ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] *Taylor v. Butler*, 142 S.W.3d 277, 286, n.4 (Tenn. 2004).  Other state supreme courts have also recognized this as the majority rule.  *See Dan Ryan Builders, Inc. v. Nelson*, 737 S.E.2d 550, 559 (W. Va. 2012) (“In a majority of jurisdictions, it is well-settled that a contract which requires the weaker party to arbitrate any claims he or she may have, but permits the stronger party to seek redress through the courts, may be found to be substantively unconscionable”); see *Armendariz v. Found. Health Psychcare Services., Inc.*, 24 Cal. 4th 83, 118, 6 P.3d 669, 99 Cal. Rptr. 2d 745 (2000).  The West Virginia Supreme Court - the first state supreme court to address this issue - struck down a clause requiring the consumers to submit any claims they might have to arbitration, but permitting the lender to sue the couple to collect debts owed.  Describing this arrangement as the type of deal reached by a rabbit and fox, the court concluded that the agreement was unconscionable and unenforceable.  See Arnold v. United Cos. Lending Corp., 511 S.E.2d 854, 862 (W. Va. 1998).  “Such ‘unilateral’ arbitration clauses lend themselves ‘extremely well to the application of the doctrine’ of unconscionability because ‘the right the clause bestows upon its beneficiary is so wholly one-sided and unfair that the courts should feel no reluctance in finding it unacceptable. ’”  Id. (quoting, Dan Ryan Builders, 230 W. Va. at 290.  The New Mexico Supreme Court likewise struck down an arbitration clause because “the lender alone had the exclusive and unlimited alternative to seek any judicial remedies,” Cordova v. World Fin. Corp. of N.M., 208 P.3d 901, 904 (N.M. 2009) while the consumers had no right to go to court.  Id. at 908.  The New Mexico Supreme Court reaffirmed that holding in Rivera v. Am. Gen. Fin. Services, Inc., 6 P.3d 803, 819 (N.M. 2011), reversing a lower court that had misread Cordova and improperly upheld an arbitration agreement that allowed the lender, but not the borrower, to access the courts.  The Supreme Court of Wisconsin threw out a one-sided arbitration provision in *Wisconsin Auto Title Loans, Inc. v. Jones*, 714 N.W.2d 155, 173 (Wis. 2006).  That case involved an arbitration clause allowing Wisconsin Auto Title Loans a choice of forum between arbitration and the circuit court, but restricting the borrower to arbitration.  *Id.*  The Wisconsin high court held that the clause was substantively unconscionable because the commercial party had imposed arbitration on the consumer without accepting the arbitration forum itself.  *Id.*  In addition, Mississippi, Montana, and Arkansas have also refused to uphold one-sided arbitration provisions.
[brief] Accepting Defendant’s proposed rule that he insists results in the disqualification of trial counsel, trial counsel [...], a busy public defender, would be prohibited from representing any defendants who victimized someone Shenkus had previously represented in any other context or someone related to that person, no matter how disparate the interests or cases.  This would be an impossibility rendering assigning public defense counsel incredibly onerous; as many criminal practitioners know, multiple cases often involve similar groups of people or the same individuals.  This is likely why Defendant’s categorical prohibition is fictitious.
[brief] (2T 40-4 to 42-8)  [...] filed a timely Notice of Appeal.  (Da 2-5)  The appeal was initially placed on the Sentencing Oral Argument calendar and was argued on April 22, 2024, before the Honorable [...], J.A.D., and the Honorable [...], J.A.D.  (3T)  Thereafter, the panel transferred the appeal to the plenary calendar for briefing.  (Da 1)
[brief] Furthermore you’ve explained how the flow path will move through the basin, which alleviates our other concern. ” (DJa028).  See also August 11, 2023 Engineering Report by NJDEP Staff Environmental Engineer [...] and NJDEP Supervisor [...] (Aa0093), reflecting that same conclusion.  According to the August 9, 2023, email from [...] to the NJDEP, the area [...] mistakenly assumed to be a sediment forebay is therefore, not a forebay, but rather an extended portion of the constructed wetlands with two permanent pools separated by low and high marsh areas with stormwater contributing to the BMP travelling through the low marsh, high marsh, and low marsh areas before discharging to the pool area immediately upstream of the outlet control structure.  (Id.).  The approved design also includes two methods for preventing water from Constructed Wetlands Basin 2 from backing up into the upstream manufactured treatment devices to ensure that each has a free discharge during the water quality storm event.
[brief] (19T5-15 to 6-11; 19T6-18 to 7-13; 19T8-25 to 10-9).  “Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. ”  Arthur, 184 N.J. at 320.  A trial attorney must consider what testimony a witness can be expected to give, whether the witness’s testimony will be subject to effective impeachment . . . , whether the witness is likely to contradict the testimony of other witnesses . . . and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors.
[brief] As a result of Plaintiff’s numerous failures, no enforceable contract (i.e., title insurance policy) was formed.  Significantly, the commitment provides the following initial statement:  “IMPORTANT–READ CAREFULLY: THIS COMMITMENT IS AN OFFER TO ISSUE ONE OR MORE TITLE INSURANCE POLICIES. ”  (301a).  Pursuant to the clear indication that the commitment is no more than an offer, it specifically states that any obligation under the commitment’s policies are subject to – and invalid without – Plaintiff’s compliance with the “Commitment Conditions,” including “Schedule B, Part I – Requirements; and Schedule B, Part II – Exceptions. ” (302a, ¶3).  Thus, there is no contract formation or obligation under the terms of the policy if the requirements to finalize the title commitment are not met by Plaintiff.
[directive] Statute Charge Description  Degree  Bail Range 10%  Cash Bail Option  2nd Degree $50,000 to $100,000  No 10%  Possession of Actor possesses weapon with purpose to use unlawfully against a person or property; 2C:39-4(a-e)  Weapons for Unlawful firearms, explosives and destructive devices, second degree; other weapons, third degree; 3rd Degree $10,000 to $20,000  10% permissible  Purposes imitation firearm, fourth degree.  4th Degree $1,000 to $2,500  10% permissible 74  Updated December 2, 2013
[brief] If the proponent can establish the use was legally put in place and thereafter became prohibited, the proponent then must then “establish exactly what the use was at the time of adoption of the ordinance (prohibiting the use), its character, extent, intensity and incidents. ”  Bonaventure Int., 350 N.J. Super. at 433; DEG LLC v. Twp. of Fairfield, 198 N.J. 242, 272 (2009).  If the proponent fails to meet its proof burden, the Zoning Board is obligated to find the nonconforming use is not a legal use and cannot continue.
[brief] Da220.  On March 26, 2024, plaintiff filed its motion to dissolve stay and compel sheriff to deliver the deed and the certification of [...], Esq. (“[...]”).  Da227 and Da229, respectively.  On April 4, 2024, the [...] filed [...] and [...]’s certifications.  Da271 and Da274, respectively.  On April 8, 2024, plaintiff filed the certification of [...], Esq.  Da368.  On April 12, 2024, [...] entered her order denying plaintiff’s motion.  Da405.  On May 1, 2024, plaintiff filed its motion in the Appellate Division to compel sheriff to deliver deed or declare that there is no stay and [...]’s certification.  Da407 and Da410, respectively.  On May 13, 2024, the [...] filed their cross motion in the Appellate Division to extend the time within which they may post their supersedeas bond to May 20, 2024 and [...]’s certification.  Da416 and Da419, respectively.  On May 22, 2024, plaintiff filed [...]’s certification.  Da426.  On May 23, 2024, the [...] filed their motion in the Appellate Division to extend the time within which they may post their supersedeas bond to June 3, 2024 and [...]’s certification.  Da482 and Da485, respectively.  On May 30, 2024, the Appellate Division entered orders denying without prejudice plaintiff’s motion, the [...]’ cross motion, and the [...]’ motion, and directing the parties to seek relief from the trial court.  Da508, Da509 and Da510, respectively.  On May 31, 2024, plaintiff filed an order to show cause to dissolve the stay and compel delivery of the deed and [...]’s certification.  Da511 and Da514, respectively.  On June 4, 2023, the trial court converted plaintiff’s order to show cause to a motion returnable on June 20, 2024.
[brief] Contrary to the Plaintiff/Respondent’s assertion, plain error is not the standard to be applied to Defendant/Appellant’s arguments on aggravation or indeed the arguments on the Mockler charge.  As these issues were raised in detail with the Court below, the harmful versus harmless error standard is appropriate.  Plaintiff/Respondent argues that Defendant/Appellant waived any objection by allowing [...]’s testimony wherein he briefly mentions aggravation and age-appropriate degenerative changes.  No specific analysis was provided by [...] nor any additional detail which would necessarily have warranted an objection at that stage.  Defendant/Appellant clearly and vociferously objected to the aggravation charge when it was ultimately requested subsequent to the initial charge conference.  New Jersey Court Rule 1:7-2 which speaks to waiver of objections and applicability of the plain error standard speaks to objections not made with respect to instructions to the jury.  It is undisputed that Defendant/Appellant made an objection during the course of the trial.  Plaintiff/Respondent’s timing of the request and the Court’s decision to allow supplemental closings were also particularly problematic.
[brief] [Da2].  [...] Rules and Regulations 4:5.11 (the “Neglect of Duty Policy”), states that “Employees shall not neglect their duties.  Examples include, but are not limited to, carelessness, ignorance, or inattention to required duties.  [Da3].  The [...] found that Appellant violated the Performance of Duty Policy and the Neglect of Duty Policy by taking prescription opioid pain medications that could impair his functioning as a police officer and by failing to inform [...] or Appellant’s chain of command of his use of these opioid medications.
[brief] 1 | | PROCEDURAL HISTORY...................................................  4 | | STATEMENT OF FACTS.................................................. 8 | | LEGAL ARGUMENT.......................................................  13 | | I.  STANDARD OF REVIEW...............................................  13 | | II.  APPEAL OF FINAL AGENCY DECISION ([...]).................. 15 | | A.  THE COMMISSION’S FINAL DECISION WAS UNSUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AND MUST BE REVERSED ([...]).  ................................................................. 15 | | B.  THE COMMISSION’S FINAL DECISION WAS CONTRARY TO A ROBUST BODY OF THE COMMISSION’S OWN CASELAW; WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE; AND WAS INCONSISTENT WITH THE COMMISSION’S STATUTORY MISSION ([...]).  ............................................................................. 24 | | C.  THE COMMISSION’S OUTRIGHT DISMISSAL OF THE AMENDED COMPLAINT IN ITS FINAL AGENCY DECISION WAS SO PROCEDURALLY FLAWED AS TO REQUIRE REVERSAL ([...]).  ............................................................................. 32 | | III.  APPEAL OF THE COMMISSION’S AUGUST 23, 2022  DECISION ON RESPONDENTS  MOTION TO DISMISS ([...]).................................................. 36 | | A.  THE COMMISSION ERRONEOUSLY DISMISSED COUNT 7, AS APPELLANTS’ REASONABLY RELIED ON AN ADVISORY OPINION OF THE COMMISSION ([...]).  ............................................................................. 37 | B.  THE COMMISSION ERRONEOUSLY DISMISSED COUNT 3 BASED ON FACTS NOT IN THE RECORD AND OTHER PURPORTED FACTS CONTRADICTED BY THE UNCONTESTED RECORD ([...]).  CONCLUSION.
[brief] (Not raised below)  Db5  A.  No sum endorsed on Plaintiff’s Summons as required by Rules.  Db5  B.  Plaintiff’s Complaint is undated.  Db5  C.  Complaint did not state date or time period of alleged default.  Db6  D.  CIS was not attached to Complaint.  Db7  E.  Factually deficient and misleading “principal place of business”.  Db7  F.  No proof of service.  Db8  G.  The lower Court should have denied the Motion for Summary Judgment on the presumption it was not timely served.
[brief] Settling defendants who have purchased their peace with a plaintiff are not the same, similar, or akin to dismissed defendants.  This Court should not treat [...] and [...] as settling defendants, for their procedural posture in this matter is completely different from settling defendants.  Moreover, the ruling in *Glassman* was that it was permissible – not required – to read the pleadings to a jury in certain circumstances when the equities so demand.  The circumstances there bear no resemblance to the equities here.  It is most certainly not a mandatory rule.  Glassman, 249 N.J. at 231 (explaining that “[a] defendant may rely on [a] plaintiff’s previous assertions in pleadings or discovery about the alleged fault of the initial tortfeasor”) (emphasis added).  Such a permissive rule certainly does not take precedence over the Trial Court’s discretionary function regarding introduction of appropriate evidence pursuant to N.J.R.E. 104, nor does it take precedence over a Court’s determination of whether proposed evidence would be misleading, confusing and/or unduly prejudicial.  Finally, the Appellate Division in Adams held in any event that there is no impediment to a plaintiff challenging defense assertions of culpability of settling defendants at trial.  Adams, 475 N.J. Super. at 14.  Plaintiff/Respondent here never changed its position on whether [...] and [...] were negligent.  Plaintiff/Respondent’s Complaint was amended solely in response to Appellant’s allegations in discovery.  Regardless of Plaintiff/Respondent’s position before versus during trial, it was Appellant’s burden to prove [...] and/or [...]’s negligence.  It was not Plaintiff/Respondent’s responsibility “to assist him in that endeavor. ”  Id.  The Trial Court thus properly exercised its discretion in precluding Appellant from reading the Amended Complaint to the jury, and Appellant has not established any abuse of discretion resulting in a manifest denial of justice.  CONCLUSION
[brief] a.  The reliability of eyewitness identifications, especially the role of familiarity, was the critical jury question, but jurors heard no evidence that would assist them in evaluating it.  [...] justified the single-photo, non-blind procedure by pointing to the eyewitnesses’ claims to have known [...] prior to the crime.  While trial counsel argued at the Wade hearing that this claimed “familiarity” should make no difference to the procedure followed and the analysis applied, and that the degree of familiarity and estimator variables had not been established (6T104-5 to 109-6), he called no witnesses to support the proposition that purported familiarity with the suspect did not mitigate the risks of misidentification.  There is no indication in the record that counsel ever consulted an identification expert, or even considered doing so.  Based on the testimony of only [...], the court found no suggestiveness and no risk of unreliability in the identification, citing the eyewitnesses’ asserted confidence in their identifications and their claimed prior familiarity with the suspect.  (6T116-25 to 117-12, 119-2 to 4)  Not only did the court never hear about the deficiencies of “familiar” identifications based on brief observation of a perpetrator under stressful conditions, it also did not hear from eyewitnesses themselves.  The court was thus not informed: their prior contacts with [...] were minimal at best; their description of height and tattoos were at odds with [...]; the shooter’s face was only visible for two seconds; [...] and [...] viewed the incident from the second floor and did not look until after the gunshot; and [...] had already begun running away before the shirt fell from the shooter’s face.  Also, the photo used in the identification procedure was a mugshot of [...] in an orange jumpsuit.  (10T6-19 to 8-1)  The premature termination of the hearing precluded this testimony from being developed and left the court without essential _____________________  7
[brief] (Da110).  On July 14, 2023, Appellants issued new “regulations” to implement the Revised Policy, which Appellants titled “District Regulation 8463—Parental Notification Required” (Regulation 8463).  (Da112).  Regulation 8463 listed a series of district policies that would “require parental notification about matters affecting the health and/or safety of their children,” and it expressly included the Revised Policy in that list.  Ibid.  Regulation 8463 also purported to set a protocol for notification by certificated staff members or administrators only, directly contradicting the terms of the Revised Policy.  Ibid.  On August 10, 2023, after attempts to negotiate a resolution failed, the State filed an amended administrative complaint at DCR (Da80), a supplemental complaint to the Superior Court (Da36), and amended request for a Preliminary Injunction enjoining the Original and Revised Policies.
[brief] F.  Arbitration –  It is hereby understood and agreed that all disputes or differences that may arise under or in connection with this Policy, whether arising before or after termination of this Policy, including any determination of the amount of Loss, may be submitted to the [...] under and in accordance with its then prevailing commercial arbitration rules.  The arbitrators shall be chosen in the manner and within the time frames provided by such rules.  If permitted under such rules, the arbitrators shall be three disinterested individuals having knowledge of the legal, corporate, management, or insurance issues relevant to the matters in dispute.  Any party may commence such arbitration proceeding and the arbitration shall be conducted in the Insured’s state of domicile.  The arbitrators shall give due consideration to the general principles of the law of the Insured’s state of domicile in the construction and interpretation of the provisions of this Policy; provided, however, that the terms, conditions, provisions and exclusions of this Policy are to be construed in an evenhanded fashion as between the parties.  Where the language of this Policy is alleged to be ambiguous or otherwise unclear, the issue shall be resolved in the manner most consistent with the relevant terms, conditions, provisions or exclusions of the Policy (without regard to the authorship of the language, the doctrine of reasonable expectation of the parties and without any presumption or arbitrary interpretation or construction in favor of either party or parties, and in accordance with the intent of the parties).  The written decision of the arbitrators shall set forth its reasoning, shall be provided simultaneously to both parties and shall be binding on them.  The arbitrators’ award shall not include attorney fees or other costs.
[brief] A.  [...] never sought to disqualify the [...] under RPC 1.7(a)(1) in the trial court.  As a threshold matter, [...] neglects to mention that it never raised in the trial court the argument that the [...] (or [...]) should be disqualified pursuant to RPC 1.7(a)(1), which prohibits representation when one client is directly adverse to the other.  The only basis for [...]’s motion was RPC 1.7(a)(2), concerning a significant risk of material limitation as a result of the representation.  See SDa1-33 ([...]’s trial court briefs); Pa307 (trial court decision reciting that [...] argued the [...] and [...] representation of multiple clients “is materially limited by the lawyers’ responsibilities to each set of co-defendants”).  Because [...] never raised RPC 1.7(a)(1) in the trial court, it cannot do so now for the first time on appeal.  See Pfannenstein v. Surrey, 475 N.J. Super. 83, 99 (App. Div.), certif. denied, 254 N.J. 512 (2023).  Therefore, the Court should reject [...]’s argument related to RPC 1.7(a)(1).
[brief] (Ja7, ¶41).  Although this sale price exceeded the total tax liability by $55,000 to $75,000, the City retained the surplus proceeds and did not compensate [...] for her lost equity.  (Ja8, ¶43; Ja195, No. 36).  In 2021, [...] filed this case alleging that the City violated her constitutional right to just compensation when it took more property than was necessary to satisfy its tax debt, and that the City was unjustly enriched by taking a windfall at her expense.  (Ja1–13).  The lower court dismissed the case, holding that she could not obtain the relief required by the Constitution because, although she was well within the relevant statutes of limitations, she waited “nearly four years” to file her lawsuit.  (Ja416).
[brief] See, e.g., Boddy v. Cigna Prop. & Casualty Cos., 334 N.J. Super. 649, 654 (App. Div. 2000) (noting in context of Plain Language Review Act that, “[i]n construing a contract a court … should read the contract as a whole”).  The choice-of-forum provision expressly references the “Arbitration Agreement” multiple times, meaning it must be read in conjunction with the Arbitration Agreement.  It states that “except as may be otherwise provided for in the Arbitration Agreement above,” any claims against [...] “shall be brought exclusively in [a court] of the state in which the dispute” arose.  (Da97.)  As Plaintiffs point out (Pb18), the Arbitration Agreement includes exceptions—a few enumerated types of claims that can be brought in court of law.  The forum-selection clause explains in which court those claims must be brought.  All other claims must be brought in “arbitration,” and “not in court of law. ”  (Da82.)
[brief] 10T79:1-80:22.  Apparently attempting to address this lack of factual support, plaintiffs represent that [...] "testified that he conferred with [...] to ascertain whether he authorized many of the transactions in question."  Pb40.  That is not the record.  The portion of the transcript relied upon by plaintiffs does not address whether [...] authorized any transaction.  Rather, as the portion of the transcript that precedes the excerpt makes clear, the testimony concerns [...]’s assumption that [...] did not return the $2 million transferred from [...]’s Merrill Lynch account in December 2008.  See, 22T73:3-76:7.  The portion of the transcript relied upon by plaintiffs follows:  Q.  You are simply basing that off of reviewing the Quickbooks printout that you did, correct?  A.  No.  Also discussions with my client and with the plaintiff.  Q.  Okay.  Well those discussions are nowhere referenced in your report, are they?  A.  In general you would have to speak to the client to get an understanding of the matter at hand.
[brief] L. 1996, c. 157 (codified at N.J.S.A. 17:11C-1 to -49). ”  Lemelledo, 150 N.J. at 262 n.1. combined with the consumer lending provisions, as it had been for several decades—and reasonably so.  The provisions of subsection 18 relate only to the Commissioner’s authority relative to licensure to act as a “consumer lender” or “sales finance company” and do not address mortgages or real property.  See N.J.S.A. 17:11C-2; N.J.S.A. 17:11C-3; N.J.S.A. 17:11C-18.  Post 2010, the first case to address the newly formed [...] was in the District Court of New Jersey: Veras, supra, No. 13-1745 (RBK/JS), 2014 U.S. Dist. LEXIS 34176 (D.N.J. Mar. 17, 2014).