Category Archives: Judiciary

 

May 18th, 2009

Judge Sotomayor and the First Amendment (And the Pending Case)

Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals is on the short list for Justice David Souter’s soon-to-be-vacant Supreme Court seat. At SCOTUSblog, Tom Goldstein reviews some of her civil appellate opinions, and notes that “Sotomayor has considered First Amendment issues relatively infrequently.”

It’s worth noting then, that she currently has a First Amendment case before her that I’ve discussed with some frequency on this blog, and one that may ultimately affect all attorneys: The issue of New York’s new attorney advertising rules in Alexander & Catalano v. Cahill.

The case, argued January 22nd before a three judge panel comprised of Sotomayor, Guido Calabresi and John M. Walker Jr., deals with a number of attorney advertising and anti-solicitation ethics rules that went into effect in 2007 (see, New Attorney Advertising Rules (Is This Blog an Advertisement?), which includes a 30-day moratorium on attorney advertising after a mass disaster. That particular rule was upheld in the court below. The problem with that regulation, as I’ve discussed, is not so much the 30-day time period, but the difficulty in defining advertising in the context of the web. Just trying to figure out who must comply is often difficult.

Subsequent to oral argument, the real-world effects of the regulation were seen when Continental Flight #347 went down in Buffalo, and I followed the myriad ways that advertising/solicitation could take place that might violate the rule. And that the very ambiguity of trying to figure out where the bright line of solicitation exists raised First Amendment issues. Some of the those posts are here:

It is now almost five months since argument was made. Whether a decision comes out while the SCOTUS nominating waiting game goes on, or after it is over, remains to be seen.

(My comments on one of the qualities the nominee should have are here: The SCOTUS Nominee and The Tissue Box Test)

Links to this post:

“Judge Sotomayor and the First Amendment (And the Pending Case)”
“Judge Sotomayor and the First Amendment (And the Pending Case)”: Eric Turkewitz has this post today at his “New York Personal Injury Law Blog.”
posted by Howard Bashman @ May 18, 2009 12:42 PM

 

May 12th, 2009

The SCOTUS Nominee and The Tissue Box Test

I want to talk about tissues and the law and Supreme Court nominees. As the legal blogosphere and political Washington buzz about the judicial philosophy President Obama will be looking for in a judge to replace Justice David Souter — and what underrepresented social niche the nominee will come from, be it female, black, Hispanic, gay, etc. — what I want to know is if the nominee has ever had a box of tissues on his or her desk. For clients.

I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.

I want a nominee to know what it’s like to make the rent. To pay an employee. From their own pocket and not someone else’s. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.

Our court is stuffed with Harvard and Yale law school grads, most of whom I think never actually tried a case for a private client, financed a case, or fought for an individual before ascending to the lofty heights of the appellate bench.

Last week Norm Pattis wrote on why we need a trial lawyer on the Supreme Court. He said:

A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison.

We don’t have anything resembling a cross-section of society on the court. We don’t have people who look at broken bodies up front and personal in their offices. That’s why we have the tissue box. It isn’t to wipe our own noses.

At Simple Justice, Scott Greenfield picked up the Pattis theme with this about the birth of the trench lawyer movement:

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.

Perhaps life’s experience representing individuals will mean something different to the practitioner-judge than the philosopher-judge when the government strips away rights. Or corporations do a cost-benefit analysis and determine a few deaths aren’t so bad for their product because the profits will still exceed the legal payouts.

If Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook” then he better find a lawyer who once had that tissue box on the desk for the clients.
———————–

More:

Links to this post:

sotomayor–the perfect choice
barack obama needed four important qualities in his first supreme court nomination: first he needed to nominate a woman and/or a person of color; second, he needed to nominate someone who would not face confirmation problems, third, …

posted by liberalamerican @ May 29, 2009 12:58 PM

the case for tissue-box lawyers
for reasons that should be fairly obvious, there’s quite a bit i disagree with in eric turkewitz’s impassioned defense (in the context of selecting potential judicial nominees) of injury and criminal-defense lawyers. …
posted by Walter Olson @ May 12, 2009 7:53 PM

 

December 31st, 2008

Chief Judge Kaye Keeps Door Open On Hillary’s Senate Seat


Dan Slater from the WSJ Law Blog interviewed New York’s chief Judge Judith Kaye today on what she will do next now that she is retiring.

Two weeks ago I said she should be considered for Hillary’s Senate seat, with Caroline Kennedy being a particularly bad choice. (See, Chief Judge Judith Kaye — For U.S. Senate)

And the last question Slater asked was on that point. And the Chief Judge kept the door open with this non-answer:

We’ve heard rumors that you might replace Hillary Clinton in the senate.

I’m not thinking yet about my chapter three. You’re still talking to the chief judge, Dan. Have some respect. [Laughter]

 

December 29th, 2008

Chief Judge Judith Kaye, for US Senate, Gets A Bit of Attention


The accolades for retiring New York Chief Judge Judith Kaye continue, with a story in today’s New York Times. There is also a humble tribute to Kaye by Lawrence Cunningham at Concurring Opinions, calling her “One of the country’s greatest contemporary judges.” She leaves the bench January 15, 2009, having won admiration from people from across the political spectrum.

What will she do now? Two weeks ago I advocated that she be considered for the U.S. Senate seat being vacated by Hillary Clinton. Now Daily News columnist Bill Hammond makes the same suggestion.

The idea of Caroline Kennedy getting the seat because of her breeding makes me deeply uncomfortable. That is the worst possible reason to hand someone a Senate seat on a silver platter.

Anyone else think Kaye should be considered?

 

November 19th, 2008

How One Brooklyn Courtroom Wastes $10M Each Year

This is a story of how one courtroom in Brooklyn is responsible for wasting over $10 million in legal time. Every year. And that calculation is conservative.

The scene for this nightmare is one of our local trial courts, the Supreme Court Building in Brooklyn. The courtroom is called the Central Compliance Part, or CCP as it is known to its denizens. And each day in this massive ceremonial room, a couple hundred hours of lawyers’ time is wasted. When this is annualized, the numbers are truly frightening.

To understand this misery, a little background is in order. All civil litigation starts, after the filing of complaints and answers, in an “Intake Part” where a preliminary conference is held and a discovery schedule is worked out. At that preliminary conference a compliance conference date is also set to mop up any outstanding issues. If your adversary decides to show up on time you could be done in a half hour.

But when you return for that compliance conference, you will not leave in a half hour. No way. The calendar will have over 100 conferences and motions on it. Over the course of a morning some 200 lawyers can easily come and go through this model of epic legal inefficiency. Today’s calendar, for example, had 75 conferences. It looked like this: /ConferencesCCP.pdf
Now add to that the motion calendar with 72 motions and cross-motions involving 54 different cases, which looks like this: /MotionsCCP.pdf

Now ask all the lawyers to show up at 9:30, in one place.

Even if you can work out any remaining issues with your adversary, and you can accomplish what you need in 10 minutes, which is often the case, you may not leave this room for two to three hours. Even if you work everything out and submit a proposed order with no issues that need judicial intervention, you might still wait for an hour for a signed order to be returned to you. And this waste doesn’t count the time going to and from court.

The system is so bad that a cottage industry of “per diem” lawyers has even grown up around it. These folks will, for about a hundred bucks, take care of your conference or routine motion. They make their living by running around from courtroom to courtroom on behalf of others who have conflicts, or who can’t spare half a day to do 10 minutes of work. While this may be seen as a boon to some who want to go this route, it also means that if you are on the other side of a per diem who has booked several different things in different courtrooms, you may be left cooling your heels waiting, and waiting and waiting, while they make their living elsewhere and waste your time.

This is no way to run a courthouse. The lawyers all know it. The judges all know it. The clerks all know it. Everyone hates it. Except for the per diem lawyers running around the courthouse putting their band aides on a septic system.

Having now ranted a bit, let me add my suggestions for fixing this very broken system that is wasting hundreds of hours of legal time every day on matters of simple discovery.

First: The court must create an electronic template for their compliance orders that the attorneys can use, with required dates for completion and a future conference. That is the easy part;

Second: Every Preliminary Conference should have a provision whereby the attorneys are required to have a conference call at least 20 days before the compliance conference so that they can use that template to create a stipulated order to complete outstanding discovery;

Third: All completed orders can be submitted via email to the court, with blanks left for future court dates and a place for the attorneys to note their availability or unavailability due to conflicts. The court then prints, signs, and files and the lawyers retrieve the order via eLaw.

Fourth: Any unresolved issues must be subject to a court conference call with one of the court attorneys. Scheduling is done by email with a specific time to call in;

Fifth: In the event of a real issue that has defied resolution, or an unreasonable or obstreperous lawyer is involved, a court conference is scheduled;

Sixth: Some lawyers don’t, ahem, get paid to move cases efficiently. They get paid to be unreasonable. Wasted time means more billable hours. The court has to start treating the directives in preliminary conference orders more seriously and be stricter with problematic firms as the judges do in the federal system. This will ultimately force lawyers to work things out, or risk the wrath of the court for being unreasonable or routinely ignoring orders.

The system is broken. Badly. It needs to be fixed.

And so, to the Powers That Be in Brooklyn, I beg and beseech you. Fix it. Just 200 hours of wasted time a day — and it is really much more than that — is 1,000 hours a week, which is over 50,000 hours per year. At $200/hour that is $10,000,000/year.

Out of just one courtroom.