March 13th, 2020

Will Coronavirus Push New York’s Courts Out of the Colonial Era? (Updated x3)

Chief Administrative Judge Lawrence Marks — Chief Administrative Judge Lawrence K. Marks of the Courts of New York State delivers testimony during a joint legislative budget hearing on Thursday, Feb. 4, 2016, in Albany, N.Y. (Photo/Hans Pennink)

[Huge update at the end as NY suspends new jury trials, both civil and criminal]

New York’s Chief Administrative Judge, Lawrence K. Marks, issued a memo late Thursday to the judicial system about procedures to deal with COVID-19. Short story, the courts are still open and there is no suspension of jury trials. Yet.

But there’s a tantalizing morsel I want to discuss.

There are the six paragraphs, of which I will deal only with the 5th. Because it deals with procedures to reduce attorney traffic inside the courts:

(1) Intro; (2) Restricting access to those with COVID-19; (3) Procedures to deal with those that self-identify as infected, (4) Protocol for dealing with the issue; (5) limiting unnecessary traffic, especially to high-traffic courtrooms; and (6) Conclusion.

I deal with #5 since this was the subject of my post last week (Coronavirus, Crisis and the Courts). That called for the institution of specific procedures to limit the number of lawyers in civil cases who even need to come to court.

I won’t regurgitate the whole thing, but I first wrote about it back in 2008 when I estimated that one Brooklyn courtroom wastes $10M in lawyer time every year. The problem is that most stuff is agreed upon by the attorneys in the hallways. And that can be done just as easily by phone and email.

Judge Marks seems to now be pushing New York in the direction of limiting those unnecessary conferences, particularly with our “high volume parts– which bring together large numbers of people in courtrooms.” (A “part”, for you out-of-towners, is local lingo for where the judge sits.)

In addition to that part of the memo directing courts to liberally extend deadlines and grant adjournments — which we would expect — there is the directive to judges to “consider use of remote appearances (video and telephonic) to the fullest extent permitted by law.”

I suspect that some lawyers outside New York are quizzically scratching their heads on this. But, it’s true, the Empire State still operates much the way we did in colonial times: Show your ass in the courtroom. Even if it’s for a 60-second conference where there’s nothing to decide and so-sorry that you just spent the whole morning for those magical 60 seconds. This is, of course, mostly a downstate issue and short appearances and overwhelmed courtrooms are due to the high volume of cases.

Which was the point of my original post 12 years ago.

Back to Judge Marks. He writes that he is “reassessing” the procedures for these high-volume parts, and that means this memo is not a final product by any stretch of the imagination.

With the court system now specifically looking at those parts that waste so much time, and exploring the use of phone (and video!) conferences, New York’s courts may finally be on the road to entering the modern world.

I, for one, will be cheering Judge Marks on.

Update (2 pm): Hot off the presses, Judge Marks has suspended all new jury trials, both criminal and civil if opening statements have not yet been made. Trials in progress shall continue.

All civil Trial Assignment Parts are suspended.

All high traffic (read: NYC) preliminary conference parts shall maximize adjournments and directing appearances by phone or video conferencing. (Video! In New York!)

All appearances in compliance conferences that occur in centralized compliance parts suspended until further notice, with counsel to stipulate to terms or make arguments by phone or video conference.

When appearance is unavoidable, it “shall” be done by phone or Skype.

All motions to be submitted, and if argument needed it shall take place by phone or video.

Update #2 (Sunday, March 15th): All non-essential functions of the courts are postponed.

Update 3: The New York courts now have a page dedicated to coronavirus information and how it affects the operation of the courts.

March 6th, 2020

Coronavirus and Crisis and the Courts

It’s often been said that crisis equals opportunity, and that is not usually said in a good way.

But that is “usually” and not always.

The coronavirus is now rapidly spreading and we have to deal with it. It has swept through the top branches of Iranian leaders. And just this morning one rabbi in New Rochelle has it at a congregation that was already quarantined.

Community leaders, of all stripes, shake a lot of hands. And viruses don’t care about religions or politics.

So where is the opportunity with this potential pandemic? Well, from my seat as a practicing civil lawyer, I see changes in the courts that should have been made long ago.

Non-lawyers might not appreciate this, but at the vast majority of court conferences little happens that is contentious. Most of it deals with discovery issues and schedules and 90% of that is agreed to by lawyers in the hallways. Often it is 100% with no legal issue that needs judicial intervention.

Sometimes you show up just to pick another date to show up. Seriously. Don’t ask me why. It’s beyond stupid.

The vast, vast majority of issues can be taken care of by email and by conference calls. Skype (or similar) conference if you like. There is often little need for personal appearances.

In one Brooklyn courtroom, I once estimated over $10M in lost legal time per year. And that was in 2008.

I reprint those 2008 suggestions again here today. It is time for New York to move into the technological age. We have been unresponsive in the past for this wasted time, but now our health (lawyers, judges, officers, clerks) depends on it.

Perhaps the time is now. My 2008 suggestions:

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.

Update 3.12.20: Scott Greenfield addresses this from the criminal side: Coronavirus, Courts and Jails

Update 3.13.20: Emily Bazelon in the New York Times now asks the same questions from the criminal side about why we can’t move more court proceedings online.

September 19th, 2019

NY Bar Associations Failing To Lobby for Solos and Small Firms

Eleven years ago I described in this space how one Brooklyn courtroom alone was likely wasting $10,000,000 in legal time, each year. Yeah, I know what you’re thinking. But I’ve actually been blogging longer than that.

Our courts are chock full of inefficiency, and the worst hit in this morass may well be the small and solo firms in the day-to-day matter of trying to get routine tasks done. Our bar associations have this odd habit of catering to the Big Law. Small Law, it seems, doesn’t really matter.

And so, on Tuesday when I saw this letter to the editor of the New York Law Journa, which touched on some of the points I made a decade ago, I reached out to its author for permission to re-publish it here, to widen, ever so slightly, the audience.

For the non-lawyers who may be reading there’s a bit of inside baseball going on in this letter. But this gives you the gist of how sexy our practice really is on some days.

Without further ado, I bring you Sid Baumgarten, who has been around the block a few times as a general practitioner with over 40 years of experience: ——-

Regarding your story about “Millenials Skipping Bar Meetings,” I believe the “syndrome” is not limited to a certain age group. The bar associations here in NYC are becoming irrelevant. (Note that the NY County Lawyers Association has sold its building on Vesey Street.)

I am an octogenarian and I serve as vice-chair of the NYCLA committee on Law-Related Education. Our usual attendance at this important committee headed by retired Justice Price is about 6-10 members. Other than those meetings I rarely attend bar association events.

I attribute the decline in attendance to a variety of reasons:

First, I expected these associations to seriously lobby for needed reforms in the judicial system, but they have rarely done so. On those occasions, it is usually when the fortunes of the “white-shoe law firms” are at stake. There are few, if any, efforts to solve problems for the small firms or solo practitioners. I have importuned them on a number of occasions to speak out on issues that affect the small firms and solos, to no avail.

In early 2018, federal Judge Jed Rakoff spoke about the high cost of legal services and I wrote to the NY Law Journal that “Judge Rakoff did not mention that the judges themselves, as well as the court rules have made the legal process into a nightmare for lawyers, with particular impact on the small firm or solo.” I addressed a few of those problems.

A) The Preliminary, Status and Compliance Conferences where hours are spent just to fill out a form which then gets rubber-stamped by the judge or court attorney. Or the judge or court attorney spends a half-hour with one case discussing discovery issues while another 50 lawyers are forced to sit around and wait. An entire morning spent—and billed to the client—for matters that didn’t need to be before the court in the first place.When I started to practice law most of these issues were resolved by the attorneys themselves. The lawyers ‘charted the course of litigation.’ In a current case I am handling, there are at least 14 lawyers involved in a personal injury case, most of them representing various defendants. Compliance conferences were really a waste. Not once have all the attorneys been able to attend each scheduled date, so it keeps getting adjourned. Mornings wasted and billed to the client.

B) I have questioned also the matrimonial practice of requiring the parties to be present for each and every court date. Why? Is it necessary for the client to take a day off from work to just stand there while the lawyers consult with the court on routine preliminary matters? Also, when was it divined that when a matrimonial settlement is reached and the parties have all signed written, notarized agreements, there must now be an allocution—as if they were entering a plea to a felony?

C) Among the many mysteries of our system here in NYC is the time it takes to get a judgment entered. Where are the bar associations lobbying to give the county clerks sufficient resources to move matters more quickly? An uncontested matrimonial judgment can take months to be “entered.” I had one in Dutchess County and I had the final judgment in hand the same day it was finalized and signed by the judge!In one of my cases where summary judgment was granted and I submitted a $200,000 Judgment to the county clerk it took more than three months be get it “entered.” A civil court judgment for less than $4,000 also took three months to be entered. In July 2016, I wrote to the president of the New York County Lawyers Association regarding each of the matters set forth above. No reply.

Second, the bar associations, in addition to taking up the foregoing issues, should be focusing on some other interesting anomalies. For example, I have volunteered to arbitrate fee disputes pursuant to the court rules and most have involved from a few hours to an entire day. No pay expected! But why are we not at least offered CLE credits? When I volunteer for the Empire State Moot Court trials as a judge or scorer, I get a few CLE credits for just a half-day. Those are student competitions; the fee arbitration involves real clients and real lawyers and oft-times substantial sums involved—and the arbitrator gets nothing.

Third, the bar associations should be furious with the current state of the IAS system which now requires the practitioner to know or read the individual rules of over 200 judges. There should be uniform rules—-period.

More than 40 years ago I served as law secretary (now “court attorney”) to the administrative judge in Queens Supreme Court. At that time, before the IAS system was instituted, we had special term part 1 for contested motions and special term part 2 for ex parte matters. Most of the motions in special 1 were involved with pre-trial matters, discovery, compliance, etc. and a small number of dispositive motions. Most were decided in a few days, some in a few weeks and rarely more than that, except for highly technical cases requiring input from the law department.

At that time we saw no need for the “vertical” IAS system, which in retrospect has not improved efficiency or expediency. I now have dispositive motions pending for as long as 13 months in Supreme Court. Moreover, the IAS judges routinely refer settlement conferences to another judge or referee and also often send the case to another judge for trial. So much for the “vertical” IAS system!

Finally, I lament the loss of the collegiality among lawyers and judges. Everyone is so uptight about political correctness and/or being viewed as not “tough enough” by their clients, it has produced an iciness where if you even say hello to your adversary it is viewed as inappropriate. We used to have lunch with our adversaries and enjoyed each others company and anecdotes without being accused of weakness or worse. That atmosphere has, no doubt, made it less enjoyable to attend bar association functions or to participate in their committees.

There is no time to explore other impacts on attorneys who practice in the state courts, not just the millennials. In my view, litigating in the New York courts has become so frustrating that I know many young attorneys who have given up litigation totally. These are what I think the bar associations should be dealing with every day!

My colleagues, of all ages, often wonder why they keep paying dues to the bar associations.

Sidney Baumgarten is a litigator in New York City and a member of several bar associations.

December 10th, 2018

When you don’t have the facts…

Most folks are familiar with the old Carl Sandburg quote, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”

There’s much truth to that, because if we have something important to say on facts or law, any competent lawyer will put that up front.

This idea came home to roost on Friday when Rudy Giuliani spoke on behalf of Donald Trump. Or at least he tweeted, which apparently is good enough for legal representation these days.

The tweet came on the heels of Trump claiming he answered the questions of Special Prosecutor Robert Muller “very easily.“

But Giuliani went off message as he completely contradicted his client, saying: “Answering those questions was a nightmare. It took him about three weeks to do what would normally take two days.”

So what to do? Well, this is where the Sandburg quote comes in…notice how this Giuliani tweet is utterly devoid of facts and law on the issue at hand…

Some in the media are distorting my statement that answering the questions was a nightmare. That is because as President he was interrupted so often with critical and more important matters. It illustrates why Mueller should end this now and media should be fair.

Giuliani starts in one place, trying to reconcile his comment with his client’s. But then goes wildly off course, in the space of one measly tweet, and Mr. Law and Order asks for immunity.

Now lawyers see similar stuff all the time in legal arguments. Lawyer 1 says the evidence shows red light, and Lawyer 2 argues that his client’s pants are purple.

Lawyers aren’t fooled. We know distraction when we see it, and the job of Lawyer 1 is to make sure that the judge sees that Lawyer 2 never addressed the issue. The only thing the purple pants arguing lawyer did was destroy his own credibility on the next issue, whatever the next issue may be.

Here, the issue was whether Trump was answering the questions and Giuliani simply makes an argument that presidents are busy, so Mueller should stop asking questions.

The nonsense from Giuliani didn’t stop there, however, as he continued with another inane tweet of defense, this time to the campaign finance laws he appears to have broken. The best Giuliani could do was claim that because John Edwards wasn’t convicted for a payment to cover up an affair/child, that Trump is innocent.

It’s as if Giuliani said that because one bank robbery defendant was found not guilty all must be. As if all factual scenarios are the same. Here’s the humdinger of a tweet:

The President is not implicated in campaign finance violations because based on Edwards case and others the payments are not campaign contributions. No responsible prosecutor would premise a criminal case on a questionable interpretation of the law.

Sometimes, the things to look for are not the distortion of facts in a case but the distractions of opposing counsel. Trump does this all the time, of course. You can ask him about campaign contribution violations and he’ll answer something having to do with Hillary Clinton.

But when lawyers do it, it really brings home the point that there’s trouble in the house and the lawyers don’t have the tools to deal with it.

May 11th, 2017

Cellino and Barnes Collapses (Updated)

Cellino and Barnes, perhaps New York’s largest personal injury firm, collapsed yesterday. Ross M. Cellino Jr. brought an Order to Show Cause asking why the firm should not be dissolved. The Buffalo based firm – fueled by a massive multi-million dollar advertising and marketing budget — expanded in recent years to open offices around New York and now in California.

Cellino’s partner, Stephen Barnes, is scheduled to respond in court on May 19th to the petition for dissolution of the firm. Details of the reason for the collapse will most surely come out in the lawsuit, along with accusations of some kind as between the two.

At stake in the suit are potentially thousands (tens of thousands?) of injured clients, whose cases now face the prospects of chaos, delay and disarray. It could be years before the entanglements of the two are sorted out, as issues involving its very expensive phone number (all 8s), marketing campaign (and jingle) and leases are sorted out while the lawyers jockey over how to manage the clients.

(Not all of its advertising revolved around its hokey jingle.)

The dissolution will also have to deal with potential future business — notwithstanding the disarray — and that such business was generated by the years-long marketing campaign.

Most assuredly, lawyers at the firm are now contacting high-value individual clients in efforts to persuade them to stay at one of the new firms bound to be birthed from the tumult and pandemonium that is likely taking place.

The firm currently has 70+ lawyers listed on its website — not large by BigLaw firms but ginormous in the personal injury field where firms of 1-5 attorneys are most common.

But it isn’t as if those lawyers can simply divvy up the clients — for it is the clients that get to choose the lawyers. If clients do not believe they’ve been treated well with personal attention in the past, they may flee the firm altogether.

Both Cellino and Barnes have a checkered history, notwithstanding their success in building their mega-firm. In 2005 Cellino was suspended from the practice of law for six months while Barnes was censured. (In re Cellino)

The two of them had, in violation of the Rules of Professional Conduct, advanced loans to numerous clients. Part of this was having a relative set up a high interest funding company for clients, and then directing clients to that funding company without informing them of the relationship.

Barnes was also cited for ambulance chasing (“Barnes sent a letter to a hospitalized surgical patient and concluded that such conduct was an impermissible solicitation of legal employment in violation of Code of Professional Responsibility.”)

My speculation: There are two main reasons for a law firm to dissolve — money and ego. So the leading contenders are that there are financial problems of some kind lurking in the background, or that Cellino (or Barnes) feels he deserves a bigger piece of the pie for some reason. Time will tell.

This story is one to follow given the inevitable problems that will result in the dissolution of a firm with thousands of clients.
——————-

Update (5/12/17)– As per the Buffalo News, the dissolution issues started when Cillino wanted to hire his daughter, a recent SUNY Buffalo law grad, and Barnes said no:

Cellino went to Stephen E. Barnes in 2015, asking that the law firm hire his daughter, Jeanna Cellino, a cum laude graduate of the University at Buffalo School of Law, one of the sources said.

“Steve said absolutely not,” the source said, adding that the disagreement became a major bone of contention between the firm’s two founders.

In addition, there are apparently issues over finances (no great surprise):

Some disputes over finances in the law firm also are part of the disagreement that prompted Cellino to file a lawsuit against his own law firm this week, seeking to dissolve the Cellino & Barnes law firm, the legal sources said.

There’s also a short quote from me in the story coming off of this blog.

And from the NY Post comes a confirmation of sorts from the comments about Barnes wanting the California business and Cellino wanting New York:

Barnes wants to focus on the California end of the business, Cellino wants the East Coast, and the partners simply want a judge to referee the complicated split, [Cellino’s father] said.

But the scuttlebutt around the Buffalo personal-injury and defense pubs is that Cellino Jr. — a minority partner in the firm’s San Francisco and Los Angeles offices — is feuding over money with Barnes, who has already moved to the West Coast.

This, of course, doesn’t explain why the split isn’t amicable.