October 3rd, 2019

Overhauling New York’s Convoluted Courts

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?



March 2nd, 2011

New York Sacking 300 Judges (Or Is It Only A Forced Sabbatical?)

New York Chief Judge Jonathon Lippman, tasked with the miserable job of cutting 300 judges loose.

New York Chief Judge Jonathan Lippman released a statement earlier today stating that, due to budget cuts, there may be substantial layoffs in the state court system. And it now appears that all of the state’s Judicial Hearing Officers will be be taking a forced sabbatical. There are 300 former judges that work in this role that will be taking a vacation from which they may not return.

The courts had previously submitted a budget to the state for $2.7 billion. As a result of a request by Gov. Andrew Cuomo, however, that is now being cut by $100 million. According to Judge Lippman’s statement this morning:

As a result of this review, we are taking further austerity measures for the coming fiscal year that will result in additional savings of $100 million to the State. We will achieve this target through continued reductions in the court system’s workforce, including a hard freeze on hiring, layoffs of administrative and other non-operational personnel if necessary, and programmatic efficiencies — re-examining all non-personal service expenditures, including programs such as Judicial Hearing Officers, Town and Village Court assistance, the Judicial Institute, legal reference materials, and the like.

In an interview with the New York Law Journal after the announcement earlier today, Judge Lippman merely speculated about the loss of the JHO program:

He said in the interview that the entire judicial hearing officer program might have to be scrapped. The program employs some 300 retired judges who issue orders of protection, preside over jury selection in civil trials and otherwise relieve judges of some duties.

JHOs are paid $300 per day for their services and the program costs the state about $7 million a year, according to [Chief Administrative Judge Ann]  Pfau.

But the information that I am getting out of the Bronx County Bar Association is that not only is this a done deal, but it will take place on April 1st.  Whether this will be a one year hiatus or a complete closing of the program remains unknown.

Perhaps the most notable of the Judicial Hearing Officers that may be forced into retirement is 82-year-old Ira Gammerman, a former Supreme Court Justice that hit the retirement, and a long time fixture downtown at 60 Centre Street (easily one of the most famous courthouses in the nation). He acts there now in his JHO status as a sort of judicial traffic cop, sending lawyers out to pick juries when their cases come up and then assigning them to judges for trial after selection. And woe unto the lawyer who isn’t prepared, as he has a reputation of dismissing their cases on the spot. He also has continued to try cases he finds interesting if he can get the consent of the parties.

He hasheard from the best (and worst) trial lawyers in the city. He has no problem seizing the questioning from the lawyers to cut to the chase, and his familiar squint into his laptop as he sits on the bench is a familiar site to the thousands of lawyers and litigants that have passed through his carpeted courtroom. Both my father and I have taken cases to verdict in front of him (as has most anyone who is anyone who tries cases in this city).

Judge Gammerman has heard numerous high profile cases, often complex medical malpractice and commercial matters. He dismissed a large part of the Dan Rather v. CBS defamation case and tossed the case of Rosie Donnell against her publisher of Rosie magazine, where they had sued each other.  Joan Collins and Leona Helmsley have appeared before him, and just month ago, the younger brother of the Sultan of Brunei came to defend his x-rated statues.  Perhaps most famously, he told Woody Allen to “stop talking” because, “‘I’m the director here.”

The effect of losing the JHOs is sure to slow down the administration of justice, as judges are forced to tend to more ministerial matters that the JHOs were previously handling.

What will happen to all of these former judges? Someone will return to private practice in big firms as potential rainmakers. But my guess is that most will pour into the private arena of alternate dispute resolution. Whether they come back in a year — if  the JHO program is restarted — remains to be seen. But it is clear that our judiciary is about to see a significant brain drain and the state’s litigants and bar will see a slower administration of justice.


August 3rd, 2010

Professionalism (Or Lack Thereof) In The Courthouse. And A Solution

Queens County, Supreme Court

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.


January 22nd, 2010

NY Court Clerks Get New Rules On Rejecting Papers

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.)