Gary Stein

“ That approach provides the parties, who know their case best, and the trial court with an opportunity to determine whether efforts should be made to seek joinder of omitted parties. Once that determination is made, our judicial system would be far better served by absorbing the risk of subsequent litigation than by maintaining in place a preclusive rule of uncertain dimension that generates more litigation than it avoids. ”

“ There is plain economic waste in duplicate litigation. If it can be made to appear to a court that a controversy presented to it will not be completely settled in A's absence, the court is clearly justified in inquiring whether it ought to require A's presence, or, lacking it, to dismiss the case. It will be observed immediately, however, that by nature minimizing litigation and conserving courts' energies are relative values to be weighed with other values in the scale of justice.... ”

“ The equitable policy of doing justice "entire and not by halves" can be made to yield to countervailing factors which are more pressing. The mere fact that a second action may be required to determine the totality of issues involved in a controversy is not a bar to the maintenance of the incomplete first action. ”

“ To the extent that court rules override litigants' strategic decisions concerning how a lawsuit should be packaged, a judicial system runs the risk that its generalized party-joinder requirements will be less effective in managing specific cases than would be the discretionary choices of litigants better informed about their specific unit of litigation. ”

“ On the other hand, advocates of more expansive party-joinder mechanisms assert that the burden of duplicative litigation on judicial resources is unjustifiable:
If [multiple suits involving the same issue] are dealt with independently, if each is handled as if the others did not exist, one serious consequence is repetitious litigation. The resources devoted to any lawsuit, the efforts of judges, clerks, witnesses, and others, are scarce. Spending them in repeated examination of the issues raised by a single transaction is a waste. ”

“ The added burden that the medical malpractice claim in Rapuano would have imposed on our judicial system is negligible, the liability issues being entirely distinct from those in the original tort litigation, and the injustice of dismissal and preclusion of that claim ought to be intolerable. Contrary to the Court's rhetoric, in practice preclusion proves to be the remedy of first--not last--resort, and innocent litigants will continue to be denied their day in court as long as trial courts have the discretion to dismiss suits because of non-joinder of parties in prior litigation. ”

“ Preclusion also breeds disrespect for the judicial process, because it substitutes for the meritorious adjudication of litigants' claims, to which our civil justice system heretofore has been devoted, a non-meritorious procedural bar to justice triggered merely by a lawyer's decision, whether purposeful or merely ill-advised, to omit a party from a prior lawsuit. ”

“ Party joinder is not brain surgery, and the extent to which party joinder should be encouraged and the means of achieving it are questions that also confront every other judicial system throughout the country.
The recognition that no other jurisdiction has seen fit to adopt a preclusive rule like our entire controversy doctrine to achieve party joinder is reason enough for us to question the wisdom of the assumptions underlying Cogdell. ”

“ The Court overestimates the value of preclusion as the ultimate means of enforcing party joinder, and underestimates the harm that the party joinder prong of the entire controversy doctrine has inflicted on our judicial system. The Court describes the value of the rule as protecting "parties, the courts and the public from excessive and costly litigation" in those rare cases in which attorneys "have elected to conceal ... ”

“ Subject to rules of the Supreme Court, the Law Division and the Chancery Division shall each exercise the powers and functions of the other division when the ends of justice so require, and legal and equitable relief shall be granted in any cause so that all matters in controversy between the parties may be completely determined. ”

“ Respectfully, we do not need a committee or a subcommittee to tell us that the preclusive aspect of the entire controversy doctrine no longer should be applied to party joinder and that, like other jurisdictions, we should use less intrusive measures to encourage an appropriate level of party joinder in civil litigation. ”

“ Another commentator advocates expansion of the federal court's power to compel party joinder for the purpose of compelling multiple plaintiffs to [NJ459] join in a single proceeding their claims against common defendants:
Nonetheless, multiplicity is a harm to society's legitimate interest in judicial efficiency. Courts are a public resource, providing publicly financed resolution of private disputes.... The duplication of effort is a major cause of the protraction of time needed to resolve cases and cannot be justified by plaintiffs' selfish strategic desire to sue separately. ”

“ As former New York Mayor Fiorella LaGuardia once said, [NJ473] "When I make a mistake, it is sure to be a beaut." By any measure, the decision in Cogdell, for which I assume my full share of responsibility, meets the late Mayor's standard. Our job now is to correct it so that the judiciary, the bar, and our state's litigants can return to the business of resolving cases on their merits.
IV I join in the Court's disposition of this appeal, but not because I agree with its determination that the entire controversy doctrine should not apply to attorney-malpractice. ”

“ Some critics of Rule 19 contend that that Rule compels joinder only in cases that pose a risk of potential double liability, inconsistent obligations of defendants, or impairment of a non-party's interest, and suggest that the mere prospect of multiple litigation might constitute an additional ground for compulsory party joinder. ”

“ In comparing the merits of preclusive devices, such as an expanded concept of privity for purposes of res judicata, with inclusive devices, such as broader mandatory joinder, Professor McCoid prefers inclusive devices but counsels caution concerning all mechanisms for packaging litigation:
[NJ464] While it is tempting to seek to package litigation into a single suit by means of preclusive devices, provision of the opportunity to be heard guaranteed by due process argues that an inclusive device ordinarily is superior. ”

“ Whether favoring or disfavoring more expansive party joinder, commentators acknowledge that strategic considerations dictate the party-joinder decisions made by litigants. Ordinarily, plaintiffs prefer to join all possible defendants in one suit, avoiding the expense of successive litigation and simultaneously encouraging the defendants to attempt to assign culpability to each other. ”

“ If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may [NJ461] be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action. ”

“ Moreover, because a policy against multiplicity is not the only value at stake in cases of multiparty litigation centering on a single transaction, an inclusive device that permits weighing of competing values at the outset is highly desirable. ”

“ Significantly, no proponent of expanded party joinder in federal practice advocates a preclusive rule that would bar a second action if the first action fails to include a party whose joinder would have been desirable. ”

“ As noted, supra at 467-68, 696 A.2d at 656-57, the imposition of sanctions, combined with more aggressive participation by trial courts at the pre-trial conference, could assist in more effective identification of omitted parties and in discouraging attorneys from withholding from the court information about potential additional parties. Preclusion, on the other hand, punishes litigants who are often innocent victims of an attorney's omission to join a party, and whose meritorious claim is barred except only for the redress that a malpractice claim against the lawyer may afford. ”

“ Beyond that, I must acknowledge the real possibility that all of [the devices] may carry evils worse than the problem to which they are addressed. Use of any one of them may foment assertion of claims that otherwise would never be litigated and thereby increase the adjudication burden of courts. That risk is obvious where compulsory intervention and mandatory joinder are concerned. ”

“ Richard D. Freer, Avoiding Duplicative Litigation: Rethinking Plaintiff Autonomy and the Court's Role in Defining the Litigative Unit, 50 U. Pitt.L.Rev. 809, 824 (1989) .
Plaintiffs who elect to exclude potentially liable defendants from a lawsuit are influenced by other strategic considerations, such as concern about delay or prejudice. See John C. McCoid, A Single Package for Multiparty Disputes, 28 Stan. L.Rev. 707, 714 (1976) . In addition, the joinder of multiple parties and their assertion of multiple claims and defenses makes discovery and trial more complicated and protracted. ”

“ Cogdell, supra, 116 N.J. at 15, 560 A.2d 1169.
This court's pre-Cogdell opinions stated clearly that the so-called entire controversy doctrine was not a rule of party joinder. See Thornton v. Potamkin Chevrolet, 94 N.J. 1, 5, 462 A.2d 133 (1983) ("The essence of that [single controversy] policy is the joinder of claims and not parties.") ; Aetna Ins. Co. v. Gilchrist Bros., Inc., 85 N.J. 550, 559, 428 A.2d 1254 (1981) ("Our research has not disclosed any case in this State where the single controversy [NJ454] doctrine precluded a second action because of a failure to join parties.") . ”

“ Barbarula, 150 N.J. 473, 696 A.2d 659 (1997) , in which the Court today reversed the lower courts' preclusion of the second litigation, the record reveals that the "first" litigation consumed virtually no court resources. Karpovich and Burgio, the plaintiff and defendant in the first suit, settled their differences by Burgio agreeing to repay Karpovich all of her losses, including the losses for which Barbarula and Affinito, attorneys for Karpovich in part of the underlying transaction, were also responsible. ”

“ A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as prescribed in subdivision (a) (1) - (2) hereof who are not joined, and the reasons why they are not joined. ”

“ The Cogdell court, focusing on the facts before it as well as those in Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 476 A.2d 250 (1984) , assumed that mandatory party joinder was justified by considerations of "fairness to parties and judicial efficiency and economy." [NJ456] Cogdell, supra, 116 N.J. at 17, 560 A.2d 1169. In Cogdell, the plaintiff instituted a malpractice action against an obstetrician and an emergency-room pediatrician, the jury returning a verdict for both defendants. ”