The Court in Furst cautioned against using attorney fee applications as an opportunity “to become mired in a second round of litigation.” Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 24 (2004). This admonition assumes, however, that the attorney certifications will be “sufficiently detailed to allow a trial court to determine the nature of the work performed and by whom, as well as the reasonableness of the hourly rate and the hours expended.” Id. at 25.

An award of counsel fees is calculated by determining the “lodestar,” i.e. a reasonable hourly charge multiplied by the number of hours expended. Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995). In determining the lodestar, the court should compare the hourly rate of the attorney to the rates charged for similar services of attorneys in the community with “comparable skill, experience, and reputation.” Id. at 337. The court must determine reasonable hourly billing rates that are “fair, realistic, and accurate.” Ibid.

The next step in this analysis requires the court to determine the hours that were reasonably expended pursuing the statutory objectives. Furst, supra, 182 N.J. at 22. Once the reasonable number of hours have been ascertained, the court should reduce the lodestar if the prevailing party achieved modest success in relation to the relief sought. Id. at 23. In going about this task, however, there need not be a direct proportionality between the fee and the damages recovered. Ibid. Finally, when the attorney has been retained on a contingency fee basis, the trial court may determine whether to enhance the fee, giving consideration to the results achieved, the risks involved, and the relative likelihood of success for the undertaking. Ibid.

Attorney fees should only be awarded for work done on successful claims. Counsel has the responsibility of justifying the fees requested by connecting the hours utilized to the claims that were successfully prosecuted.

RPC 1.5(a) sets forth the factors necessary to determine whether an attorney fee is reasonable:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(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; [and]
(8) whether the fee is fixed or contingent.

Rule 4:42-9(b) requires that an attorney submit an affidavit of service addressing the factors listed in RPC 1.5(a).

The personal opinion of a trial judge predicated solely on his or her own professional experiences does not satisfy the analysis required by the Court under Rendine to determine a reasonable hourly rate. Under Rendine, “a reasonable hourly rate is to be calculated according to the prevailing market rates in the relevant community.” Rendine, supra, 141 N.J. at 337.

Once the court ascertains the “prevailing market rates in the community” it can then “assess the experience and skill of the prevailing party’s attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Ibid.

The Court in Perdue v. Kenny A., ____ U.S. ____, 130 S. Ct. 1662, 1669, 176 L. Ed. 2d 494, 501-02 (2010), compiled what it characterized as “six important rules” in determining an award of counsel fees to prevailing parties in fee-shifting cases:

First, a reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case . . .

Second, the lodestar method yields a fee that is presumptively sufficient to achieve this objective. Indeed, we have said that the presumption is a strong one.

Third, although we have never sustained an enhancement of a lodestar amount for performance, we have repeatedly said that enhancements may be awarded in rare and exceptional circumstances.

Fourth, . . . the novelty and complexity of a case generally may not be used as a ground for an enhancement because these factors presumably are fully reflected in the number of billable hours recorded by counsel. We have also held that the quality of an attorney’s performance generally should not be used to adjust the lodestar because considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate.

Fifth, the burden of proving that an enhancement is necessary must be borne by the fee applicant.

Finally, a fee applicant seeking an enhancement must produce specific evidence that supports the award. This requirement is essential if the lodestar method is to realize one of its chief virtues, i.e., providing a calculation that is objective and capable of being reviewed on appeal.

[Purdue, supra, ___ U.S. at ___, 130 S. Ct. at 1672-73, 176 L. Ed. 2d at 505-06.]

For additional guidance, see:

ALLIANCE FOR DISABLED IN ACTION, INC. v. RENAISSANCE ENTERPRISES, INC. (App. Div.; A-1573-08T2, A-1456-08T2; July 30, 2010) (We are not convinced the court’s $100 per hour adjustment made to Popiel’s assigned hourly rate and its conclusion that an hourly rate of $350 was fair and realistic for the overall work performed on the case was unreasonable and a clear abuse of discretion in light of the information Popiel provided, his experience and skill, and the relevant market.)

D’Agostino v. Maldonado (Chan. Div., BER-C-84-09, Koblitz, P.J. Ch., June 30, 2010) (In this case, the hourly rates charged by plaintiff’s counsel (the highest being $275 per hour) are reasonable in comparison to fees customarily charged in Bergen County.)

Crespo v. City of Newark (App. Div.; A-5526-08T3; May 4, 2010) (In our view, the award of fees at a rate of $275 per hour was reasonable.)

KVL AUDIO VISUAL SERVICES, INC. v. Hackworth (App. Div.; A-6263-07T2; January 15, 2010) (Judge Goldman also considered the rates for the Hotel’s counsel, which ranged from $325 per hour to $250 per hour. The judge reduced those rates to a “blended rate” of $225 per hour.)

A Nationwide Sampling Of Law Firm Billing Rates, published by the National Law Journal, December 8, 2008

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

Attorney fee awards are based in part on the hourly rate of the attorney, compated to the rates charged for similar services of attorneys in the community with comparable skill, experience, and reputation originally appeared on NJ Family Issues on September 1, 2010.

Rule 4:50-1(e) allows a party to show that it is no longer equitable for the judgment to be prospectively applied. A motion under this subsection must be supported by evidence of changed circumstances. F.B., supra, 176 N.J. at 208. That is, the movant must demonstrate that events have occurred subsequent to the judgment that would result in “extreme and unexpected hardship unless relief is granted.” Ibid.

Rule 4:50-1(e) requires a showing of changed circumstances.

However, the domestic violence statute contains its own provision for moving to dissolve a FRO. According to N.J.S.A. 2C:25-29(d), “[u]pon good cause shown, any final order may be dissolved or modified” upon application to the Family Part.

A “factor-analysis approach” has been adopted by our courts to determine whether good cause has been shown. Kanaszka, supra, 313 N.J. Super. at 607.

Some of these factors include:
whether the victim fears the defendant;
the present nature of the relationship of the parties;
whether the victim is acting in good faith in opposing the application; and
other factors deemed relevant by the court.
Carfagno, supra, 288 N.J. Super. at 434-45.

Only when the movant demonstrates “substantial changes” in circumstances should the application be entertained. Kanaszka, supra, 313 N.J. Super. at 608.

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A party may show that it is no longer equitable for the judgment to be prospectively applied originally appeared on NJ Family Issues on August 23, 2010.

Relief under Rule 4:50-1 should be granted sparingly. F.B. v. A.L.G., 176 N.J. 201, 207 (2003); Hous. Auth. of Town of Morristown v. Little, 135 N.J. 274, 283-84 (1994). In ruling on such a motion, the trial court should be guided by principles of equity, and on appeal, the decision should be upheld absent a clear abuse of discretion. F.B., supra, 176 N.J. at 207; Hous. Auth of Town of Morristown, supra, 135 N.J. at 283.

Under Rule 4:50-1(b) [motion based on newly discovered evidence], it must appear that the new evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence in time for trial, and that it is not merely cumulative. Quick Chek Food Stores v. Springfield, 83 N.J. 438, 445 (1980).

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

On a motion based on newly discovered evidence, it must appear that the new evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence in time for trial, and that it is not merely cumulative originally appeared on NJ Family Issues on August 23, 2010.

Decisions regarding witness sequestration are generally left to the discretion of the trial court. Morton Bldgs., Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992). The exercise of sound discretion, however, ordinarily requires that a timely motion to sequester be granted. Ibid. In order for an appellate court to uphold the denial of a timely motion, the record should disclose a sound basis for such denial. Morton Bldgs., Inc., supra, 127 N.J. at 233-34; State v. DiModica, supra, 40 N.J. 404, 413 (1963).

In State v. Popovich, 405 N.J. Super. 324, 328 (App. Div. 2009), the court held that it was error to sequester the defendant’s expert in a driving-while-intoxicated trial. In that case, the defendant’s expert was not being called to testify with respect to his knowledge of the underlying facts; rather, he was being called to offer an expert opinion on the validity of the blood alcohol readings. Id. at 327. The court held that “[t]he most reliable way to secure that opinion would be to permit the proposed expert to hear the testimony by which the State seeks to secure the admission of those test results.” Id. at 328.

Where an expert’s testimony is limited to the rendering of a medical opinion based on how the incident occurred, the expert’s opinion would be aided by his knowledge of all the facts surrounding that incident.

However, a party is free, during the examination of the expert, to pose a hypothetical question to him, which was based on the facts as testified to at trial regarding how the incident occurred, and to ask the witness whether those facts would be consistent with the injury she sustained.

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

Decisions regarding witness sequestration are generally left to the discretion of the trial court originally appeared on NJ Family Issues on August 23, 2010.

Pursuant to N.J.S.A. 2C:25-29(b)(4), as part of the award for relief in a domestic violence matter, the court may enter an order “requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence.” Ibid.

The award is designed to make the victim whole. As such, it is not subject to the traditional analysis for family-type claims pursuant to N.J.S.A. 2A:34-23, and the parties’ financial circumstances have no relevance whatsoever. McGowan, supra, 391 N.J. Super. at 507; Wine v. Quezada, 379 N.J. Super. 287, 291-93 (Ch. Div. 2005); Schmidt v. Schmidt, 262 N.J. Super. 451, 454 (Ch. Div. 1992).

Thus, the only three requirements for an award of counsel fees under the DVA are that the fees be the direct result of domestic violence, that they be reasonable, and that they be presented by the way of affidavit pursuant to Rule 4:42-9(b). Wine, supra, 379 N.J. Super. at 291; Schmidt, supra, 262 N.J. Super. at 454.

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As part of the award for relief in a domestic violence matter, the court may enter an order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence originally appeared on NJ Family Issues on August 23, 2010.

“Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.” N.J.R.E. 611(c).

A leading question is one that suggests what the answer should be or contains facts that should originate with the witness. State v. Abbott, 36 N.J. 63, 79 (1961).

Nevertheless, “there is an area of permissible leading, within the discretion of the trial judge, to avoid confusion, to clarify testimony, or otherwise to bring out the truth in serving the cause of justice.” Nobero Co. v. Ferro Trucking Inc., 107 N.J. Super. 394, 404 (App. Div. 1969).

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

A leading question is one that suggests what the answer should be or contains facts that should originate with the witness originally appeared on NJ Family Issues on August 23, 2010.

A domestic violence hearing is considered a summary action. Depos v. Depos, 307 N.J. Super. 396, 399 (Ch. Div. 1997); N.J.S.A. 2C:25-29(a).

Neither the DVA nor Rule 5:7A authorizes the taking of depositions or any other discovery in such proceedings, which normally require no more than a few hours to conduct. Id. at 399-400. Id. at 399.

However, “in compelling circumstances, where a party’s ability to adequately present evidence during a domestic violence action may be significantly impaired, a trial judge may, in the exercise of sound discretion, permit limited discovery in order to prevent an injustice.” Crespo v. Crespo, 408 N.J. Super. 25 44 (App. Div. 2009), aff’d, 201 N.J. 207 (2010).

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

In a Domestic Violence matter, in compelling circumstances, where a party’s ability to adequately present evidence during a domestic violence action may be significantly impaired, a trial judge may, in the exercise of sound discretion, permit limited discovery in order to prevent an injustice originally appeared on NJ Family Issues on August 23, 2010.

A domestic violence complaint is civil in nature. Roe v. Roe, 253 N.J. Super. 418, 428 (App. Div. 1992).

Although domestic violence is defined by reference to fourteen separate criminal offenses pursuant to N.J.S.A. 2C:25-19(a)(1)-(14), the purpose of the DVA is to protect the victim, not punish the person who committed the act of domestic violence. See Carfagno v. Carfagno, 288 N.J. Super. 424, 434 (Ch. Div. 1995).

Pursuant to the DVA, a plaintiff must first prove, by a preponderance of the credible evidence, that the defendant committed one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a). Cesare v. Cesare, 154 N.J. 394, 400 (1998); Silver, supra, 387 N.J. Super. at 125.

In determining whether an act of domestic violence has been committed, a court may consider the factors set forth in N.J.S.A. 2C:25-29(a), but it does not necessarily have to incorporate all of these factors into its findings. Cesare, supra, 154 N.J. at 401-02; McGowan v. O’Rourke, 391 N.J. Super. 502, 506 (App. Div. 2007). However, a court must consider any previous history of domestic violence. Cesare, supra, 154 N.J. at 402; Silver, supra, 387 N.J. Super. at 126.

After a court determines that an act of domestic violence has occurred, it must determine whether a restraining order should be issued to protect the victim. Silver, supra, 387 N.J. Super. at 126. The guiding standard is whether such an order is necessary to “to protect the victim from an immediate danger or to prevent further abuse.” Id. at 127.

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

Although domestic violence is defined by reference to fourteen separate criminal offenses, the purpose of the DVA is to protect the victim, not punish the person who committed the act of domestic violence originally appeared on NJ Family Issues on August 23, 2010.

Section 2 of the Federal Arbitration Act (FAA), 9 U.S.C.A. § 2, provides that:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

[9 U.S.C.A. § 2.]

Under this section, the FAA preempts any state law purporting to invalidate an arbitration agreement “involving interstate commerce.” Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605, 616 (App. Div.), certif. denied, 149 N.J. 408 (1997). Section 1 of the FAA further defines “commerce” to include “commerce among the several States.” 9 U.S.C.A. § 1.

The United States Supreme Court has interpreted the term “involving commerce” to be the “functional equivalent of the . . . term ‘affecting commerce[,]‘ . . . provid[ing] for the enforcement of arbitration agreements within the full reach of the Commerce Clause.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S. Ct. 2037, 2039, 156 L. Ed. 2d 46, 51 (2003).; see also Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 574 (App. Div. 2007) (explaining that contracts involving commerce should be broadly construed to extend the FAA’s application to the limits of Congress’ Commerce Clause power).

The Court in Citizens Bank established that “the FAA encompasses a wider range of transactions than those actually . . . within the flow of interstate commerce.” Citizens Bank, supra, 539 U.S. at 56, 123 S. Ct. at 2040, 156 L. Ed. 2d at 51. Pursuant to Congress’ Commerce Clause power, the FAA will reach transactions “in individual cases without showing any specific effect upon interstate commerce if in the aggregate the economic activity in question would represent a general practice subject to federal control.” Ibid.

In 1976 the New Jersey Legislature passed the “Nursing Home Responsibilities and Rights of Residents” act (the Act), N.J.S.A. 30:13-1 to -17, in an effort “to ameliorate the harsh conditions of the elderly in nursing homes[.]” In re Conroy, 98 N.J. 321, 377 (1985).

The Act imposes certain responsibilities on nursing homes, N.J.S.A. 30:13-3, and declares the “[r]ights of nursing home residents,” N.J.S.A. 30:13-5. These rights include a right to “considerate and respectful care that recognizes the dignity and individuality of the resident,” and a right “[n]ot [to] be deprived of any constitutional, civil[,] or legal right solely by reason of admission to a nursing home.” N.J.S.A. 30:13-5 (j), (m).

N.J.S.A. 30:13-8 creates a private cause of action for damages for “[a]ny person or resident whose rights . . . are violated [under the Act] . . . against any person committing such violation.” N.J.S.A. 30:13-8a. Regulations promulgated under the Act create corresponding standards for assisted living residences, comprehensive personal care homes, or assisted living programs. N.J.A.C. 8:36-1.1 to -23.

In 2003, the Legislature amended the Act to include the following provision:

[a]ny provision or clause waiving or limiting the right to sue for negligence or malpractice in any admission agreement or contract between a patient and a nursing home or assisted living facility licensed by the Department of Health and Senior Services pursuant to the provisions of P.L. 1971, c. 136 (C. 26:2H-1 et seq.), whether executed prior to, on or after the effective date of this act, is hereby declared to be void as against public policy and wholly unenforceable, and shall not constitute a defense in any action, suit or proceeding.

[N.J.S.A. 30:13-8.1.]

Under § 2 of the FAA, arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.A. § 2. The FAA thus preempts any state law or regulation that seeks to preclude the enforceability of an arbitration provision on grounds other than those which “exist at law or in equity for the revocation of any contract.” 9 U.S.C.A. § 2; see also Martindale v. Sandvik, Inc., 173 N.J. 76, 85 (2002).

Our State’s prohibition of arbitration agreements in nursing home contracts, designed to protect the elderly, is thus irreconcilable with our national policy favoring arbitration as a forum for dispute resolution. Under our federal system of government, national policy prevails. Therefore, the FAA’s clear authorization nullifies the specific prohibition of arbitration provisions in nursing home or assisted living facilities’ contracts contained in N.J.S.A. 30:13-8.1.

However, it is now well-settled that general “contract [law] defenses, such as fraud, duress, and unconscionability may be invoked to invalidate an arbitration agreement without contravening § 2″ of the FAA. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S. Ct. 1652, 1656, 134 L. Ed. 2d 902, 909 (1996).

Our Supreme Court also recognized this general principle in Muhammad, supra, 189 N.J. at 12. Thus, even though the FAA preempts the specific anti-arbitration provision in N.J.S.A. 30:13-8.1, the trial court may hold that the arbitration provisions in a residency agreements is unenforceable under the doctrine of unconscionability.

As explained by the Court in Muhammad, procedural unconscionability involves a “variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.” Muhammad, supra, 189 N.J. at 15.

Moreover, “adhesion contracts invariably evidence some characteristics of procedural unconscionability.” Id. at 16. A contract of adhesion “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart, supra, 127 N.J. at 353.

As noted by the Court in Rudbart, and reaffirmed in Muhammad, however, the determination that a contract is one of adhesion represents only the first step in the analysis “into whether a contract, or any specific term therein, should be deemed unenforceable based on policy considerations.” Muhammad, supra, 189 N.J. at 15.

To determine substantive unconscionability, we must next look to and apply the four factors set forth by the Court in Rudbart: “[1] the subject matter of the contract, [2] the parties’ relative bargaining positions, [3] the degree of economic compulsion motivating the ‘adhering’ party, and [4] the public interests affected by the contract.” Rudbart, supra, 127 N.J. at 356.

Although the FAA preempts that portion of the Act which renders unenforceable arbitration provisions in residency agreements for nursing home and assisted living facilities, the other sections of the Act which protect the elderly and infirm remain legally viable.

In passing these laws, the Legislature recognized the need to protect a discrete class of citizens who, by virtue of their age and infirmity, are particularly vulnerable to sharp commercial practices, especially in the area of health care, housing, and end-of-life decisions.

The fourth prong under Rudbart concerns the public interests affected by the contract. As the Court noted in Muhammad, supra, this is “the most important [factor] to the present analysis [because it] considers the public interests affected by the contract.” 189 N.J. at 19.

As the Court did in Muhammad, the remedy here is to enforce our federal policy in favor of arbitration, while excising the unconscionable restrictions that we have concluded are unenforceable under N.J.S.A. 30:13-8.1.

See related Blog Post, published in the Law Office of Donald D. Vanarelli Blog

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The FAA’s clear authorization nullifies the specific prohibition of arbitration provisions in nursing home or assisted living facilities’ contracts originally appeared on NJ Family Issues on August 10, 2010.

N.J.R.E. 404(b) provides in relevant part:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

“Ordinarily, the admissibility of other-crime evidence is left to the trial court’s discretion, and its decision is reviewed under an abuse of discretion standard.” State v. Darby, 174 N.J. 509, 518 (2002). However, when the trial court’s ruling is on a question of law, the standard of review is plenary. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

N.J.R.E. 404(b) “seeks to guard a defendant’s right to a fair trial by avoiding the danger that a jury might convict the accused because the jurors perceive him to be a ‘bad person.’” State v. Ramseur, 106 N.J. 123, 265 (1987). “There is widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant.” State v. Stevens, 115 N.J. 289, 302 (1989).

In New Jersey state courts, the rule is one of “exclusion” rather than “inclusion” and should be used to exclude evidence of other crimes, civil wrongs, or acts when such evidence is “offered solely to establish the forbidden inference of propensity or predisposition.” State v. Nance, 148 N.J. 376, 386 (1997).

The examples set forth in the rule concerning the permissible uses of other-crimes evidence “are not intended to be exclusive.” Id. at 388 (quoting Stevens, supra, 115 N.J. at 299).

A four-part test for determining whether other-crimes evidence is admissible was established in State v. Cofield, 127 N.J. 328, 338 (1992), and State v. Marrero, 148 N.J. 469, 483 (1997). To be admitted: 1) evidence of the other crime or act “must be admissible as relevant to a material issue”; 2) “[i]t must be similar in kind and reasonably close in time to the offense charged”; 3) “[t]he evidence of the other crime or act must be clear and convincing”; and 4) “[t]he probative value must not be outweighed by its apparent prejudice.” Cofield, supra, 127 N.J. at 338. This test was recently re-confirmed in State v. P.S., ___ N.J. ___, ___ (2010) (slip op. at 39-40).

Other-crimes evidence can be admitted to prove any fact in issue, but the issue must be genuine and the other-crime evidence necessary for its proof. Stevens, supra, 115 N.J. at 301. Where other-crime evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to the “probative/prejudice” balancing under N.J.R.E. 403. Marerro, supra, 148 N.J. at 482.

Furthermore, in appropriate contexts, the Supreme Court has declined to apply the Cofield test strictly to determine the admissibility of relevant evidence. For example, the Court has acknowledged that the second part of the test is not expressly stated in the language of the rule and “need not receive universal application in Rule 404(b) disputes.” State v. Williams, 190 N.J. 114, 131 (2007); see also Hill v. N.J. Dep’t of Corr., 342 N.J. Super. 273, 304 (App. Div. 2001) (second part of Cofield test not applicable to other crimes or wrongs evidence relevant to motive), certif. denied, 171 N.J. 338 (2002). The Court has also rejected the argument that uncorroborated testimony by a cooperating informant or codefendant cannot satisfy the third part of the Cofield test, that the other crimes or acts be proven by clear and convincing evidence. State v. Hernandez, 170 N.J. 106, 126-27 (2001).

In the context of an abuse or neglect case, the court has previously said that N.J.R.E. 404(b) and the Cofield test are applicable to historical evidence of similar conduct. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 181 (App. Div. 2005). However, in civil proceedings for the protection of a child, a parent or guardian’s past conduct can be relevant and admissible in determining risk of harm to the child.

N.J.S.A. 9:6-8.46a states that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent or guardian.” Thus, the statute itself provides for admissibility of evidence about other children. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007); Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002).

“Predictions as to probable future conduct can only be based upon past performance,” and “[e]vidence of parents’ fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care given to other children in their custody.” J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978); see also State v. Elmore, 205 N.J. Super. 373, 384 (App. Div. 1985) (“[P]rior episodes of child abuse unconnected with cause of an infant’s death were admissible under Evid. R. 55 as proof of intent or absence of mistake or accident.”). The statute, N.J.S.A. 9:6-8.46a, and the cases cited make no distinction between children in the current relationship and children of a previous relationship.

A history of violence is also made expressly admissible by statute in domestic violence cases, albeit within the same relationship. The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (Domestic Violence Act), explicitly provides that the history of abuse in the same relationship is admissible to prove the current domestic violence alleged. In fact, in a domestic violence case, the court is required to take into consideration the prior history of domestic violence between the parties. N.J.S.A. 2C:25-29a(1); Cesare v. Cesare, 154 N.J. 394, 401-02 (1998); H.E.S. v. J.C.S., 175 N.J. 309, 319 (2003).

In Cesare, the Court recognized the “reality that domestic violence is ordinarily more than an isolated aberrant act,” and found that “[b]ecause a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties” and could “consider evidence of a defendant’s prior abusive acts regardless of whether those acts have been the subject of a domestic violence adjudication.” 154 N.J. at 405.

Thus, the statutes themselves provide that other acts of abuse or neglect and of domestic violence, at least within the same relationship, are relevant and, indeed, must be considered.

Where expert testimony in an abuse or neglect case provided support for a finding that defendant’s prior acts of domestic violence show a disposition to commit such violence, the court should admit that evidence in assessing risk of harm to the children. However, the trial judge may determine under N.J.R.E. 403 that particular evidence should be excluded because its probative value is substantially outweighed by undue prejudice, confusion of the issues, delay, waste of time, or needless presentation of cumulative evidence.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Where other-crime evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to the probative/prejudice balancing originally appeared on NJ Family Issues on August 5, 2010.