Many domestic violence cases, particularly those dealing with allegations of harassment, or borderline cases that may or may not be what is called “domestic contretemps” come down to credibility determinations. Which party is more credible, more believable. Is the victim truly fearful based upon prior acts, etc.
Because of that, the all too common tactic of the defense making a motion to dismiss after the plaintiff rests her/his case is a waste of time. Why? Because when deciding a motion to dismiss, the court must accept as true all of the plaintiff’s evidence and give plaintiff all reasonable inferences. Thus, in he said/she said cases, it seems impossible that a motion to dismiss before the defendant puts on a case can be granted.
But sometimes, trial courts get it wrong and grant these motions because the judge didn’t find the plaintiff to be credible. This is what happened in A.K. v. T.A., an unreported (non-precedential) Appellate Division decision released on October 1, 2024.
Because this blog is about the law, the facts of the case really don’t matter. Suffice it to say that on cross examination, plaintiff was confronted with alleged inconsistencies between her testimony and her complaint. To make matters worse, the trial judge would not allow plaintiff’s counsel to attempt to refresh her recollection by reviewing the TRO, despite noting that this is “… something which typically is done…” Worse yet, the trial judge did not allow plaintiff’s counsel to introduce text messages referenced in her testimony because they were not prepared as a trial exhibit. This too is odd because in many domestic violence cases, people take out their phones and show it to the judge as evidence. In this case it is worse because plaintiff’s adjournment request to prepare was denied.
At the close of plaintiff’s case, the trial judge seemingly invited the motion to dismiss then granted it, with defendant’s counsel not so ironically arguing that there wasn’t documentary evidence to support the “bare allegations.” The Court granted the motion, largely based upon credibility determinations.
The Appellate Division reversed the trial court. In doing so, the Appellate Division restated the law regarding involuntary dismissals. First, the Court cited to Rule 4:37-2(b) which provides:
“After having completed the presentation of the evidence on all matters other than the matter of damages (if that is an issue), the plaintiff shall so announce to the court, and thereupon the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action . . . on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff’s favor.
The Court went on to further note that:
“If the court, ‘accepting as true all the evidence which supports the position of the party defending against the motion and according [them] the benefit of all inferences which can reasonably and legitimately be deduced therefrom,’ finds that ‘reasonable minds could differ,’ then ‘the motion must be denied.'” ADS Assocs., 219 N.J. at 510-11 (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).
“[T]he judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.” Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). “Ordinarily, the dismissal motion should be denied if the plaintiff’s case rests upon the
credibility of a witness.” Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 4:37-2 (citing Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 494 (1956)).
The court further noted that if dismissal is going to be based upon credibility, “….dismissal is sustainable only where the witness’s testimony “is clear and convincing, not incredible in the light of general knowledge and common experience, not extraordinary, not contradicted in any way by
witnesses or circumstances, and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind . . . .”
In reversing, the Appellate Division acknowledged that plaintiff’s testimony was at times, confusing and difficult to follow. That said, the court pointed out that that could be attributable to the fact that she did not have the opportunity to prepare for trial with counsel as well as counsel’s inability to refresh her recollection or introduce the text messages.
Quite frankly, the failure to allow plaintiff’s counsel to refresh her recollection with the TRO and/or introduce the text messages alone could have been a bases for the reversal as one could argue that plaintiff’s due process rights were abridged, to put it nicely. The Appellate Division did not have to directly rebuke the trial court for that, however, since the motion to dismiss was decided based upon credibility.
That all said, it is not common for plaintiff’s not to be great witnesses. They are not professional witnesses. Some are scared. Some have never been to court. Some have suffered trauma. Some people’s minds don’t work in a linear way that makes the presentation of evidence go in smoothly. I have had two cases in my career, one at a TRO hearing and one at a FRO hearing, where the judge insisted on doing the direct examination, and in neither, did the testimony go in well. In one, my client got so upset that she said that she didn’t talk anymore. In both cases, I politely asked the judge if I could ask the questions, and we were able to put in the testimony that was necessary to accomplish the task at hand.
Either way, the takeaways from this case are twofold: first, mid trial motions to dismiss generally cannot be decided on credibility determinations; and second, counsel should fight hard on the record to protect basic due process issues.
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