One issue that has frequently arisen within recent months is what happens when a party is denied  oral argument on a motion.  In fact, we have blogged about it numerous times.  Those prior entries can be found by clicking here and here.  While the New Jersey Court Rules, 5:5-4 in particular, states that courts must "ordinarily grant rqeuests for oral argument on substantive and non-routine discovery motions," courts in certain counties have seemingly been more selective in granting oral argument of late.  This despite commentary in the Court Rules book following 5:5-4 stating that a "strong presumption" favoring oral argument on such motions exists.  In fact, this "presumption is cited over and over in appellate cases when this issue comes up.

On August 11, 2009, the Appellate Division released an unreported (not precedential) decision in O’Connor v. Drobner, which concluded that the trial court should have granted oral argument on the Wife’s cross motion as to unreimbursed medical expenses, child support arrears, and private school expenses, rather than just address them in a supplemental statement of reasons. 

Interesting was the Appellate Division’s focus on the Husband’s need for oral argument on these issues, which went beyond the bounds of the relief sought in his own motion, even though such relief was sought by the Wife.  Specifically, the husband filed a motion on a limited, unrelated issue and did not seek oral argument.  The wife filed a cross motion and sought oral argument.  Given the Court Rules, the husband’s ability to respond is limited by page limitations, however, in light of the wife’s request for oral argument, he expected to have the ability to argue the issues raised in the wife’s cross motion.  The matter was reversed and remanded to the trial court for that reason.

While trial courts may continue to deny oral argument, it appears that the Appellate Division will pulls things back when necessary by remanding and requiring oral argument within the confines of 5:5-4 and understanding that litigants cannot be deprived of the opportunity to fully present their case in court.