The law favors the use of plenary hearings before the terms of custody and parenting time are materially altered. In general, a plenary hearing is appropriate before the entry of an order materially affecting the terms of custody of a child. See, e.g., Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005); Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

The law favors the use of plenary hearings before the terms of custody and parenting time are materially altered originally appeared on NJ Family Issues on May 17, 2012.

A diagnosis of post-traumatic stress disorder requires expert testimony. See, e.g., State v. Hess, 207 N.J. 123 (2011); State v. Briggs, 349 N.J. Super. 496, 500 (App. Div. 2002). Expert testimony is also necessary to prove that a causal link exists between post-traumatic stress disorder and allegedly tortious conduct. See, e.g., J.W. v. L.R., 325 N.J. Super. 543, 548 (App. Div. 1999) (finding that expert testimony was necessary to demonstrate that alleged sexual abuse caused a particular psychological condition).

A witness qualified as an expert may testify “in the form of an opinion or otherwise.” N.J.R.E. 702. However, an expert’s opinion must be based upon “[t]he facts or data in the particular case.” N.J.R.E. 703. An expert’s “bare conclusions, unsupported by factual evidence or other data, are inadmissible as a mere `net opinion.’” Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 703 (2011); see also Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The net opinion rule “`requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.’” State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)). A net opinion can result from the “failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.” Buckelew, supra, 87 N.J. at 524.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A diagnosis of post-traumatic stress disorder requires expert testimony originally appeared on NJ Family Issues on May 17, 2012.

Although “the two causes sometimes overlap, actions for defamation and product disparagement stem from different branches of tort law.” Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 133 (1986). “A defamation action, which encompasses libel and slander, affords a remedy for damage to one’s reputation.” Ibid. Determination of “[w]hether a statement is defamatory is a matter of law[.]” Russo v. Nagel, 358 N.J. Super. 254, 262 (App. Div. 2003).

“[T]o prove defamation, a plaintiff must establish, in addition to damages, that the defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false, and (4) which was communicated to a person or persons other than the plaintiff. The fifth element that must be proven is fault. Where. . . [the] plaintiff is a private figure and the speech is about an exclusively private concern, a traditional negligence standard of fault is applicable, which is defined as communicating the false statement while acting negligently in failing to ascertain the truth or falsity of the statement before communicating it. Fault may also be established by showing that [the] defendant knows the statement is false and that it defames plaintiff or [the] defendant acts with reckless disregard of its truth or falsity.”

[Beck v. Tribert, 312 N.J. Super. 335, 349-50 (App. Div.) (alterations in original) (quoting Feggans v. Billington, 291 N.J. Super. 382, 390-91 (App. Div. 1996)), certif. denied, 156 N.J. 424 (1998).]

When an identified statement addresses a matter of public concern, a plaintiff claiming it was defamed by the remark must prove the statement is false. Dairy Stores, supra, 104 N.J. at 134-135 (citing Phila. Newspapers, Inc., v. Hepps, 475 U.S. 767, 768-69, 106 S. Ct. 1558, 1559, 89 L. Ed. 2d 783, 787 (1986)).

“By comparison, an action for product disparagement is an offshoot of the cause of action for interference with contractual relations, such as sales to a prospective buyer.” Id. at 133. “The two causes may merge when a disparaging statement about a product reflects on the reputation of the business that made, distributed, or sold it.” Ibid. However, “[c]ourts generally are reluctant to impute a lack of integrity to a corporation merely from a criticism of its product.” Id. at 134.

New Jersey law limits defamation actions to those statements with a defamatory meaning. Ward v. Zelikovsky, 136 N.J. 516, 528 (1994). However, “[o]pinion statements. . . are generally not capable of proof of truth or falsity. . . [and] generally have received substantial protection under the law.” Id. at 531. Nevertheless, opinion statements may be actionable when they “imply false underlying objective facts.” Lynch v. N.J. Educ. Ass’n, 161 N.J. 152, 167 (1999).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Actions for defamation and product disparagement originally appeared on NJ Family Issues on May 17, 2012.

“Under the law-of-the-case doctrine, `where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit[,]‘” Bahrle v. Exxon Corp., 279 N.J. Super. 5, 21 (App. Div. 1995) (quoting Slowinski v. Valley Nat’l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993)), aff’d, 145 N.J. 144 (1996), and the determination “should be respected by all other lower or equal courts during the pendency of that case.” Lanzet v. Greenberg, 126 N.J. 168, 192 (1991) (citing State v. Reldan, 100 N.J. 187, 203 (1985)). The doctrine is a non-binding rule intended “to prevent relitigation of a previously resolved issue.” In re Estate of Stockdale, 196 N.J. 275, 311 (2008). When applicable, it prohibits “a second judge on the same level, in the absence of additional developments or proofs, from differing with an earlier ruling[.]” Hart v. City of Jersey City, 308 N.J. Super. 487, 497 (App. Div. 1998).

The doctrine is not an absolute rule as “`the court is never irrevocably bound by its prior interlocutory ruling[.]‘” Daniel v. N.J. Dep’t of Transp., 239 N.J. Super. 563, 581 (App. Div.) (quoting Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988)), certif. denied, 122 N.J. 325 (1990). Also, it is well-accepted that “[a] hallmark of the law of the case doctrine is its discretionary nature, calling upon the deciding judge to balance the value of judicial deference for the rulings of a coordinate judge against those `factors that bear on the pursuit of justice and, particularly, the search for truth.’” Hart, supra, 308 N.J. Super. at 498 (quoting Reldan, supra, 100 N.J. at 205). Further, the doctrine is to “be applied flexibly to serve the interests of justice.” Reldan, supra, 100 N.J. at 205.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

A hallmark of the law of the case doctrine is its discretionary nature, calling upon the deciding judge to balance the value of judicial deference for the rulings of a coordinate judge against those factors that bear on the pursuit of justice and, particularly, the search for truth originally appeared on NJ Family Issues on May 17, 2012.

When reviewing decisions denying applications to modify alimony and child support, as well as motions for reconsideration of such orders, the appellate court examines whether, given the facts, the trial judge abused his or her discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); Loro v. Colliano, 354 N.J. Super. 212, 220 (App. Div.), certif. denied, 174 N.J. 544 (2002). “Of course, the exercise of this discretion is not limitless[,]” and remains guided by the law and principles of equity. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff’d in part and modified in part, 183 N.J. 290 (2005).

An abuse of discretion “arises when a decision is `made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’” Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Finally, if the appellate court is requested to review issues centering on “[a] trial court’s interpretation of the law and the legal consequences that flow from established facts” the appellate court is not required to afford such decisions any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

When reviewing decisions denying applications to modify alimony and child support, as well as motions for reconsideration of such orders, the appellate court examines whether, given the facts, the trial judge abused his or her discretion originally appeared on NJ Family Issues on May 17, 2012.

Attorneys owe a duty to their clients to provide their services with reasonable knowledge, skill, and diligence. St. Pius X House of Retreats v. Diocese of Camden, 88 N.J. 571, 588 (1982). The Supreme Court has consistently recited that command in broad terms, for lawyers’ duties in specific cases vary with the circumstances. Ziegelheim, supra, 128 N.J. at 260. Accordingly, “[w]hat constitutes a reasonable degree of care is not to be considered in a vacuum but with reference to the type of service the attorney undertakes to perform.” St. Pius, supra, 88 N.J. at 588.

Included within this duty is the obligation to take “any steps reasonably necessary in the proper handling of the case.” Passanante v. Yormark, 138 N.J. Super. 233, 239 (App. Div. 1975), certif. denied, 70 N.J. 144 (1976). Those steps will include, among other things, a careful investigation of the facts of the matter, the formulation of a legal strategy, the filing of appropriate papers, and the maintenance of communication with the client. Id. at 238-39.

To present a prima facie legal malpractice claim, a plaintiff must establish the following elements: “(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff.” Jerista v. Murray, 185 N.J. 175, 190-91 (2005). In the context of a failure to assert a claim in an underlying action, a breach of duty is established by showing an ability to prevail on the unasserted claim. Id. at 191. The “ultimate issue in the legal malpractice action is whether the defendant-lawyers’ decision to omit [a claim or party] was a reasonable exercise of professional judgment.” Prince v. Garruto, Galex & Cantor, 346 N.J. Super. 180, 189 (App. Div. 2001). The proximate causation prong is satisfied when the attorney’s negligent conduct is a substantial contributing factor in causing the client’s loss. Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Attorneys owe a duty to their clients to provide their services with reasonable knowledge, skill, and diligence originally appeared on NJ Family Issues on May 17, 2012.

The decision to allow an expert to testify is within the trial judge’s discretion, and will be overturned on appeal only if the judge’s decision amounts to an abuse of that discretion. See Riley v. Keenan, 406 N.J. Super. 281, 295 (App. Div.), certif. denied, 200 N.J. 207 (2009).

N.J.R.E. 703 requires that an expert’s opinion be based upon “facts or data… perceived by or made known to the expert at or before the hearing.” “The net opinion rule is a prohibition against speculative testimony.” Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997) (citing Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 154 N.J. 607 (1998). “Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities.” Vuocolo, supra, 240 N.J. Super. at 300.

N.J.R.E. 703 requires an expert “to give the why and wherefore” of his or her opinion rather than a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). Therefore, experts “must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable.” Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). An expert’s conclusion is inadmissible as a net opinion when it is a “bare conclusion[], unsupported by factual evidence.” Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). See also State v. Townsend, 186 N.J. 473, 494 (2006) (“Simply put, the net opinion rule `requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.’” (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002))); Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (“The weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated.”).

While the trial judge must determine whether the expert’s training and experience are sufficient to permit the expert to state an opinion, it remains the jury’s function to determine the worth of that opinion. Sanzari v. Rosenfeld, 34 N.J. 128, 138 (1961). “It is for the jury to determine the credibility, weight and probative value of the expert’s testimony….” Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 48 (App. Div. 1990), modified and remanded by 125 N.J. 421 (1991). “Deficiencies in the qualification of an expert is a matter to be weighed by the jury.” Ibid. An “expert’s skill or knowledge go to the weight to be accorded the expert testimony.” Waldorf v. Shuta, 142 F.3d 601, 627 (3d Cir. 1998); see also Carbone v. Warburton, 11 N.J. 418, 426 (1953) (deficiencies in expert’s qualifications go to weight given to expert’s opinion; sufficient evidence of qualifications permits the expert to testify, “leaving to the jury the determination of its worth”); Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961) (expert’s qualifications subject to jury’s scrutiny).

[Espinal v. Arias, 391 N.J. Super. 49, 58-59 (App. Div.), certif. denied, 192 N.J. 482 (2007).]

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

While the trial judge must determine whether the expert’s training and experience are sufficient to permit the expert to state an opinion, it remains the jury’s function to determine the worth of that opinion originally appeared on NJ Family Issues on May 17, 2012.

Rule 104 provides:

(a) Questions of admissibility generally. When… the admissibility of evidence… is subject to a condition, and the fulfillment of the condition is in issue, that issue is to be determined by the judge. In making that determination the judge shall not apply the rules of evidence except for Rule 403 or a valid claim of privilege. The judge may hear and determine such matters out of the presence or hearing of the jury.
(b) Relevance conditioned on fact. Where evidence is otherwise admissible if relevant and its relevance is subject to a condition, the judge shall admit it upon or subject to the introduction of sufficient evidence to support a finding of the condition. In such cases the judge shall instruct the jury to consider the issue of the fulfillment of the condition and to disregard the evidence if it finds that the condition was not fulfilled. The jury shall be instructed to disregard the evidence if the judge subsequently determines that a jury could not reasonably find that the condition was fulfilled.

[N.J.R.E. 104(a) and (b).]

Hearsay statements are inadmissible unless they fall within an exception. N.J.R.E. 802. Pursuant to N.J.R.E. 805, “Hearsay Within Hearsay,”

A statement within the scope of an exception to Rule 802 shall not be inadmissible on the ground that it includes a statement made by another declarant which is offered to prove the truth of its contents if the included statement itself meets the requirements of an exception to Rule 802.

Therefore, when “statements are `hearsay-within-hearsay,’ each level… requires a separate basis for admission into evidence.” Hanges, supra, 202 N.J. at 375 n.1.

N.J.R.E. 803(c)(6) excepts from the hearsay rule:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

“The purpose of the business records exception is to `broaden the area of admissibility of relevant evidence where there is necessity and sufficient guarantee of trustworthiness.’” Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 219 (App. Div. 1996) (quoting State v. Hudes, 128 N.J. Super. 589, 599 (Cty. Ct. 1974)).

In order to qualify under the business record exception to the hearsay rule, the proponent must satisfy three conditions: “First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.”

[State v. Sweet, 195 N.J. 357, 370 (2008) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)), cert. denied, ___ U.S. ___, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009).]

Subject to the limitations of Rule 808, the business records exception routinely permits the admission of medical records. See, e.g., DeBartolomeis v. Bd. of Review, 341 N.J. Super. 80, 86 (App. Div. 2001).

“The requirement of the rule that business records… were made at or about the time of the act, condition or event recorded in them, is critical to their admission.” See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(c)(6) (2011).

Considering the business records exception, the court has said “that one of the critical circumstances importing reliability is the fact that the informant whose declaration is so recorded is under a duty, in the context of the activity in which the record is made, to make an honest and truthful report.” State v. Lungsford, 167 N.J. Super. 296, 309 (App. Div. 1979). “[T]here is a presumption, absent contrary testimony, that those responsible for services to the public will carry out their duties in a proper, careful and prudent manner.” Matulewicz, supra, 101 N.J. at 31; see also Hanges, supra, 202 N.J. at 388 (considering factors affecting the trustworthiness of the statement of a dead declarant, N.J.R.E. 804(b)(6), and noting it was “made under circumstances — the procuring of medical services — where candor is at a premium”).

Rule 803(c)(6) is subject to Rule 808, a limitation upon admissibility that frequently arises in the context of medical records. N.J.R.E. 808 provides:

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion… tend to establish its trustworthiness.

Reading the two rules together provides the well-known limit upon admissibility of opinions embedded in medical reports when the declarant is not produced as a witness at trial.

“While `routine’ findings of medical experts contained in medical records [are] admissible as business records…, such findings [are] to be excluded if they [are] `diagnoses of complex medical conditions.’” Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 282 (App. Div.) (quoting Matulewicz, supra, 101 N.J. at 32 n.1), certif. denied, 141 N.J. 95 (1995). “[M]edical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question.” Id. at 282-83; see also Liptak, supra, 289 N.J. Super. at 222 (holding that “a complex diagnosis concerning the psychological impact of cohabitating with an individual afflicted with alcoholism” was not admissible under N.J.R.E. 803(c)(6)).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Adwokat / Prawnik Pawel Kostro mowi po polsku.

Medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question originally appeared on NJ Family Issues on May 17, 2012.

Rule 4:42-9(a)(3) provides:

[i]n a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the [W]ill or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate.

“Except in a weak or meretricious case, courts will normally allow counsel fees to both proponent and contestant in a [W]ill dispute.” In re Reisdorf, 80 N.J. 319, 326 (1979). In order to award attorney’s fees “against the estate there must … be a showing that the validity of the [W]ill was not only questionable but there was reasonable cause for actually contesting it, related to the practical effect of a successful contest, the size of the estate and the probable expenses of litigation, and the reasonably anticipated result.” In re Will of Caruso, 18 N.J. 26, 33 (1955) (internal quotations omitted). In awarding attorneys fees in probate the trial judge must “exercise … sound discretion to prevent misuse of the judicial process and the mulcting of the estate.” Id. at 36.

In order to determine the reasonableness of the requested attorney’s fees, a court must look at:

(1) the amount of the estate and the amount thereof in dispute or jeopardy as to which professional services were made necessary; (2) the nature and extent of the jeopardy or risk involved or incurred; (3) the nature, extent and difficulty of the service rendered; (4) the experience and legal knowledge required and the skill, diligence, ability and judgment shown; (5) the time necessarily spent by the attorney in the performance of his services; (6) the results obtained; (7) the benefits or advantages resulting to the estate, and their importance; (8) any special circumstances including the standing of the attorney for integrity and skill; and (9) the overhead expense to which the attorney has been put. In any case, the counsel fee allowed should never exceed reasonable compensation for the service rendered the estate.

[In re Bloomer, 37 N.J. Super. 85, 94 (App. Div. 1955).]

Further RPC 1.5(a) provides:

A lawyer’s fees shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service property;
2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3) the fee customarily charged in the locality for similar legal services;
4) the amount involved and the results obtained;
5) the time limitations imposed by the client or by the circumstances;
6) the nature and length of the professional relationship with the client;
7) the experience, reputation, and ability of the lawyer or lawyers performing the services;
whether the fee is fixed or contingent.

“`[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.’” Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Courts will normally allow counsel fees to both proponent and contestant in a Will dispute originally appeared on NJ Family Issues on May 17, 2012.

The fact that the handwritten additions and excisions were not executed in compliance with N.J.S.A. 3B:3-2 is not fatal to admitting the document into probate if it otherwise complies with N.J.S.A. 3B:3-3, that is:

if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s [W]ill; (2) a partial or complete revocation of the [W]ill; (3) an addition to or an alteration of the [W]ill; or (4) a partial or complete revival of his formerly revoked [W]ill or of a formerly revoked portion of the [W]ill.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Handwritten additions and excisions to a Will originally appeared on NJ Family Issues on May 17, 2012.