I’m going to share with you something I find quite disturbing with New Jersey’s civil justice system. What is it? It’s the unfairness to victims of medical negligence when it comes to getting their day in court.
Unlike other states that I try cases in, New Jersey does not schedule jury trials on a firm date. Typically, the court gives notice of a trial date, but there are many variables as to whether the case will actually be called to trial or be adjourned and rescheduled months later.
One such variable is the defense lawyer’s schedule. If the defense lawyer has another trial on or about the same date your trial is scheduled, and if his other case is older than your case (filed earlier), your case gets bumped and the defense lawyer tries the older case.
Because of this rule, medical malpractice insurance companies found a way to manipulate the scheduling of trials to their benefit. What they do is they give one defense attorney an unrealistic inventory of cases to try and demand that he or she be the only one to try the case. Consequently, if your case gets scheduled for trial it will repeatedly be put off because the defense attorney always has an older case scheduled. Who benefits? The insurance industry benefits. By delaying trials, the money to pay a verdict remains invested, and earns interest or income for the insurer instead of going to the victim of malpractice.
Incredible. Whether a plaintiff’s case goes to trial is solely dependent on the defense lawyer’s trial schedule. You have no say in it and the court has no say in it. Now there’s supposed to be a way for the plaintiff’s attorney to break this cycle. If a case has been in suit for more than three years, and the trial has been delayed due to opposing counsel’s unavailability, you can request to have that attorney’s trial designation removed so that when the case is listed again for trial, the claim that he has an older case to try can no longer be an excuse.
Unfortunately, this rule is honored more in the breach than in its application. My experience has been that even if you have the defense lawyer’s trial designation removed, judges still defer your case to his older case. I’ve had trials delayed more than two years because of the defense lawyer’s schedule—despite the fact that his trial designation had been removed.
And it gets worse. In New Jersey, the defense lawyer does not have to tell the court that he can’t try your case because he has an older case to try until the Wednesday before the Monday your case is scheduled. That’s a whopping 2 business days of advance notice for the plaintiff. Unfortunately, I have to start getting ready for trial weeks earlier. As a result, a lot of time and money is wasted. As you know, the money spent is a cost to the client. When case costs increase, the client gets less of the verdict or settlement. The defense lawyer is making money because he’s trying cases. The victim of negligence is losing money.
Sadly, the powers that be in New Jersey know about the problem. They were asked to do something about the problem. But they are happy and content to do nothing about the problem. It’s not hard to figure out why. The insurance industry is happy and the citizens of New Jersey are getting screwed.
That’s life in the big city.
