Category Archives: Robert Bork

 

June 11th, 2007

What Should Bork Do Now?


As you likely know, Judge Robert Bork filed a New York personal injury lawsuit last week in federal court here. Due to his prior advocacy for tort reform, he has been lampooned, mocked and otherwise pilloried for having engaged in excessive claims over what appears to be a routine trip-and-fall action at the Yale Club.

But this post is not about mockery or political criticism. The issue today is, given the error-riddled Complaint that has contributed to the scorn, what should he do next? Since this is, after all, the New York Personal Injury Law Blog, I figure I’m the guy to take a shot at this.

So here are the top 10 things Judge Bork should consider:

10. Voluntarily dismiss the federal court complaint, as of right, before the Yale Club answers (FRCP 41). Once defendant answers, you need permission to dismiss and they may not be so quick to agree without exacting something from you.

9. Re-start in New York State Supreme Court. State court actions are cheaper because we don’t have expert depositions and don’t generally depose treating physicians. (In this case, expect for each side one or two doctors depending on your actual ailments, and a buildings inspector for code violations.) If the expense of litigation has been one of your court reform mantras, this is a good excuse to re-start here, since there are fewer legal hours and less cold, hard cash involved. Since you will be financially accountable for the disbursements (if a standard retainer agreement were entered into), this is particularly important for you as your attorneys would be repaid the money they laid out for you from the gross recovery. (With a local defendant, they may not be able to remove back to federal court, notwithstanding diversity.)

8. Dump the punitive damages claim. You know better than that. (And, by the way, it is not a separate cause of action, as your attorneys framed it.)

7. Dump the claim for attorneys fees. They are not allowed in New York.

6. Dump the claim for pre-judgment interest. It is not allowed in New York.

5. Make sure the new complaint explicitly alleges the Yale Club owns the premises. You didn’t do it the first time. If they are going to deny it, you want to know now.

4. Make sure the new complaint explicitly alleges the Yale Club controls and operates the premises. You failed to do this the first time. If the Yale Club contracted operations to a 3rd party, or allowed the New Criterion magazine as a sponsor to undertake these activities, you want to know now. Make sure each fact is separately pleaded so you know exactly what position the Yale Club is taking with respect to who operated and controlled this event and this room when they answer the Complaint with admissions and denials.

3. Make sure the new complaint specifically claims the New Criterion did not operate or control this event in any way, or sue them if you think they did. This is important since you alleged they were the “host.” (In paragraph 7, you called both Yale and New Criterion the “host.”) Whatever you do, just don’t leave this vague as you did the first time. It may not be the Yale Club that did the actual set-up for the dais. Do you want to wait for the statute of limitations to expire only to see the Yale Club point at the empty chair?

2. Do not make a claim for future lost speaking fees, unless they are huge. If you do, your prior writings and statements on tort reform may become relevant to show that your stock as a speaker to conservative groups has been devalued as a result of the appearance of hypocrisy in filing a suit with some meritless claims thrown in to the mix. The man-on-the-street may well remember you as a SCOTUS nominee, but they surely don’t know of what you have written. You don’t want them to know either, because some of the claims in your federal complaint can’t be justified under any legal theory. And that makes you, as a former big-shot judge, look bad. And you are not in a position to simply blame your lawyers for having made so many errors.

1. The New York State Trial Lawyers Association has over 4,500 lawyers. Hire someone that knows what they are doing with this area of law, not a white collar criminal defense or securities lawyer that can’t draft a simple trip and fall complaint. And remember also that you don’t need a BigLaw “litigator” that probably hasn’t tried a case in years. And you do need someone that knows how to move a case efficiently.

BigLaw doesn’t mean best law.

Addendum 6/29/07 — Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

(Eric Turkewitz is a personal injury attorney in New York)

 

June 8th, 2007

Personal Injury Law Round-Up #15

The New York Personal Injury Law Blog presents the week that was:

Before heading over to the courtroom, let’s look at some preliminary issues:

Prior to undertaking litigation, we may want to get a bird’s eye view of the whole thing. Beck/Herrmann at Drug and Device Law give the Anatomy of a Mass Tort, from a defendant’s perspective;

Of course, you need the right lawyer to give you that bird’s eye view, and how do you find one? Will the brand new ratings system by Avvo help you out? Scott Greenfield has a few thoughts after taking the system for a trial spin in Yippee! The Avvo Ratings Are Here!

It’s not only important to have the right lawyer, but to make sure suit is timely. Cases against Vioxx maker Merck in Oregon had been barred by the statute of limitations. But as Ed Silverman at Pharmalot reports, that may be about to change as a bill passes the Senate ezxtending the time to file suit for Vioxx claims;

The claims that can be made in a wrongful death case vary from state to state. Edmund Scanlan of the Chicago Accident Law Blog tells us that Illinois Wrongful Death Act now allows jurors to award damages for “grief, sorrow, and mental suffering,” thereby bringing them into the modern age. New York and five other states remain in the dark ages with respect to these damages;

But before we head to litigation, let’s consider the ethical dilemma faced by Dr. Smak, when she knows she has missed a diagnosis and knows her patient has suffered harm;

OK, let’s head head into the courthouse to see what we find:

In a unique suit that deserves watching, Anthony Sebok writes of a suit against Jeppesen Dataplan, Inc., a Boeing subsidiary that is a contractor to the CIA. The suit results from human rights violations arising out of the Bush policy of “extraordinary rendition” and torture. The column is: A Bid to Litigate the Legality of U.S.-Sponsored Torture in Federal Court: Will It Succeed? (via TortsProf). A copy of the Complaint is here.

In another unique suit, Law.com reports that a Miami sole practitioner, J.B. Harris, has brought a suit that Accuses Tobacco Firms of Targeting Black Consumers. For some other links on this subject from the skeptical side, head over to Walter Olson at Overlawyered;

Former SCOTUS nominee, and conservative leader Robert Bork, brought a trip and fall case against the Yale Club, claiming “in excess of $1,000,000,” plus punitive damages, plus a couple things he couldn’t get no matter how bad the alleged wrongdoing was. If he was the judge on his own case, I wonder what he would think about some of those claims?

And now, a group of lawyers who seem hell-bent on giving the rest of us a bad name, one plaintiff’s side and three on the defense:

Practice tips are always a good thing for this section, so we’ll start with the basics: Defending the plaintiff’s personal injury deposition by Ron Miller, at the Trial Lawyer Resource Center.

A more complex practice tip goes to Suing Uncle Sam Under the Federal Tort Claims Act, courtesy of the Georgia Injury Lawyer Blog;

This story comes out of Japan from The Asahi Shimbun, Patient died after “live” demo operation (via Kevin, M.D.)

The trial itself often exudes drama. This is not a play where all the lines are known in advance. So if you like dramatic courtroom scenes, though this isn’t a personal injury case, go to Anne Reed’s Deliberations and make sure you read to the end of Tears, Pain, And History In The James Seale Voir Dire;

Of course, just because you try a case to verdict doesn’t mean the case is over, as those following the Vioxx trials know. Sometimes a jury will do a wacky thing, like award $50M in compensatory damages to someone who had a heart attack due to Vioxx. Or an expert witness will be less than candid in discussing his credentials. Ted Frank at Point of Law discusses these issues in Rulings in Barnett and Plunkett Vioxx cases;

Here is another verdict that seems destined for appeal, with The Injury Blog reporting: Mother of Shooting Victim Awarded $10 Million in Bronx Personal Injury Lawsuit;

With the week done, we pack our trial bag up and go home with some lighter weekend reading:

Enjoy the weekend.

(Submissions for next week’s edition may be made to blog[at]TurkewitzLaw.com)