The terms “trial” and “litigation” are synonymous and yet each has its own nuances. “Trial” generally means the handling of court room trial proceedings before a judge (and sometimes before a jury as well) while “litigation” generally refers to the process of “taking some legal action.” Thus, one would say, “we are taking the breach of contract to litigation,” when a business dispute of some kind has resulted in the breakdown of communication. In contrast, one would use the term “trial” to denote an impending or actual trial that has taken place.
There are jury trials, bench trials or non-jury trials and administrative trials. Jury trials are conducted before a civil or criminal jury and supervised by the presiding judge whose duty is to instruct the jury on the law that applies; and it is the jury’s province to judge the facts. In a bench or non-jury trial, the judge alone is both the fact-finder and the legal decision maker so the functions are intertwined. In an administrative trial, the trial takes place before an administrative law judge, in the context of a specialized agency hearing (such as immigration, social security, human rights, civil rights, civil service, etc.) which are functionally equivalent to a regular bench trial.
Some clients come with the view that a lawyer who handles litigation practice must have handled “trials.” While it is often the case, it is not necessarily the case. So the better-informed client will ask whether a lawyer has actually handled trials, which means jury trials, non-jury trials (also called “bench trials” because the judge does it alone from the bench) or even administrative trials. It is not unusual for even arbitration proceedings to be called “trials” since the basic structure is similar to court room trials, where evidence is presented in the form of testimony along with documents and other tangible objects.
Our firm has handled jury trials and non-jury cases in many court settings, including New York, New Jersey, Pennsylvania, where one or more of our lawyers are licensed. We have also handled trials in numerous other jurisdictions where we are not licensed but we have received permission to practice, called “pro hac vice.”
Over the years, we have come to develop a keen understanding of the jury selection process; and the anatomy of trials and we have often been contested with large law firms with significant issues presented in the cases. During a trial, it is important for the trial lawyer to present an aggressive case on behalf of the clients while presenting effective cross-examination and opposition against the adversary’s case so that the trier of fact can render a favorable decision. During the trial, it is important for the trial lawyer to preserve any adverse ruling for appellate review. This is done by placing timely objections and pressing for the client’s position as much as tactically feasible so as provide the best light for the clients.
We possess extensive experience in appellate practice and we have been involved in numerous precedent-setting cases.
- In O Builder v. Yuna Corp., 206 N.J. 109 (2011), we argued before the highest court of New Jersey, the Supreme Court, in a case that defined new law in the field of attorney disqualification in conflicting matters; which resulted in a rare 4-3 split decision.
- In Lee v. Young Rah, 212 N.J. 269 (2012), we argued again before the New Jersey Supreme Court and obtained a rare and unusual reversal of certification that had been granted by the Court previously in the case, involving the limits of personal jurisdiction of a defendant who was sued in New Jersey when he “committed no acts and never set foot inside the state.”
- In Korea Exchange Bank v. Trackwise Sales Corp., 66 F.3d 46 (3d Cir.), our clients’ banking dispute was improperly dismissed by a federal judge and, on review, the U.S. Court of Appeals for the Third Circuit, sitting in Philadelphia, agreed with Kimm that the dismissal was contrary to law. The rights of Mr. Kimm’s clients were vindicated by a rare, extraordinary judgment called “writ of mandamus.”
- In Hudson Universal Ltd v. Aetna Casualty & Surety Co., 987 F. Supp. 337 (D.N.J.), we represented an eye wear manufacturer that was denied insurance benefits under an “advertising injury” (trademark) policy when it was sued by another company for alleged trademark and patent infringement and unfair competition. The New Jersey federal court agreed with our views and the insurance company was held liable for “bad faith” refusal to provide defense and indemnity to the client. This was the seminal case in the eastern half of the United States, and was featured in a New Jersey Law Journal’s “Intellectual Property” update about important developments in the law in 1995.
- In Envision Advertising LLC v. Ridgefield, al., 96-1712 (WGB), a federal action, we filed a public interest class action on behalf of a Korean-owned advertising agency, Envision Advertising, LLC, against six towns in north-eastern New Jersey where store-front signs written in the Korean language were required to have “equal English content,” as a violation of the First Amendment to the U.S. Constitution. All of the six towns had a small but growing Korean minority population, whose personal views were being squelched by concerted governmental policy which limited their right of expression in Korean. The lawsuit filed in the Newark federal court, ended with all towns changing their laws, and one municipality agreeing to pay Envision’s legal expenses.
- In In re AM Korea, Inc. 98-40639 (Bankr. SDNY), the only Korean language radio station in the New York metropolitan region, “AM Korea” which operated at AM 930, and later at AM 1480, faced a total shutdown because the station FCC license holder terminated the sublicensing contract. Retained just a few days before the disastrous event, using the framework of a Chapter 11 reorganization in Manhattan bankruptcy court, we prevented an abrupt termination of the license and, following two separate trials, persuaded the court to order the signals continued, forced an extension of the license, and thereby prevented the loss of many jobs at AM Korea, and ultimately obtained a significant financial settlement against the adverse. Kirkland & Ellis.
- In Kimm v. Cha & Asiatic Accupressure, Inc., 335 N.J. Super. 262 (App. Div.) we obtained an important clarification of New Jersey Supreme Court’s fee arbitration procedures, before a three-judge panel of the State Appellate Division, in a decision precluding the Fee Committee from facilitating a person’s misuse of the fee-arbitration procedures.
- In Yi v. Re/Max Fortune Properties, 338 N.J. Super. 534 (App. Div.), a public interest case, we obtained clarification of an important area of the law defines the rights of countless thousands of tenants under the New Jersey Rent Security Act, which requires landlords to account for security deposits within 30 days of termination of tenancy, which provides for penalties and legal fees where a landlord fails to act timely.
- In Kimm v. Blissett, LLC, 388 N.J. Super. 14 (App. Div.) we obtained clarification of an unsettled area of arbitration law and procedure, under the statutes, that require arbitrators to issue a single award in accordance with the parties’ agreement.
We have handled business disputes, intellectual property disputes, tort cases, contract cases, and numerous other disputes that have resulted in jury trials and non-jury trials and we provide clients with effective and cost-effective legal service.
“Appeal” means to present a dispute to a “higher court” which usually means, but not always, that the appealing side has lost an issue in dispute. It is not uncommon to hear a news conference where a guilty person’s lawyer states, “we will challenge the conviction on appeal and we will be vindicated.”
In the United States’ system there are appellate tribunals in just about every legal system — federal, state, administrative, municipal and even quasi-legal bodies such as boards of education, colleges and universities, and even internally within companies.
Due to federalism, our legal system is divided into state courts and federal courts. Federal courts are courts of limited jurisdiction where only certain cases can be heard while state courts are courts of general jurisdiction. See map of the federal system, below.
Our Appellate Practices
We possess significant appellate experience. We have handled appeals in intermediate courts and the highest courts of states and the federal system, on behalf of domestic companies and international companies as well as individuals and professionals. We have argued in numerous federal courts of appeals as well as state appellate courts and have been involved in numerous precedent-setting cases. Kimm has also argued before the New Jersey Supreme Court in two separate cases and those arguments are available in video links here:
- O Builders Associates v. Yuna Corp.
- Sang Chul Lee v. Young Rah
We provide full, in-house appellate services including the creation of the appeal Appendix or Record as well as the briefs. For lawyers who are not engaged in appellate practice, we welcome their cases for immediate review and joint participation or outright assignment to us. We are available to appear in the following courts and venues:
You should remember that the initial document, generally called the Notice of Appeal must be filed within a certain number of days after entry of the judgment or final order and the time is short and cannot be extended even by trial courts. In the federal courts, the notice of appeal must be filed within 30 days or the appellate court will be deprived of jurisdiction, i.e., the power, to hear the case at all.
- All New York State Courts
- All New Jersey State Courts
- All Pennsylvania State Courts
- Other state courts on a case-by-case basis
- All United States Courts of Appeals
- U.S. Supreme Court
- Urgent injunction litigation
- Stay Pending Review
- Expedited Appeals
The Federal System
The U.S. Supreme Court
In the federal system, the U.S. Supreme Court at the highest point of the court system and takes cases only by permission. A litigant who lost on a legal issue below must file a petition for writ of certiorari, an ancient Latin term, “an order reviewing a lower court decision,” and must await a “grant of certiorari.” Here, the petition must contain all of the legal points and contentions to be raised in the case, and the petition must be presented before the petitioner even knows that the Supreme Court will even hear the matter.
The Supreme Court petition must be crafted in compliance with the strict requirements of making a small booklet, with unusual size specifications, paper weight, typeface font, cover colors, and other requirements, and at least 40 booklets must be filed with the Court, for each case, by each party who wants to be heard. There are strict time requirements of 90 days which runs from certain, jurisdictional events, so careful attention must be placed to creating a certiorari petition.
The United States Courts of Appeals
Immediately below the Supreme Court are 12 regional circuits. Each of these is situated with a United States court of appeals for that circuit. The courts of appeals hear appeals that are taken from the district courts located within each circuit, as well as appeals from decisions of federal administrative agencies. Among the circuit courts, the Court of Appeals for the Federal Circuit, located in Washington, DC, has nationwide jurisdiction to hear appeals in specialized categories of cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims.
The District (Trial) Courts
The United States district courts are the trial courts of the federal court system. There are 94 districts across the country. Some states have as few as one district; and others have multiple districts within the districts. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters, as well as non-federal cases involving litigants of different states or between a state resident and an alien. Each of the 94 districts includes a United States bankruptcy court as a unit of the district court. Three territories of the United States — the Virgin Islands, Guam, and the Northern Mariana Islands — have district courts that hear federal cases, including bankruptcy cases. Puerto Rico and Washington DC are treated as a separate district.
Other Trial Courts
There are two specialized trial courts that have nationwide jurisdiction over certain types of cases. The Court of International Trade, located in Manhattan, addresses cases involving international trade and customs issues. The United States Court of Federal Claims has jurisdiction over most claims for monetary damages against the United States, disputes over federal contracts, taxes, unlawful “taking” of private property by the federal government, and a variety of other claims against the United States.
Quasi Judicial Tribunals
There are numerous agencies and quasi-judicial tribunals that function as “trial” level tribunals which include the International Trade Commission, the United States Patent & Trademark Office’s Trademark Trials and Appeals Board, and others like these.
The State Court System
Like the federal counterpart, state courts are governed by one highest court who hears cases by permission granted through some kind of petition.
There are intermediate courts of appeals of at least one layer which may be called the Appellate Division, Appellate Term, Intermediate Court of Appeals, or similar designation, and these courts hear appears as a matter of right, from trial courts.
The state trial courts are called different names based upon the historical names used in that state. For instance in New York State, the trial court is called “Supreme Court” and this often confuses lay people who mistakenly believe that they are before the highest court of the land, but in fact the New York State Supreme Court is the trial court.
In New Jersey, the trial courts are called Superior Court. The intermediate appellate courts are called Superior Court, Appellate Division, whereas the highest court is called the Supreme Court. The Appellate Division reviews decisions from the Superior Court (and its various subdivisions such as the Law Division, Chancery Division, Probate Division, etc.) and from agency decisions such as NJ Division of Civil Rights.
The trial courts serve as an appellate court over certain matters, such as appeals from the municipal courts or town courts.