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The Garden State Law Podcast discusses all things legal in the state of New Jersey. Presented by lawyers from Saiber LLC, the Garden State Law Podcast highlights trending topics in litigation, transactional law, real estate, and more.
Welcome back to the Garden State Law Podcast.
I'm your host, Tim Lough
Joined today by Saiber litigator Michael Shortt.
Mike,
thanks for joining us today. No problem, Tim.
Nice to be here.
So today we're going to talk about what
it's like to be sued as a business.
But before we do that, Mike,
let me just let you talk a little bit
about yourself and your practice.
Yeah, no,
I've been at Saber for over six years now.
I'm primarily a commercial litigator.
I do everything from commercial contract disputes
to employment discrimination work.
I do a lot of real estate litigation,
representing brokers, agents
in New York, New Jersey and Pennsylvania.
I also have a kind of a somewhat
of a niche practice
representing a company that does a lot of business
district management throughout New Jersey,
which is a little bit of everything,
planning special events,
building those
parklets you sometimes see,
like in busy thoroughfares.
There's a little temporary parks
like helping them get permits for that
and just kind of a wide variety of things.
Some countries, outside general counsel
work for them, so
kind of a pretty diverse practice,
but primarily litigation.
So I've never been sued.
Hopefully I'll not be sued ever.
While I've been working in the legal industry
as a non-attorney for nearly 20 years,
there are still aspects of litigation
that mystify me.
So I think what would be helpful
for listeners and someone like me
is walking the process
through from beginning to end.
Where does it start and where does it end?
So my thought was, I'm
going to give you a couple of scenarios,
sir, of a small or mid-sized business.
And they're being sued.
And as we walk through it,
we can keep both of those businesses in mind
and we can use those as examples for exercises.
Yeah.
So here are the scenarios for you.
Like, let's go. Scenario number one,
I'm a florist
and I am in Morristown, New Jersey.
I've been working with a vendor
for ten years who delivers flowers to me.
Over the last year or so,
this vendor was under new management.
Now, in the beginning of this relationship,
everything went well.
But over the last few months,
things started to deteriorate.
The flowers
they were delivering were dead or shoddy.
Then, you know, the deliveries were wrong.
They were late.
They weren't the correct orders.
But at the end of the day, we accepted the flowers
because we had orders to fill
and we didn't want to not fill the orders.
So the last delivery was a mess.
And we said, like, that's it, I'm not paying.
But we accepted the flowers.
We'll pay when they fix it.
The vendor says, no no no.
You accepted.
Too bad.
We got a problem.
Hey, he said, well,
we're not paying until you fix.
And if you don't like it, sue us.
So they do.
So we have a contract dispute on our hands.
So a small business contract dispute.
For scenario two...
I'll keep this easy. It's the same business.
We're a florist.
We've got 10-12 employees,
one employee is 68 years old.
The employee is disgruntled.
They're insubordinate.
They're giving us a hard time.
And ultimately, we let that person go
because they weren't doing their job.
A month later,
we're getting sued for age discrimination.
So two businesses, one business,
two scenarios, both likely
to happen to a small business,
but kind of of a different nature, sir.
So let's walk through.
We're getting sued twice,
unfortunately for this poor florist in Morristown.
Right. What's the first step? Where do we start?
So how do I even know
that a business is being sued?
I'm assuming that someone's breaking legal.
I'm getting a notice.
How do I get notice?
What's the first step?
Sure. Yes.
So good question.
Just jumping back at that,
you said that you've never been sued.
That's awesome.
Keep going. Break
that streak. Go on as long as you can.
Lots of people have avoided it.
Lots of businesses
have avoided being pulled into litigation.
But it is completely common
to get pulled into litigation.
I mean, every year.
I don't know the exact number,
but in the state of New Jersey, in state courts,
like every year, over 100,000 cases are filed
throughout all the different counties.
Now, that includes everything from motor vehicle
to landlord tenant,
but all those generic contract
disputes, employment discrimination practices,
disputes, things that you just described
are very, very, very common.
And that's just a lawsuit being filed.
Just filed on an annual basis.
And now we could talk separately.
We could have a five hour podcast
about judicial shortages and all the issues
politically and operationally for the court system
that's going on there
that maybe the listeners are familiar
with in terms of certain counties
right now being having no civil trials
and no family law trials
because of the shortages of judges.
But that's a whole separate topic.
So we'll just
go first with the flower vendor one.
The way that you're probably going to find out
that you got sued is that you're going to be
in your store putting together a nice bouquet
and then a stranger walks in.
They're going to ask,
Are you the owner of the shop?
And you're going to say, yes.
Then they're going to hand you a piece of paper.
They're going to say, you've just been served.
That's a process.
So what happens is when the lawsuits are filed
in New Jersey State court, the plaintiff goes,
they file it.
Now everything's electronic.
They file the complaint that lays out what
their claims are,
and then they generate what's called a summons.
And a summons is pictured back in the,
you know, the 1800s
where you'd get a notice saying, here, you here,
you need to come to the courthouse
at this stage this time because you've been sued.
The modern version of
that is to tell you that you've been sued.
It's going to tell you what county you're in.
There's a form that they give you that says
essentially you have 35 responses to the lawsuit
and they'll give you a list of bar
associations where if you don't have an attorney,
you can contact them for us.
Sorry, but that's it. That's it.
Start it. You've gotten a summons.
You've now been sued.
Is it ever so?
I've been on jury duty before, sir.
That's just the mail or something
that they can easily miss.
Yeah, some people may accidentally miss it,
you know, Wink, wink.
This is not that case.
You don't want to, like, pretend
this isn't happening or like, I didn't see it.
It was in the mail.
I don't know what's going on.
Like, this is not something you're going to miss.
Or might you miss it.
So good question.
So it depends.
That's every lawyer's answer everything depends.
In the state of New Jersey,
there are different levels of courts.
So if you're getting sued for less than $5,000,
you're in what's known as small claims court.
Anything from 5000 to 20000
is called a special civil court.
Those are kind of faster, more streamlined
courts for
lower, smaller level disputes
where you can get sued by a postcard.
You'll receive either a postcard in the mail,
a copy of the complaint in the mail
you can receive, they can be initiated that way,
similar to where if you received something
from jury duty or the DMV or whatever
it are, motor vehicles in New Jersey,
and you can be sure that we have those lower
level lawsuits,
a law division case,
which is essentially an unlimited amount of money.
So any other generic lawsuit
with no cap on how much money is being sought,
that will be served through a process
server 99 times out of 100.
So if it's a
so if we're thinking about the the vendor dispute.
Yeah.
It's $7,000 delivery that can come in the mail.
So I mean, the takeaway is I mean, as simple
as it sounds, pay attention to what's coming.
Get it out the door
because I mean obviously if you're a business,
you should be doing that anyways.
But there are you know, if you have a dispute
with a vendor and it's serious of nature,
you need to be kind of focused on
what's going on.
Yeah, it's a good practice in general.
And this for anybody that has a business,
whoever's opening the mail,
it has to be someone you can kind of trust,
whether it's a bill, an invoice that you missed,
a check paying and coming in from a client,
all those things obviously you're looking for.
But also anything related to legal action,
whether it's a demand letter from an attorney
or in this case, possibly a copy of the complaint
from a courthouse.
You want to have something
that you could trust looking at that stuff.
Similarly,
if whoever's at your front desk or your business
wants to for a shop or a small business, some sort
of a process server comes
in and they get served with a copy of the lawsuit,
they have to know that this wasn't, you know,
just a flier that they got, you know, PennySaver
ad telling them to go buy something from store.
It's an important moment in that company's history
because they been sued.
And now there's a legal process
that's now been started
that they need to start to respond to.
Yes. But I mean,
I guess in this case, you know,
we could do more two ways.
I guess the more traditional one would be
if we say that it was the day
before Mother's Day.
So our hypothetical,
if you go with it,
is that the vendor was owed
$50,000 for their flowers
and that so you didn't pay them.
So that's probably
that gets you into the law division
they kind of like a more standard
lawsuit versus special civil or small claims.
But I feel like if you're
you said 5 to 20 is one range, right?
So but that's probably pretty common
for a small business, right?
That's a you know, small. A small.
And maybe if you're a vendor and it's $3,000
and you
just at the end of the day,
you go like it's not even worth Right.
Be tackling this.
Yeah, but if you're in 89 $10,000 I would imagine
that's fairly common for a florist.
Mars, correct? Yeah.
And it's interesting too, there's different
when you're talking about the economics of it.
When a business gets sued, if it's a
a business can sue and can also represent itself.
If it has been sued as a defendant
without a lawyer, if you're at small claims court.
So that's anything below $5,000.
You're assault,
you're a member of an LLC, you have your forest
shop, you have whatever you get students
small claims, you can go to court yourself,
you can represent yourself.
Anything above that, any corporate entity
partnership, any other legal entity like that
has to be represented
by an attorney in the state of New Jersey.
Once you have an attorney on board mandatory,
then your expenses start to like pile in there
a little bit where you have to take
that into account that you have the budget
for an attorney to see how much is at stake.
That could incentivize people
to try and like work out settlements
on a more rapid fashion,
because you also have, in addition to
paying out whatever you may owe to somebody,
be yourself
that legal fees on top of that
if you're in Seattle civil law division right.
So you brought up a good point of I'm a business.
I can't represent myself any attorney.
So who else needs to know?
So I've got this summons, whether it's in the mail
or whether somebody delivered it to me.
Right. I'm looking over this.
I'm understanding some of it, a lot of it probably
legally is,
but I'm getting the gist of what's going on here.
But other than an attorney,
who else do I need to contact?
Who else needs to know one side for sure.
So if you look at
the vendor
or the first hypothetical or working, which
you receive,
you're the owner of the store,
you get a copy of this and you're like, All right,
I've been sued by Flour Supply Company, X, Y, Z.
You have to do a couple of things right now.
One is to stay calm.
You will get sued all the time. It's not fun.
It's not exactly the highlight of your day
or your week.
Easier said than done. You're not. Yeah. Exactly.
But you do have to be like,
All right, this is an operational cost.
Unfortunately, a lot of times in our society,
which is pretty litigious, is that I'm going
to have to deal with this legal situation.
So number one, stay calm.
Easier said than done. True.
Number two is you have to start to read
through the complaint
and really understand what they're getting at
in that hypothetical for talking about
somebody who delivered bad flowers.
Now they're saying that you have the money for it
so you don't go
back and say,
did somebody take pictures of the delivery?
Did somebody take notes of what was good,
what was bad,
that we have the invoice
that that they submitted to us
that lists the exact number of flowers
we're supposed to get.
Do we have on our other side
an inventory sheet, the meter.
We keep track of what's coming in the door.
And can we mark off, you know, this this
and that was was bad
that these flowers are rotten,
the stems were bad, whatever it may be.
You have to start to figure out
what kind of documents
are relevant to your situation.
The reason for that is not only to be able
for yourself, to be able to review what happened
and really get your arms around it.
But there's this entire concept of
like you have to retain documents
that are relevant to the lawsuit.
When you first get sued,
companies that get sued
on a regular basis,
this is like standard practice.
They get sued.
They'll generate what's called a litigation
hold memo or a preservation memo
where they will send that to anybody
who might have relevant
documents or data related to the lawsuit.
So in this case,
you might go to your sales department
if it's a big four operations
that guys, I need you guys to keep track of,
like all the invoices that we have related to
this flower shipment that we receive.
Also,
the invoices that you might have from customers
that were supposed to be buying those flowers,
retain those if
if you have cell phone records
or emails back and forth with the vendor,
you got to make sure that you retain
those that, you know, purged them.
Maybe sometimes you might have
got a standard purging process
where every 60 days you purge old deleted emails,
whatever it may be.
You want to make sure that you retain
all those things.
That's relevant
not just for the vendor example, but
I mean, it's different
in terms of what you're going about doing.
Yeah, but you have your 68 year
old insubordinate employee
and the document process.
Well, it's not.
I'm documenting invoices or taking pictures, but
he refuses to follow you know, direction or order.
And you're making note of that each time.
So, I mean, I guess really
what you're trying to say or what you are saying
is that best practices from a business owner,
any sort of contentious dispute
needs to be documented because at some point
you're going to be asked to present.
These, correct? Yeah.
So it's even into that example.
Traditionally, you're going to look to human
resources, you're going to look at timesheets.
So whoever the person is that processes
your payroll,
whoever looks at timesheets
and maybe you have a punch in punch out system.
And if one of the issues that this employee
is chronically tardy or critical needs early,
you want to be able to capture
all that in the timesheets.
That shows when they're coming and going
a performance in a performance improvement plan.
They may be put on any time
they've been written up for something.
Maybe one of the issues
is that they operate one of your delivery trucks
and they've been in 15 fender benders
and you just don't want to deal with that anymore.
All that stuff you need to kind of holistically go
through your organization and say who might have
relevant information, who might have relevant
documents, send out this notice,
which is there's a standard notice,
and the attorney could try to help you prepare it.
But it puts everybody on notice,
like retaining all the documents.
If you have a normal document
purging system, retain all the docket
and set that policy aside for the time being
until you receive a second
notice saying that this matter has been resolved
and you can go on your normal course.
But so go back to the employment
discrimination suit.
You're a small business, you're
just a guy who is running a small
business, is not it?
There's no h.r.
There are no formal evaluation plans.
We have all part time employees
or a couple of full time employees.
If I'm documenting something that is necessary,
if a lawsuit should arise,
how formal do I need to be about it?
I mean, i don't let's say these employees
don't even have email addresses,
so how am i going to show that
this guy is I'm telling him to do one thing
and he's refusing
because he thinks it's not the right thing to do,
because 30 years ago he had a flower shop
and that's not how you do it.
That's, you know, it doesn't matter.
I mean, it can be as simple
as I'm writing something
and I'm making a four in a hand
here to I'm making a photocopy and I'm saving it.
And on the computer.
Or how do you document
something that's so informal, generally speaking.
Yeah.
I mean, there's best practices
and then there's reality, obviously.
So best practices would be that anytime you have
any type of disciplinary issue
with an employee
that you document it in some manner
and that you have separate
individualized files for all of your employees.
In reality,
a lot of people may stray away from that.
But I'll tell you that that old saying once
bitten twice shy,
usually after someone's been through an employment
practices litigation,
they will step up the level of documentation
that they keep.
They'll step up the fact
that they keep individual files for people,
keep track of people's time more carefully,
both for, you know,
proactively to avoid any type of litigation,
but also just
its best practices, the best way to do it,
reality. A lot of people don't do that.
And a lot of times it takes an incident
such as being sued for them.
That kind of step up their game and say, okay,
I need to professionalize
this business as opposed to kind of doing it.
Seat of the pants, maybe how I did it or
how might the prior owner did it.
That can work for a while.
But in today's day and age,
where everything is very litigious,
employees have
access to all the statutes
that they might be entitled to sue under the butt
tap of a computer button.
It's best practice to have that kind of stuff.
If you don't have it, it's
not the end of the world.
It's just now you're going to have to get it
to more of a situation
where you're providing your attorney
with a lot of background information.
So again, so kind of going back to like
when you first get sued,
if you have and we'll go with the employment one.
If a small business does not have an employment
practices insurance
with our insurance companies,
that will insure you for claims
related to discrimination or age
discrimination, gender,
race, ethnicity, whatever it may be,
if you don't have that, you now have to kind of
say like,
All right, I need to go look for an attorney.
You can find that attorney through
Google.
Search is word of mouth
to reach out to a colleague of yours
or a friend that you know has had that litigation
experience in the back in the past.
You get set up with an attorney.
You can call Mike Shortt.
You can call Mike. Sure. Into all saber.
Obviously,
you have to do that more quickly than you think.
So in New Jersey
State court, case in point, like that
put it discrimination hypothetical from the date
you get the summons.
You have 35 days to file a response
with the court.
Now, that can be extended.
You can reach an agreement where you're going
to send back an extension for up to 30 to 60 days.
But generally you have 35 days to take action.
And in those 35 days, you want to you're going
to have to locate an attorney,
meet without attorney,
retain that attorney,
sign like a formal retainer agreement,
which have to have in New Jersey with an attorney,
provide them with all the documentation
that's relevant,
or I set up a meeting, sit down with them,
and kind of go through the entire situation.
Explain your side of the story.
Allow that attorney to have time to look into
what's going on.
And then
you may say, you know what, I messed up.
I let this guy go because of some unlawful reason.
I think we need to try and resolve this.
I don't want to have litigation
hanging over my head.
Can you sit out the other guy's attorney
and see if we can work something out?
Or you might say, this is unbelievably wrong.
I didn't do anything wrong.
I want to fight this until the cows come home.
Both fired, both of them legitimate,
both of them very common responses to it.
But you have to act
quickly
because you need to get that attorney engaged
pretty rapidly because that 35 day window
that's inclusive of weekends,
holidays, it's 35 days.
So you have to get going quickly.
If you don't, the plaintiff can move for
what's called the default, which is basically
they go to the court and they say,
I sit this person, I serve them the right way.
They never responded.
I want to get a judgment against them as if,
you know, they were found guilty.
I suspect that that is more common than I think.
The default is to a point
and there's the process to it.
Like you have to enter a default
and then separately you'd have to come back
and apply for a default judgment
where that turns into an actual monetary
judgment with precedent to prove how much money
they actually lost there for support.
That with affidavits.
Let's say it's in the point of practice's case
or in the contract it's due on the and earlier
they'd have to provide copies of the invoices
to show that they're actually on that money.
So there's a little bit of window in there of time
between the default and default judgment.
And yet default happens pretty regularly.
Like it's not uncommon to have to file a consent
order vacating a default.
What someone enters an order,
letting it go all the way to judgment,
less common, but still does happen, obviously.
And there's been situations
where we've been retained well after the fact,
where judgments are already in place,
and now we have to work to try
and get that default vacated,
which courts are usually not prone to do because
you had your fair opportunity to respond to it.
You didn't
get into spending a ton of money
for nothing on top of whatever the court judgment.
Exactly. Exactly.
So you could really I've had I had a client once
in Bergen County
who just didn't respond to a lawsuit,
just flat out didn't respond to it, knew about it.
Kind of wishing it away. And wishing it away.
And then even taunting the person
who sued them, saying, I'm not a good responses.
This is worthless by a lot.
Even five years later, goes to apply for a loan.
And they're like,
do you have this judgment against you?
And then he tries to get the judgment vacated
because he didn't get the loan, partly
because of that.
And with this very uphill battle.
And eventually the court was like,
I hear you, but you got all you got sued.
You knew about it, the judgment stance.
They ended up having to pay the judgment
and I moved on.
But lesson learned, it's it's going to happen.
You can't afford an ignore
somebody area took the time to retain a lawyer.
Somebody really took the time to pay that lawyer
to follow the lawsuit.
And the process is started. You can't ignore it.
It's not like,
you know, in your little kid, in your homework
assignment, you just hope that you had a snow day
the next day on trust your fingers.
It's not it's not going to go away.
Yes. So
and then at that point, when you're
you can either file what's called an answer,
just most of the time you find the answer
were basically you respond to the allegations
in the complaint.
So in the same employment
or the age discrimination,
what you might go through, you might admit, yes,
he was my employee.
Yes, he was terminated as of April 1st, 2023.
The allegation that he was let go
because of his age, you're right.
I deny that.
And then you give the basis
for why you're denying it.
And then you.
Need to be clear
when you say the attorney is writing
this correct, your your supply of the information.
But at that point, you're relatively hands off.
You're not actually going through the mechanics
of responding to the lawsuit.
Well, not necessarily.
So you oftentimes with my clients,
I will go through the complaint with them
and really kind of get into the nitty gritty,
like, is that true or is that nature?
Like if it says that Bob Smith was supervised
by Tim Howard,
I mean, I wouldn't know that necessarily.
So I have to go through the person to find out
whether we are good to admit that or to deny that.
And sometimes it would be like
I admit he was supervised by Tim Howard,
but he was also supervised by Tony
Tony Smith as well.
And you kind of give more,
you know, flesh out the facts a little bit
more in your answer to the complaint
separately.
You might move to dismiss the complaint,
which is that maybe it's procedurally defective.
I mean,
going back to when we talked about that
for the vendor,
you said that it all happened
within the last year, so that in that case,
like a statute of limitations argument,
not going to apply.
But if a vendor comes out of the woodwork
and says ten years ago
I gave you an invoice
for $50,000 worth of flowers, you never paid it.
I was just cleaning out my desk
and I found that invoice and I said,
Oh my God, Tim never paid me my 50 grand.
I'm going to file a lawsuit. You can't.
There's a six year statute of limitations
in New Jersey on contract actions.
So in that case, if you get sued,
your initial move will be most likely to file
a motion
to dismiss under rule four six,
which is a failure to state a claim.
Essentially, you'd say,
even if what he's saying is true, you live.
He's absolutely right. I never paid an invoice.
The statute says it's a six year statute.
Limitations were ten years later.
I'll check the court order to see
if there's any other equitable exceptions to it.
But you know again,
if that's what you know, the basic fact
is that your case will get dismissed,
then you can go about your day.
So it's interesting.
It's that
it really reinforces
that anyone can sue for anything,
even if it's a like the court doesn't
when when you're filing a complaint,
the court doesn't do a quick look to say like,
wait a minute,
you're outside the statute of limitations
or this is this is procedurally incorrect.
That never happens.
You have to go through and correct me
if I'm wrong, I guess
I'm not sure, but anyone can file
whatever they want.
Yeah. And so you need to deal.
There's not going to be no one is going to kind of
swoop in and say like, nope, nope, nope.
That was ten years ago.
And a, you may know that as a business owner,
if you're the owner of the floor,
it's like this was ten years ago.
That's beyond the statute of limitations
I can ignore.
It doesn't matter.
You you still have to go through the mechanics
of the process,
regardless of how ridiculous about seeing it.
Yeah, it's a frustrating thing
for a lot of business owners.
I've had,
you know,
clients where we're working on a contract together
where there's said
a waiver of any claims
on, you know, such and such a topic.
And they'll ask me like, all right,
so I'm guaranteed I'll never get sued for that.
And my answer every time is, nope,
I am not guaranteeing that.
I'm like affirmatively saying,
I'm not guaranteeing that
because like you said,
anybody could get sued for anything.
Do you have a very, very, very,
very strong defense to my client?
Absolutely. It's written in the contract.
Both sides read it both.
Certainly, you took part in drafting it
and we can file it pretty straightforward motion.
We get it dismissed,
but it doesn't stop the person
from actually filing the lawsuit.
I never worked in a clerk's office in the court,
but my understanding
is that they're basically looking to say, like,
does this have a caption on it?
That is a sign at the bottom,
Can we read this and kind of get an idea
what the disputes about?
Yes, I'm off to the races.
I have cases, even one right now
in Monmouth County.
The complete is very,
very difficult to understand.
Very difficult.
And I've talked with the plaintiff
who's representing himself,
and it's very difficult
to understand
what exactly he's saying my client did wrong.
But guess what?
We're in court.
We're at where it's all happening.
We filed motion, emotional distress.
We're engaging
in, you know, preliminary discussions.
We attend court conferences.
So even if the
complaint is not the model of clarity,
it will get filed.
Even if the complaint is,
you know, facially deficient,
it will get filed
and you're going to have to respond to it.
And that's frustrating. It's
arguably a flaw of the judicial system.
But at the other side
come from a constitutional perspective.
Everyone has access to the courts.
And if we start to say that, well,
it has to be this level of clarity
or it has to be written this perfectly
every time you're cutting off
a lot of people who maybe can't afford an attorney
and they're doing it on their own process,
or they have an attorney who's representing him
and he's
doing the best that or she is doing
the best that they can.
But they have a weak case, but they're still going
to put that argument forward.
They're going to put the complaint forward,
and then the parties have to litigate it. So
that's always cliche, a little frustrating.
So that's how the system works,
but that's how the system works.
So you're
filing an answer if you're not moving to dismiss
and that's happened.
What's next? Am I waiting?
You know, this is where we traditionally hear
that everything moves slowly.
Are we talk?
And I guess it depends on the court,
It depends where you are.
But we're now waiting for…
I would assume we're talking about a court date
or what happens next.
Yeah.
So if things have been moving very slow.
Okay, readers in your well, well, even nationally,
like I practice in New York, in Pennsylvania,
as well as New Jersey.
And it's been pretty slow across the board,
exacerbated dramatically by COVID.
Now everyone blames everything on COVID,
which obviously
is true to a point, sometimes a little hyperbolic.
But in this case, it's absolutely true.
For a year period, pretty much
virtually all in-person court appearances stop.
And after a while, the court was able to,
you know, very nimbly start to figure out
like how do we do this virtually?
How do we do jury selection? Virtually
everyone had a crash course in getting onto Zoom
or onto Microsoft teams, having their conferences
and getting things moving.
But everything was kind of gummed up.
And for a process in a system
that was already hugely a high volume
number of cases, lots of litigants,
things were already protracted for a large part,
to have that type of rupture in the system
has had this ripple effect.
It's still going on today, and particularly
thousands
and thousands of landlord
tenant cases filed by tenants who couldn't
pay their rent, commercial businesses,
they could no longer pay their rent.
Lawsuits filed under that.
And there's a massive backlog from where I know
certain counties now, judges
that were handling water vision cases, just
general broad stroke cases are now handling
landlord tenant cases
just because of the overflow,
because they have to kind of start
to work through this process.
You might have landlords who haven't been paid
in two years and they're still waiting for
their case
to go to trial to get some sort of resolution.
So in theory, theory, yeah.
Once it's filed, you're waiting for a court date.
Yeah, well,
you're not, you're waiting for a court date,
but really what you're waiting for
is discovery to get started.
So now discovery is the broad stroke term
for when the party starts,
it goes through the actual facts of the lawsuit
and find out what actually happened.
So going back to your age discrimination case
as the defendant, you're going to send out, Well,
and the plaintiff would do this as well, but
we'll just talk about the role of the defendant.
You're going to send out
primarily
two documents right away, interrogatories,
which is a list of written questions
where you're going to say like,
tell me the specific basis of your claim
that you were let go for age discrimination,
some of your specific damages
that you allege that you incurred,
if the person said that they shop,
they suffered emotional distress.
The contractor might include requests for identify
any psychiatrist,
social workers therapist that you've seen
and then provide us with
HIPA forms
so we can request copies of those records,
so we can review that and really see
whether you've attributed emotional distress
or emotional damages to you being let go
from this complaint.
So interrogatories that they're written questions
where they're supposed to provide
a written response that separately sent out
a document request or a notice to produce.
That's for you're asking them to provide copies
of all relevant documents.
So and documents again, broadly defined to include
not only like just the paper
emails, but also audio recordings
at cases
where an employee is recording a supervisor.
That's the type of material that has to be
turned over to the other side because essentially
everyone is supposed to get the same universe
universal documents, papers and information.
And now we can build our cases off of this common
pile of information that we're all collecting. So
you're going to be working
with your attorney
to send out document demands and interrogatories.
And then also you're going to be getting document
demands and interrogatories from the plaintiff,
and you're going to have to work
with your attorney to provide those responses,
generally document demands of 30 days
to respond to those.
And generally a 60 days
to respond to interrogatories.
Now that those times can kind of
be a little bit extended
or you can reach an agreement to say,
you know, it's May 25th, we're all going
to be issuing document demands today.
We're not responding until August 1st.
There's ways
you can reach those types of agreements
with other sides and sometimes with the assistance
of court.
Do they cause a case management
conference where the judge brings everyone in,
kind of gets an idea of what the case is about?
And you talk about the discovery schedule,
generally, paper discovery,
the interrogatories document demands.
And there's also another one called Requests
for Admissions, where you again give somebody
written questions asking them to say, well,
you admit that,
you know, going to the discrimination once
you admit that you were involved
in five motor vehicle accidents using the ten.
Wow force truck and they'll say yes or no
and they'll respond to you.
Generally, you send out requests
for missions, things that you know or you believe
the other person is going to have to admit.
Once that process is
largely completed, paper discovery,
you get to depositions.
Now, a lot of people have heard the deposition is
they may they've seen it recently.
But the former president's deposition video
was just recently released a couple of weeks ago.
But a deposition is a way for
one side to take sworn testimony
from the other side's witness.
So, again, going the age discrimination case,
we would send
a notice of deposition to their attorney
and we would say we want to depose Mr.
Smith on, you know, July 1st at your office
starting at 10:00.
You're not going to the courthouse,
but you're showing up
typically at someone's conference room.
And there's a court reporter there
who is entitled to swear you in
and swearing in as if you were on the bench
about to testify at a trial.
And the question process begins
where I would be asking them
questions from soup to nuts, you know,
usually beginning with like their background,
professional background,
and then all the way through all the allegations
in the case, their claim damages
any other lawsuits they might been involved
in, anything like that the whole time.
The court reporter who are Wizards jokes,
are you watching?
They're they're amazing.
The stenographers are able to take out everyone's
speech and all the objections
that you and attorneys kind of get into it.
They come up with this
unbelievably accurate transcript of what happened.
That's a separate issue.
The US have to be very nice to them as attorney
because they are like
they're the cog that keeps the real attorney.
You'll go through that process.
So there'll be a deposition process
where people will provide their,
their oral testimony as to what happened,
ended up with the transcript.
And again, on your side,
you're defending an employment
discrimination case.
The people that might get deposed
would probably include,
you know, the direct supervisor,
maybe the second level supervisor,
coworkers who may have had interactions
or might have witnessed something.
It there's there's,
you know, like set list of characters
of who's going to get deposed.
But that's the process
the attorneys go through and they say here's
the people who are relevant knowledge.
Do we want to depose all of them?
Or you can post these few, whatever it might be,
and you go through this process
of picking off depositions.
On the clean aside, it's generally an employment
discrimination is generally the
the former employee work hard card
employee planning if they haven't been terminated
potentially a spouse that there's
some sort of spousal claim included
if they produce an expert report
from, say, a therapist or from an economist
who saying that they suffered
economic damages,
those people might be deposed as well.
There is a possibility as well,
including employees of the employer
or current or former who might be produced
there might be outside people.
So maybe there was a
yes, there's a situation where a
an employee sees the supervisor and says,
you harass me at the office party
at a hotel on Route ten
and they identify that there was
a bartender at the hotel that saw what happened.
Now, either the plaintiff or the defendant
could be either one might send a subpoena
to the hotel
and try and serve that bartender and say,
we think you have relevant knowledge
about what happened.
You're not a party to the case.
But we're still serving you with the subpoena
and we want you to come.
And for every testimony, sit down
and we're going to ask you questions
about now, about subpoenas.
People heard about subpoenas as well.
People hear about each brother
in criminal justice, watching law and order,
whatever it might be.
There's basically two types of subpoenas.
One is a subpoena for testimony.
We ask
someone to come in, sit down
and actually provide testimony,
usually in a deposition during the discovery
process.
Is a subpoena required or is it
that we'd like you to come in,
but you don't have to or this is jury duty.
You need to attend.
It's been right Yeah.
And there's been cases in New Jersey
where we've subpoenaed somebody.
They just didn't show up.
We reach out again and you give a date and a time.
You have to include a date,
the time in the subpoena.
But generally, you'll work with people to say,
listen, if you're at work that day,
we can get you on a Wednesday.
Well, we'll make it work.
But sometimes they don't comply.
You then have to file a motion
to enforce litigant's
rights where you get like a sheriff's officer
to serve them.
And then or I'm
I've never
personally had it but I'm sure there's situations
where courts will issue a warrant
to have that person appear in the courthouse
and explain why they're not cooperating
with the subpoena.
That's very funny.
A lot of people don't realize this
until you're involved in a lawsuit.
We're free.
We can come and go.
You know, you can jump in your car right now
and drive, do whatever you want.
But we're all subject to this judicial process.
As a citizen of the state, New Jersey,
your citizen, United States,
if you're not in federal court,
we've all agreed
society that we're all subject to these laws.
So if you are subpoenaed, you have to respond
and there's consequences.
If you don't, then you could choose not to.
But then there might be hotspots
that which might be unpleasant. So
in addition to going back to what we're saying,
that the
you know, whoever is at the front desk
opening the mail, that they need to be aware
of the fact that if they get served with a lawsuit
that they need to respond to.
So through the subpoena, if you're a senior
and you have an accounting practice
and you received a subpoena from a company
because two companies got through a dispute or two
former business partners got to dispute,
and one of them wants to get a copy
of the company's tax records
or say you're doing back office,
you know, back office accounting work for them
once you get that subpoena.
Same thing. You need to notify your attorney.
You need to let people know
you need to work on gathering
the documents,
turning them over to whoever sent that subpoena.
You might have to you might get involved in saying
this is all confidential information.
I can't I'm not going to turn this stuff over.
Then your attorney has to decide.
We file a motion to quash the subpoena,
which basically says you're going to court to say,
like judge turned out like what they're asking
for, they're not entitled for, or it's subject
to a confidentiality order unless there's
a new confidentiality order in place here.
I'm not getting in trouble
by turning these things over.
But you can't ignore it.
You can't say, Oh, it's confidential. I'm
not guarantee you have.
You have to do something
in order to get the court involved
and make sure that they are either approving
your course of action, forcing the parties.
That's where a new agreement, whether it's a new
confidentiality order, only allowing there's
a designation called like attorney XYZ only where
only attorneys are looking at it, not anybody.
And their brother
wants to get their hands on his lap to look at it,
but you have to respond to it in some way.
So that's kind of a theme here, is
he could seriously respond,
They would ignore it
and things move pretty quickly.
So not only door to door it, you need to act now.
Yeah.
And it's and it's funny to you
because you have to act quickly
to protect your rights and to make sure
that you're in compliance with your obligations.
You know,
under statutes, court
rules, everything of that nature.
And then the tension is that
things also take a long time.
But as a layperson, you don't really know
what is a bright line.
You've got to do it by this date
or you're in trouble.
And what is the process
that's going to take a long time?
And your attorney might say like, listen,
this is going to take months.
So, you know, be patient.
You're not sure which is which.
So that's why it's better to get legal counsel
involved early.
Let them run the show.
You're going to provide them
with all the information they need.
You're ultimately in charge of deciding
whether to settle.
Do you want to pursue this? You want to drop it.
You're in charge of that.
But the mechanics of it and making sure
you're complying with all your court
rule obligations and your statutory obligations,
regular obligations,
get your legal counsel involved.
Let them make those calls.
Let them work through the process.
Let them deal with the courts.
But the adversary,
you don't really want to do that on your own.
So what is and just going back,
if you are sued with a complaint,
sometimes you'll have the impetus to say, I'm
going to call this guy who sued me, I'm
going to haggle it out with him.
I'm going to call the attorney
that filed the lawsuit.
I'm going to have you out with him as well.
Generally, I recommend against that.
There might be things at play
that you're not aware of.
You might say something
that comes across the wrong way.
You might inadvertently say something
that they're going to construe as an admission
that could be used against you down the line.
So it's better to of again, I'm a lawyer,
so that's going to sound a little clichéd,
like I get the lawyer involved,
but it's best bet your best practice, again,
is to get a lawyer about it as early as possible
and let them become your mouthpiece.
And it's good to
because even when you come to settlement
negotiations, if you have an attorney mouthpiece,
you're not
getting into a tête-à-tête
with your former vendor.
You're not getting into this direct squabble
with him.
You're telling your attorney what you want.
The attorney talks to that attorney
and then they can kind of help manage things.
And it kind of helps keep the emotions down,
which traditionally helps things
resolve faster than if everyone's just,
you know, bumping heads as hard as they can.
So discovery is over.
Everything has been submitted, correct.
Now, are there instances
you're kind of waiting on a decision or not?
Are we going to argue, am I going in person?
Is there times when I'm not arguing with a person?
Do they review everything
and issue an opinion or not?
And typically.
How is it how does it wrap up?
How does it end?
How do we get to like,
all right, we've gone through the process.
Courts got what they need that.
Where are we going to figure out how this is?
So I think that a lot of people
would think that litigation attorneys are these
swashbuckling attorneys
who are constantly running into the courthouse
and giving these virtuoso performances
in front of a jury that's just
swooning over how well and eloquent
they've been in this argument.
Now, that does happen that in real life
there are trials that happen.
The vast, vast, vast majority of cases
are resolved on a settlement basis.
I think the exact number is,
you know, in the high 90%
is resolved on a settlement basis.
So a lot of cases in New Jersey state court
cases are subject to a mandatory mediation program
where,
you know, like going back to the vendor dispute
that case, you'll be referred to an attorney
that traditionally will have some sort
of commercial background experience.
In terms of commercial litigation,
it's usually an attorney who's very experienced.
They have to go through a process
to become a certified mediator.
They will reach out to you
and reach out to the parties.
They'll schedule a date during the day.
We have a mediation on this date,
you know, week ahead of time.
I want you guys both to give me
a written summation of what you think happened
and how you see this case potentially resolving
both parties submit that usually ex-parte today,
which means they submitted
without the other side
seeing it, because usually your input in there.
Yeah, they're demanding 100,000.
I'm willing to give them 50,000,
but not a penny more.
And so then the mediator can take that information
and then send mediation
where you show up
and you'll be in the same conference room.
The mediator can introduce himself or herself,
and then you'll go into one room
that your adversary goes into the other room
and then the mediator engages in, you know,
shuttle diplomacy where he or she's
going into one room and saying, hey, they want 80.
Right?
What do you think?
I'm not going to give a penny more than 40.
And then they go next door and they go back
and forth and try to reach a resolution. And
oftentimes that's a
very productive process
because you have everybody in the same room.
Everyone is set aside a block of time
where we're trying to resolve this.
The mediators are often
very, very, very talented attorneys,
where they expend through the ringer
a million times
so they can say to party one,
listen, you've got a good case,
but have you thought of these three witnesses?
That's why
I think you might want to settle the same things.
The other side, like, hey,
you've got these problems as well,
you might want to settle,
and then they can kind of like manage it
where you get that Venn diagram where you're like,
you reached the point in the middle where
traditionally settlement
is, everyone's a little unhappy.
That's when, you know it's a good settlement,
everyone's a little unhappy,
everyone's taken a haircut off of what they think
that they're entitled to Dad
or what they thought that what they want to give.
But the case is resolved.
There's also a mandatory arbitration program.
And certain in certain cases
where, again,
you would actually go to the courthouse that
in that situation and you meet with an arbitrator
who's a court certified arbitrator,
again, museum experience attorney
or always an experienced attorney,
where you have just a very quick like hour long
arbitration
where you're explaining your side of the case.
They explain their side of the case.
You might provide him or her with documentation
to support your case.
And then they're going to issue an award
at the end.
It's non-binding.
So it's say you have a case
where you're seeking $150,000
and they agree with you,
but they give you a word of $10,000.
If you don't accept that, you can file
what's called the demand for trial to no go.
What's lacking in terms?
Again, The Court Despite being here in New
Jersey, lots of Latin terms,
and that just puts the case back
on the court's docket to then go towards trial.
If you end up going to trial,
there's a couple of things that happened
before that you can file a motion
for summary judgment, which is this It's basically
a formal application to the court
where you're saying, here's all the facts,
and I can prove all the facts by saying,
you know, Mr.
Smith said this during his deposition transcript
on this page,
on this line to this line, there's this document
that's indisputable.
It says clearly that, you know,
he was in these five accidents
we have, you know, whatever it might be,
it's like you're going to lay everything out
in a very, like, factual narrative
with specific granular detail citations
to the actual record.
And you're submitting that to the court
and saying, I'm
entitled to judgment on a summary basis.
We don't need to go to trial to review this
based on the facts and based on the law.
I'm entitled to judge, I'm entitled to weigh
the other side might oppose that and say, no, no,
whether they've got it all wrong,
they're misconstruing this misconstrued in that
either they're not entitled to judgment,
We have to go to trial
or they might cross believe and say,
I'm entitled to judgment.
This guy's got it all wrong.
Look at my facts
and this is where I think I'm right.
And then the judge will have to render a decision
on that as they grant summary judgment.
The case is effectively over unless somebody
appeals it up to the appellate division.
If they deny summary judgment
now, you're going to trial
because of the backlog.
The trials are not happening.
If you file today, May
2023, you're not going to trial
on the generic lawyer reason case
in the fall of 23,
you're probably looking at like 2025.
Realistically, at this point, we have cases
that were filed back in 2018, 2019.
They're still not at trial ready right now
because of extended delays in discovery.
I won't chase what we did.
I think like 20 depositions or COVID all remotely,
but everything kind of gets dragged out
and takes a long time.
So it's really not until summary judgment
that a judge will actually get all the papers
and look at it.
And it's not until trial that either
the judge of the bench trial
or the jury will actually look at everything.
So that's like a misconception.
Like all that discovery stuff
that we were talking about
that's not being submitted to the court.
That's just in my office.
It's in my adversary's attorney's office,
and we have
that documentation
totally present everything to the court.
We're just one of 100,000 cases.
Other docket that they're working through
the judges.
The court tends to touch the cases.
If there's a dispute, they go over discovery.
I ask you to produce documents.
You say, I'm not producing them.
Then I'll file in motion.
A motion is such a fancy word for saying Court,
please
make this person
do something or take some sort of action.
I think that the judges, they're not involved
in the nitty gritty day to day basis.
There's just too many cases for them to move back
that are granularly involved in everything.
So the common takeaway is
you're in this situation.
If you're going to pay,
do not provide advice
because we're not providing advice to.
Right.
What are some common themes
that people should know
if they've embarked in this process
that you would tell them?
Yeah, I mean, the basic takeaway is that
it's not a fun process,
but you can't bury your head in the sand
and hope it goes away.
You have to take action,
reach out, engage legal counsel that can help you
from the jump because like right from the jump,
there's things that might be beneficial
to your case.
Be open with your attorney,
Share all the information that you have.
You don't have to play coy with your attorney
to share whatever you have with them.
Decide whether it's relevant, irrelevant,
helpful or not, or harmful
to the state.
You can end up like we were talking earlier,
about best practices, try and proactively,
particularly if you sense that
there might be a litigation issue coming
up, like you get into a fight with a vendor
and I got my file lawsuit.
You now have the obligation
to start retaining documents.
So you want best practices again,
try and keep your documents organized,
have files for everything.
If you anticipate litigation,
you're actually under like a
mandatory requirement
that you retain
those documents is a whole issue of spoliation.
You can't just take relative documents
and toss them out the window.
The court will take an inference against you
and say,
well, that must contain stuff that didn't help you
because you threw it away.
And the other side of
that is the opportunity to look at it. So
it basically reacts with swiftness.
You don't have to panic and go crazy that night,
but react quickly, try and give counsel rapidly.
Try and keep your record straight.
Be patient.
It's going to take a little bit longer
than you want,
and a lot of it is hurry up
and then wait and hurry up and wait.
It's patience and proactivity,
it sounds like.
Yeah, you toe the line of both being patient,
but also moving the process along.
Correct? Quickly.
And then and then simultaneously
it's also let the lawyer do his or her job
is you're engaging them, you're paying them
and let them do their work and you supply them.
You stay on top of mass
for updates, check in with them. But
to the extent that you can
compartmentalize and kind of just keep
doing your own business, run your floor shop.
Another day is coming
up, graduations are coming up.
My daughter's going to prom tonight.
There's corsages.
The sole focus on that
and try to keep it compartmentalized
as much as you can to try
and just let your business, you do your thing
and then deal with this legal part,
which is not fun, but it's kind of like,
you know, doing your taxes,
it's a governmental intrusion in your life.
They can't afford it.
You're going to have to deal with it.
Well, thank you, Mike. Very informative.
Hopefully our listeners
and those watching don't have to deal with this.
But if they do and you need to talk to Mike.
You can reach him at 9732320614
or mshortt@saiber.com.
Thank you, Mike.
To our listeners, thank you for listening.
Thank you for watching.
We'll be back soon for another edition of the Garden State Law Podcast.
Thanks for having me Tim.