March 28th, 2011

New York Courts To Suffer More Budget Slashing

Yesterday the New York Legislature and Gov. Andrew Cuomo reached a budget deal that includes $170M in cuts to the judiciary, representing 6.3% of the its budget. This is bad, bad news for anyone who values a competent justice system.

It was just three weeks ago that I wrote how we were going to lose 300 former judges now acting as Judicial Hearing Officers as part of $100 million in cutbacks. The budget deal, however, now advances those cuts to $170 million.

According to this New York Law Journal article today, the pain will be far worse than previously expected, and Chief Administrative Judge Ann Pfau said she doesn’t yet know where the cuts will come from.

My prediction: The civil justice system will slow to a crawl, and judges will become overwhelmed even more so than now. Retiring judges won’t be replaced. Staff will be cut. The judiciary will try to force litigants into less of the time-consuming motion practice that sucks up much of the limited resources. Many of the motions are merely “money motions” that were done to drive billable hours. Others are for a variety of recalcitrant discovery issues. Judges may be urged to deal more harshly, in terms of sanctions, in order to discourage that type of conduct.

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.

April 19th, 2010

The SCOTUS Nominee and The Tissue Box Test (Revisited)

A year ago I wrote my thoughts on what I’d like to see in a Supreme Court justice to replace David Souter in The SCOTUS Nominee and The Tissue Box Test. This probably doesn’t come as a great surprise, but one year later, with Justice John Paul Stevens having now announced his retirement, those thoughts haven’t changed.

I was looking for someone who had fought uphill battles for people in need. Supreme Court short lists always seem to be filled with those from academia, BigLaw or former prosecutors. And traditionally missing were those who had stood in the well of the courtroom with people whose bodies or spirits were broken or severely compromised.

In fact, it was that desire to find out what kind of people that Justice Sotomayor had represented that led me to find, last year, that she had named her solo law firm Sotomayor & Associates. While others were interested in how she would rule on hot-button political issues, I wanted to know who she had stood up for. I wasn’t looking for the minor ethics lapse that I stumbled upon, and wasn’t intending to cause a small kerfluffle, I just wanted to know who she had actually done work for.

I was heartened when I read in The New York Times last week that, when a clerk was interviewing for a clerkship, Justice Stevens pulled a plaque off his wall that honored him with a small town lawyer award. Not because he was a small town lawyer, but for the kinship he felt. The short piece, part of a longer piece on memories of Justice Stevens, read:

DURING my clerkship interview with Justice Stevens, we talked about our hometowns. When I mentioned that I had grown up in a small town near Seattle, he leapt from his chair and pulled a plaque off the wall. It read: “Small Town Lawyer of the Year: Associate Justice John Paul Stevens.” It had been given to him a few years before by the bar association of Poulsbo, Wash.

At the time, I was puzzled that the award was so meaningful to him. I shouldn’t have been. Although Justice Stevens has always practiced law at the highest levels of the profession, his modesty would make him feel right at home in a place like Poulsbo. He may not have actually been a small town lawyer, but he was definitely a kindred spirit.

While that doesn’t mean that Stevens fit the definition of what I would be looking for, at least his heart was in the right place.

Will our next SCOTUS nominee know what it’s like to struggle on behalf of the desperate and downtrodden, in at least one part of a distinguished career? One can only hope.

Stevens Retiring: Time For A Trial Lawyer (Norm Pattis)

…The current court is composed almost exclusively of lawyer’s whose blood runs pure blue with Ivy League pedigrees, big law experience and years laboring in the vineyards of the nation’s federal appellate courts. Altogether absent from the court is anyone with substantial experience in the trenches where legal abstractions have the most direct impact on the lives of ordinary Americans…

Obama’s Diverse Shortlist (Orin Kerr)

…Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices…
Birth Of The Trench Lawyer Movement (Scott Greenfield, 2009)

…In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities…

March 17th, 2010

City of NY Gets Whacked Again With Sanctions By Appellate Court

The City of New York is on a roll. But not the kind they like. After years of favorable treatment by the courts in the face of repeated discovery delays, it seems as though the appellate courts have had enough of they city’s dilatory tactics and refusal to obey court orders.

In Elias v. City of New York, the Appellate Division (First Department) hit the city yesterday for $7,500 in sanctions. According to plaintiff’s counsel, Charles Gershbaum, the city blew through five different discovery orders in this personal injury matter. Rather than simply accept the lower court’s new order (a sixth order, to comply with five old ones), an exasperated Gershbaum took the matter up to the appellate court, on the legal theory that enough is enough.

And the First Department responded by modifying the lower court order to smack down the city again.

It was just three months ago that 18 of the 20 appellate judges of this same appellate court took the City’s Corporation Counsel, Michael Cardozo, to the woodshed. They called Cardozo “imperious” and “insulting” for having published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

Well, it seems that the appellate courts have performance measures in mind too, notably the lax performance of the City’s lawyers. The irony of Cardozo’s complaint was not lost on anyone.

It was only one day after Cardozo tried to spank the judiciary last December that the Second Department hit back, with its decision in Byam v. City of New York where the city’s answer was struck due to “willful and contumacious conduct” that the court inferred “from their repeated failures, over an extended period of time, to comply with the discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failures to disclose,” for a case going back to 1997.

While the decision yesterday in Elias was brief, it brought back echoes of the First Department’s letter of response to Cardozo, where the justices wrote that:

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence.

That letter had noted that, “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.”

The lower court judges that handle the city parts, who hate to get reversed, are no doubt taking notice of the substantial change in tone from our appellate courts.

March 8th, 2010

New York Appellate Court Gives Lesson in Lousy Legalese (In an important case) – Updated

It’s a contest! For the worst judicial writing in America. And I have here the first entrant.

Now I confess that I publish this with great trepidation, since I appear before this appellate court from time to time. And what I have to say isn’t kind.

But at the risk of pissing off some judges before whom I may appear, I have to ask, would you want our briefs to contain sentences with 300+ words? And would you want me to make you strain to figure out the points I’m making?

Exhibit A: A decision from the Second Department in December in Dockery v Sprecher, regarding a $109M medical malpractice verdict that was reduced to $9 million for a brain damaged man. The first sentence of the decision, regarding the procedural history, weighs in at a staggering 303 words. Without any semicolons. Is there a secret law that says writing a procedural history must induce dread on the part of the reader?

But wait! There’s more! Not to be outdone, the second sentence of the same decision laughs in the face of the first, stomping it into the ground with a jaw-dropping 343 words. But at least that has two semicolons. (Both re-printed below.)

Really, is such gobstopping exposition necessary? Have simple, declarative sentences been outlawed? Is clarity a crime?

I challenge anyone to find a sentence in another judicial opinion of such length.

The format of this decision is unfortunate given its importance. The decision speaks to the issue of how outlier verdicts — those that “deviate materially from what would be reasonable compensation,” in the parlance of New York law — get reduced by courts on review by ordering a new trial unless a party stipulates to a lower amount. I had written of the subject as a newbie blogger (How New York Caps Personal Injury Damages — 1/23/07) due to the popular misperception among the public that the verdicts they see in newspapers are the amounts that actually get collected.

But those verdicts in the papers are there for a reason; either because a celebrity was involved or the verdict was an outlier.

A decision on a blockbuster verdict that helps to define the limits of permissible compensation, and demonstrates how the courts manage those outlier verdicts, is one that would assist the public in understanding how our judicial system works. And it would assist trial judges and lawyers in understanding how the appellate court might see things, and therefore it would be important guidance.

But sentences of 300+ words don’t do that. Instead of offering clear explanation, they offer the reader the opportunity to engage in code breaking, with a WW II Engima machine as a required tool.

And that is not the only place this decision lacks clarity. Because the decision also fails to explain the injuries. Imagine that, a $109M verdict reduced to $9M, and no discussion of the damages? John Hochfelder has written quite a bit on that recurring issue, including this:

So I don’t at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why [the Appellate Division] can’t make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

It takes much hard work to actually figure out what the Appellate Division did in Dockery v. Sprecher, because not only did it reduce the verdict but it also lowered the apportionment of fault for the defendants from 45% to 10%. And it failed to let the reader know what the actual effect of that apportionment change was.

And since this report indicated that there was also a $4.4M pres-suit settlement with a hospital, that means that there would be an offset for the settlement amount under New York’s General Obligations Law 15-108, though you wouldn’t know if from reading the opinion.

So we have a major decision on the issue of damages, with a new trial ordered unless the plaintiff stipulates to a reduction, a change in the apportionment, a settlement requiring an off-set, but with tortured language in the decision, missing information, and open questions for the reader. And that’s a shame.

[Update: Hochfelder unravels the guts of the injury claims in a new post, and comes up with this result:

$4,400,000 (the pre-trial settlement the hospital and one doctor) plus
$957,000 (The 10% share of the remaining defendant, resulting from the new $9,570,000 limit placed by the court)]

So let me politely suggest that our appellate judiciary do a few things:

1. Read the opinions of Justices Scalia, Posner, or Kozinski. Just for style. Ask yourselves this question: Would any of those jurists compose anything resembling the mind-numbing legalese I’ve re-printed below?

2. Contact legal writing guru Bryan Garner, who has given a gazillion seminars on writing to lawyers and judges;

3. Take the writing manual that you are working from and dump it. Whatever comes out the other end of the recycling process will be of better use.

OK, here they are, the first two sentences, in all their gory glory, followed by my closing thoughts:

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Hart, J.), entered July 10, 2008, as, upon the granting of that branch of the motion of the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., and Peninsula Hospital Center pursuant to CPLR 4401, made at the close of the plaintiffs’ case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, upon a jury verdict finding the defendants M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C., 45% at fault, and nonparties Philip Howard Gutin, and Memorial Sloan Kettering Cancer Center 55% at fault for the injuries sustained by the plaintiff Thomas Dockery, and that the plaintiff Thomas Dockery sustained damages in the principal sums of $10,000,000 for past pain and suffering, $27,750,000 for future pain and suffering, $370,000 for past loss of earnings, $80,000 for future loss of earnings over a period of 28 years, and $21,636 for loss of Social Security income, and that the plaintiff Karen Dockery sustained damages in the principal sum of $18,000,000 for past loss of services, and $48,700,000 for future loss of services, and upon so much of an order of the same court entered December 3, 2007, as granted, after the jury verdict, that branch of the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs’ case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, dismissed the complaint insofar as asserted against the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., Peninsula Hospital Center, M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C.

Ordered that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C.; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs’ case, for judgment as a matter of law dismissing the complaint insofar as asserted against them is denied, the order entered December 3, 2007, is modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for a new trial as to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., on the issues of apportionment of fault and damages for past and future pain and suffering and past and future loss of services unless, within 30 days after service upon the plaintiffs of a copy of this decision and order with notice of entry, the plaintiffs shall file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to the apportionment of 10% of the fault to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., and 90% of the fault to nonparties Philip Howard Gutin and Memorial Sloan Kettering Cancer Center, and to reduce the damages for past pain and suffering from the principal sum of $10,000,000 to the principal sum of $1,200,000, the damages for future pain and suffering from the principal sum of $27,750,000 to the principal sum of $6,750,000, the damages for past loss of services from the principal sum of $18,000,000 to the principal sum of $350,000, and the damages for future loss of services from $48,700,000 to the principal sum of $1,000,000, and to the entry of an amended judgment accordingly; in the event that the plaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

Two final thoughts. One reason that this decision might be written so poorly is that the court doesn’t want it to be cited and followed. But, like Hochfelder, I believe that such obfuscation leads to more litigation as it leaves the current state of the law a mystery. If the bar understands that, for example, a verdict for a broken arm will be tossed out if it exceeds (or is lower than) x, then the parties can turn to the liability aspects and make informed judgments with more confidence of the best case and worst case scenarios. And the trial level courts will have guidance on permissible parameters when deciding post-trial motions. And that would mean fewer trials, fewer appeals, and reduced judicial case load. It would, dare I say, promote efficiency.

And last: When I appear before you next, please, please, PLEASE, don’t hold my criticisms against my client. I write because I think the courts can do better, and that we are all better served when decisions are clear.