Bork Slouches Into Settlement

Judge Robert Bork has settled his slip and fall case against the Yale Club, according to the Associated Press. The action had subjected Judge Bork — active tort “reformer,” conservative icon and former Reagan appointee to the Supreme Court that was shot down in the Senate — to widespread ridicule due to both the nature of the action and the outrageous and legally impermissible demands that he made. I’ve covered the suit here extensively.

This accident occurred, according to the Complaint, because of a lack of assistance or handrails while he was stepping up onto the podium to speak at the Yale Club for a conservative function. But the heart and soul of the scathing criticism that followed was due to the outrageous demands he made in this apparently routine slip-and-fall case (or trip and fall, the Complaint wasn’t really specific). Among the demands were:

• An amount “in excess” of $1,000,000 in compensatory damages;
• Punitive damages;
• Legal fees
• Pre-judgment interest.

Leaving aside the amount of the compensatory damages, the demand for punitive damages was just plain dumb. There was nothing in the Complaint to suggest any recklessness or intent on the part of the Yale Club that would warrant punitive damages, or that the injuries called for such a high compensatory demand. According to the Complaint, he suffered a hematoma in the leg that required surgery and months of rehabilitation. Whether that surgery was a drainage in the emergency room or something bigger, we don’t know, but if it required an admission to the hospital he likely would have put that in the Complaint.

But worse yet to me, as evidence he and his counsel didn’t really know what they were doing with this kind of suit, was that Judge Bork made a demand for legal fees and pre-judgment interest. That’s worse because neither can even be legally recovered in New York. And that meant that a big-time judge both didn’t know the law, and didn’t hire someone who did. (In fact, Judge Bork’s BigLaw counsel flunked basic drafting by failing to even properly allege who owned, operated and controlled the premises.) I did an extensive analysis of the original Complaint here: Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees.

The firestorm of ridicule was deep and strong, and even included one of his own; Ted Frank at Overlawyered called the suit “embarrassingly silly.” It was so bad that Judge Bork’s own son went on to the Overlawywered site to defend his father in the comments.

Being the good sport that I am, I suggested ways for Judge Bork to fix his many problems, among them getting the hell out of federal court due to the additional expense, dumping impermissible claims, cleaning up the drafting deficiencies in the Complaint and bringing the action in state court if it actually had merit (See: What Bork Should Do Now).

That botched Complaint did get amended, but it was clear that despite the wealth of commentary that was available on the subject (not to mention the many thousands of personal injury attorneys in the state), he was still incapable of getting it right. Thus came my open letter to the judge on the subject analyzing his amendments and their failings: Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages.

The dismissal comes to light from a simple docket entry yesterday in the court’s computer dated yesterday:

ORDER OF DISMISSAL: that the above-captioned action be, and hereby is, dismissed without costs and without prejudice to restoring the action to this Court’s calendar if the application to restore the action is made within 30 days. (Signed by Judge Naomi Reice Buchwald on 4/24/08)

My best guess is that the damage to Judge Bork’s reputation from botching the lawsuit exceeds the physical injuries he may have suffered.

And the man who botched all the lawyering? He was first appointed to Rudy Giuliani’s judicial search committee, and then earlier this week to John McCain’s. As I think is clear by now, hiring someone whose strength is political connections, when you actually need a practicing lawyer, is a mistake.