Law Office Of Paul DePetris

WHAT IS AN EMPLOYMENT CONTRACT DISPUTE?

An employment contract dispute is a dispute between an employer and employee involving allegations that one party breached an oral or written contract about the terms of employment. 

WHAT ARE THE REQUIREMENTS FOR AN ENFORCEABLE EMPLOYMENT CONTRACT?

In New Jersey, most employees are hired at will – that is, without a formal employment contract.   In theory, at will employees may leave their jobs without permission from their employer and the employer generally has wide discretion as to whether to fire their employees.  There are exceptions to these rules and one of the exceptions is when the employer and employee have entered into an employment contract.  An employment contract is an exchange of promises and thus is the result of a “bargain,” an “exchange of equivalents.”  An enforceable bilateral contract requires an offer, an acceptance, consideration and a meeting of the minds upon all the essential terms of the contract.   To have a valid contract, there must be a meeting of the minds, as an employment contract does not come into being unless the parties agree to the same terms.   Thus, an enforceable contract only results from the parties’ agreeing upon essential terms and manifesting an intention to be bound by those terms and where the parties do not agree to one or more essential terms, the contract may be unenforceable.   The essential element to the valid consummation of an employment contract is a meeting of the minds of the contracting parties.  Thus, doubt or difference between the parties to an alleged contract is normally incompatible with the claim that the parties contract to terms.   If the contemplated contract is to be bilateral, the offeror and offeree alike must express contract as to every term of the contract.  The offerror does this in the offer; the offeree must do it in his acceptance.  Employment handbooks may also provide employees with certain rights and impact an employer’s right to terminate their employees.

HOW ARE EMPLOYMENT CONTRACTS INTERPRETED?

When interpreting an employment contract, it is not the real intent that controls but rather the intent expressed or apparent in the writing.  Further, normally it is not the court’s role to make a new contract or to supply any material stipulations or conditions which contravene the contracts of the parties.  The mere fact that an employment contract is somewhat harsh or unfair in its operation does not excuse the performance of same and a court cannot create contractual obligations that are not based on the expressed intention of the parties.   Indeed, a court will not normally rewrite the contract to provide the protection which a party failed to obtain for themselves.   Instead, the judicial function of the court is normally to enforce the contract as it is written.  if an employment contract contains ambiguous or doubtful terms, the contract is generally construed against its drafter.   In certain situations, the interpretation of an employment contract may be a legal question for the Court rather than for a jury.

WHAT IS THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING?

The law implies a requirement that each party to an employment contract must act in good faith and deal fairly with the other party in performing or enforcing the terms of the contract.  This implied contract is part of the contract, just as though the contract expressly states this good faith and fair dealing require­ment.  To act in good faith and deal fairly, parties must act honestly toward one another when performing or enforcing the contract.  One party to the contract cannot do anything that will have the effect of destroying or injuring another party’s right to receive the fruits of the contract.  However, if an enforceable contract never existed between the parties a claim for violation of the covenant of good faith and fair dealing, such a claim would normally fail.   For, in the absence of an employment contract, there can be no breach of an implied covenant of good faith and fair dealing.

DO EMPLOYEES OWE THEIR EMPLOYERS A DUTY TO BE LOYAL EMPLOYEES?

Regardless of whether an employment agreement exists between an employer and an employee that contains a restrictive covenant, an employee is bound by a common law duty of loyalty precluding the employee from acting contrary to the employer’s legitimate interests.   The obligation to protect the employer's interests lasts until the last hour of the employee’s service.  Employees are not free to compete with their former employer until after termination of employment.    While employed, the employee may not:

• Solicit the employer’s customers or potential customers for a purpose that is in opposition to the employer.   This protection is not limited to precluding an employee from soliciting its current customers; it includes prohibitions against “pursuing and transacting business within the larger pool of potential customers who might have been solicited by the employer”. 

• Directly complete with the employer. 

• Aid the employer’s competitor, even if such activity does not require the employee to directly compete with the employer. 

• Take affirmative steps to injure the employer’s business. 

• Secretly deprive the employer of an economic opportunity. 

• Disclose the employer’s trade secrets or confidential information.     

WHEN CAN AN EMPLOYEE PREPARE TO START WORKING FOR A COMPETITOR?

The duty of loyalty does not itself prevent an employee from making arrangements to start new employment with a competitor.  The key distinction is that an employee cannot directly compete with the current employer until after employment with that employee terminates.  Thus, an employee may not breach the undivided loyalty owed to the employer while still employed, either by soliciting the employer's customers or by other acts of secret competition.  The duty of loyalty prohibits the employee from taking affirmative steps, while still employed, to injure the employer's business.  Thus, while still employed, the employee should not engage in any conduct causing the employer to lose customers, sales or potential sales.  This obligation to protect the employer's interests lasts until the last hour of the employee’s service.  While still employed, the employee may not ask customers to transfer their business, even if the actual transfer does not occur until the after employment concludes.   Whether an employee's conduct constitutes unfair competition or was merely preparatory to new employment is a matter of degree and depends upon the facts and circumstances of the case. 

WHAT IS A RESTRICTIVE COVENANT OR NONCOMPETE CLAUSE?

A restrictive covenant, also known as a noncompete clause, is a section in an employment contract which prohibits or restricts a party from performing certain actions.   An employee may enter into a restrictive covenant either before or after the period of employment ends.  Post employment restrictive covenants are not necessarily invalid in New Jersey.

ARE RESTRICTIVE COVENANTS ENFORECEABLE IN COURT?

The enforceability of restrictive covenants depends in large part upon their reasonableness under the particular circumstances.   Noncompetition contracts are looked upon unfavorably by the courts, as potential restraints on trade.   To be enforceable, a restrictive covenant must be reasonable under the circumstances in the case before the court.  Noncompete contracts will be totally or partially enforced to the extent reasonably necessary to protect the employer's legitimate interests, will cause no undue hardship on the employee and will not impair the public interest.   The Supreme Court set forth the following four pronged test for determining the reasonableness of restrictive covenants (often referred to by commentators as a three pronged test insofar as they omit the first prong):

·         The employer has a protectable interest.

·         The covenant must be no more restrictive than is necessary to protect the “legitimate interests of the employer.

·         The covenant must impose “no undue hardship on the employee.

·         The covenant must not be “injurious to the public interest.”

To be enforceable, the covenant must generally meet all 4 of the aforesaid requirements.   Moreover, the Court may seek evidence that the covenant is based on adequate consideration.

Usually, the issue of whether the covenant is enforceable amounts to a fact sensitive test, since the validity and enforceability of a covenant against competition is fact-sensitive and must be determined in light of the facts of the case.  In one case, a court enforced a post-employment restrictive covenant where the prohibition was reasonably necessary for the protection of the employment of the employer, was not unreasonably restrictive in point of time or territory upon the rights of the employee and was not prejudicial to the public interests.   Since, a breach of contract is never presumed; rather, the burden of establishing a breach of contract rests with the party asserting the breach.   In appropriate cases, a Chancery court shall intervene, providing injunctive relief to prevent the breach of noncompete contracts and solicitation of an employer’s personnel and customers and shall enjoin an employee for the use or disclosure of trade secrets or confidential information acquired from a former employer.    However, where there is no express covenant between an employer and employee, absent a showing of fraud or breach of trust, the Court shall generally not enjoin an employee, after termination of his employment, from honest competition with the former employer, even to the extent of soliciting the former employer’s customers.    Indeed, unless an employee is restrained by an enforceable covenant not to compete, he or she usually may freely compete with a former employer by accepting employment with a rival or by undertaking his or her own competing employment.   In this regard, an employee who is not otherwise bound by a restrictive covenant may, after termination of employment, and in the absence of any breach of trust, compete honestly with his or her former employer.  Accordingly, in such circumstances, neither the decision to compete nor the entering into competition is actionable.

In addition, it is not a court’s function to make an employment contract for the parties or to supply terms not previously agreed upon.  A court shall not normally relieve a party from the hardship they might have guarded against and thus, the court shall enforce the contract which the parties themselves made.  A court will not generally rewrite the contract to provide the protection which a party failed to obtain for themselves.  For, it is not the function of a court to make a better contract for the parties or to supply terms not previously agreed upon.  If an employment contract’s terms are clear, a court must merely enforce them as written.  Accordingly, where a written contract is complete and unambiguous on its face, the parties are bound by the intentions they express in same.  Moreover, where a written contract contains ambiguous or doubtful terms, the contract is construed against its drafter. 

Moreover, the common law duty of loyalty does not itself necessarily preclude an employee from making arrangements to commence new employment with a competitor.  The key distinction between such arrangements and competition is usually that an employee cannot directly compete with the current employer until after employment with that employee terminates.  Whether an employee's conduct constitutes unfair competition or was merely preparatory to new employment is a matter of degree and depends upon the facts and circumstances of the case. 

However, New Jersey Courts have held that the enforcement of restrictive covenants does not depend on the existence of a written contract of employment for such contracts need not be in writing but may be evidenced by conduct rather than words.   An employment contract of employment may be express or implied.   A hiring contract does not require formality. While assent to the offer of employment "must be manifested in order to be legally effective, it need not be expressed in words."  The necessary assent may be expressed in words, or it may be "implied from conduct without words."  One could however argue that, while the parties’ employment contract itself need not be in writing, to satisfy the requirements of a valid restrictive covenant, the restrictive covenant itself must be in writing.

WHAT DAMAGES ARE AVAILABLE FOR BREACH OF CONTRACT?

Where two parties have made an employment contract, which one of them has broken, the damages which the other party ought to receive, in respect of such breach, should be such as may fairly be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.  Contract damages are generally designed to put the injured party in as good a position as if the contract had been performed.    For example, in a lease transaction, the lessee is generally entitled to recover the value of the lease term, which, in the absence of special circumstances, is the difference between the actual rental value and the rent reserved.    A party is not generally chargeable for an employment contract loss that the party had no reason to foresee as a probable result of the alleged breach when the contract was made.   Further, the loss must be a reasonably certain consequence of the breach.  However, on occasion, courts impose damages in excess of what parties to a contract may have contemplated.

CAN ONE EMPLOYER FORCE ANOTHER EMPLOYER TO PERFORM OBLIGATIONS UNDER AN EMPLOYMENT CONTRACT (SPECIFIC PERFORMANCE)?

Specific performance is an equitable remedy available to a party to a lawsuit if they can establish that mere legal relief such as an award of damages would be insufficient to make the claimant whole.  Under the doctrine of specific performance, a court orders a party guilty of a breach of contract to, under the danger of court penalties, perform under the contract or if they already began to perform and stopped, to complete performance under the contract.   To establish a right to the remedy of specific performance, an employee or employer must demonstrate that the contract in question is valid and enforceable at law, that the terms of the contract are expressed in such fashion that the court can determine, with reasonable certainty, the duties of each party and the conditions under which performance is due and that an order compelling performance of the contract will not be harsh or oppressive.   The right to specific performance turns not only on whether the claimant has demonstrated a right to legal relief but also whether the performance of the contract represents an equitable result.   The remedy of specific performance is in the court’s discretion to grant or deny.   When specific performance is sought, the court is required to do more than merely determine whether the contract is valid and enforceable; the court of equity must also appraise the respective conduct and situation of the parties, the clarity of the contract itself notwithstanding that it may be legally enforceable and the impact that an order of specific performance could have (i.e., whether such an order is harsh or oppressive to the wrongdoer or whether a denial of specific performance leaves the claimant with an adequate remedy).   In addition, the party seeking specific performance must stand in conscientious relation to his adversary – that party’s conduct in the matter must have been fair, just and equitable rather than sharp or aiming at unfair advantage.  Such weighing of equitable considerations must represent, in each case, a conscious attempt on the court’s part to render complete justice to both parties regarding their contractual relationship.  A court will often direct performance of such an employment contract because, when there is no excuse for the failure to perform, the law of equity regards and treats as done what in good conscience ought to be done.  However, specific performance of an employment contract will not be awarded where the contract is incomplete, uncertain or too indefinite in its material terms to be specifically enforced in equity. 

HOW DOES AN EMPLOYEE OR EMPLOYER FILE A LAWSUIT FOR RELIEF IN AN EMPLOYMENT DISPUTE?

An employee or employer may file a lawsuit – called a “complaint” -- in Superior Court of New Jersey, Law Division, Civil Part if the amount in dispute (excluding attorney’s fees) exceeds $15,000.00 and in the Superior Court of New Jersey, Law Division, Special Civil Part if the amount in dispute (excluding attorney’s fees) does not exceed $15,000.00 by preparing a written complaint and case information statement and filing it by either visiting the New Jersey Superior Courthouse or appropriate Court Finance Office in the county where you intend to file the complaint – all of which are located in the county seat of the appropriate county -- or by sending the necessary paperwork to the appropriate county office of the Superior Court of New Jersey.  You must pay a fee to file your complaint that is sometimes determined based on the number of parties you are suing, the dollar amount of the dispute and the type of trial you want.  The court fees often change, so it is important that you check with the court as to the appropriate fee when you are actually ready to file your papers.  Only persons age 18 or older are able to file a complaint for themselves (minors must file a lawsuit through their parent or guardian).  There are specific rules about the proper county in which to file complaints, which depend on various considerations.  Complaint forms are often available at the appropriate offices each county court and via the worldwide web.  However, neither court forms, websites nor advice from court personnel are good substitutes for a competent attorney’s legal services.  Each case has its own particular legal issues and therefore, its own challenges.  It is extremely important that you prepare your complaint very carefully and make sure that you include in the document a detailed list of all factual and legal reasons why you may have a right to win your case, since failure to do so could cause you to lose your case.  It is very common for people to file inadequate or incorrect complaints that result in the complaints or answers to complaints being rejected by the court or being dismissed by the court after filing and before or after trial because of procedural deficiencies.    Normally, in the Superior Court of New Jersey, Law Division, Special Civil Part, the court serves the complaint on the defendants whereas in Superior Court of New Jersey, Law Division, Civil Part, you must have a process server serve the complaint.  Most complaints filed in the Superior Court of New Jersey, Law Division, Special Civil Part that go to trial are nonjury trials, meaning that only a judge hears the case.  For an extra fee paid only when you first file your first complaint (or paid when you file your first answer, if you are responding to the complaint), you may demand a trial by 6 jurors.  If you are filing a complaint in Superior Court of New Jersey, Law Division, Civil Part, there is no additional fee for a jury trial but you must demand it within a specific time frame or waive the right to a jury.  Jury trials are much more complex than nonjury trials and usually require much more preparation, including extensive paperwork.  However, a jury trial demand may result in the facts of your case being decided by a jury of ordinary people rather than by a single judge.  Even where a party requests a jury trial, the legal issues in the trial are normally decided by the judge hearing the case.  Note that this article does not attempt to discuss relief available to employees in Chancery Division, General Equity Part.

WHAT IF I OR MY BUSINESS IS SUED?

If you or your business is sued in the Superior Court of New Jersey, Special Civil Part or Superior Court of New Jersey, Law Division, Civil Part, you or your business shall be named to a complaint or counterclaim and must file a written response to the complaint or counterclaim, called an “answer” and a case information statement.   Failure to do so will normally result in your being defaulted and exposes you to the risk of having a money judgment entered against you or your employment and thereafter, possibly losing money or property.  You may file an answer by preparing a written answer disputing charges made against you or your employment in the complaint or counterclaim and requesting that the Superior Court of New Jersey, Law Division, Special Civil Part or Superior Court of New Jersey, Law Division, Civil Part dismiss the wrong charges.  If plaintiff or someone that isn’t named in the complaint owes you money or property based on the same set of facts as those in dispute in the complaint or facts related to the dispute, in addition to filing an answer, you may also be able to file a counterclaim or third party complaint to recover the money or property (discussed below).  Forms are often available at the appropriate county court offices and via the worldwide web.  However, neither court forms, websites nor advice from court personnel are good substitutes for a competent attorney’s legal services.  Each case has its own particular legal issues and therefore, its own challenges.  It is very common for people to file inadequate or incorrect complaints that result in the complaints or answers to complaints being rejected by the Superior Court of New Jersey, Law Division, Special Civil Part or Superior Court of New Jersey, Law Division, Civil Part or being dismissed after filing and before or after trial because of procedural deficiencies.  It is important to be truthful and not to make misstatements of facts when answering complaints and counterclaims.   It is extremely important that you prepare your answer very carefully and make sure that you include in the answer a detailed list of all defenses against the complaint or counterclaim that you are responding to, since failure to do so could cause you to lose your case.  Accordingly, when your employment is sued, you should seriously consider hiring an attorney to prepare your response to the complaint or counterclaim, to prepare written requests for information to the party that sued you (discussed further below) and if you can afford it, to have an attorney represent you in court.  After your answer is prepared, you must file it by either visiting the New Jersey Superior Courthouse or appropriate Court Finance Office in the county where the complaint was filed – all of which are located in the county seat of the appropriate county -- or by sending the necessary paperwork to the appropriate county office of the Superior Court of New Jersey.  You must pay a fee to file your answer that is sometimes determined based on the amount of the original dispute and the type of trial you want and whether you intend to add parties to the lawsuit (discussed below).   Only persons age 18 or older are able to file an answer for themselves (minors must file an answer through their parent or guardian).   Most cases filed in the Superior Court of New Jersey, Law Division, Special Civil Part that go to trial are nonjury trials, meaning that only a judge hears the case.  For an extra fee paid only when you first file your first answer, you may demand a trial by 6 jurors.  If you are filing a complaint in Superior Court of New Jersey, Law Division, Civil Part, there is no additional fee for a jury trial but you must demand it within a specific time frame or waive the right to a jury.  Jury trials are much more complex than nonjury trials and usually require much more preparation, including extensive paperwork.  However, a jury trial demand may result in the facts of your case being decided by a jury of ordinary people rather than by a single judge.  Even where a party requests a jury trial, the legal issues in the trial are normally decided by the judge hearing the case.

WHAT IF I OR MY BUSINESS IS SUED BUT SOMEONE OWES ME OR MY BUSINESS MONEY BECAUSE OF THE SITUATION THAT IS THE SUBJECT OF THE COMPLAINT?

If you or your business is a defendant and plaintiff or someone that isn’t named in the complaint owes you money or property based on the same set of facts as those in dispute in the complaint or facts related to the dispute, in addition to filing an answer, you may also be able to file a counterclaim or third party complaint to recover the money or property (discussed below).  If there are valid facts and legal reasons to support it, a defendant can file their own lawsuit against a plaintiff, called a “counterclaim If your employment is sued and someone who is not named in the lawsuit is partially or totally responsible for the plaintiff’s damages or for damages you suffered and there are valid facts and legal reasons to support it, a defendant can file their own complaint, called a “third party complaint”.  By doing so, the defendant names parties not originally named to the complaint as additional parties to the case.  Counterclaims and third party complaints must be prepared in writing and filed with the appropriate court where the original complaint is being heard normally require extra fees above the cost of filing an answer to the original complaint.  In the case of a third party complaint, once properly filed, the Superior Court of New Jersey, Law Division, Special Civil Part normally serves it on the plaintiff.  In Superior Court of New Jersey, Law Division, Civil Part, you must have a process server serve the complaint.  Forms may be available at the appropriate office of the Superior Court of New Jersey, Law Division, Special Civil Part and via the worldwide web.  However, neither court forms, websites nor advice from court personnel are good substitutes for a competent attorney’s legal services.  Each case has its own particular legal issues and therefore, its own challenges.  It is very common for people to file inadequate or incorrect complaints or counterclaims that result in the complaints or answers to complaints or counterclaims being rejected by the Superior Court of New Jersey, Law Division, Special Civil Part or being dismissed by the Superior Court of New Jersey, Law Division, Special Civil Part after filing and before or after trial because of procedural deficiencies.  It is important to be truthful and not to make misstatements of facts when answering complaints and filing counterclaims and third party complaints.   It is extremely important that you prepare your answer, counterclaim or third party complaint carefully and make sure that you include in the documents a detailed list of all reasons why you may have a right to win your case, since failure to do so could cause you to lose your case.  Accordingly, when your employment is sued and when you want to file a counterclaim or third party complaint, you should seriously consider hiring an attorney to prepare your response to the complaint or counterclaim, to prepare written requests for information to the party that sued you (discussed further below) and if you can afford it, to have an attorney represent you in court.  After your counterclaim or third party complaint is prepared, you must file it by either visiting the New Jersey Superior Courthouse or appropriate Court Finance Office in the county where the complaint was filed – all of which are located in the county seat of the appropriate county -- or by sending the necessary paperwork to the appropriate county office of the Superior Court of New Jersey.  You must pay a fee to file the document that is determined based on the amount of the original dispute and the type of trial you want and it may also be based on whether you intend to add parties to the lawsuit.  You must also decide whether to demand a jury trial within a specific timeframe or waive the right.

WHAT IF I OR MY BUSINESS FILED A COMPLAINT AND DEFENDANT FILED A COUNTERCLAIM AGAINST ME OR MY BUSINESS?

If there are valid facts and legal reasons to support it, a defendant can file their own lawsuit against a plaintiff, called a “counterclaim”.  If you are named to a counterclaim, you must file a written answer to the counterclaim.  Failure to do so will normally result in your being defaulted and exposes you to the risk of having a money judgment entered against you or your employment and thereafter, possibly losing money or property.  It is possible for plaintiffs to win on their complaint only to lose on a defendant’s counterclaim.  You may file an answer by preparing a written answer disputing charges made against you or your employment in the complaint or counterclaim and requesting that the court dismiss the wrong charges.  If plaintiff or someone that isn’t named in the complaint owes you money or property based on the same set of facts as those in dispute in the complaint or facts related to the dispute, in addition to filing an answer, you may also be able to file third party complaint to recover the money or property (discussed above).  Forms may be available at the appropriate office of the Superior Court of New Jersey, Law Division, Special Civil Part or Superior Court of New Jersey, Law Division, Civil Part and via the worldwide web.  However, neither court forms, websites nor advice from court personnel are good substitutes for a competent attorney’s legal services.  Each case has its own particular legal issues and therefore, its own challenges.  It is very common for people to file inadequate or incorrect complaints that result in the complaints or answers to complaints being rejected by the Superior Court of New Jersey, Law Division, Special Civil Part or Superior Court of New Jersey, Law Division, Civil Part or being dismissed by the court after filing and before or after trial because of procedural deficiencies.  It is important to be truthful and not to make misstatements of facts when answering complaints and counterclaims.   It is extremely important that you prepare your answer very carefully and make sure that you include in the answer a detailed list of all defenses against the complaint or counterclaim that you are responding to, since failure to do so could cause you to lose your case.  Accordingly, when your employment is sued, you should seriously consider hiring an attorney to prepare your response to the complaint or counterclaim, to prepare written requests for information to the party that sued you (discussed further below) and if you can afford it, to have an attorney represent you in court.  After your answer is prepared, you must file it by either visiting the New Jersey Superior Courthouse or appropriate Court Finance Office in the county where the complaint was filed – all of which are located in the county seat of the appropriate county -- or by sending the necessary paperwork to the appropriate county office of the Superior Court of New Jersey.  You must pay a fee to file your answer that is determined based on the amount of the original dispute and the type of trial you want and whether you intend to add parties to the lawsuit (discussed below).   Only persons age 18 or older are able to file an answer for themselves (minors must file an answer through their parent or guardian).  Most cases filed in the Superior Court of New Jersey, Law Division, Special Civil Part that go to trial are nonjury trials, meaning that only a judge hears the case.  For an extra fee paid only when you first file your first answer, you may demand a trial by 6 jurors.  In Superior Court of New Jersey, Law Division, Civil Part, there is n no additional fee for a jury trial but you must demand it within a certain time period or waive your right to a jury.  Jury trials are much more complex than nonjury trials and usually require much more preparation, including extensive paperwork.  However, a jury trial demand may result in the facts of your case being decided by a jury of ordinary people rather than by a single judge.  Even where a party requests a jury trial, the legal issues in the trial are normally decided by the judge hearing the case.

WHAT HAPPENS IF THE CLAIM INVOLVES A CORPORATION OR LIMITED LIABILITY COMPANY?

The officers, managing members and directors of companies, limited liability companies and the like cannot generally appear in the Superior Court of New Jersey, Law Division Special Civil Part in cases involving disputes exceeding $3,000 or in any Superior Court of New Jersey, Law Division, Civil Part cases whatsoever, since the corporation, partnership or limited liability company must usually be represented by an attorney.  There may be some exceptions to this rule, such as where the case involves a summary action for possession of premises.   Also, if you sue a company and the company represents itself at trial and you thereafter win the case and recover a judgment, it is possible that the company shall get the judgment overturned because they were not permitted to appear in court for themselves in the first place!  There are no such limitations imposed upon sole proprietors.

IF I OR MY BUSINESS IS A PLAINTIFF OR DEFENDANT IN A CIVIL CASE, WILL THE OTHER SIDE HAVE AN ATTORNEY?

If you are not represented by an attorney in a special civil part case, you are called a “pro se litigant”.  While people can and often do represent themselves in the Superior Court of New Jersey, Law Division, Special Civil Part court and occasionally represent themselves in Superior Court of New Jersey, Law Division, Civil Part, their opponent may be represented by an attorney, which often places the unrepresented party at a major disadvantage.  If possible, hire an attorney to at least prepare any necessary court paperwork and if you can afford it, to also appear and represent you in court at any motions or trials.   The proper preparation of legal papers and preparation of a case for trial often requires knowledge of legal issues that only attorneys have.  Court rules and evidence rules are often complex and accordingly, are often difficult to follow.  Trials can be very complex and time consuming – sometimes they take all day or more than one day to complete.  People who are not attorneys licensed to practice law in New Jersey are not able to give you legal advice about special civil disputes that are heard by New Jersey courts, regardless of whether the people work for a court or work for an attorney. 

IF THE OTHER SIDE HIRES AN ATTORNEY, SHOULD I DEAL WITH THE ATTORNEY OR THEIR CLIENTS?

If a party is represented by an attorney in a civil part dispute, you must generally avoid having oral or written contact regarding the case with the represented party and instead, must make all communications involving the case through the represented party’s attorney.

WHAT HAPPENS AFTER THE COMPLAINT IS FILED?

After the complaint is filed, in small claims proceedings, court staff shall serve the complaint on the defendants, usually by mailing it by certified and regular mail.  In Superior Court of New Jersey, Law Division, Civil Part cases, a plaintiff or third party plaintiff normally uses a process server to serve the complaints upon their adversaries.  A defendant has 35 days following service of a complaint to file an answer.  The summons should state the date on which the complaint was served.  If a defendant fails to file a written answer to the complaint, in the Superior Court of New Jersey, Law Division, Special Civil Part the clerk should automatically enter a default on the Superior Court of New Jersey, Law Division, Special Civil Part’s docket.  The Superior Court of New Jersey, Law Division, Special Civil Part normally mails the plaintiff a notice stating the date on which cases are automatically defaulted (35 days after service of the answer).  If a defendant files a written answer and pays the necessary fee, the Superior Court of New Jersey, Law Division, Special Civil Part normally sends a notice of that an answer was filed.  In Superior Court of New Jersey, Law Division, Civil Part, once the time for a defendant to answer expires, if no answer is filed, the plaintiff must file a request for entry of default.  Once a complaint and answer are filed in the case, whenever one party sends any kind of paperwork to the court, they must generally send complete copies of the paperwork to all other parties involved in their case (or if they are represented, to the parties’ attorneys).  If a party fails to follow this procedure, they may be punished by the court for the failure and any relief they ask for and receive from the court can often be reversed for the failure.  The parties may engage in discovery – a factfinding process during which each party tries to find out more about the other party’s position.  Discovery often involves parties serving each other with written requests for information called interrogatories, notices to produce (sometimes also called requests for production of documents) and requests for admissions.  These requests are served by you and not the Superior Court of New Jersey, Law Division, Special Civil Part by mailing the documents via regular and certified mail, return receipt requested (if the other party is unrepresented) on the other parties or by regular mail only on the other parties’ attorney, if they are represented by an attorney.  However, it is often best to send all documents to any opponent by regular main and also by certified mail, return receipt requested to make sure you have proof that the documents were received by your opponent.  If either party fails to answer these requests in writing or fails to answer the requests with sufficient thoroughness, the Superior Court of New Jersey, Law Division, Special Civil Part may punish the delinquent party, such as by throwing their complaint out of court or suppressing their answer.  At some point after the complaint is filed and answered, the Superior Court of New Jersey, Law Division, Special Civil Part sends the parties a notice stating the trial date.   Failure to carefully prepare and serve thorough written requests for information could result in your losing your case, since you may be in the dark about what the other party intends to do at trial.  If a case is coming up for trial and you never received responses to your written requests for information, you may have a right to get more time from the Superior Court of New Jersey, Law Division, Special Civil Part to get the requests answered.  Discovery can be a very tricky and important part of the case and to make sure that it is conducted right, you should seriously consider hiring an attorney to prepare your written requests for information to your opponents or to other parties involved in the case or even to witnesses and if you can afford it, to have an attorney represent you in court.

WHAT HAPPENS IF DEFENDANT IS DEFAULTED?

If a defendant is automatically defaulted by the Superior Court of New Jersey, Law Division, Special Civil Part or in a Superior Court of New Jersey, Law Division, Civil Part case, if a plaintiff files the necessary paperwork for a default and it is entered, then no trial will occur (unless the court vacates the default) and the plaintiff has a certain number of months from the date of the entry of default to file additional paperwork with the court to seek a default judgment against a defendant.  In some cases, securing a default judgment only requires the plaintiff to submit paperwork, while in other cases, the plaintiff has to prepare and file a motion and the court may require the plaintiff and defendant to appear at a court hearing – a “proof hearing”.

WHAT HAPPENS IF A DEFAULT JUDGMENT IS ENTERED AGAINST YOU OR YOUR BUSINESS AND YOU IGNORE IT?

If you ignore a judgment, your bank account may be frozen and money in it turned over to the judgment holder, some of your wages may be taken from you, your personal property may be seized by the sheriff and sold to satisfy the judgment and/or a lien may be put against a house you own.  Often people wait until their bank account is frozen or until their wages are attached to take action – at that point it is difficult and sometimes too late to do anything to successfully stop those collection efforts.  It is not uncommon to refuse to help such latecomers from taking issue with the collection efforts unless they file papers with the court for relief.  However, once a judgment is entered against you or your employment, you may ask the court to remove or “vacate” the judgment (discussed below).

DO I NEED AN EXPERT WITNESS TO PROVE MY CASE?

Often to prove one’s case or to successfully defend against a complaint, it is necessary to hire an expert witness to prepare a proper expert report and to testify regarding another party’s misconduct and the damages sustained as a result of the misconduct.  If scientific, technical, or other specialized knowledge will assist the factfinder at trial to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.  To be considered by the Superior Court of New Jersey, Law Division, Special Civil Part, an expert’s opinion must meet three basic requirements:   (1) the intended testimony must concern a subject matter that is beyond the knowledge of the average juror; (2) the subject testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.  To meet the element of whether expert testimony is sufficiently reliable, the party offering the expert testimony must demonstrate that the expert’s opinion or theory is generally accepted within the scientific community.   An expert's opinion must be supported by facts or data either in the record or of a type usually relied upon by experts in the field.  Bare conclusions of an expert that are not supported by factual evidence are inadmissible.  Likewise, expert conclusions based on discredited or improperly performed diagnostic tools are suspect.  An expert's trial testimony is confined to the opinion reflected in his or her report.  Many expert opinions are never admitted into evidence and experts are thereby prevented from testifying at trial because the court finds the reports unreliable and/or inadequate.  Therefore, simply hiring an expert does not assure that you shall get their testimony into evidence.  Professional experts usually charge a fee to inspect your property and write a report – sometimes they bill by the hour and sometimes via a flat fee arrangement linked to each service they are to perform.  The expert normally sends a copy of their report to the party who hired the expert.  If your case requires expert testimony and the matter goes all the way to trial, it shall be necessary to have the expert appear at and testify at same.  The expert usually charges additional fees for the time during which they must appear at trial but you may get the expert to include such services as part of the fee to perform inspections and to write reports.  While there are some exceptions, normally, courts do not allow people to show up at trial to introduce into evidence estimates, expert reports and other documents that they never prepared and witnesses are often necessary to prove one’s case, especially when it comes to the party’s damages.  

WHAT IS COURT MEDIATION?

In some cases, before the trial occurs the court requires the parties to mediate their dispute.  Mediation is an informal hearing normally held in a conference room.  You and the other party and any attorneys involved in the case appear at the mediation.  The mediation is conducted by a neutral court appointed mediator.  The mediator is trained in resolving disputes through the process of mediation.  Accordingly, the mediator attempts to resolve the case by suggesting a possible settlement to both parties.  During the mediation, none of the parties is required to settle the case.  Indeed, one or all of the parties may not even make any offer to settle.   Note that cases do not always undergo mediation.  If the case cannot be settled before trial and your case is called to be tried, you must be prepared to present your case or defenses.

WHAT HAPPENS AT ARBITRATION?

Many cases are scheduled to be arbitrated.  The arbitration is an informal hearing conducted in a conference room during which you shall be present along with your attorney if you are represented.  Depending on whether you decide to schedule and hire your expert or schedule other witnesses to be present, they may also be present, as well as any experts or witnesses for the defense.  Arbitrators are neutral attorneys appointed by the court to conduct a hearing regarding the facts and law of the case and to make a decision based on same.  At the arbitration, you will be called upon to give testimony regarding the facts of your case.  If you schedule and pay your expert to be present or if you have other witnesses present, the arbitrator may permit them to also provide testimony regarding your case and be subject to cross examination.    Your opponent will have an opportunity to cross examine you and your witnesses in an effort to challenge your allegations.  If they do this, they shall seek to destroy your case or your defenses.  If your deposition was taken the opponent may use the testimony from your deposition to find fault with your case.  After your testimony, if your opponent has an expert witness or other type of witness (warranty representative, dealership service manager or service technician), defense counsel shall call them to testify regarding their allegation that the vehicle is not defective and that they lived up to the terms of the warranties covering the vehicle.  The attorney from my office who is at the hearing shall have an opportunity to cross examine the defendant(s)’ witnesses, if any.  Based on the testimony provided by the witnesses and the legal arguments made by the parties or if represented, by their attorneys, the arbitrator shall render a decision for one or more of the parties – someone shall win and someone shall lose.  The arbitrator prepares a written decision and provides a copy to each party.  If any party is unhappy with the arbitrator’s decision, they have 30 days from the date of the decision to reject the award by requesting a trial and by paying a fee.  If the decision is rejected, the court then sets a date for the case to go to trial.  If no one rejects it, the arbitration decision, the winner files papers with the court to confirm the arbitration results, which generally then becomes a final judgment, resolving the case forever.

WHAT HAPPENS AT TRIAL?

On the day that your case goes to trial you must appear at court.  Usually, many cases are heard on the day that your case is called for trial and it is not uncommon for many people to wait in a single courtroom for their case to be called.  You must be on time to avoid losing your case!  If a plaintiff fails to appear when their case is called, the Superior Court of New Jersey, Law Division, Special Civil Part is likely to dismiss the complaint.  If a defendant fails to appear when the case is called, the Superior Court of New Jersey, Law Division, Special Civil Part shall likely enter a default.  If a default is entered, you shall have to prepare and file paperwork with the court asking the court to enter a default judgment in your favor.  If no default is entered, you must be prepared to present your case or defense.  It is not uncommon for judges to get very frustrated by an unrepresented party’s lack of preparation or ignorance of the facts or law of the case.  A court has the power to punish unprepared parties, such as by throwing their case out of court or limiting what they can present at trial.  You must bring all documents, photographs, videos and other items with you to the trial that are necessary to prove your case (preferably originals).  Even if you bring such documents and items to court, a judge may refuse to allow you to use them at your trial.  New Jersey has published cases, laws, regulations, court rules and rules of evidence that are very tricky and that can be used to prevent you from doing much of what you want to do at trial.  Accordingly, before trial, you must consult all of these rules to determine how you intend to get your documents and items into evidence or how to properly use them at trial.  Hearsay rules of evidence are particularly troublesome and you should study them carefully before trial.  For example, it is very common for courts to refuse to allow a party to use or refer to documents or items that the person themselves never prepared.  Often parties stumble into special civil part with a video, photograph, bill or affidavit or other form of written statement, thinking they are going to use it as proof that they lost money or that they are not responsible for someone else’s damages, only to have a judge tell the parties that it is not going to even consider such items or documents.  Without the proper preparation, items and documents may never be considered by the court.  Also, if there are any legal issues to be dealt with at trial, you must be prepared to argue them, which may require you to refer to court rules, evidence rules, laws, regulations or published cases.  If you have any witnesses that you need to testify for you at trial, then in advance of the trial and as required by court rules, laws and published cases, you must prepare a written subpoena (or subpoenas if the case is adjourned).   Such a subpoena must normally be personally served by a process server rather than by mail.  If you want to force one of the parties to the case to testify as part of your case, since they might not show up at the trial (it is possible that only their attorney will show up), you should serve them with a notice in lieu of subpoena.  If you think that you could have problems getting someone to show up to provide testimony at trial, you should have a process server serve them with a subpoena or  if they are a party to the dispute, a notice in lieu of subpoena.  Without witnesses to testify at trial (especially experts, discussed above), you may lose your case.  Trials can be very complex and time consuming – sometimes they take all day or more than one day to complete.  Also, it is very common for trials to get adjourned because someone is not ready to present their case for a valid reason (but you can never expect that you shall automatically get an adjournment and you must always be fully ready to try your case on the date that the trial is scheduled since courts often refuse adjournment requests and dismiss cases if parties are not prepared to proceed with their case or defense on the trial date).  It is best to have your questions for any witnesses prepared in advance.  At the end of trial, the court normally enters a judgment for or against you or your employment.  The court may also withhold or “reserve” judgment for a later date, which normally results in the judge hearing the case taking time to write up its reasons for its decision and mailing it to the parties’ last known addresses (or to their attorneys, if they are represented). 

IS IT POSSIBLE TO SETTLE MY CASE?

Parties may voluntarily agree to settle their case but preparing the proper settlement contract requires great care.  Normally, at any trial proceeding, the Superior Court of New Jersey, Law Division, Special Civil Part has settlement forms for the parties to complete.  However, neither court forms, websites nor advice from court personnel are good substitutes for a competent attorney’s legal services.  Each case has its own particular legal issues and therefore, its own challenges.   For example, what if you don’t include protections to yourself in the contract?   A court may refuse to enforce a settlement contract if it is unclear what the parties agreed to.  Also, if a party fails to honor a settlement, you may have to return to court if you want to enforce the settlement, which normally requires you to file a motion.  If you can afford an attorney, it is best to have the attorney prepare the settlement contract so that they can try to make the other parties agree to the best settlement terms for you.  If you do settle your case yourself, you should notify the Superior Court of New Jersey, Law Division, Special Civil Part as soon as possible – with a phone call and then followed up in writing.  If the case is settled before trial, you should make every effort to advise the court before the trial occurs.

WHAT HAPPENS IF I GET A JUDGMENT?

Once you get a judgment, you become a judgment creditor and you may decide to do nothing or more likely, you may decide to try to collect it.  To collect a special civil part judgment, special civil part officers may be of assistance in taking steps to collect it, but they cannot provide legal advice.  To collect a Superior Court of New Jersey, Law Division, Civil Part judgment, you must often use a sheriff.  Normally, to collect on a judgment, you need to know the whereabouts of the debtor’s assets and you need to fill out paperwork to direct the court officer to try to recover the judgment from those assets.  The collection process is often difficult and if a debtor files for bankruptcy, you may never collect your judgment.  The court normally has forms available at the courthouse and on the worldwide web.  However, neither court forms, websites nor advice from court personnel are good substitutes for a competent attorney’s legal services.  Each case has its own particular legal issues and therefore, its own challenges.   If you can afford an attorney, it is best to have the attorney perform the steps necessary to collect any judgment. 

WHAT IF A DEFAULT AND/OR DEFAULT JUDGMENT IS ENTERED AGAINST YOU OR YOUR EMPLOYMENT AND YOU STILL WANT A TRIAL?

If a default and/or default judgment was entered against you or your employment, you may seek to remove it, called “vacating the default” or “vacating the default judgment”.  To vacate either, you must normally prepare a written motion and file the motion with the Superior Court of New Jersey, Law Division, Special Civil Part asking that the default and/or default judgment be vacated.   The court normally has forms available at the courthouse and on the worldwide web.  However, neither court forms, websites nor advice from court personnel are good substitutes for a competent attorney’s legal services.  Each case has its own particular legal issues and therefore, its own challenges.   If you can afford an attorney, it is best to have the attorney perform the steps necessary to prepare the proper motion.  If you ignore the default, it may lead to the entry of a judgment against you or your employment.  If you ignore a judgment, your bank account may be frozen and money in it turned over to the judgment holder, some of your wages may be taken from you, your personal property may be seized by the sheriff and sold to satisfy the judgment and/or a lien may be put against a house you own. 

TAKING APPEALS -- WHAT IF I LOSE MY TRIAL OR THE COURT REFUSES TO VACATE A DEFAULT JUDGMENT?

If you are involved in a lawsuit and you lose a summary judgment motion, lose a motion to vacate a default judgment or lose a trial, it could mean the dismissal of your lawsuit forever and it could prevent you from ever recovering money damages against a defendant who you believe owes you money.  If you are a defendant and you lose, it could mean the entry of a money judgment against you and the beginning of the plaintiff’s efforts to collect the judgment from you by freezing your bank accounts, attaching your wages, putting a lien on your home and forcing you to answer detailed questions about your finances.  If you disagree with the court’s decision, you may file papers for the court to reconsider its decision – called a motion for reconsideration.  In some cases, the motion for reconsideration must be made in 20 days from the date of the court’s order deciding the summary judgment motion.  If you disagree with the Superior Court of New Jersey, Law Division, Special Civil Part or Law Division, Civil Part's decision, such as a judgment entered against you at trial or the denial of a motion to vacate a default judgment, you may appeal the case to a higher court -- the Appellate Division of the Superior Court.  There are very strict deadlines for filing appeals.   To appeal a final judgment that resolves all issues in the case, you may file a notice of appeal and other required documents with the Appellate Division within 45 days from the date of judgment and pay a fee to the Appellate Division – special civil part appeals and Superior Court of New Jersey, Law Division, Civil Part appeals are not heard by the Superior Court of New Jersey, Law Division, Special Civil Part or Superior Court of New Jersey, Law Division, Civil Part and you should not try to file appellate papers with either of those courts!   As part of your appeal, you usually must also prepare a written court transcript request and order a court transcript from the appropriate court that decided the matter against you or your employment and pay a fee for it.  Appeals are some of the most complex proceedings in the court system.  The court normally has forms available on the worldwide web.  However, neither court forms, websites nor advice from court personnel are good substitutes for a competent attorney’s legal services.  Each case has its own particular legal issues and therefore, its own challenges.   If you can afford an attorney, it is best to have the attorney perform the steps necessary to take an appeal.  Appeals from orders or judgments that are not final are called “interlocutory appeals” and the procedure for such appeals is somewhat different than those for appeals from final judgments or orders.

CAN I HANDLE MY CASE BY MYSELF?

Many people can and do successfully handle cases, from filing the first paperwork to the collection of a judgment.  However, many other people also make mistakes that lead to the dismissal of their cases or that result in the entry of a money judgment against them.  The greater the money at stake, the greater the reason to consider using the services of a competent attorney licensed to practice law in New Jersey to handle part or all of the case.  You should never think of handling a case yourself to test your own skills – attorneys may not be able to correct your mistakes.   The following are other reasons to use an attorney to handle part or all of your case:

·         Filing fees often change

·         Court rules often change

·         Court employees cannot give you “free” legal advice and a judge may refuse to let you claim that you were right in taking an action (or in deciding not to take action) because you relied on advice from such employees

·         Court forms available on websites may not cover every situation you may face in court

·         Each case has its own particular legal issues and therefore, its own challenges

·         It is very common for people to file inadequate or incorrect complaints that result in the complaints or answers to complaints being rejected by the court or being dismissed by the court after filing and before or after trial because of procedural deficiencies.  

·         It is not uncommon for judges to get very frustrated by an unrepresented party’s lack of preparation or ignorance of the facts or law of the case. 

·         A court has the power to punish unprepared parties, such as by throwing their case out of court or limiting what they can present at trial. 

·         New Jersey has many published cases, laws, regulations, court rules and rules of evidence that are very tricky and that can be used to prevent you from doing much of what you want to do at trial. 

·         it is very common for courts to refuse to allow a party to use or refer to documents or items at trial that the person themselves never prepared.  Often parties stumble into special civil part with a video, photograph, bill or affidavit or other form of written statement, thinking they are going to use it as proof that they lost money or that they are not responsible for someone else’s damages, only to have a judge tell the parties that it is not going to even consider such items or documents. 

·         without the proper preparation, items and documents may never be considered by the court.  Also, if there are any legal issues to be dealt with at trial, you must be prepared to argue them, which may require you to refer to court rules, evidence rules, laws, regulations or published cases. 

·         you cannot show up at special civil part expecting the judge hearing your case to explain court rules, evidence rules, court procedure or the details of the law that applies to your case.  The judge hearing your case is not permitted to give you legal advice.

It is important to remember that even if you have an attorney, you could lose your case.  Hiring an attorney to handle part or all of your case does not guarantee your success.  However, it may provide what is needed to win your case or to avoid certain mistakes.

DOES THE LAW OFFICE OF PAUL DEPETRIS HAVE EXPERIENCE HANDLING EMPLOYMENT DISPUTES?

Yes.  Paul DePetris has performed the following tasks:

·         handled employment contract dispute cases.

·         prepared and filed many complaints, answers and counterclaims.

·         prepared and filed many default judgment and summary judgment motions.  

·         argued motions in the Superior Court of New Jersey, Law Division, Special Civil Part and Law Division, Civil Part

·         mediated civil cases in the Superior Court of New Jersey

·         arbitrated civil cases in the Superior Court of New Jersey

·         tried nonjury trials in Law Division, Special Civil Part and Law Division, Civil Part

·         tried jury trials in Law Division, Special Civil Part and Law Division, Civil Part

·         served as a voluntary court mediator for the Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County, where he successfully assisted parties to lawsuits to settle their cases before they went to trial

·         handled Superior Court of New Jersey, Law Division, Special Civil Part proof hearings and Law Division, Civil Part proof hearings

·         handled Superior Court of New Jersey, Law Division, Special Civil Part and Law Division, Civil Part post judgment collection proceedings

Mr. DePetris has appeared before the Superior Court of New Jersey in the following counties:

 Mr. DePetris has also appeared in federal courts - the District of New Jersey in Camden, Trenton and Newark and in the Eastern District of Pennsylvania.

WHAT IF I DON’T HAVE ENOUGH MONEY TO HIRE AN ATTORNEY TO HANDLE MY CASE FROM BEGINNING TO END?

In many situations, the Law Office of Paul DePetris offers alternatives to handling employment contract dispute cases for an hourly fee, such as by offering to prepare the court paperwork for you or helping you handle your claim by yourself.  Such flexible methods may allow you to keep the amount legal fees you spend on your case to a fixed sum, while providing you the help you need to handle your case.  For a no cost phone consultation about what the Firm might be able to do for you, call or write an email to Mr. DePetris at consumerlaw@newjerseylemon.com.