New Jersey Judicial System: Offering A Superior Legal Environment

Tuesday, June 30, 2009 - 01:00
Dennis R. LaFiura

Editor: When we last interviewed you at the end of 2006, the merger that formed Day Pitney had just been approved. Now that over two years have passed, could you tell our readers something about the experience of integrating two major firms into one? Have you experienced economies of scale as well as a greater capacity to provide client services in terms of product needs?

LaFiura: In some ways the integration went more smoothly and was easier than we anticipated, and in other ways, not surprisingly, it was more difficult. The professional side of the integration went very smoothly. The lawyers in the various offices began working together very quickly. We formed cross-office departments and practice areas, and on the practice side we began to capitalize on the opportunities presented by the combination of the firms. The administrative side, though, was more difficult than we anticipated and has taken more time then we expected. It is difficult to imagine how many details are involved in making a law firm function until you are required to evaluate every aspect of the administration of a law firm. For example, different systems were in place in the two firms for such relatively simple functions as time recording, document management and email. Decisions had to be made as to which system was the best. Making those decisions took time and, once they were made, it took yet more time to implement them.

The merger has had an extremely positive impact on our capacity to serve clients. For example, just recently, we were retained by a major corporation to do corporate work that before the merger neither firm would have gotten because one of the firms didn't have the substantive expertise and the other firm didn't have contact with the client. It was a perfect example of one of the ways in which bringing the two firms together was very successful.

Editor: Were there difficult conflict situations to be resolved?

LaFiura: All the significant conflicts were resolved before we merged. Early on during the course of our discussions we began identifying the potential conflicts. The process was very time-consuming prior to the merger since both firms had literally thousands of current and former clients that needed to be run through their different databases. We also had to identify parties that were adverse to the two firms' clients. It took a long time to work our way through all of that but we did it before the merger was approved, so there wasn't that much of an issue post-merger.

Editor: Has the merged firm successfully maintained predecessor firms' pro bono and community welfare activities and commitment to diversity?

LaFiura: Yes. We have a full-time director of diversity and legal recruiting and we have a firm-wide pro bono committee as well as pro bono coordinators in each office. On the diversity front, we have become a significant supporter of the MCCA. In the last few months, we have received three separate recognitions for our activities in the diversity area. Our Connecticut offices were awarded the 2009 Edwin Archer Randolph Diversity Award by the Lawyers Collaborative for Diversity. Hartford's Amistad Center for Art & Culture awarded the 2009 Spirit of Juneteenth Award to Day Pitney, and the Urban League of Greater Hartford has announced that we will receive its prestigious Founder's Award this year. On the pro bono side, we continue to be very active with our Day Pitney Foundation. By both sponsoring pro bono efforts and providing services in New Jersey and elsewhere, we are continuing to advance our previous pro bono initiatives, particularly with the Battered Woman's Project in New Jersey.

Editor: Some years ago, Judge Vanderbilt helped establish the New Jersey courts as among the most highly regarded in the nation. Has this tradition been continued down through today?

LaFiura: Without making comparisons to the courts and court systems of other states, I think very highly of the caliber of the New Jersey state courts. To illustrate, we are frequently asked by clients for advice with respect to the best state to file an action or whether to remove an already filed action from state to federal court. In addressing those questions, I always say that the quality of the New Jersey state court judges and court system should not be a concern because both are excellent.

Editor: New Jersey has a reputation as an attractive plaintiff's forum. Would you agree with that or care to comment?

LaFiura: I know it has that reputation, and understand why the state would have that reputation, in the context of personal injury, products liability or consumer protection litigation. I think this is primarily a function of the substantive law and judicial precedent in New Jersey on various issues relevant to those kinds of cases. In the corporate or commercial context, though, I don't think New Jersey would be considered a particularly plaintiff-friendly jurisdiction.

Editor: New Jersey does not have a business court per se. Do you consider this to be a shortcoming of its judicial system?

LaFiura: It may still be in certain counties, but several years ago most of the counties in New Jersey went to an individual assignment system for purposes of pre-trial management in most complex cases. I think that this individual case management system has gone a very long way toward dealing with the issues that had frequently led to requests for a separate business court. So, I think the need for a specialized business court has been satisfied to some extent by other changes made in the state court system.

Editor: Do any aspects of the New Jersey court system or state or local laws make the state a particularly desirable - or undesirable - forum for litigation involving corporations?

LaFiura: That would vary on a case-by-case basis by the kinds of issues presented. There are certain kinds of cases in which New Jersey law will be more favorable to a position to be advanced by a corporation than would be the law of another state. Generally, though, if you are the plaintiff in a corporate litigation, you will want a system like New Jersey's, which has high-caliber judges who will move the case along.

Editor: Your practice has been heavily dominated by your role in litigating franchise disputes. Do franchise disputes lend themselves to arbitration and mediation for settlement? And, do you see an increasing number of business cases using ADR rather than litigation to resolve disputes?

LaFiura: Let's start by distinguishing between arbitration and mediation. Arbitration is obviously a binding process. Mediation is a completely voluntary process that leads to a negotiated resolution. Arbitration essentially replaces one system for reaching a binding, involuntary resolution - that is to say, the judicial system - with another. Arbitration is popular among many franchisors for a variety of reasons, most of which relate to the perception of arbitration being more predictable, less costly, and quicker than litigation. While that belief is popularly held, there are others, including me, who prefer taking franchise disputes to a judicial forum rather than arbitration. Mediation is also very prevalent now in franchise litigation and, frankly, all litigation. I can rarely see any reason why it doesn't make sense at the appropriate point in any litigation to try to mediate the dispute. Mediation is becoming extremely effective at resolving disputes; it's cost effective and as long as you do it at the right point in the life of the dispute, I think it works well.

While there is no denying that arbitration, particularly from the perspective of franchisors, has some advantages, some of the other perceived advantages are often just that - perceptions. For example, arbitrations can be as costly, time consuming and unpredictable as any lawsuit. In addition, the rules of civil procedure and evidence have developed in this country for over 200 years. They are what they are today for good reason and should not be lightly cast aside. Finally, the right to have decisions reviewed by higher courts is extremely important and is effectively non-existent in an arbitration forum.

Editor: Your practice has also involved officer and director liability cases as well as securities litigation. Are you seeing an increasing number of lawsuits alleging malfeasance by officers and directors in violating state and federal securities laws, particularly in the context of the current economic downturn?

LaFiura: I have not noticed a significant increase in breach of fiduciary duty or securities fraud litigation since the beginning of the downturn. One factor may be that so many things are still unsettled. Obviously, breach of fiduciary duty and shareholder complaints are still being filed in the context of mergers and various other situations. But I cannot say that the number of them has increased because of the downturn of the economy.

Editor: What factors make conducting a legal practice in New Jersey attractive?

LaFiura: Mainly, the opportunity to represent sophisticated clients that have challenging legal problems. Those opportunities are abundant in New Jersey because of the nature of the corporate community in New Jersey and the legal issues they confront. The high quality of New Jersey's state and federal courts help make it an attractive place to practice law. Finally, New Jersey has a wealth of very talented and collegial lawyers. I have had the opportunity to work with extremely talented colleagues within my firm. And, while I have been adverse to hundreds of lawyers in New Jersey, I have not found more than one or two to be unduly difficult. In fact, in almost every case, all of the lawyers have been committed to representing their clients vigorously and appropriately, while maintaining the sense of working together to reach a resolution of their clients' dispute.

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