PREPARATION FOR THE MUNICIPAL COURT CASE

BY KENNETH A. VERCAMMEN
1. The Telephone Call and Schedl!n" #he In#e$%!e&
Municipal Court is a great place where new practitioners can get some trial
experience and meet more experienced attorneys. By commitment and preparation, you
can obtain excellent results and satisfy clients. Too often lawyers throw up their hands
when a client presents a ticket involving Driving hile !uspended, D" or #perating
ithout "nsurance. hile defense of municipal court charges involving serious motor
vehicle charges may become an involved process re$uiring commitment and persistence,
there are a number of viable defenses and arguments that can achieve a successful
result. %ather than simply suggest that a client pay the ticket and avoid litigation, an
attorney should accept the challenge and apply his best legal talents to protect the client&s
rights.
'ou should never provide legal advice over the telephone. e do however often
advise potential clients of some of the mandatory penalties and (ail terms that the court
could impose. This makes people reali)e the seriousness of the charge. e direct them
to bring in a copy of the complaint, all their papers in connection with their case, accident
report, and any documents they received from the Motor *ehicle Commission. #ftentimes
" will instruct them to write a confidential narrative if it is a case that is fact+ specific or
involves a great deal of detail, such as an assault case.
'. The In(O))!ce In#e$%!e&
hen the client is first in the office, we have them fill out the Confidential
,ew Criminal Case "nterview !heet. e obtain background information such as their
name, address, the offenses charged, date of the person&s arrest, other witnesses,
statements given to them by the police, their occupation and information regarding prior
criminal convictions and prior motor vehicle convictions. #ur interview sheet also asks if
there is anything else important, such as a medical condition that affects their case. This
form will also let us know whether or not the client will follow instructions and cooperate
with us. "f they refuse to provide information you may have a problem client.
-fter reviewing the summons and the interview sheet, " ask a series of $uestions of
the client. e re$uest the client wait until the end of the interview before explaining their
side of the story. e also ask them if there is anything else of importance in connection
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with the case that we should know. The client may have pending serious criminal charges
in another state or country. " usually open up our statute book and show the clients the
specific language of the offense they are charged with and explain to them the maximum
penalties that could be imposed. By understanding the charges they are facing, my
clients are more likely to reali)e the seriousness of the offense and pay our retainer.
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Be!n" Re#a!ned *Pa!d+
%0C ..12b3 of the %ules of 0rofessional Conduct indicate a retainer letter or
written statement of fees is re$uired for new clients. " also provide all my clients with
written information explaining how to appear in court, information on surcharges,
information on points, information on "D%C, and information regarding substance abuse
treatment, if applicable.
4amous Beverly 5ills attorney 6ay 4oonberg writes7 The fee7 89et it :p 4ront.; This
is the best time to obtain your fee while your client is in fear and is in (eopardy. "f you are
owed money after the case is over, you will never get it. The written fee agreement also
protects you from clients that demand that you appeal or provide work other than what is
set forth in the retainer agreement.
#nce we receive our retainer, we begin work right away. :sually while the client is
still in the office, we prepare a discovery letter on the computer to the prosecutor and
court and hand a copy to the client. e occasionally call the court to advise them that we
will be handling the case and to in$uire who handles discovery. 5owever, we usually
recommend the client call the court, plead not guilty and make the appearance in drunk
driving cases or other charges. "t makes it easier for our law office to obtain our own
ad(ournment later on, if necessary, rather than having the law office call a second time
and ask for a second ad(ournment. "f the case involves the Motor *ehicle Commission
2M*C3 and suspension, we sometimes prepare a subpoena to the M*C. e check the
<awyers Diary to determine who are the (udges and prosecutors for the town. "t is
important to learn about the (udge and the prosecutor.
" recommend that my clients provide me with a list of between .= to .1 reasons
why they should not go to (ail and why court should impose the minimum license
suspension. e recommend they obtain a M*C -bstract. This provides us with
information for mitigation and penalties and also provides information to be considered by
the (udge in sentencing
<aw is a business. Municipal court could be very lucrative if you provide competent
representation and satisfy your client. " try to impress my clients and hope they will send
additional clients.
e re$uire a great deal of cooperation from our clients in an effort to help keep
their costs reasonable. e have our clients serve the subpoenas on the M*C, insurance
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companies or other entities if they do not have the money for investigators. e re$uire
our clients to take photographs of accident sites and prepare diagrams and provide us
with the names, addresses, and telephone numbers of witnesses.
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Po,# In#e$%!e& -o$.
Conditional Discharges are available to clients charged with drug offenses
who have never previously been arrested or previously convicted of the drug offense.
-gain, to avoid embarrassment it is a good idea to speak with the prosecutor and the
police officer because they may have a criminal abstract to indicate that the client is not
eligible for conditional discharge.
"f the matter is still at the indictable level, we make application for 0re+Trial
"ntervention. :nfortunately, 0T" is not available if the criminal charges are downgraded
and not indictable. e also make a Motion to !uppress where there is a $uestion
regarding the validity of a stop or search. 'ou can also make a Motion to Dismiss on De
Minimis "nfractions ,.6.!.- /C7/+.. for non+substantial offenses 2i.e. shoplifting one
candy bar3. -ny other Motions to Dismiss should be made in writing such as statue of
limitations or lack of (urisdiction.
"f the client has prior offenses where the client plead guilty, we may make a Motion
to *acate the plea if the defendant was not informed of his rights as re$uired under %ule
@7?+/b. The post+conviction relief application can be made under %ule >7// and %ule @.
"f the matter involves a private citi)en complaint, you should also send a discovery
letter directly to the complainant, then follow it up with a telephone call and possibly a
motion to compel discovery.
#ftentimes in cases that deal with (ust one triable issue such as the admissibility of
a blood test result in alcohol or drugs, you can make a Motion in <imine or suggest a pre+
trial conference. "t is often a good idea to try to know how the (udge will decide in order to
save you a three+hour trial on a complicated case. "f the court rules against you in the
Motion in <imine you can enter a guilty plea contingent upon reserving your right to
appeal on that one issue.
/!,co%e$0 Pha,e
#ftentimes we do not receive all of the discovery that we re$uest. e send
a letter to the prosecutor re$uesting additional discovery pursuant to %ule @7?+/g and
re$uest that the discovery be provided within .= days. "f we do not receive the discovery
with .= days then we may make a motion to compel discovery. e thus make a motion to
compel discovery pursuant to !tate v. 5olup /1> ,6 !uper. >/= 2-pp Div .AA/3
"n the case involving essential witnesses, we occasionally write to the witnesses
and ask them to call us so that we can find out what really happened. "f possible " have a
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law clerk call up after we send the initial letter. The attorney could not testify if the witness
provides an inconsistent statement but our law clerks could testify. " sometimes speak to
friendly witnesses myself later to make a decision to determine whether or not the
witnesses are credible. 'ou must protect yourself from looking like a fool. #ftentimes the
clients are not telling the truth and the witnesses are not telling the truth.
"f the client has multiple charges in other towns rising from the same client, you
can make a motion to the assignment (udge to consolidate the case in one court. "n
criminal cases where your client was intoxicated, you can make a motion under -T%-+
-lcohol Treatment and %ehabilitation -ct for treatment in lieu of (ail and dismissal
charges.
:pon receiving discovery, we forward a photocopy of all discovery to our client. e
then discuss with the client whether or not we have a reasonable prospect of winning. "n
drunk driving cases we review the videotape with our client prior to the trial date and
make arrangements to retain an expert.
0rior to trial you should determine who the trial (udge and prosecutor will be. "t is
very important to know your (udge and to discuss with other attorneys familiar with the
(udge how your trial (udge handles cases and sentencing. "t is also a good idea to know
the prosecutor&s position on your case+ such as the merger of a CD! in motor vehicle
charge.
P$epa$!n" )o$ Co$#
"f it is a drug case, we may make an #b(ection to the Bntry of <ab %eport as
evidence at trial. e are also under a responsibility to provide any reciprocal discovery to
the prosecutor. #ccasionally, in a town where here is only one prosecutor we will call the
municipal court prosecutor ahead of time to see if a matter can be worked out or plea
bargained. Municipal prosecutors work part time and are not compensated for the many
telephone calls they get in their offices. "f you do call Municipal prosecutors remember
they do not have any of the files in their offices and are too busy to discuss a detailed
case.
"f you discover a favorable case, make a copy for the (udge, prosecutor, and client.
,ever assume the part time prosecutor or (udge is familiar with all the laws ex. !tate v.
<ightfoot C cannot be sentenced as a second offender if not convicted of first offense prior
to second offense
e prepare a !ubpoena ad Testificandum for witnesses to testify and !ubpoena
D
Duces Tecum for witnesses to bring documents. e have our clients hand deliver the
!ubpoenas and write out their own check for the subpoena fees. "n my car " keep a huge
brief case containing my e$uipment for battle7 Court %ules 29-,, edition3E the 0olice
Manual 29-,, edition3, the 0olice Manual 29-,, edition3, Bvidence Book 29-,,
edition3, my caselaw file, and my cumulative folder on the topic of law. "t is better to be
over+prepared than under+prepared. " also keep in my car trunk blank forms for #rder to
Compel Discovery, #rder Mark Try or Dismiss, #rder to be relieved, and an -ppeal
,otice.
#ver the years " have made it a practice to build up files on particular legal
sub(ects with complete case law. " now have files for drunk driving, driving while
suspended, drug possession, assault, and careless driving. The ,ew 6ersey <awyers
Diary contains a list of points and a list of maximumFminimum penalties. e make a
photocopy of this area, reduce it and tape it inside our 0olice Manual so that we have a
handy reference for points. e also reduce and tape inside the 0olice Manual the
accident chart, which describes the different numerical codes on the accident report. e
also tape inside the 0olice Manual the M*C Municipal Court 9uide which sets forth the
identifying numbers of the different towns and courts throughout the !tate of ,ew 6ersey,
to determine where the prior violations took place that are set forth on the DM* abstract.
0reparation is the key to winning cases or convincing, prosecutor of exceptional
defenses.
hen you receive the hearing notice send a follow up reminder to the client to be
on time, bring all papers and call /? hours ahead to confirm the case is still on the
calendar. <etters of reference and character reference letters are helpful in cased where
the (udge has wide discretion in his sentencing.
"f you know you are going to have a trial or will be late, attempt to have the case
marked ready hold for an hour late, otherwise you will be sitting around for a long period
of time. "f you have an excellent trial issue but believe the (udge is going to rule against
you, bring an appeal notice with you and file it with the Court on the %ecord.
Plea #o a Le,,e$ /e)en,e
:pon arrival at court, we will attempt to ascertain if the police officer is available.
#ften the police officer is on vacation, retired, or suspended and this will assist our ability
to work out a satisfactory arrangement for your clients.
'ou also must make sure that your client is prepared and looks neat. The 9rateful
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Dead and Budweiser T+!hirts should be replaced with something that looks presentable.
They should have their pregnant wives sitting next to them. There is no prohibition against
speaking with !tate&s witnesses. #utside of the courtroom, " usually call out the name of
the non+law enforcement !tate&s witnesses to determine what their version of the facts
are, or whether they would ob(ect to my proposed resolution to avoid a lengthy trial at the
end of the court session.
"f your client is going to enter a guilty plead to any defense, it is important they
understand what the offense is and put a factual basis on the record. 'ou will be
embarrassed if your client is pleading guilty to a drunk driving case and the (udge asked
your client what he had to drink, the client insists he only had one beer. The (udge will
send you back to your seat and must refuse to take the guilty plea unless an ade$uate
factual basis is put on the record.
hen your case is called, speak clearly before the court, providing your name and
spelling out your name and where you are located. The (udges like to know the names of
new or unfamiliar attorneys. 'our name is your future and announcing it also provides
free publicity for yourself. The (udges and prosecutors want to move the calendar.
5owever, your obligation is always to your client. !ometimes you have nothing to lose by
trying a case. Courts are forbidden from increasing penalties merely because someone
excused their constitutional right to a trail.
5aving previously obtained for my client their favorable background, " usually put
on the record reasons why the (udge should give him the minimum penalties. "n Motor
*ehicle cases, if the charges are to be dismissed by plea bargain make sure the
prosecutor writes dismissed, rather than merged. "f the matter involves an accident, " ask
that the court indicate on the back of the ticket that the guilty plea is not to be used in a
civil matter. "f a client pleads guilty, it is a good idea to also ask the client on the record if
he has any $uestions of myself or of the court if the sentence by the (udge is unclear.

Concl,!on
hether or not you have a trial or there is a plea to reduce the charge, you
wish to walk out knowing you did the best you could for your client. Bven if you lose, you
want to have been such an articulate advocate that your client walks out saying my
attorney is great but the (udge is wrong. -lways be innovative and prepare new
arguments. :nfortunately, plea+bargaining is still prohibited in drunk driving and drug
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cases although it is perfectly acceptable in murder cases, selling heroin and defacing
street signs. 5opefully, soon the !upreme Court will change this archaic rule. 'ou must
be able to show your ingenuity and desire to win. -s of this publication, there are still no
DM* points to >A7?+D@, 8"nterference with Traffic,; which carries only a small fine.
e handle a substantial amount of municipal court and personal in(ury cases and
have put case law and certain legal defenses on our website www.,6<aws.com. "f you
have an overly difficult case and have problems handling it, do thorough research or refer
the case out.
-bout the -uthor7 Henneth -. *ercammen is an Bdison, Middlesex County trial
attorney who has published ./1 articles in national and ,ew 6ersey publications on
municipal court and litigation topics.
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