Last week New York’s Chief Judge Janet DiFiore suggested a fix that every practicing lawyer in the state knows is needed: revamping our Byztantine court system that has 11 different kinds of trial court. Yeah. Eleven. More than any other state.

We got County court, City Court, Surrogate’s Court, Family court, City courts, Criminal Court, District court and a Supreme Court that is not the supreme court of the state, only the supreme court of the myriad other trial courts. (see map of court system at bottom)

Judge DiFiore wants to knock down our 11 levels to three. Admirable, for sure. Yay, Judge. Go Judge!

But let’s wrestle with one small issue in the process. Not the entire proposal. Just one subject, the Court of Claims.

In New York, if you want to sue the state, there’s only one place to do it: The Court of Claims. And that is the only defendant allowed.

So let’s say a state park’s worker is driving a truck while working and runs a 4-way stop sign at the same time another driver does the same, and a pedestrian is hurt. The pedestrian is forced to bring driver two separate actions in two separate courts: One in the Court of Claims for the action against the state and one in Supreme Court for the action against the other driver.

And that means not just double the work and double the court appearances and two trials (with double the costs for experts appearing), but the possibility of inconsistent results.

Part of Judge DiFiore’s proposal is the abolishment of the Court of Claims.

Why do I pick on this one, as opposed to other problems such as custody battles being fought in Family Court while divorce would then get to Supreme Court?

Because it’s the low-hanging fruit. It’s easy. There’s no rational reason not to do it.

And since a restructuring of the court system requires a constitutional amendment, let me urge here that the Legislature — even in the event it doesn’t want to grapple with the entire overhaul (which it should) can still go ahead and take care of the easy stuff.

OK, I have five more minutes, so let me tack on one other point: Our Constitution caps the number of Supreme Court judges at one per 50,000 residents of a judicial district. That is a century old provision.

Anyone that has practiced law in New York City knows how sorely we need more judges as our courts are swamped. I once calculated that $10,000,000 of legal time is wasted every year in just one Brooklyn courtroom with lawyers waiting, waiting, waiting, waiting. Just one courtroom. I wrote the eleven years ago. It hasn’t gotten any better.

So get to it Leg, get to it. There’s a ton to unpack from Judge DiFiore’s proposal. This kind of reform has been needed for decades. How about we actually get around to doing it this time?

Elsewhere:

• DiFiore Wants Massive Restructuring of NY Courts (Times Union)
• New York’s Chief Judge Announces Proposal to Restructure State Court System — with focus on commercial division (Patterson Belknap) –

It happened again to me today. I arrived for a Preliminary Conference in Queens. The conference was scheduled for 9:30. I was there on time, as I always am. Defense counsel sauntered in at 10:35. No pre-conference phone call to indicate she would be late. No excuse when she appeared. No apology. And nothing to indicate she actually gave a damn about the concept of professionalism.

The problem sits with the courts. They schedule a gazillion conferences for the same time, and then lawyers sit around waiting, and waiting and waiting. If you have a single appearance to make, and the other side has three or four, you can be forced to sit there while the other lawyer runs around billing his or her time. Or maybe the other lawyer just wants to sleep late.

But, no matter the reason,  it’s being done on your time if you were acting conscientiously and actually showed up. I wrote about this problem last in 2008 (see: How One Brooklyn Courtroom Wastes $10M Every Year). And if you then need judicial intervention on an issue, you have to wait in line with all the others.

Abraham Lincoln once said that “A lawyer’s time and advice are his stock in trade.” Indeed.

Perhaps one day, maybe even in my lifetime, the courts will figure out how to stop squandering all of our time and wasting so much damn money (time = money).

There are a couple of options:

1.  Schedule the conferences at staggered times. If a lawyer has a conflict,work it out at least 3 days before. Sanction those that are late; or

2.  Many of the conferences can be done by phone without the court. At least 90% of the details, and often 100%, can be worked out by the lawyers. Let the remainder, those that need intervention, be done by conference call with the judge.

The only problem with this is that much of the defense bar still bills by the hour. Those of us that work on contingency have every incentive to get the job done efficiently. The late-arriving lawyer in today’s conference, if she billed today’s appearance, probably claimed at least three hours for it as we didn’t get out until about 12:15. Don’t forget to add the travel time.  But we could have been done by 10:15. And if a court forced the lawyers to do this stuff by phone, we could have done it in even less time.

Now magnify all that lawyers’ time against the huge caseloads that sit in the New York City courts. The millions of dollars in wasted legal time add up fast. That is time spent just sitting there in addition to the travel time.

While it is true that it would cost additional money for the courts to implement this solution, it could be paid for by raising the bi-annual registration fees of the bar. They currently sit at $350, to be increased to $375 come September. But I’d gladly pay $500, if it saves me the wasted time in the courthouse. It would be, perhaps, the single most cost-effective fee increase in the history of the New York courts.

When you are up against a deadline, the prospect of a court clerk rejecting papers can not just be problematic, but fatal. And because of prior instances where some clerks have rejected papers based on their understanding (or misunderstanding) of rules, the Office of Court Administration has issued changes.

There are now just four reasons for a clerk to reject papers:

1) papers that do not have an index number,
(2) documents commencing or concluding a lawsuit that do not list the names of all parties,
(3) filings offered in the wrong county, or
(4) documents not signed as required by court rules authorizing sanctions for frivolous contentions.

The rules come because the White Plains general practice firm of Tilem & Campbell brought a lawsuit to challenge what they saw as inappropriate rejections of papers by clerks.

From today’s New York Law Journal (reg. req.)