Newsletter - June 2000

	JURY DUTY: A Lawyer's Dozen? Part One
	Have Website, Must Travel (to Court)
	NJ's Licensing of First Time Drivers: January 1, 2001
	Not Just for Seniors Corner: Last Will and Testaments

You may be one of these people. Here, in the first of a three part series, is a guide to what you will experience.

Once a juror has been selected to hear a case and has outlasted the obstacle course known as jury voir dire (questioning by attorneys and the judge), he or she is ready to hear the case. All members off the jury will be asked to rise and either swear or affirm, that they will truly abide by the rulings of the judge as to the applicable law and decide the case fairly, without prejudice, based on the facts. This is when the jury is considered to be "empanelled". The members are now serv-ing pursuant to an oath and can be held to that oath under power of contempt of court.

If it is a criminal case there is likely to be fourteen jurors sitting in the juror box. Only twelve will deliberate on the case, but it is common practice to select at least two alternates on a criminal trial in the event event there is an accident or illness to a juror or if for some other reason a juror becomes unable to serve during the course of the trial. It has happened, for instance, that a juror has become so overwhelmed by the evidence in a case, particularly trials involving violent crimes that they need to be excused. On occasion during a trial, a juror may become "tainted" by exposure to a newspaper article or radio or television report about the trial contrary to the court's in-structions. No outside influences are supposed to be working on the jury during the trial. Even discussing the case with a friend, family, or business relation, would be a violation of the juror's oath and could be cause for dismissal from the case. Normally, only the most egregious conduct of a juror, however, would result in any consideration of a contempt citation.

In criminal trials that are especially complex and expected to be lengthy, sometimes up to eighteen jurors can be empanelled. At the end of the trial, a drawing is held and the alternates are then identified. In this way, anyone who has been picked as a juror and is hearing the case could be sitting on the jury that decides the case. This maintains the need for and interest of all jurors to listen and pay attention to the trial and ar-guments.

In a civil case six jurors are needed to decide the case. Usually one or perhaps two alternates are picked. As opposed to criminal cases, it is common for the lawyers and the judge to agree to let all the jurors who remain at The end of the trial to participate in the deliberations and issuance of the verdict. Thus, even though six jurors are necessary to hear the case, sometimes seven or eight jurors will actually deliberate on a civil trial. In contrast to a criminal trial where verdicts must be unanimous, the verdict of a civil jury need only be by a majority vote of five out of six jurors.

The juror who is placed in the first seat is usually asked to serve as the foreperson of the jury. The jury is free to pick whomever it wants, but usually goes along with the suggestion. The foreperson has no supervisory authority over the other jurors, but merely is the person who will communicate directly with the judge in the name of the jury, will conduct the voting, and will deliver the verdict to the court at the end of deliberations.

When the trial begins . . .

TO BE CONTINUED: Next Issue

The traditional rule, established long before the arrival of the Internet, required that a business have "minimum contacts" in a particular state in order for the business to be sued in the courts of that state. Opening a branch office in a state or sending a sales representative there is easier to categorize as "contacts" than are activities that take place only in cyberspace. Adaptation of the concept to business conducted on the Internet is a work in progress, but some patterns are start-ing to emerge.

Passive vs. Active website
Some courts distinguish between "passive" and "active" websites. A website that is clearly passive is limited to describing the company or providing its address or telephone number. It is unlikely that a passive website, by itself will subject the business to lawsuits wherever it can be seen. On an active website, customers can make online transactions by signing up for services or buying products. Among courts adopting this approach, the consensus is that an active website constitutes doing business in the users' home states, subjecting the business to the jurisdiction of courts in those states.

The passive/active website distinction is flawed because there are large gray areas between the two ends of the spectrum. Courts have struggled with how to characterize "interactive" websites that do not permit online transactions but allow customers to get on mailing lists, communicate with company representatives, or check on orders.

Internet Server Location
Other courts find jurisdiction in the state where the Internet service provider is located. The problem with this approach is that businesses may use one or more servers not as part of a plan to do business where the server is located but simply for technical reasons. In fact, many businesses and individuals do not even know the location of their server. One state appellate court has concluded that a New York organization could not be sued for defamation in a California court on the ground that it had contracted with an Internet service provider in California. The court accepted the argument that choosing a server with a few keystrokes at the computer was for the purpose of giving access to people all over the world but not to target California in particular.

Non-Internet Factors
If no clear answer to the jurisdiction question emerges from the nature of a business's website activities, the scales may be tipped by non-Internet factors. For example, a manufacturer of beds in one state maintained a passive website in that no sales were conducted through it. The site was accessible to over two million residents in another state halfway across the country, and sales by conventional means in the second state represented over 3% of the manufacturer's gross sales. A federal district court in the second state allowed two of its residents to sue the manufacturer in their home state when their three-year-old was asphyxiated in a bunk bed.

Preventive Measures
Short of retreating from the age of the Internet, there are measures that can be taken to reduce the likelihood of being hauled into court up to three time zones away from your home state. Give thought to the kind of website you use and to its purpose. Some courts have held that the likelihood that jurisdiction can be asserted over an out-of-state business is directly proportionate to the nature and quality of the commercial activity that an entity conducts over the Internet.

While courts may not always enforce the practice against individual consumers, businesses can try to protect themselves by posting choice-of-jurisdiction and choice-of-law provisions on their sites. This is the online version of including in written contracts clauses in which parties agree that any dispute will be resolved in the courts, and according to the laws, of a specified state.

While such agreements can be in written form in the product's packaging, it is more effective to use "click wrap" agreements where a potential customer first must click on a button that says "I accept these terms." A federal court has upheld such an agreement, ruling that a couple who sustained personal injuries at a Las Vegas hotel could not sue the hotel in their home state. Although any customer in any state could reserve a room through the hotel's website, the customer first had to agree to have legal disputes settled in a court in Nevada as part of making the online reservation.

Initially a person as young as 16 years old can apply for a special learner's permit. This permit is issued for driving education/instructional purposes. Upon successful completion of both the drivers education exam and the behind-the-wheel exam, the permit is validated for use by the holder limited to driving during the hours of 5:00 AM to 11:01 PM. The permittee must be under the supervision of a licensed driver who is at least 21 years of age with three years of passenger automobile driving experience. In addition, there would be a restriction against having more than one additional passenger (other than the supervising passenger) who does not also share the same residence as the permittee.

A special permittee who gets more than two points, is convicted of leaving the scene of an accident or drunk driving will have the permit suspended for a minimum of 90 days and will be required to complete a four (4) hour remedial course in addition to any other penalties provided by law before the permit can be reinstated. It should be remembered that the vast majority of motor vehicle violations are two points so a second violation, no matter how minor, will result in the automatic suspension.

The second tier under the new statutory scheme is obtaining a provisional license. Here the driver must be at least 17 years of age, complete an approved behind-the-wheel training program, have a least six (6) months driving experience with a special learner's permit, and pass the road test. The holder of a provisional license is prohibited from having more than one passenger in addition to persons sharing his or her residence, except if the license holder or a passenger is 21 years old. As in the case of the special permittee, the holder of the provisional license would be restricted to driving between 5:00 AM and (in this instance) 12:01 AM except for emergencies, bona fide employment and religious purposes.

There is no automatic suspension if the provisional licensee obtains more than two points but the four (4) hour remedial course is still required. Following completion of the course, if there are any additional motor vehicle violations, this would then result in a mandatory suspension of the provisional license for a period of not less than three (3) months but not longer than six (6) months and a postponement of eligibility for a comparable period of time in addition to any other penalties as provided by law.

The driver holding a provisional license may then apply for an unrestricted "basic" driver's license if he or she (1) satisfies all the conditions and requirements for a provisional license, (2) has at least a year of driving experience after having obtained a provisional license (or completes a post-conviction remedial course as set forth above which ever comes later) with no more than two (2) motor vehicle points and no other motor vehicle convictions during the previous year, and (3) passes the States local road test.

The written examination just got tougher too. There will be an additional 20 questions many of which will be directed at the effects of alcohol, drugs and driving. This new law is directed at lowering the State's traffic injury and death rates by producing better qualified first time drivers. If successful, the side benefit will be the resultant reduction in personal injury and property damage ultimately lowering auto insurance costs in the future.

Contemplation of one's mortality is a dismal thus understandably neglected task. Yet, if we don't plan for our life's care and the care of our loved ones, the state will do it for us through the process known as 'intestate" (without a will) administration. Our statutory "heirs" will receive our estates in predetermined proporations. Additionally, both state and federal laws could well carve out sizeable tax bills to be collected from our hard earned but unspent wealth.

Over the years, Azrak & Associates, L.L.C. has devoted their resources and expertise to aiding clients direct the disposition of their assets after death. The centerpiece of any such estate plan is usually one's Last Will and Testament. The author of this document is the "testator", or if female, the "testatrix". The testator must be at least 18 years old, of sufficiently sound mind to know his own financial condition and the purposes he is trying to fulfill, and free from coercion or improper in-fluence.

Although under certain conditions New Jersey law allows a testator to draft and sign a handwritten Will in solitude, as a wise and safe course completing a Will with an Attorney will result in safeguarding one's estate. There are requirements intended to safeguard the integrity a document that records and preserves the wishes of a person who has died before the document becomes effective. Thus the testator must record and announce his Last Will and Testament before two competent witnesses, who must in turn properly acknowledge both the event and the testator's competency, and all must sign the will before a notary officer. The drafting and execution of your Last Will and testament allows you to decide who receives your "testamentary" estate (your "beneficiaries") and in what specific portions. Often equally important, you may designate in your Will the person or persons whom you choose (Executor/Executrix) for the important role of collecting your estate, paying your remaining debts and estate expenses, and finally distributing your net assets to your chosen beneficiaries. You can prepare for tax liabilities so that they do not burden particular beneficiaries, and for unexpected contingencies such as the simultaneous death of a spouse. You may also arrange for the placement of assets in trust for the good of specific beneficiaries for designated periods of time, and also appoint a Trustee to manage these assets. However, careful drafting of the Will is required to make sure that your directions are legally effective and sufficiently comprehensive to accomplish your specific goals and intentions.

Although a Last Will and Testament may be your first thought, overall estate planning can and often should involve more options and choices than simply the careful drafting of a Will. Each individual has distinctive needs and priorities. Often other vehicles or property transfers may be necessary to compliment, or work in conjunction with your Last Will and Testament in satisfying your family's needs.

Comprehensive estate planning will also take tax consequences as well as questions of long-term property management, control of assets before death, or successive beneficiaries over time into account. Other possible estate planning solutions, either incorporated in your Last Will and Testament or created by separate documentation, such as life insurance trusts, credit shelter trusts, and the division of property between spouses prior to death, are important options to consider for adults who wish to 'maximize" both their family estates and their appropriate administration. It is important to remember that Wills drafted yes-terday may not meet tomorrow's requirements, particularly if hard work or good fortune greatly expands one's financial estate. It is certainly as important to review one's estate planning documents regularly as it is to create them.

The attorneys at Azrak & Associates, L.L.C. are prepared to guide you in the process of reviewing your estate planning needs on an annual basis and assist you in implementing those plans with the legal documentation necessary. Avail yourself of a free consultation by calling (973) 839-9062.

627 Newark Pompton Plains Turnpike
Pompton Plains, NJ 07444
Office: (973) 839-9062 || Fax: (973) 839-2743
Email: Lawyers@AzrakLaw.com