Appellate Division addresses waiver of designated trial counsel in older cases.

The Panel addressed R. 4:25-4, which permits a party to designate trial counsel. In medical malpractice actions, courts must honor this designation from three years of the filing of the complaint in the event designated trial counsel is unavailable. Thereafter, this rule may be "waived," and the court can send a case out for trial, requiring another attorney from the party's firm to try the case.

In Hernandez, the trial court entered default against the defendant physician when his trial counsel was not available to begin trial on the seventh scheduled trial date. The Appellate Division ultimately reversed the trial court's entry of default and remanded the matter for trial. The Panel was disquieted by the trial court's earlier inconsistencies when handling adjournment requests and whether designated trial counsel was waived.

The outcome of this particular case was favorable to the defense. However, the Panel made it clear moving forward that once trial courts clearly waive designated trial counsel, this ruling can and will be enforced. This case warrants attention, particularly for defense attorneys with heavy caseloads, who may no longer simply assume a case will not go to trial on assigned date because they are unavailable.

Case Law Alert, 3rd Quarter 2013