypocrisy and innovate.

Given this situation in New Jersey, plaintiffs will not “have their day in court” any day soon. But that doesn’t mean the court system cannot offer an alternative with all parties' consent. In these times, we are compelled to think differently. I would examine and institute a transformed and online bench trial procedure. The rules for these summary bench trials should be simple and streamlined. First, the parties would submit to the court a limited trial brief with proposed exhibits via electronic filing. These trial briefs would take the place of opening statements. Second, all fact witness testimony should be taken through Zoom or a similar service. In place of certain fact witnesses, agreed-upon deposition excerpts could be admitted. Third, all expert written reports would be submitted for the court’s consideration (not de bene esse testimony). Fourth, counsel would give online closing arguments to the court. Finally, in exchange for a waiver of all interest charges and prompt payment, the right to appeal a verdict would be surrendered.

Since there is a disparity in the amount of litigation in other New Jersey counties, judges from these venues could be shifted to the busy counties to help relieve the demand of these bench trials. While this plan may not be perfect, it could help lighten the enormous backlog, get cases resolved, and keep the court-system functioning for an eventual return to “normalcy.” It also allows for the continuing practices of social distancing and would place no further demands on New Jersey’s severely drained resources of personnel and funding.

As for our colleagues on the plaintiff’s side, these inexpensive bench trials could get cases moving and address client's concerns about constant adjournments and endless delays. As things stand now, New Jersey Courts are simply adjourning trial without a new date. I concede that there is no perfect decision here. The allure of a jury trial would be gone, but the value of certainty and an endpoint, in these troubled times, is paramount.

But as Tony Soprano reminds us-- “a wrong decision is better than indecision.”