NJSBA to Testify on Rule Amendments and Committee Reports

The New Jersey State Bar Association (NJSBA) is expected to testify before the state Supreme Court on Tuesday regarding several rule amendments and committee reports on complementary dispute resolution; criminal practice; diversity, inclusion and community engagement; rules of evidence; family practice; and municipal court practice. The Court will also address the recently released report of the Special Committee on Landlord Tenant. The NJSBA submitted comments to a number of reports, and members will be appearing virtually on its behalf in support of its comments.

Report of the Committee on Rules of Evidence

Former NJSBA Trustee Craig Hubert and President-elect Jeralyn L. Lawrence are expected to testify on behalf of the NJSBA regarding N.J.R.E. 803(c) (27) and the collaborative law privilege. The NJSBA generally supports the proposed rule change, which seeks to clarify that a prior statement by a child must be found trustworthy by a preponderance of the evidence to be admitted. The rule change amends the current standard that is based on probability. There is a concern, however, that the rule's prohibition against disqualification of a child witness by virtue of any of the competency requirements of Rule 601, without delineating any of its subsections, should remain intact and not be limited to just subsection (b) of Rule 601.

Lawrence will testify regarding the collaborative law privilege. The NJSBA objects to the committee's rejection of this privilege. The NJSBA submitted this section to the committee to codify into the evidence rules, which have been enacted by statute. The proposed section follows the model of the mediator privilege, which was codified following the enactment of the Uniform Mediation Act in 2004. The Collaborative Law Act was enacted in 2014 to recognize the dispute resolution method known as family collaborative law. An evidentiary privilege was included in the statute to protect participants from the disclosure of any communication during this process, similar to a mediator's privilege. The NJSBA seeks to incorporate a similar privilege that would "allow participants to engage candidly in the process to facilitate resolution."