Expired or Suspended COVID-19 Interim Measures Impacting New Jersey Practice | Practical Law

Expired or Suspended COVID-19 Interim Measures Impacting New Jersey Practice | Practical Law

A Legal Update summarizing the New Jersey judiciary's expired or suspended COVID-19 guidance for counsel practicing in the New Jersey Supreme Court; the Superior Court, Appellate Division; the Superior Court, Law Division, Civil Part; and the Superior Court, Chancery Division, General Equity Part. For information on the judiciary's current COVID-19 guidance, see Practice Note, Impact of COVID-19 on New Jersey Practice: Overview.

Expired or Suspended COVID-19 Interim Measures Impacting New Jersey Practice

Practical Law Legal Update w-027-9052 (Approx. 27 pages)

Expired or Suspended COVID-19 Interim Measures Impacting New Jersey Practice

by Practical Law Litigation
Law stated as of 27 Oct 2023 • New Jersey
A Legal Update summarizing the New Jersey judiciary's expired or suspended COVID-19 guidance for counsel practicing in the New Jersey Supreme Court; the Superior Court, Appellate Division; the Superior Court, Law Division, Civil Part; and the Superior Court, Chancery Division, General Equity Part. For information on the judiciary's current COVID-19 guidance, see Practice Note, Impact of COVID-19 on New Jersey Practice: Overview.
The New Jersey judiciary issued and continues to issue orders, Notices to the Bar, and other directives setting out measures to address COVID-19. This Legal Update sets out the judiciary's expired or suspended measures related to filing and serving papers, discovery, civil arbitration, appeals, and general practice and procedure.
For information on the judiciary's current COVID-19 guidance, see Practice Note, Impact of COVID-19 on New Jersey Practice: Overview.

Superseded Omnibus Orders

The New Jersey Supreme Court (Supreme Court) issued a series of omnibus orders relaxing or suspending rules, tolling or extending deadlines, or allowing other accommodations in response to COVID-19. The superseded omnibus orders are:
  • The first omnibus order dated March 27, 2020 (Omnibus Order) continuing remote court operations and announcing other interim measures that generally applied from March 16, 2020 through April 26, 2020.
  • The second omnibus order dated April 24, 2020 (Second Omnibus Order) continuing remote court operations and generally extending deadlines and tolling provisions after April 26, 2020.
  • The third omnibus order dated May 28, 2020 (Third Omnibus Order) extending some of the prior measures in the Second Omnibus Order and confirming the expiration of others.
  • The fourth omnibus order dated June 11, 2020 (Fourth Omnibus Order) extending some of the prior measures in the Third Omnibus Order, confirming the expiration of others, and addressing suspended jury trials.
  • The fifth omnibus order dated June 25, 2020 (Fifth Omnibus Order) extending some of the prior measures in the Fourth Omnibus Order, confirming the expiration of others, and lifting the restrictions on the Office of Foreclosure (see Office of Foreclosure).
  • The sixth omnibus order dated July 9, 2020 (Sixth Omnibus Order) extending some of the measures in its prior orders and confirming the expiration of others.
  • The seventh omnibus order dated July 24, 2020 (Seventh Omnibus Order) extending some of the measures in its prior orders and confirming the expiration of others. It also allowed parties to conduct depositions in person if they follow public health guidelines, maintain social distancing, and take other appropriate precautions, although they should continue to conduct depositions remotely to the extent practicable.
  • The eighth omnibus order dated September 17, 2020 (Eighth Omnibus Order) extending some of the measures in its prior orders. It also relaxed N.J. R. 4:64-8(b) so that a plaintiff need not file a new complaint to reinstate a foreclosure matter that has been dismissed twice for lack of prosecution.
  • The ninth omnibus order dated October 8, 2020 (Ninth Omnibus Order) extending some of the measures in its prior orders.
  • The tenth omnibus order dated February 17, 2021 (Tenth Omnibus Order) extending some of the measures in its prior orders.

Court Operations

Before November 18, 2021, the judiciary adopted a "remote first" approach to court events. Courts generally conducted all matters, including hearings, conferences, and oral arguments, using videoconference or teleconference to the extent practicable. (See Supreme Court order dated Nov. 18, 2021 (Nov. 18, 2021 Order); Notice to the Bar (May 6, 2021); Notice to the Bar, at 1 (Nov. 17, 2020); see, e.g., Eleventh Omnibus Order at 2.)

Delayed Mail Processing

On April 5, 2020, the Superior Court Clerk announced by email that the judiciary was holding all incoming mail in a secure area for at least one day prior to distributing it. This waiting period applied to all mail, including next day business delivery, express mail, and regular mail. The revised mail protocol expanded the Supreme Court's March 24, 2020 order adjusting mail procedures to reduce the judicial staff's potential contact with COVID-19 on mailed documents.
The Superior Court Clerk also announced that the revised mail protocol would delay the judiciary's ability to process checks that counsel mail to the court. For example, the judiciary could process a check to fund an attorney's Judiciary Account Charge System (JACS) account within 24 hours of its receipt, even if the attorney sent the check by next day business delivery. Counsel could avoid that delay by electronically transferring funds from their bank account to their JACS account through the "Fund Account" function in JACS. The judiciary processed electronic transfers through JACS without delay. For more on setting up a JACS account, see Practice Note, E-Filing in eCourts Civil: Filing and Service (NJ): Establish a Judiciary Account Charge System Account.
The revised mail protocol also affected submitting documents to the court by mail. For more on:

Post-Pandemic Plan

The Supreme Court outlined a four phase plan for continued court operations in response to COVID-19. The judiciary announced that effective June 15, 2021, up to 50% of judges and judiciary employees were permitted to be present onsite. The judiciary did not identify a corresponding phase for the increased on-site presence. (See Notice to the Bar (May 6, 2021).)
The judiciary transitioned to Phase 2.5 on September 22, 2020. Although not outlined in the four phase plan, the judiciary expanded its onsite court events without fully transitioning to Phase 3. During Phase 2.5, 25% of judges and staff were permitted to be onsite and courts were able to conduct hearings and court matters in person when:
  • The judge determined the case's individual facts and circumstances warranted it, including if:
    • a party could not meaningfully participate using a virtual format; or
    • the virtual format was unsuccessful.
  • The parties did not consent to proceed remotely and the matter was especially complex because, at a minimum, it involved:
    • numerous parties or witnesses; or
    • significant evidence that the parties could not handle in a remote format (for example, physical evidence or videos in an atypical format).
  • The parties maintained social distancing and wore face coverings or a mask.
(See Notice to the Bar, at 1 (Sept. 22, 2020) (Phase 2.5 Notice to the Bar); Notice to the Bar, at 1 (Aug. 12, 2020).)
During Phase 2.5, courts were also able to proceed with jury selection and jury trials, conduct bench trials for more significant or urgent matters, and schedule additional events in person, such as customer service appointments with the county ombudsman (see Phase 2.5 Notice to the Bar at 1, 2).

Face Masks and Social Distancing

The judiciary provided face masks to individuals on their request after it removed the face mask requirement in courthouses and court facilities (see Notice to the Bar, at 4 (Mar. 23, 2022); Notice to the Bar (March 9, 2022) attaching Supreme Court order dated March 9, 2022 (March 9, 2022 Order) ¶ 3).
All individuals were required to wear face masks and maintain social distancing of at least six feet at courthouses and court facilities where possible. The judiciary permitted exceptions for individuals who require accommodations under the Americans with Disabilities Act of 1990 (ADA). (See Notice to the Bar, at 1 (June 17, 2021); Notice to the Bar, at 7 (May 17, 2021); Notice to the Bar (Feb. 23, 2021); Notice to the Bar, at 1 (Sept. 22, 2020) (Face Mask Notice to the Bar); and Order dated June 9, 2020 (June 9, 2020 Order) at ¶¶ 1, 2.)
Court staff provided a disposable mask (and optionally, a cloth mask to wear over the disposable mask) to anyone seeking to enter a courthouse or court facility without a mask (see Notice to the Bar (Jan. 28, 2022); Notice to the Bar, at 1 (June 17, 2021); Notice to the Bar, at 8 (May 17, 2021); Face Mask Notice to the Bar at 2).
Judges permitted an individual in their courtroom to remove or lower their face masks if the individual either:
  • Maintained at least six feet of social distancing.
  • Separated themselves from others using a physical barrier (for example, a plexiglass divider).
(See Notice to the Bar, at 1 (June 17, 2021).)
The judge directed an individual participating in a remote proceeding to lower or remove their face mask if doing so was consistent with public health guidance. Alternatively, judges permitted individuals participating remotely to wear a mask if they are not in a private setting. (See Face Mask Notice to the Bar at 2; see also Notice to the Bar (Feb. 23, 2021).)
Individuals who refused to wear a face mask or maintain social distancing in willful violation of judiciary policy were:
  • Excluded from the court location.
  • Held in contempt of court under N.J. R. 1:10-1.
(See Notice to the Bar (July 30, 2021).)
For more on the judiciary's courtroom modifications during COVID-19, see Courtroom Modifications During COVID-19.

Virtual Proceedings Guidance

The judiciary previously implemented events guidance listing the remote options available for the typical proceedings each trial court conducts and stating whether each proceeding is recorded as a public event (see Notice to the Bar, at 1 (Apr. 28, 2020)).

Filing and Serving Papers

Computing Time

The Supreme Court ordered the period of March 16, 2020 through May 10, 2020 a legal holiday for the purpose of computing time for all filing deadlines and statutes of limitations (see Sixth Omnibus Order ¶ 2; Fifth Omnibus Order ¶ 4; Fourth Omnibus Order ¶ 6; Third Omnibus Order ¶ 3; Second Omnibus Order ¶ 7(d); Omnibus Order ¶ 7(d); and Order dated March 17, 2020 (March 17, 2020 Order) ¶ 3).
These omnibus orders did not add additional days to the statute of limitations (see Rodriguez v. Singleton, , at *2 (App. Div. Oct. 27, 2023) (affirming dismissal of complaint and denial of reconsideration motion because the Fourth Omnibus Order did not extend the statute of limitations) (unpublished decision, cite according to N.J. R. 1:36-3); Barron v. Gersten, 472 N.J. Super. 572, 578-79 (App. Div. 2022), cert. denied, 252 N.J. 429 (2022) (rejecting plaintiff’s argument that Fourth Omnibus Order added fifty-five days to statute of limitations); see also Sutton v. Babilonia, , at *3 (App. Div. May 12, 2022) (reversing order denying summary judgment dismissal of plaintiffs' complaint based on the statute of limitations because the trial judge misinterpreted the Second Omnibus Order) (unpublished decision, cite according to N.J. R. 1:36-3)).
For more on computing time, see Practice Note, Computing Time in State Court Litigation (NJ).

Summons

The Supreme Court relaxed N.J. R. 4:4-1 to permit a plaintiff additional time to issue a summons after the court issues the Track Assignment Notice in Civil Part actions. Specifically, for Track Assignment Notices the court issued:
  • From March 16, 2020 through April 26, 2020, the court extended the time to issue a summons was extended from within 15 days to within 60 days of the Track Assignment Notice's date.
  • From April 27, 2020 through May 31, 2020, the court extended the time to issue a summons was extended from within 15 days to within 30 days of the Track Assignment Notice's date.
(See Second Omnibus Order ¶ 3(e) and Omnibus Order ¶ 3(d).)
For more on the summons and Track Assignment Notice, see Practice Notes:

Notices of Tort Claim

A plaintiff asserting a tort claim against the State of New Jersey, its subdivisions, or public employees must notify the defendant by filing a notice of tort claim no later than 90 days after the cause of action accrues. However, the Supreme Court tolled the time period for a plaintiff to serve a valid and timely notice of tort claim during March 16, 2020 through May 31, 2020 (N.J.S.A. 59:8-8; see generally, New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3; see Third Omnibus Order ¶ 3; Second Omnibus Order ¶ 3(f); and Omnibus Order ¶ 3(e)).
For more on a notice of tort claim, see Practice Note, Commencing a Lawsuit: Initial Considerations (NJ): Actions with Special Pre-Suit Requirements and Governmental Parties.

Affidavits of Merit

The Supreme Court extended the 60-day deadline for a plaintiff to file an affidavit of merit in medical or professional malpractice actions during March 16, 2020 through July 26, 2020 (N.J.S.A. 2A:53A-27; see Sixth Omnibus Order ¶ 1; Fifth Omnibus Order ¶ 1; Fourth Omnibus Order ¶ 1; Third Omnibus Order ¶ 1; Second Omnibus Order ¶ 3(c); and Omnibus Order ¶ 3(b)).
For more on the affidavit of merit, see Legal Update, 2018-2019 Court Term Rules Update (NJ): Professional Malpractice Case Management.

Discovery

Discovery Tracks

The court clerk assigns each case in the Civil Part to a discovery track that sets the deadline for parties to complete discovery (called the discovery end date or DED) (N.J. R. 4:24-1(a)). The Supreme Court relaxed and supplemented N.J. R. 4:24-1(a) to permit discovery extensions from March 16, 2020 through May 10, 2020 (see Third Omnibus Order ¶ 3; Second Omnibus Order ¶ 3(a); Omnibus Order ¶ 3(a); and March 17, 2020 Order ¶ 1). The rule relaxation may have resulted in a longer period for discovery than a case's assigned discovery track otherwise allowed.
For more on discovery tracks, see Practice Note, Discovery Tracks, Timing, and Extensions (NJ): Discovery Tracks.

Discovery Extensions

Counsel may seek an extension of the discovery end date by consent or motion (N.J. R. 4:24-1(c)). The Supreme Court relaxed and supplemented N.J. R. 4:24-1(c) to allow counsel to request an extension without meeting the rule's requirements from March 16, 2020 through May 10, 2020 (see Third Omnibus Order ¶ 3; Second Omnibus Order ¶ 3(a); Omnibus Order ¶ 3(a); and March 17, 2020 Order ¶ 1). The Supreme Court also authorized:
  • Parties to request an extension of time by letter instead of formal motion.
  • Courts to suspend proceedings or extend discovery or other deadlines in the interests of justice.
(See Second Omnibus Order ¶¶ 12, 13.)
For more on extending the discovery deadline by consent or motion, see Practice Note, Discovery Tracks, Timing, and Extensions (NJ): Automatic Discovery Extensions and Motions to Extend Discovery.

Computing Time

Due to exceptional circumstances, the Supreme Court excluded March 16, 2020 through May 10, 2020 for the purpose of computing discovery end dates (see Sixth Omnibus Order ¶ 2; Fifth Omnibus Order ¶ 4; Fourth Omnibus Order ¶ 6; Third Omnibus Order ¶ 3; Second Omnibus Order ¶ 3(j); and Omnibus Order ¶ 3(i)).
For more on computing:

Serving and Responding to Discovery

The Supreme Court extended the time for a party to serve or respond to discovery during March 16, 2020 through May 10, 2020, including but not limited to:
(See Third Omnibus Order ¶ 3; Second Omnibus Order ¶ 3(g); and Omnibus Order ¶ 3(f).)
The Supreme Court extended discovery deadlines involving physical and mental examinations under N.J. R. 4:19 from March 16, 2020 through July 26, 2020 (see Sixth Omnibus Order ¶ 1; Fifth Omnibus Order ¶ 1; Fourth Omnibus Order ¶ 1; Third Omnibus Order ¶ 1; Second Omnibus Order ¶ 3(b); and Omnibus Order ¶ 3(f)).

Discovery and the Trial Calendar

The New Jersey Court Rules assume compliance with the discovery rules (and other pretrial obligations) to identify a credible trial date. The court must give the parties ten weeks' notice of the trial date and proceed with trial on the noticed date or another date that week. In turn, the ten-week notice period accommodates the requirement in N.J. R. 4:46-1 that summary judgment motions are returnable at least 30 days before trial unless the court orders otherwise. (N.J. R. 4:36-3; see Pressler & Verniero, Current N.J. Court Rules, Comments 3 and 3.1 to N.J. R. 4:36-3 (Gann 2020).)
Due to the interplay among these rules, the Supreme Court relaxed and supplemented N.J. R. 4:36-3 and 4:46-1 to permit the extension of discovery deadlines from March 16, 2020 through May 10, 2020 (N.J. R. 4:36-3; see Third Omnibus Order ¶ 3; Second Omnibus Order ¶ 3(a); Omnibus Order ¶ 3(a); and March 17, 2020 Order ¶ 1).
For more on summary judgment, see Practice Note, Motion Practice: Summary Judgment (NJ) and Standard Document, Summary Judgment: Statement of Material Facts (NJ).

COVID-19 Healthcare Professionals

The Supreme Court suspended depositions and other court appearances for any doctors, nurses, or healthcare professionals responding to COVID-19 from March 24, 2020 through July 26, 2020, from December 8, 2020 through May 13, 2021, and from December 30, 2021 through February 28, 2022 unless:
  • The doctor, nurse, or healthcare professional requested to proceed.
  • The deposition or other appearance was related to COVID-19.
(See Supreme Court order dated December 30, 2021 ¶ 1; Supreme Court order dated May 13, 2021 (May 13, 2021 Order); Supreme Court order dated December 8, 2020; Sixth Omnibus Order ¶ 1; Fifth Omnibus Order ¶ 1; Fourth Omnibus Order ¶ 1; Third Omnibus Order ¶ 1; Second Omnibus Order ¶ 7(c); Omnibus Order ¶ 7(c); and Supreme Court order dated March 24, 2020.)
From May 13, 2021 through December 30, 2021, the general suspension of depositions and court appearances for doctors, nurses, and other healthcare professionals involved in responding to the COVID-19 pandemic was revoked. Instead, these healthcare professionals were able to request an individual extension or suspension by certification describing how they were involved in responding to the COVID-19 pandemic. The court was to liberally grant the request. (See May 13, 2021 Order.)

Bench Trials

Courts conducted bench trials remotely or in person for significant or urgent matters (see Phase 2.5 Notice to the Bar at 1).

Jury Trials

In-Person Jury Trials

Face Masks and Social Distancing in Jury Trials

In-person jury trial participants were required to:
  • Wear a face mask unless:
    • they required a medical accommodation; or
    • the judge permitted them to lower their mask when they were substantially distanced from others or separated by a barrier.
  • Maintain social distancing of at least three feet (although an attorney and their client could sit close together where a clear barrier separated them).
(See Notice to the Bar, at 4 (Mar. 23, 2022); March 9, 2022 Order ¶¶ 2-5(a), (b).)

Resumption of In-Person Jury Trials

The Supreme Court ordered that some in-person jury trials could resume starting on or after June 15, 2021 (see Notice to the Bar (May 11, 2021) and attached Supreme Court order dated May 11, 2021 (May 11, 2021 Order) ¶ 1(b); Supreme Court order dated April 9, 2021 (Apr. 9, 2021 Order) ¶ 2; Eleventh Omnibus Order ¶ 4(b); Notice to the Bar (Mar. 4, 2021)).
Although most civil jury trials were to proceed virtually, the Supreme Court directed judges to prioritize in-person civil jury trials for urgent matters, including where a doctor determined the plaintiff had a limited life expectancy. Assignment Judges had discretion to authorize additional, in-person civil jury trials to proceed if they did not reduce the judiciary's ability to conduct other urgent court events (primarily, in-person criminal jury trials for detained defendants). However, all cases assigned to discovery tracks I and II were to proceed virtually unless the Assignment Judge identified compelling circumstances. (See Notice to the Bar, at 6 (May 17, 2021); May 11, 2021 Order ¶ 3(b)-(d); and Virtual Jury Trials.)

Suspension of Jury Trials

The Supreme Court suspended all new civil jury trials for over four months (from March through July 2020) in response to COVID-19. It then directed that suspended jury trials could resume consistent with public health precautions if the parties consented. (See, e.g., Supreme Court's Sixth Omnibus Order ¶ 1 and Fifth Omnibus Order ¶ 1.) Thereafter, the Supreme Court ordered that in-person jury trials could resume in September 2020 (see Notice to the Bar (July 22, 2020) (attaching Supreme Court Order dated July 22, 2020 (July 22, 2020 Order) and the New Jersey Supreme Court Plan for Resuming Jury Trials (Plan for Resuming Jury Trials) at 2, 17; Incremental Resumption).
The Supreme Court suspended new, in-person jury trials again on November 16, 2020 due to rising COVID-19 cases (see Supreme Court order dated November 16, 2020 (November 16, 2020 Order) ¶ 1(c)). It authorized some in-person civil jury trials to resume on or after June 15, 2021 (see Notice to the Bar (May 11, 2021); May 11, 2021 Order ¶ 1(b); and Resumption of In-Person Jury Trials).

Incremental Resumption

Before the Supreme Court suspended in-person jury trials on November 16, 2020, it allowed in-person jury trials to resume in September 2020, beginning with virtual jury selection in Bergen, Atlantic, Cumberland, Mercer, and Passaic counties. It also directed jury trials to resume in all vicinages for all criminal and civil matters after the initial in-person jury trials concluded. (See November 16, 2020 Order ¶ 1; Notice to the Bar (Sept. 17, 2020) (attaching Supreme Court Order dated September 17, 2020) (Sept. 17, 2020 Order) ¶ 1; Eighth Omnibus Order ¶ 1(a); Notice to the Bar, at 3, 7 (Sept. 11, 2020) (Jury Trial Notice to the Bar); July 22, 2020 Order and Plan for Resuming Jury Trials at 5, 19, and 43; see also Notice to the Bar (Sept. 22, 2020) (Phase 2.5 Notice to the Bar).)
For more on trial court vicinages, see Practice Note, State Court Structure (NJ): Vicinages.

Socially Distanced Trials

Before the Supreme Court suspended in-person jury trials jury on November 16, 2020, it allowed selected jurors to report to the courthouse in person for trial (see, e.g., Sept. 17, 2020 Order ¶ 1; Eighth Omnibus Order ¶ 1(a); Jury Trial Notice to the Bar at 3 and 7; July 22, 2020 Order ¶ 15; and Plan for Resuming Jury Trials at 5, 19, and 43; see also Phase 2.5 Notice to the Bar).
As part of its plan to resume in-person jury trials, the judiciary directed jurors to store their mask and wear a clear mask that the judiciary provided and then disposed of daily. The juror wore their own stored mask to exit the courthouse. (See Jury Trial Notice to the Bar at 4.)
Jury trials were to proceed in courtrooms large enough to accommodate all trial participants at a social distance. Counties without large courtrooms may broadcast the trial to a second courtroom so that all participants can view the trial in real time but from two locations. Jurors were also able to deliberate in the courtroom or the juror assembly room instead of smaller jury deliberation rooms. (See Plan for Resuming Jury Trials at 41-42.)
Some courtrooms were rearranged to allow jurors and trial participants to maintain appropriate sight lines while seated at a social distance. For example, the judiciary moved some counsel tables to allow jurors seated in the gallery instead of the jury box to view the trial with an unobstructed view of the participants. Other locations in the courthouse were available for sidebar communications, juror breaks, and others to view the trial in real time (for example, family, friends, media, and the public). The judiciary also used large display screens, individual tablets, and other measures to support the jurors' view of witnesses and evidence. (See Jury Trial Notice to the Bar at 3, 5, and 6; see also Public Access and Sidebar Communications.)
Attorneys and parties were able to tour the courtroom before trial (see Jury Trial Notice to the Bar at 3 and Plan for Resuming Jury Trials at 15, 36).
Trial judges were required to enforce public health requirements and ensure social distancing of six feet between each participant during trial. Individuals were required to wear face masks, although judges were able to remove their masks or allow others to remove their masks in specific situations. (See Face Mask Notice to the Bar; July 22, 2020 Order at ¶¶ 2(c) and (d); and June 9, 2020 Order ¶ 3.)
The judiciary was also required to implement and enforce other measures to maintain social distancing and to enhance cleaning protocols during trials by, for example:
  • Staggering jurors' arrival times at the courthouse and implementing point-of-entry health screenings.
  • Identifying specific routes to elevators and enforcing elevator occupancy limits.
  • Giving jurors personal materials (for example, hand sanitizer and, if applicable, notes and pens).
  • Providing hand sanitizer and wipes in courtrooms and other shared locations.
(See Jury Trial Notice to the Bar at 6-7; July 22, 2020 Order ¶ 13; and Plan for Resuming Jury Trials at 36-38, 41.)

Trial Participants and COVID-19

According to the Plan for Resuming Jury Trials, a juror was not to report for service if they tested positive for COVID-19 or exhibit its symptoms. The judiciary followed the COVID-19 Exposure Risk Policy to take appropriate steps and notify any court user who was at risk because a trial participant was diagnosed with COVID-19 or developed symptoms during final in-person jury selection or trial. The judiciary prioritized trial participants' physical and psychological safety above continuing a trial despite COVID-19 exposure risks. (See Jury Trial Notice to the Bar at 7; Plan for Resuming Jury Trials at 42; Notice to the Bar (Aug. 3, 2020); and July 22, 2020 Order ¶ 14.)

Public Access

Before the Supreme Court suspended in-person jury trials on November 16, 2020, the judiciary planned to livestream the first several socially distanced in-person jury trials to the public. It planned for the public to access jury trials through:
  • Livestream.
  • Attending the jury trial in the courtroom if social distancing is maintained.
  • Viewing the proceeding by video from another location in the courthouse.
  • Zoom, if the court sends them an invitation to participate.
(See Sept. 17, 2020 Order ¶ 6.)
As the judiciary planned to resume in-person trials on June 15, 2021, the Supreme Court ordered that limited, in-person public access to jury selection was allowed, consistent with social distancing and other requirements. Assignment Judges had discretion to allow remote access to jury selection based on individual circumstances. (See Notice to the Bar, at 8 (May 17, 2021); May 11, 2021 Order ¶ 4; July 22, 2020 Order ¶¶ 11 and 12.)
The judiciary was also able to live broadcast in-person jury trials. It also allowed individuals to be physically present in the courtroom or judges to provide individual remote access. (See May 11, 2021 Order ¶ 4.)

Sidebar Communications

Before the Supreme Court suspended in-person jury trials on November 16, 2020, it provided guidance for sidebar communications during in-person court events like jury trials and other proceedings. If the sidebar was anticipated to last:
  • Up to ten minutes, the judge (on the bench) and attorneys were permitted to communicate in the courtroom while closer than six feet apart if they wore masks and there were barriers separating the judge and attorneys from each other.
  • Over ten minutes, the judge, attorneys, and parties were permitted to stay in the courtroom while the other participants left the courtroom. Judicial staff or sheriff's officers were required to escort the jurors to designed restrooms or break rooms.
(See Notice to the Bar, at 1 (Sept. 11, 2020) and Jury Trial Notice to the Bar at 6.)
Alternatively, the judge, attorneys, and parties were permitted to relocate to another courtroom or location reserved for trial to engage in sidebar communications. They were permitted to use the judge's chambers if it was large enough to maintain social distancing and the parties were able to listen in using headphones. (See Notice to the Bar, at 1 (Sept. 11, 2020).)
When the judiciary planned to resume in-person trials on June 15, 2021, it provided additional guidance about arranging the courtroom to allow for sidebar communications. The judiciary also provided guidance about how to support confidential attorney-client communications for in-person trials, including:
  • Permitting quiet conversations between masked counsel and their clients while separated by a plexiglass barrier.
  • Providing other technological options.
(See Notice to the Bar, at 9 (May 17, 2021).)

Attorney-Client Communications

Before the Supreme Court suspended in-person jury trials on November 16, 2020, the judiciary approved various methods for attorney-client communications during in-person court events like trials and other proceedings. Specifically, attorneys were able to communicate with their clients by:
  • Using walkie-talkie style headsets with earpieces that do not insert in the ear (that judicial staff sanitize after each use). This is the best option for interpreting services.
  • Passing handwritten notes that the attorney took (and destroyed) when they leave the courtroom.
  • Speaking through restricted-use phones that communicate only with each other and do not initiate outgoing calls or have keypads.
  • Wearing masks to speak quietly to each other while separated by a plexiglass barrier.
  • Relocating to a designated room (with a sheriff's officer) for private conversations.
(See Notice to the Bar, at 1-2 (Sept. 11, 2020) and Jury Trial Notice to the Bar at 6.)

Virtual Jury Trials

The Supreme Court authorized virtual civil jury trials to begin in two phases. Specifically:
  • On or after February 1, 2021, virtual civil jury trials began:
    • in five vicinages (Atlantic/Cape May, Cumberland/Gloucester/Salem, Monmouth, Passaic, and Union); and
    • with the parties' consent.
  • On or after April 5, 2021, virtual civil jury trials:
    • expanded to all vicinages; and
    • could proceed without the parties' consent.
(See Supreme Court order dated January 7, 2021 (January 7, 2021 Order) ¶ 1(b)-(d); see also Eleventh Omnibus Order ¶ 3(a).)
All case types were eligible for virtual civil jury trials (see January 7, 2021 Order ¶ 2). However, the Supreme Court instructed the counties to first schedule cases involving one plaintiff and one defendant with limited issues in dispute and few live witnesses. Counties were then able to schedule complex or lengthy cases after they completed at least one straightforward virtual civil jury trial. (See January 7, 2021 Order ¶ 2(a)-(b).) All cases assigned to discovery tracks I and II were to proceed virtually unless the Assignment Judge identified compelling circumstances for an in-person trial (see Notice to the Bar, at 6 (May 17, 2021); May 11, 2021 Order ¶ 3(b)-(d); and Practice Note, Discovery Tracks, Timing, and Extensions (NJ)).

Juror Selection

Juror Summons

In the spring of 2021 the judiciary began preparing for potential in-person jury trials (see In-Person Jury Trials). The judiciary modified the juror summons to inform prospective jurors that jury selection was to begin in a virtual format. It also advised that:
  • Juror service may continue virtually or the court may require jurors to report to the courthouse with safety precautions in place.
  • The judiciary provides electronic devices to jurors who require technology to participate in virtual trial.
(See Notice to the Bar, at 2 (May 17, 2021); May 11, 2021 Order ¶ 1(a), (b); April 9, 2021 Order ¶ 2; Eleventh Omnibus Order ¶ 4(b); Notice to the Bar (Mar. 4, 2021.)
The juror summons was modified for reporting dates on or after September 7, 2021. The summons alerted potential jurors that they may be required to report virtually or in person and directed them to the Jurors page of the New Jersey Courts website for up-to-date information. (See Notice to the Bar, at 3-4 (July 16, 2021).)

Jury Prescreening Process

Before the Supreme Court suspended in-person jury trials jury on November 16, 2020, the jury prescreening process allowed jurors who were at least 65 years old or had underlying medical conditions that require them to avoid in-person gatherings to defer their service. As with jury trials before COVID-19, jurors with underlying medical conditions required a doctor's note. The Plan for Resuming Jury Trial provided that if a juror expresses concerns about physically reporting to the courthouse in light of COVID-19, judicial staff were to explain that the judiciary is ensuring safe and clean facilities for all court users instead of excusing the juror. (See Jury Trial Notice to the Bar at 2 and Plan for Resuming Jury Trials at 21, 22.)
Judicial staff were to coordinate with the Assignment Judges to address juror requests to be disqualified or excused from reporting (for example, based on their relocation or a medical inability to serve, including but not limited reasons related to COVID-19). The staff were to schedule a remote, individual meeting between the assigned judge and any juror continuing to present COVID-19 concerns that not related to a substantiated medical inability to serve. (See July 22, 2020 Order ¶¶ 4-6 and Plan for Resuming Jury Trials at 22.)

Technology Assessment

Judicial staff also prescreened potential jurors to assess their:
  • Ability to participate in virtual voir dire.
  • Technology capabilities (for example, whether they had private and unlimited or limited access to the internet using a computer, laptop, tablet, or smartphone for a few hours during the days they were summoned to report).
  • Experience with web-conferencing programs like Zoom.
(See Notice to the Bar, at 3-4 (May 17, 2021); Plan for Resuming Jury Trials at 20.)
If an individual needed technology to participate in virtual voir dire, the jury management staff scheduled an appointment for them to pick up a tablet (with broadband, if necessary) at the courthouse or delivered it to them at an appropriate location (see Notice to the Bar, at 4 (May 17, 2021). Potential jurors were able to participate in jury selection using a cell phone with video but were required to use a device with a large screen if they were selected to serve at trial (see Virtual Civil Jury Trials During COVID-19 at 17).
The judiciary allowed jurors empaneled for virtual civil jury trials to borrow a tablet (with broadband, if necessary) (see Notice to the Bar, at 4 (May 17, 2021)).

Virtual Jury Selection

Courts were required to conduct the entire jury selection process remotely for virtual civil jury trials. The parties were instructed to select at least two additional alternate jurors in case technical or COVID-19 related issues arise during trial. The same number of jurors must return a verdict in a virtual trial as in a trial conducted in the physical courtroom. (See January 7, 2021 Order ¶ 3(e).)

Final Jury Selection

Before the Supreme Court suspended final, in-person jury selection on November 16, 2020, it permitted final jury selection to proceed in person or, alternatively, virtually at an attorney's request and if all counsel and parties consent (see Sept. 17, 2020 Order ¶ 3).
According to the Plan for Resuming Jury Trials, if final jury selection proceeded in person, the judge scheduled virtual or in-person visits to the courthouse for the attorneys and parties to address courtroom configuration before the jurors report for final selection (see July 22, 2020 Order ¶ 10).
The Plan for Resuming Jury Trials also permitted a limited number of jurors (approximately 60-70) to then report to the courthouse for final jury selection. The main courtroom may contain about 14 jurors and have a live video feed view of the separate courtroom or rooms containing another 15-20 jurors each. (See July 22, 2020 Order ¶ 2(a), 9; and Plan for Resuming Jury Trials at 33-34.)
Counsel were permitted to ask limited follow-up questions and exercise peremptory challenges during the final in-person jury selection process (see Sept. 17, 2020 Order ¶ 4; July 22, 2020 Order ¶ 2(a), 9; and Plan for Resuming Jury Trials at 33-34). Counsel were also able to request and receive copies of the supplemental COVID-19 questionnaire that the jurors completed. Counsel were to keep the questionnaires confidential but may show them to their client. (See Sept. 17, 2020 Order ¶ 5.)

Civil Arbitration

The Supreme Court postponed all court-ordered civil arbitration sessions scheduled for March 16, 2020 through April 16, 2020 (see Omnibus Order ¶ 3(m)(i) and Order dated March 19, 2020 (March 19, 2020 Order) at ¶ 1). It also extended the court-ordered civil arbitration timeframes (N.J. R. 4:21A-1(d); see Omnibus Order ¶ 3(m)(iii) and March 19, 2020 Order ¶ 3(a)).
For more on compelling and staying arbitration, see Practice Note, Compelling and Staying Arbitration in New Jersey.

Appeals

On April 15, 2020, the Appellate Division clarified the Omnibus Order's effect on Appellate Division practice and procedure. Specifically:
  • Filing deadlines that expired before March 16, 2020 were unaffected. Counsel must file a motion to file as within time when submitting any late notices of appeal, motions for leave to appeal, and briefs that were due before March 16, 2020. (For more on motions to file as within time, see Practice Note, Appeals: Initial Considerations for Appealing to the Appellate Division (NJ): Extending the Time to Appeal and Extending the Time to File a Motion.)
  • Initial deadlines to file notices of appeal, motions for leave to appeal, and briefs in non-expedited matters that fell between March 16, 2020 and April 26, 2020 were extended to:
    • April 27, 2020, which is the first business day after the Omnibus Order expired; or
    • the first business day after any further Supreme Court order tolling filing time periods.
  • Where a party obtained an informal 30-day extension to file a brief with the adverse party's consent in a non-expedited matter, and that extended deadline fell between March 16, 2020 and April 26, 2020, then the deadline to file that brief was also extended to:
    • April 27, 2020, which is the first business day after the Omnibus Order expired; or
    • the first business day after any further Supreme Court order tolling filing time periods.
  • Deadlines the court set in response to motions to extend a brief's due date or the time to file a notice of appeal or motion for leave to appeal that fell between March 16, 2020 and April 26, 2020 were unaffected.
  • Deadlines to file amicus curiae briefs that fell between March 16, 2020 and April 26, 2020 were also extended to:
    • April 27, 2020, which is the first business day after the Omnibus Order expired; or
    • the first business day after any further Supreme Court order tolling filing time periods.
(See Notice to the Bar (April 15, 2020).)
On April 24, 2020, the Supreme Court confirmed that expedited appeals are continuing on an expedited track, including appeals:
  • From motions for leave to appeal that the court did not summarily decide (N.J. R. 2:11-2).
  • From orders compelling or denying arbitration.
  • Where the court ordered acceleration.
  • Expedited by statute, case law, or court rule.
(See Supreme Court order dated March 23, 2021 (Eleventh Omnibus Order) ¶ 4; Second Omnibus Order ¶ 11(c).)
The Supreme Court further confirmed that briefing deadlines for expedited appeals are unaffected (see Eleventh Omnibus Order ¶ 4; Second Omnibus Order ¶ 11(c)).
For information about initiating an appeal to the Appellate Division, see Practice Note, Appeals: Initiating an Appeal to the Appellate Division (NJ).

Remote Notarial Acts

On April 14, 2020, the New Jersey legislature passed Assembly Bill No. 3903 (P.L. 2020, c. 26) (the Act) generally allowing remote notarial acts during the COVID-19 public health emergency and state of emergency declared in the Governor's Executive Order No. 103 of 2020. The Act allows notaries public and other authorized individuals (such as attorneys) to use technology to perform a notarial act. The Act expires when the Governor rescinds Executive Order No. 103 of 2020. (Assembly Bill No. 3903 (P.L. 2020, c. 26) ¶¶ 1(b), (c), and 2.) On June 4, 2021, the Governor issued Executive Order No. 244 of 2021 terminating the public health emergency and continuing the state of emergency (see Executive Order No. 244 of 2021 ¶¶ 1, 2). On January 11, 2022, the Governor issued Executive Order No. 280 of 2022 and Executive Order No. 281 of 2022 reinstating the public health emergency. On March 4, 2022, the Governor issued Executive Order No. 292 of 2022 terminating the public health emergency and continuing the state of emergency (see Executive Order No. 292 of 2022 ¶¶ 1, 2).
However, on July 22, 2021, the Governor signed legislation revising the Notaries Public Act of 1979, N.J.S.A. 52:7-10 to 52:7-21, and renaming it the New Jersey Law on Notarial Acts, N.J.S.A. 52:7-10 to 52:7-19. The revised legislation allows notaries public and notarial officials to perform remote notarial acts. That legislation became effective on October 20, 2021. (N.J.S.A. 52:7-10; for an explanation of the legislation as to relates to remote notarial acts, see Remote Notarial Act Checklist (NJ).)
The below explanation summarizes the temporary legislation.

Application

The Act applies to:
  • Notaries public:
    • appointed under the Notaries Public Act of 1979, N.J.S.A. 52:7-10 to 52:7-21; or
    • otherwise commissioned or qualified in the State of New Jersey.
  • Officers authorized to take oaths, affirmations, or affidavits, for example:
    • the Chief Justice and Associate Justices of the New Jersey Supreme Court, Superior Court judges, and other New Jersey state court judges, including municipal court judges (see Practice Note, State Court Structure (NJ));
    • court and municipal clerks;
    • attorneys; and
    • certified court reporters.
    (N.J.S.A. 41:2-1.)
  • Officers authorized to take acknowledgements, for example:
    • attorneys;
    • notaries public;
    • county clerks and deputy county clerks; and
    • US officers.
    (N.J.S.A. 46:14-6.1.)
(Assembly Bill No. 3903 (P.L. 2020, c. 26) ¶ 1(a).)
The Act covers notarial acts, such as administering oaths and affirmations, taking acknowledgements, executing jurats or other verifications, taking proofs of deed, and executing protests for nonpayment Assembly Bill No. 3903 (P.L. 2020, c. 26) ¶ 1(a)).
The Act therefore permits attorneys to remotely acknowledge a witness's signature on:
The Act does not apply to records governed by:
(Assembly Bill No. 3903 (P.L. 2020, c. 26) ¶ 1(d).)

Procedure

The notary public, attorney, or other authorized individual and the remote individual must use technology that allows them to see and hear each other (such as a videoconference) while performing the notarial act (Assembly Bill No. 3903 (P.L. 2020, c. 26) ¶ 1(a)).
For remotely located individuals within the US, the notary public, attorney, or other authorized individual may perform a remote notarial act by:
  • Verifying the individual's identity through:
    • personal knowledge;
    • a credible witness's oath or affirmation; or
    • at least two different types of identity proofing (from a third party service that provides identity verification after reviewing personal information from public or private data) (Assembly Bill No. 3903 (P.L. 2020, c. 26) ¶ 1(a)).
  • Confirming that the record they have is the same record the individual made or signed.
  • Creating an audiovisual recording of the notarial act that they generally retain for at least ten years.
  • Indicating that they performed the notarial act remotely on either the required:
(Assembly Bill No. 3903 (P.L. 2020, c. 26) ¶¶ 1(a), (b)(1)-(3), (e), and (f).)
For remotely located individuals outside the US, the notary public, attorney, or authorized individual may also perform remote notarial acts if:
  • They satisfy the same requirements for individuals remotely located within the US.
  • The record:
    • is to be filed with or relates to a matter before a public official, court, governmental entity, or other entity subject to US jurisdiction;
    • involves property within US territory; or
    • relates to a transaction substantially connected to the US.
  • The foreign country where the individual is located does not prohibit the individual from making the statement or signing the record.
(Assembly Bill No. 3903 (P.L. 2020, c. 26) ¶ 1(b)(4).)

Other Expired Measures

Dismissal for Lack of Prosecution

The court may dismiss a case for lack of prosecution if the plaintiff fails to file proof of service within a certain amount of time after filing the lawsuit, depending on whether the case is in the Civil Part or the General Equity Part (N.J. R. 1:13-7(a)). However, the Supreme Court tolled the time period for dismissing civil cases for lack of prosecution from March 16, 2020 through May 31, 2020. It also suspended the automatic dismissal processes in Civil Part and General Equity Part actions. (N.J. R. 1:13-7(a); see Third Omnibus Order ¶ 3; Second Omnibus Order ¶ 3(d); and Omnibus Order ¶ 3(c)).
For more on dismissals for lack of prosecution, see Practice Note, Commencing a Lawsuit: Filing and Serving the Complaint (NJ): When to Serve Process.

Involuntary Civil Commitments

The Supreme Court adjourned involuntary civil commitment hearings. It directed that:
  • Initial hearings for an adult's involuntary civil commitment that were scheduled between:
    • March 17, 2020 and March 27, 2020 and previously adjourned up to 14 days may be adjourned for an additional 14 days; or
    • March 30, 2020 and April 10, 2020 may be adjourned up to 14 days.
    (N.J. R. 4:74-7(c)(1).)
  • Initial hearings for a minor's involuntary civil commitment that were scheduled between:
    • March 17, 2020 and March 27, 2020 and previously adjourned up to seven days may be adjourned for an additional seven days; or
    • March 30, 2020 and April 10, 2020 may be adjourned up to seven days.
    (N.J. R. 4:74-7A(b)(2).)
(See Omnibus Order ¶ 3(h) and Supreme Court Order regarding civil commitment dated March 17, 2020.)
The Supreme Court also allowed parties to request additional adjournments based on a case's specific circumstances (see Third Omnibus Order ¶ 3 and Second Omnibus Order ¶ 3(i)).

Office of Foreclosure

The Supreme Court initially limited the Office of Foreclosure from reviewing or recommending dispositive motions or judgments it received on or after March 1, 2020, but allowed it to review and recommend non-dispositive motions (see Fourth Omnibus Order ¶ 2; Third Omnibus Order ¶ 2; May 15, 2020 Order ¶ 1; Second Omnibus Order ¶ 3(h); and Omnibus Order ¶ 3(g)). The Supreme Court lifted the limitations and allowed the Office of Foreclosure to review or recommend both non-dispositive and dispositive motions as of June 25, 2020 (see Fifth Omnibus Order ¶ 5).
For more on foreclosure proceedings, see Practice Notes, Residential Foreclosures (NJ) and Commercial/Nonresidential Foreclosures (NJ).

Reinstatement of Foreclosure Matters

The Supreme Court relaxed N.J. R. 4:64-8(b) so that a plaintiff need not file a new complaint to reinstate a foreclosure matter that the court dismissed twice for lack of prosecution. It relaxed the rule during the Federal Housing Administration's (FHA) foreclosure and eviction moratorium for borrowers with FHA-insured single family mortgages covered under the Coronavirus Aid, Relief, and Economic Security (CARES) Act and HUD Agency Letter 2020-27. The other provisions in N.J. R. 4:64-8 related to the foreclosure lack of prosecution process remain in effect. (See Eleventh Omnibus Order ¶ 4 and Eighth Omnibus Order ¶ 4(c).)
Foreclosure mediation generally proceeds in a virtual format (see Nov. 18, 2021 Order ¶ 7(d)).
For more on residential foreclosure measures in New Jersey, see Practice Note, COVID-19: Residential Mortgage Foreclosure and Payment Relief Programs (Federal and State Tracker, and Select Private Lenders) (US).