Last week, the New Jersey State Bar Association held its annual convention in Atlantic City. Over 2,500 judges, lawyers, law clerks, and law students headed down the shore in search of CLEs and the scoop on emerging legal issues. In the following post, NJCJI’s Emily Kelchen reveals her insights on issues of interest to the civil justice community that were discussed at the convention.
Arbitration Under Attack
While there were many panels during the convention that touched on topics of interest to NJCJI, one really stood out: “Arbitration Under Attack: When Is Binding Dispute Resolution Appropriate?”
This panel was a must-see, as it took place just days after the United States Supreme Court issued its opinion in Kindred Nursing Centers Limited Partnership v. Clark, which struck down an ostensibly neutral rule that disfavored arbitration, much like the anti-arbitration approach adopted by the New Jersey Supreme Court.
Justice Barry T. Albin, who authored the opinions in Atalese v. U.S. Legal Services Group and Morgan v. Sanford Brown, which have set New Jersey apart from federal law, started the discussion by suggesting that the panel’s title was a misnomer. He does not think arbitration is under attack. In his opinion, it is proponents of arbitration who are doing the attacking. He then proceeded to explain his hostility to arbitration, saying “I think that the greater threat, in my view, is the powerlessness of consumers and employees, who may no longer have access to the civil justice system because of industry-wide form arbitration clauses.”
He went on to say “…arbitration may be less expensive and more expeditious than the civil trial process… [but it] is not an adequate substitute for judgment by a jury of one’s peers.”
He dismissed the seminaries between the Kindred Nursing case and New Jersey case law by explaining that in his opinion the arbitration clause in the Kindred Nursing case clearly indicated that arbitration is different from a jury trial. He also suggested that Kentucky’s high court was out of line for thinking that the right to arbitrate needs to be specifically included in a power of attorney document.
Albin’s remarks provide some insight into his opinion of arbitration. It is going to be interesting to see how the law in New Jersey continues to develop, and how much patience the United States Supreme Court will have for states like Kentucky and New Jersey, who continue to defy the U.S. Supreme Court by holding arbitration agreements to a higher standard than other contractual provisions.
State of the Judiciary
It should come as no surprise that the best-attended events of the entire conference were the state of the judiciary addresses given by New Jersey Supreme Court Chief Justice Stuart Rabner and Chief Judge Jerome B. Simandle of the U.S. District Court for the District of New Jersey.
U.S. District Court for the District of New Jersey
Chief Judge Simandle is taking senior status and stepping down from his position as chief judge, so his speech was a bit of a farewell address.
Simandle reminded the audience that New Jersey’s federal courts continue to be in a state of judicial emergency. This stems from that fact that our state has had two vacant judgeships for over two years. A third vacancy will exist once Simandle takes senior status.
Even if all 17 of the current judgeships were filled, New Jersey’s federal judges would still have a lot on their plates. The weighted caseload per active judge in New Jersey last year was 545 compared with the national average of 487. Despite this high case load, the New Jersey federal courts continue to be some of the quickest in the nation at resolving disputes, but the time litigants must wait for a case to be resolved is growing.
The U.S. Judicial Conference has called for an additional three judgeships to be added in our state. It is unclear if we will get these new spots since adding seats requires an act of Congress, which has not created any new judgeships since 1990, when the seat Judge Simandle occupies was added.
Judge Jose L. Linares will be taking over the top federal judgeship in New Jersey when Simandle takes senior status.
New Jersey Supreme Court
Chief Justice Rabner focused the majority of his remarks on bail reform and other criminal justice topics.
He did note that the court is still planning on adding 20 new judgeships on July 1 in response to legislation that was passed a few months ago. These will represent the bulk of judicial vacancies for the year since the Governor and the Legislature have resolved their past differences, and worked to fill most judicial vacancies swiftly.
Rabner urged the Legislature and the Governor to turn their attention toward judicial pay increases. He noted, “[Judicial salaries] have not been increased in more than eight years. In fact, with increases in contributions for health care and pensions, judges’ net pay has steadily decreased during that period. Come July 1, a judge’s gross pay before taxes — accounting for those two deductions but not factoring in inflation — will be less than it was a decade ago.”
Increasing judicial salaries is something that the New Jersey Civil Justice Institute continues to support.
The Other Branches of Government
Rabner’s State of the Judiciary Address was not the only time judicial compensation was mentioned during the conference. It was also a hot topic during the “Inside Trenton” panel and the panel titled “Pursing Truth and Justice: An Examination of How Independent Courts and an Independent Media are Essential to Our Democracy.” It was stressed that it is difficult to find a diverse pool of applicants for judgeships when compensation does not come close to matching what many lawyers can make in the private sector.
Two other topics that NJCJI has lobbied on also came up during the “Inside Trenton” panel.
While discussing the difference between policy and politics, Asm. Bramnick (R-Westfield) mentioned that trial lawyers often get upset with him because there aren’t grief and sorrow damages in wrongful death cases in New Jersey. He stressed that a lot of things lawyers think would be good legal policy, won’t work politically. This is an issue that NJCJI will continue to stress is both bad politics and bad policy.
New NJSBA President Robert B. Hille was also in the audience for the “Inside Trenton” panel, and Asm. McKeon (D-Madison) gave him a shout-out for his advocacy efforts. Hille, a partner at McElroy, Deutsch, Mulvaney & Carpenter who practices insurance and healthcare law, has emphasized that advancing legislation “that will put professionals on an even playing field” is his top priority for the year. NJCJI has been supportive of the bar’s efforts to shorten the length of the professional malpractice statute of limitations and standardize it across many professions.
On A Personal Note
The most memorable aspects of this year’s convention for me are personal. I was thrilled to be able to speak on a panel put together by the Young Lawyers Division on what I wish I had known when I first became an attorney. A couple of people told me they thought our panel was funny, so I’m going to count that as a sign of success.
On Thursday, I was quite shocked, and very flattered, to receive a special award from the Young Lawyers Division for my work on the organization’s behalf over the last year.
I look forward to getting more involved with the state bar, as I continue to get as much value out of the organization as I put into it. This year I’ll be serving as co-chair of the in-house counsel special committee and editor of the Young Lawyers Division’s newsletter.