ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Defense Counsel  Sufficiently Advocated for the Passion/Provocation Instruction to the Court  Despite an Initial Request for an All-or-Nothing Trial, and the Trial Court’s Stated Reasons for Denying the Instruction Were Legally Erroneous.  In the proceedings below, the presentation of the passion/provocation issue was more complex than a simple denial of a request by trial counsel.  When the trial court initially asked defense counsel during the charge conference if he wanted any lesser-included offenses, defense counsel responded he did not, saying he discussed the matter with [...] and they would prefer an “all or nothing type of situation. ” (5T161-20 to 162-4).  The prosecutor concurred that because the defense was a “straight denial,” it was appropriate to not have any lesser-included offenses.  (5T164-1 to 17, 165-20 to 22).  However, defense counsel also acknowledged that “there are certain circumstances where the Court has to charge [lesser-included offenses] even though there is no” request by the defense.  (5T164-23 to 25).  After reviewing caselaw and acknowledging it was in fact obliged to instruct on any appropriate lesser-included offenses regardless of the parties’ positions, the trial court began reviewing the evidence with respect to a possible aggravated or reckless manslaughter lesser-included instructions.  (5T176-20 to 179-2).  The trial court again asked for defense counsel’s position but noted that it must instruct on potential manslaughter offenses irrespective of the parties’ stances if it believes they are sufficiently supported by the evidence.  (5T180-19 to 24).
[brief] Insurance companies and the State of New Jersey have used the IFPA to successfully prosecute cases, both civil and criminal, in the courts as intended by the Legislature.  The IFPA expressly provides that:  For actions brought by the Commissioner: N.J.S.A. § 17:33A-5.  Remedies; penalties; fund established b.  Any person who violates any provision of P.L.1983, c.320 (C.17:33A-1 et seq.) shall be liable, in a civil action brought by the commissioner in a court of competent jurisdiction, for a penalty of not more than $5,000 for the first violation, $10,000 for the second violation and $15,000 for each subsequent violation.  The penalty shall be paid to the commissioner to be used in accordance with subsection e. of this section.  The court shall also award court costs and reasonable attorneys' fees to the commissioner.  (emphasis added)  The Legislature made it clear that the Commissioner shall bring an action in a court of competent jurisdiction, and it is the court which shall award damages, including court costs.  Additionally, pursuant to subsection c, "[t]he Superior Court shall have jurisdiction to enforce the provisions of 'the penalty enforcement law' in connection with P.L.1983, c.320 (C.17:33A-1 et seq.)."  See N.J.S.A. § 17:33A-5c.  Similarly, for actions by an insurance company the IFPA provides: N.J.S.A. § 17:33A-7.  Actions by insurance companies against violators a.  Any insurance company damaged as the result of a violation of any provision of this act may sue therefor in any court of competent jurisdiction to recover compensatory damages, which shall include reasonable investigation expenses, costs of suit and attorneys fees.  (emphasis added)  Notwithstanding this foregoing language and the resolute intent of the Legislature to aggressively combat insurance fraud, the court below inappropriately elected to ignore this precedent and ignore the canons of statutory interpretation finding that matters under the IFPA and RICO must be submitted to [...] for dispute resolution.  This poorly reasoned decision must be reversed to provide insurers and the State of New Jersey the ability to aggressively fight insurance fraud in the courts, while providing no-fault disputes over medical expenses to be expeditiously reviewed and decided in the [...] dispute resolution forum.
[brief] Again, I'm guided by what is specifically pled.  And in reviewing this matter again, it was clear to the court that really the factual predicates for the legal malpractice claims and the non-legal malpractice claims remain the same.  Plaintiff - plaintiffs do not identify either in their pleading or in their briefs in support of this motion a -- a factual predicate that applies only to the purported non-malpractice claims and not to the legal malpractice claims.  So, for example, in the fourth count, how these defendants conducted themselves with respect to the transactions, with respect to the agreements, how these lawyers conducted themselves in connection with their clients, again, would require an expert to set forth the standard of care as to what someone in the profession should or should not do.  With respect to fraud, again, here, this is the fifth count, plaintiffs allege that defendants engaged in fraud by misrepresenting the true status of the transactions, events, terminations of the agreements, assignments, and on from there.  That allegation in Paragraph 3 of Count --the fifth count, really is saying effectively the same thing that plaintiffs say in the first count in Subparagraphs A through E, as well as the third paragraph of Count 3, in which plaintiffs, again, allege as to a number of allegations as to how these defendants failed to – provide certain information, failed to timely advise them of certain aspects regarding the transactions, and the structures of the transactions, and the interrelationship between the parties.  It -- it really all goes back to that set of allegations which, as I’ve said, would require an expert to set forth the standard of care.  The conversion, as I’ve noted, the use of an attorney trust account would require an expert to talk about law firm and attorneys responsibilities with respect to the trust account.  With respect to the seventh count, in terms of conspiracy, again, that relates, to the defendants conduct in these transactions, what they should have -- what information they should have relayed, what action they should have taken, should not have taken.  And again, as I’ve set forth that, again, it’s effectively the same wrongful acts or inactions that are alleged in connection with the legal malpractice claims for which the court has found an expert would be necessary.  (1T:37:13-40:21).  Plaintiffs then filed a Motion for Reconsideration of [...]’s November 10, 2016 Order.
[brief] This was money that was taken in secrecy away from those who were the rightful . . . recipients.  And to say that it was taken with knowledge of a high degree of probability of harm, there’s a hundred percent probability of harm because the money was taken, unless somebody discovered it.  (235T73:15-21)  [W]hether the target of the conduct had financial vulnerability is relevant here.  [...] had to know that they really had [...] by the throat.  He has a very large family, and this was his sole means of support, at least during the course of this litigation, I haven’t seen any other means of support, and was the object of all of the labors of his work life.  And in comparison to the Wilfs, [...] was extremely financially vulnerable.  Now, [...] filed his complaint in October of ‘09, and the Wilfs cut off -- after having reduced his compensation during the year, cut off all of his compensation.  [...] knew that Joe’s income was gained solely from [the Partnership], [its asset] [...], and they also knew that he had ten children.  ….  Josef’s counsel filed a motion for statutory and equitable relief, in order to relieve the adverse economic impact on [...], and the Wilfs opposed it [with a certification in support].
[brief] TABLE OF APPENDIX  Appendix Document: Appendix Page: Plaintiff’s Pretrial Memorandum Filed July 7, 2023  Pa1  Automated Model Civil Jury Charges System (MCJCAS)  Page dated May 15, 2024  Pa11  Model Civil Jury Charge 8.11C: Loss of Earnings Page dated May 15, 2024  Pa13  Model Civil Jury Charge 8.11G: Life Expectancy Page dated May 15, 2024  Pa23  Defense Counsel’s Opening Statement Drawings Composed July 12, 2023  Pa25  # TABLE OF AUTHORITIES
[brief] The order is also enforceable under Rule 4:59 because it is final and for a sum certain subject to a Writ of Execution.  *Newstead Bldrs., Inc. v. First Merch. Nat’l Bank*, 146 N.J. Super. 295 (App. Div. 1977).  Regarding the court’s “certification” of finality of this order against [...], the court addressed and dismissed each of [...]’s challenges to the April 6, 2023 Final Judgment; that is, the allegation that issues of fact needed to be addressed (i.e., whether [...] had berms, whether the bunker oil was hazardous, whether [...] should be jointly liable); and that [...] needed more discovery, and the trial court found all unpersuasive.
[brief] *Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.*, 460 U.S. 1, 24 (1983) (“questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration,” and “any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration . . .”); Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76 (1989) (“settled” rule that questions of arbitrability in contracts subject to the FAA “must be resolved with a healthy regard for the federal policy favoring arbitration”); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985) (while the parties’ intentions control interpretation of a contract subject to the FAA, “those intentions are generously construed as to issues of arbitrability”).  Both “[t]he Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1–16, and the nearly identical New Jersey Arbitration Act, N.J.S.A. 2A:23B–1 to –32, enunciate federal and state policies favoring arbitration. ”  Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 440 (2014); see also Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 133 (2020); Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 556 (2015).  Arbitration is fundamentally a matter of contract.  NAACP of Camden Cty. E. v. Foulkes Mgmt. Corp., 421 N.J. Super.404, 424 (App. Div. 2011).  The New Jersey Supreme Court recognized in Atalese, its seminal opinion on arbitration agreements, that "[t]he FAA requires courts to 'place arbitration agreements on an equal footing with other contracts and enforce them according to their terms."  Atalese, 218 N.J. at 441 (quoting Concepcion, 563 U.S. at 339).  The Supreme Court of New Jersey has interpreted the scope of arbitration clauses broadly to vindicate "the strong public policy favoring the settlement of dispute through arbitration."
[brief] The New Jersey Legislature enacted the New Jersey Arbitration Act, (“NJAA” or “Act”), N.J.S.A. 2A:23B-1, et. seq., allowing for the enforcement of valid arbitration agreements in the patient-physician context in furtherance of the civil justice system’s goal of resolving parties’ disputes fairly and equitably.  The Act allows redress for claims by those who enter into patient-physician pre-dispute arbitration agreements and adequately protects the rights of patients and physicians alike.  The instant matter falls squarely within the legislative mandates of the Arbitration statute and interpretive case law.  The NJAA applies to matters subject to pre-dispute arbitration agreements.  See Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., No. A-0683-11T1, 2013 N.J. Super. Unpub. WL 4080947 (App. Div. 2013).  Physicians and patients entering into such agreements have a right to rely upon the enforcement of the contractual provisions to resolve issues involving patient care.  The court found no inherent harm to the patient-physician relationship that flows from parties agreeing to substitute one forum for another in dealing with future claims.  Moore, at 6.  The current law adequately provides an appropriate balancing test setting forth the factors to be considered when determining enforceability of a pre-dispute arbitration agreement.  Protecting the interest of the contracting parties is of the utmost concern in resolving questions of enforceability and the test set forth in Rudbart v. New Jersey Water Supply Comm’n., 127 N.J. 344 (1992) provides the mechanism by which such questions are to be resolved, and which was relied upon by the court in Moore.  To allow for specific exceptions such as those sought by the respondent here, i.e., for surgical cases and wrongful death matters, would contravene the legislative intent of the NJAA.  Such exceptions would resultantly interfere with the provision of patient care within the broader healthcare system.  The patient-physician relationship is of paramount importance to care providers.  In addition to providing medical care to patients, physicians are impacted by the influence medical malpractice claims have on their professional behavior and, to an extent, their well-being.  Arbitration agreements allow for the fair and adequate redress of patient claims while at the same time serving to address physician concerns that impact the overall provision of patient care.  The welfare of the public at large is served by upholding the NJAA without the creation of exceptions.
[brief] Those activities unquestionably fell within UPEPA’s coverage.  Plaintiff nevertheless sought $30 million in damages and an order requiring Defendants to “remove the picture from everywhere. ”  Defendants then filed a proposed order to show cause seeking dismissal and attorneys’ fees under UPEPA.  While that application was pending—and seeing the writing on the wall—Plaintiff voluntarily dismissed his action and the court entered the dismissal and closed the case.  Defendants then moved to reopen under R.4:50-1(f) for the limited purpose of seeking the attorneys’ fees that UPEPA requires the court to award to a party that prevails on an order to show cause.  Notwithstanding the mandatory language of the statute, the trial court erroneously denied Defendants’ motion on the ground that reopening the case to seek fees would be futile because Defendants had failed to adduce sufficient evidence that Plaintiff had engaged in a pattern of abuse of the courts or that the action was frivolous.
[brief] Respondent also incorrectly argues that before [...] heard Petitioner’s Motion on the essential worker issue, she “expressed her opinion that she believed that teachers fell within the definition of essential employees and that this decedent would be entitled to that presumption. ” (Rb2 and Rb8).  Respondent further argues that “by expressing this opinion and by prejudging this issue, the Judge of Compensation demonstrated that there was reason to believe that she would not provide a fair and unbiased hearing and judgment on the issue. ” (Rb2 and Rb11).  Respondent’s statements are a complete mischaracterization of the facts.  [...] never expressed her opinion as to whether Decedent was an essential worker prior to deciding the merits of the Petitioner’s Motion in the Workers’ Compensation Court.  In “off the record” conferences, the Judge and both counsel discussed the consequences of [...] ruling one way or the other on the essential worker issue, but no decision was proffered.  These type of forthright conferences are typically part of all workers’ compensation proceedings.
[directive] Do you understand that if you are convicted of a sexually violent offense, such as aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping under 2C:13-1c(2), criminal sexual contact, felony murder if the underlying crime is sexual assault, an attempt to commit any of these offenses, or any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the offense should be considered a sexually violent offense, you may upon completion of your term of incarceration, be civilly committed to another facility for up to life if the court finds, after a hearing, that you are in need of involuntary civil commitment?  8.  Multa adicional para determinados crimes sexuais Surcharge Penalty for Certain Sex Offenses  Você entende que se está se declarando culpado por crime de agressão sexual qualificada, [Sim/Yes] [Não/No] agressão sexual, contato sexual criminal qualificado ou contato sexual criminal e o crime ocorreu 1o em de julho de 2002 ou após esta data, o juiz irá impor uma multa de $100?  Do you understand that if you are pleading guilty to the crime of aggravated sexual assault, sexual assault, aggravated criminal sexual contact or criminal sexual contact and the offense occurred on or after July 1, 2002, the court shall impose a fine of $100?
[brief] Santana v. SmileDirectClub, LLC, 475 N.J. Super. 279 (App. Div. 2023)  .......................................................................................30, 31, 32  Schwartz v. Comcast Corporation, 256 Fed. App’x 515 (3d Cir. 2007) .........................................................................................18, 19, 20, 23 Skuse v. Pfizer, Inc., 244 N.J. 30 (2020)
[brief] This provision, in fact, states that “[i]n the event the demised premises are located in a shopping center or in a commercial building in which there are common area, Lessee agrees to pay his pro rata share of maintenance, taxes and insurance for the common area. ”  Thus, right off the bat, it is clear that Article 17 merely provides for right for the Landlord to impose “common area” charges but does not define or identify what the “common areas” are; what charges are being imposed for what services; or what any of the tenants’ shares of those expenses are.  For these reasons, on its face, Article 17 provides absolutely no textual support for the Law Division’s determination that the Tenant Defendants paid a “common area” fee for the removal of snow and ice from the walkways and parking lot.  In order to so hold, the Law Division improperly accepted as evidence the Tenant Defendants’ self-serving testimony about what the parties intended in Article 17.  See Deerhurst Estates, 64 N.J.Super. at 149 (“The only excluded circumstances are statements by the parties themselves as to what they intended the language to mean”).  Based on “irrelevant” and inadmissible statements of the Tenant Defendants’ subjective intent, the Law Division re-wrote Article 17 to include the following provisions: (i) to define the walkway as a “common area”; (ii) to provide that any payments which may have been pursuant to Article 17 were for the removal of snow and ice from the walkways and parking lot; and (iii) to impose upon the Landlord an *exclusive* obligation to maintain the walkways.  Once again, however, “[i]t has been decided many times and in many cases that the court will not make a different or a better contract than the parties themselves have seen fit to enter into. ”  *Washington Const. Co. v. Spinella*, 8 N.J. 212, 217 (1951).  This Court simply cannot rewrite the leases for the Tenant Defendants’ benefit to Plaintiffs’ detriment.  If the Tenant Defendants wanted to impose an *exclusive* duty on the Landlord to remove snow and ice -- and to have that service imposed as a “common area” charge – they needed to express that so-called intention within their writing.  That intention is simply not there.  To claim that the “walkways” were indisputably a “common area” is not accurate.  These leases did not include a definition of what constituted the “common areas” and certainly did not identify the walkways as a “common area. ”  That the walkways may have been “commonly used” by invitees of all of the establishments does not make them a “common area” within the meaning of leasing law in general, or the meaning of these specific leases.  More correctly, when viewed under the *actual language* of these leases, the walkway where [...] fell was “adjacent” to the locations of each of the Tenant Defendants, and thus in an area that falls explicitly with the Tenant Defendants’ duty to remove snow and ice, according to the clear and unambiguous text of Article 3 of the leases.
[brief] ([...] Tr., 144:4-22 at Pa1052.)  [...]’s unenrolled contractor status is confirmed in the Enrollment Status Reports maintained by [...] and sent to [...], covering the period from July --- \(^8\) [...]’s August 10, 2015 email is a reply to an email which had confirmed [...]’s enrollment on July 29, 2015 in WC 0181121-00 effective 08/01/15, and, thus, the August 10th email maintains the same subject line from the July 29th email.  13 to December 15, 2015.  (PA2257-2258; see also Faust Tr., 160:12-161:5 at Pa2218.)  While [...] was listed as “enrolled” on an August 10th Enrollment Status Report (Pa2262), it is “excluded” on the next report dated August 11th and each Enrollment Status Report thereafter, including the one in effect on the Accident date (Pa2265-2285), confirming that [...] remained “excluded. ”  D.  [...]’s Subsequent Acknowledgments That Its Work Was Unenrolled from the CCIP
[brief] STATEMENT OF INTEREST  [...] is a not-for-profit organization that provides pro bono legal services and other resources to indigent prisoners whose innocence may be established through post-conviction DNA testing.  [...] also researches the causes of wrongful convictions and advocates—both in individual cases and through legislative and administrative initiatives—for changes in the law (and law-enforcement procedures) to reduce the risk of wrongful conviction.  Significantly, our research demonstrates the threats posed by unreliable or exaggerated forensic evidence.
[brief] On the one hand, the City would have obligations to the persons alluded to by Plaintiff in this action (if ever specified) should Plaintiff have been successful.  On the other hand, the City promoted individuals in due course and they acquired seniority and other benefits accordingly and, if such promotions and/or rank/timing/place were undone, the City may have been subject to claims from those adversely affected individuals.  The City would thus have been subject to obvious risk of incurring inconsistent obligations absent Plaintiff's joinder of these individuals.
[brief] #  TABLE OF AUTHORITIES | Case | Page(s) | |----------------------------------------------------------------------|---------| | Anderson v. Liberty Lobby, Inc., | 12 | | 477 U.S. 242 (1986) | | | Borough of West Caldwell v. Borough of Caldwell, | 16 | | 26 N.J. 9 (1958) | | | Brill v. Guardian Life Ins. Co., | 11, 12, 13 | | 142 N.J. 520 (1995) | | | Campbell v. New Jersey Auto Ins., | 12 | | 270 N.J. Super. 379 (App. Div. 1994) | | | Conrad v. Michelle & John, Inc., | 15 | | 394 N.J. Super. 1 (App.Div.2007) | | | Coyne v. N.J. Dep't of Transp., | 11 | | 182 N.J. 481, 867 A.2d 1159 (2005) | | | Golddome Realty Credit Corp. v. Hardwick, | 13 | | 236 N.J. Super. 118 (Ch. Div. 1989) | | | Goldfarb v. Solimine, | 16 | | 245 N.J. 326 (2021) | | | Heljon Management Corp. v. DiLeo, | 12 | | 55 N.J. Super. 306 (App. Div. 1959) | | | Judson v. Peoples Bank & Trust of Westfield, | 11 | | 17 N.J. 67 (1954)
[brief] He claimed that after returning from some errands at latest around 6:00 p.m., he did not leave the room, but that [...] did without him.  (29T 28-4 to 30-22).  When repeatedly confronted by the detectives with the fact that they have surveillance footage and other evidence demonstrating he left the hotel with [...], Defendant continued to deny this and stated he couldn’t remember leaving with [...] nor was he involved with the murder.  (29T 96-2 to 98-12).  At the same time Defendant was giving his statement, [...] was giving another statement to police as well.  At the conclusion of their statements, both men were arrested and charged with the murder of [...].
[brief] (Aa477).  See N.J.A.C. 7:7-24.1(c)(7):  An applicant is not required to provide public notice for…an application for an administrative or minor technical modification pursuant to N.J.A.C. 7:7-27.5(c) or (d), respectively. ”  \textsuperscript{12}  [...]’s objection focused on the existing mis-located structure approved in 2017, not the proposed modification and permitting of that as-built structure.