In this two-part presentation, attorney Thomas De Luca discusses in depth New Jersey Pre-Trial Practice. In Part 1 of the program, Mr. Le Luca addresses issues that attorneys have to face at the very beginning of an action. Specifically, Mr. De Luca focuses on strategic venue considerations, drafting pleadings that fully comply with the forum rules, discovery issues, selection of experts and assuring that expert testimony and opinions are admissible.
About New jersey Pre-Trial Practice Generally
Pretrial practice begins long before a trial date is scheduled. It begins the day an attorney is retained, interviews the client for the first time and reviews all the relevant documents. If the client is a plaintiff the attorney must make early decisions as to the causes of action that the client should allege, the court in which the action should be brought and numerous other issues. The plaintiff’s attorney should do a complete investigation to determine if the suit be commenced at all, the likelihood of success on the merits and the value of the case.
The defendant’s attorney’s task might seem less daunting but involves a complete investigation of the facts and certain immediate strategic decisions. Is the defendant willing to litigate in the forum that plaintiff chose or should the defendant try to transfer or remove the case to another court? If the case is legally insufficient on its face for any number of reasons should the defendant, rather than answering the complaint, move to have it dismissed at the out set? The choice of forum could have a significant impact on the result of such a motion.
Both parties have to develop theories and themes of the case. Assuming the case survives beyond the pleading stage both parties must make decisions as to the scope and type of discovery that they need. The theme ad theory of the case can change based upon what the parties learn in pre trial discovery
In order to qualify to testify, experts must have expertise that is relevant to the issues in the case. They must develop qualified opinions, prepare reports and be prepared to defend their conclusions.
As the trial date approaches the attorneys must prepare their witnesses and be certain that both the lay and expert witnesses are available for trial. If one is not available to testify at trial there are methods to remedy the situation.
During the process it is likely that the court will compel some kind of alternate dispute resolution in an attempt to dispose of the case. The attorney must be familiar with the types of alternate dispute resolution and how, if not properly handled, can lead to an unsatisfactory result.
I. Determine how, where and when to commence an action and whether a defendant should try to transfer
II. Draft a pleading that will survive a motion to dismiss the action
III. Grasp methods of pre-trial discovery available, the scope and timing of discovery methods and how to compel recalcitrant parties to comply with their discovery obligations
IV. Pick an expert and make sure their opinion will be admissible at trial
This course originally appeared as a part of our September 2014 Bridge the Gap Event.
Prior to joining Osborn, in 2007, as of counsel, and to founding De Luca & Forster in 1993, Mr. De Luca served as an associate at Pantages, Sellar, Richardson & Stuart from 1978 – 1980, and was at Postner & Rubin from 1980 – 1993, where he was a partner for 8 years. Mr. De Luca represents contractors, owners, developers, designers, sureties, and insurers in all aspects of construction related litigation, arbitration, and mediation.
Mr. De Luca has tried numerous arbitrations, jury trials and bench trials on complex construction matters. Prior to practicing law, he was a senior surety underwriter for Fireman's Fund Insurance Company. In addition to his legal counseling, he has served as a financial advisor to construction companies.
Mr. De Luca is admitted in New York and New Jersey
Presented before numerous groups including the North Jersey Chapter of the National Association of Credit Managers, the New York Sprinkler Contractors Association and others on various construction and surety issues.
NITA trial advocacy course for the New York County Lawyer’s Association
New York Construction Law: Bonds and Insurance” Pratt Institute
“Law and Risk Management: Introduction to Risk Management; Insurers and Insurance Representatives” Building Owners and Managers Institute (BOMI)
Co author of New York Construction Law, by Postner & Rubin, published by Shepards - McGraw Hill, 1992.
American Bar Association
This is a very helpful course to distinguish between NY, NJ, and Federal practice.
Long but extremely informative and useful
Very helpful to point out the differences between State, Federal, and New York.
It was very informative, with ample examples to assist with understanding.
Speaker had very good delivery of subject matter as to which he was proficient.
This practitioner knows his subject matter and it thus made the seminar enjoyable...
Really good procedure course.
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