In a recent unreported Appellate Division decision, the Court decided that a trial court judge abused his discretion by sanctioning the defendant’s attorney for failure to appear at an Early Settlement Panel, where his client, the other party and opposing counsel had appeared.  At first this may appear to be odd result but the facts of the case make it more clear why the result is just – and that a little courtesy by all involved could have prevented what turned into this debacle.

This case was pending in Middlesex County.  On the day in question, there had been extensive rainstorms and a portion of a major traffic artery in the New Brunswick area, was closed. Defendant’s attorney was caught in the resulting traffic jam so at approximately 9:30 a.m. he called his office and had them contact the chambers of the presiding judge of the Family Part to advise of the delay. As counsel did not have plaintiff’s counsel’s cell phone number, and, believing the judge’s staff would advise her of the delay, he did not call opposing counsel’s office. When by 10 am, the traffic issues had not improved, defendant’s counsel called the presiding judge’s chambers directly and asked that the matter be rescheduled.  The judge’s law clerk granted this request and counsel returned to his office.  No one, however, told plaintiff’s counsel.

After 10:00 a.m., she called defendant’s counsel’s office and was told that he was running late. Shortly thereafter, she called again and was told that he had been released by the judge and was on his way back to his office. Plaintiff’s counsel called a third time and actually spoke to defendant’s counsel – requesting that he return to the Courthouse.  When he refused, she made a application to another judge (the presiding judge was out that day), for counsel fees.  

 The judge noted that he had spoken to the presiding judge’s secretary "after the call," and knew counsel was stuck in traffic, however, he noted that the "only people that can grant an adjournment o[n] a matter that’s set down for an ESP is either [the presiding judge], who’s not here, his secretary . . . or me, the ESP judge." The judge determined defendant’s counsel’s excuse for his non-appearance was "inadequate," and he granted the application for counsel fees in the amount of $1100. 

The Appellate Division, however, held that the trial judge failed to properly follow the procedures governing a contempt citation, and that defendant’s counsel’s behavior was, under the circumstances, not contumacious or without just excuse.  The Order for fees was reversed.

The moral of this story is that all could have been avoided with a healthy dose of courtesy and communication all around.  Defendant’s counsel should have called his adversary’s office or had his staff do it – both to advise of the delay and then of the adjournment.  Moreover, if the traffic had abated by then, he could have returned to the Courthouse where everyone was waiting.  Plaintiff’s counsel could have been more understanding of the problem caused by extreme weather conditions coupled with the fact that someone in the presiding judge’s chambers had granted the adjournment.  Perhaps there could have been better communication by the Court staff that granted the adjournment so that the rest of the people waiting would not have waited as long. 

We should not lose sight that courtesy to our client’s,  their spouses and opposing counsel – especially is unique circumstances, is required.  It would not be surprising if events of that day cost each party more than the $1,100 in dispute.  And it may have all be avoided with just a little more courtesy and communication. 

For a copy of the case click here.

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