Robert Bork has filed an Amended Complaint for the New York personal injury lawsuit started on June 6th against the Yale Club. The then 79 year-old Bork had fallen a year earlier at the club while ascending to the dais to give remarks to a gathering sponsored by New Criterion magazine, injuring his leg.
A review of the Amended Complaint shows that Bork — a former appeals court judge, Supreme Court nominee, conservative leader and avid tort reformer — has kept his claim for “in excess of $1,000,000” plus punitive damages despite widespread ridicule, but has dropped his claim for legal fees. The Amended Complaint, filed June 27th and entered by the clerk of the court today, is here: BorkAmendComplaint.pdf.
The error-riddled original Complaint is here: BorkComplaint.pdf
My open letter to Judge Bork regarding his edits now follows:
Since New York personal injury law is what I do, I decided to peruse your Complaint back on June 11th. I saw a whole mess of errors, and took the liberty at that time of commenting on What Bork Should Do Now to fix the problems. While I was a bit concerned about giving a big-shot judge advice, I see now it didn’t really matter because neither you nor your attorney apparently saw my blog. Don’t worry, I’m not offended. My wife doesn’t read this either.
Nevertheless, I’m gonna take a crack at this once more, because, well, I’m in a good mood and wanted to help. Below are my June 11th comments in red, and today’s comments follow in black. Let’s see how you and your attorney did with the lawsuit amendments:
10. Voluntarily dismiss the federal court complaint, as of right, before the Yale Club answers (FRCP 41). Once defendant answers, you need permission to dismiss and they may not be so quick to agree without exacting something from you.
Judge, you failed to do the most important thing, and that is get out of federal court while I think you still can. As a result, your litigation will be more expensive since the New York state courts don’t provide for expert depositions the way federal courts do, and depositions of examining physicians are rarely undertaken. This means, most likely, depositions of at least one doctor and probably one building inspector (if there are code violations) for each side. Assuming you entered into a standard contingency retainer fee, the out of pocket expenses will be paid off the top, resulting in a lower recovery for you if you should prevail. Just because you were a federal judge doesn’t mean that is the best forum for you.
9. Re-start in New York State Supreme Court….
8. Dump the punitive damages claim. You know better than that. (And, by the way, it is not a separate cause of action, as your attorneys framed it.)
Incredibly, the punitive damages claim is not only still in the lawsuit, but is also still set forth as a separate cause of action. Given that such a claim has almost zero chance of success — and I think I am being overly generous by saying “almost zero” — I thought that, when I saw an Amended Complaint had been filed, this demand would be gone. I know that admitting a mistake is hard, but perpetuating it will only make things worse. If you were sitting on the bench for such a claim, how badly would you rip such a plaintiff?
7. Dump the claim for attorneys fees. They are not allowed in New York.
6. Dump the claim for pre-judgment interest. It is not allowed in New York.
Despite the fact that we don’t allow claims for pre-judgment interest, it is still in your lawsuit. This is clearly frivolous. If you would like to come to Albany with the New York State Trial Lawyers Association next year when we head up for our annual lobby day, and ask our legislators to make this law, you are welcome to join us.
5. Make sure the new complaint explicitly alleges the Yale Club owns the premises. You didn’t do it the first time. If they are going to deny it, you want to know now.
Ownership of the premises has now been clearly alleged.
4. Make sure the new complaint explicitly alleges the Yale Club controls and operates the premises. You failed to do this the first time. If the Yale Club contracted operations to a 3rd party, or allowed the New Criterion magazine as a sponsor to undertake these activities, you want to know now. Make sure each fact is separately pleaded so you know exactly what position the Yale Club is taking with respect to who operated and controlled this event and this room when they answer the Complaint with admissions and denials.
Control and operation of the premises has now been clearly set forth, though you failed to put allegations in separate paragraphs. This doesn’t kill you, but you are less likely to get an Answer that eliminates certain issues due to admissions.
3. Make sure the new complaint specifically claims the New Criterion did not operate or control this event in any way, or sue them if you think they did. This is important since you alleged they were the “host.” (In paragraph 7, you called both Yale and New Criterion the “host.”) Whatever you do, just don’t leave this vague as you did the first time. It may not be the Yale Club that did the actual set-up for the dais. Do you want to wait for the statute of limitations to expire only to see the Yale Club point at the empty chair?
You cleared up the mistake in the original Complaint of calling New Criterion the “host.” But if you are not going to sue New Criterion, you should explicitly allege that they were not responsible for placing steps to the dais. If the Yale Club denies that allegation, it would be quite meaningful.
2. Do not make a claim for future lost speaking fees, unless they are huge. If you do, your prior writings and statements on tort reform may become relevant to show that your stock as a speaker to conservative groups has been devalued as a result of the appearance of hypocrisy in filing a suit with some meritless claims thrown in to the mix. The man-on-the-street may well remember you as a SCOTUS nominee, but they surely don’t know of what you have written. You don’t want them to know either, because some of the claims in your federal complaint can’t be justified under any legal theory. And that makes you, as a former big-shot judge, look bad. And you are not in a position to simply blame your lawyers for having made so many errors.
In paragraph 11 you state that the injury stopped you “from working your typical schedule.” It remains to be seen if you will make a claim for lost speaking fees. While I don’t know if speaking fees to conservative groups is an element of your lost “schedule,” I think it is likely that perceptions of hypocrisy by bringing this action in the form you did will probably hurt you financially if you plan on speaking in the future to conservative groups for a fee. In other words, if you make substantial income from speaking fees, the filing of the lawsuit could hurt you worse than the accident.
1. The New York State Trial Lawyers Association has over 4,500 lawyers. Hire someone that knows what they are doing with this area of law, not a white collar criminal defense or securities lawyer that can’t draft a simple trip and fall complaint. And remember also that you don’t need a BigLaw “litigator” that probably hasn’t tried a case in years. And you do need someone that knows how to move a case efficiently.
I know that the guy you hired, Randy Mastro of Gibson Dunn, is a big mucky-muck. He used to be Deputy Mayor under Rudy Giuliani, among other things. But you know what? That doesn’t mean he knows how to handle a simple personal injury lawsuit. And it is clear that he didn’t consult one, either prior to filing the original Complaint or after the storm of ridicule that followed.
I wish you all the best, but the legal decisions you have made thus far are nothing to brag about. You have already been ripped as a barbary pirate and hypocrite for making such high monetary demands, but something else is also going on here. A former Supreme Court nominee and his elite BigLaw counsel have been unable to competently draft a decent personal injury complaint after two tries. And I’m not sure which of the blunders is more frightening.
(By the way, congratulations on being celebrated by the Federalist Society this week for your contributions as a conservative thinker and brilliant jurist. I understand about 200 people dropped $100/head to be there. I’ll assume these particular legal proceedings weren’t part of the discussion.)
Addendum 7/2/07 For more on Bork’s feting at the Federalist Society, see An Interview with Robert Bork by Ilya Somin at The Volokh Conspiracy.
Addendum 7/17/07 — Bork Attorney Randy Mastro is picked by Rudy Giuliani to be on Justice Advisory Committee
(Eric Turkewitz is a personal injury attorney in New York)