When I last visited the subject of former Judge Robert Bork three years ago it was because his slip/trip and fall case in New York had settled (Bork Slouches into Settlement). For those that weren’t around at the time, he had sued the Yale Club and other entities when he fell while ascending the dais to give a speech.  Judge Bork was widely ridiculed for the suit.

And I was less than kind about the BigLaw lawyer he hired to take on the task, as it seemed clear he had no idea how to draft a complaint in a simple negligence action (Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees). And when he tried to amend the complaint, he didn’t follow my advice and continued  with an error-riddle suit (Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages).

When I wrote that last post, as a public letter to the judge, I concluded with this:

I wish you all the best, but the legal decisions you have made thus far are nothing to brag about. You have already been ripped as a barbary pirate and hypocrite for making such high monetary demands, but something else is also going on here. A former Supreme Court nominee and his elite BigLaw counsel have been unable to competently draft a decent personal injury complaint after two tries. And I’m not sure which of the blunders is more frightening.

And that is the reason I write now on this old matter. For it seems that Mitt Romney has made former Judge Bork  the co-chair of his  judicial advisory committee. And this raises a couple of questions:

1.  If Judge Bork did such a poor job choosing his own lawyer for a simple matter, why would Romney trust him for advice on advice choosing judges?

2.  How does he now deal with the subject of tort “reform” in his judicial advisory capacity, after he brought a suit containing frivolous claims, when he previously referred to such litigants as Barbary pirates?

See:

Bork to Co-Chair Romney Justice Committee (CNN Political Ticker)

Bork Tops List of Lawyers for Romney (The BLT: Blog of Legal Times)

Romney’s new top legal advisor: Robert Bork? (Hot Air)

Robert Bork And Conservative Legal Philosophy Join The Romney Campaign (Talking Points Memo)

Judge Robert Bork has settled his slip and fall case against the Yale Club, according to the Associated Press. The action had subjected Judge Bork — active tort “reformer,” conservative icon and former Reagan appointee to the Supreme Court that was shot down in the Senate — to widespread ridicule due to both the nature of the action and the outrageous and legally impermissible demands that he made. I’ve covered the suit here extensively.

This accident occurred, according to the Complaint, because of a lack of assistance or handrails while he was stepping up onto the podium to speak at the Yale Club for a conservative function. But the heart and soul of the scathing criticism that followed was due to the outrageous demands he made in this apparently routine slip-and-fall case (or trip and fall, the Complaint wasn’t really specific). Among the demands were:

• An amount “in excess” of $1,000,000 in compensatory damages;
• Punitive damages;
• Legal fees
• Pre-judgment interest.

Leaving aside the amount of the compensatory damages, the demand for punitive damages was just plain dumb. There was nothing in the Complaint to suggest any recklessness or intent on the part of the Yale Club that would warrant punitive damages, or that the injuries called for such a high compensatory demand. According to the Complaint, he suffered a hematoma in the leg that required surgery and months of rehabilitation. Whether that surgery was a drainage in the emergency room or something bigger, we don’t know, but if it required an admission to the hospital he likely would have put that in the Complaint.

But worse yet to me, as evidence he and his counsel didn’t really know what they were doing with this kind of suit, was that Judge Bork made a demand for legal fees and pre-judgment interest. That’s worse because neither can even be legally recovered in New York. And that meant that a big-time judge both didn’t know the law, and didn’t hire someone who did. (In fact, Judge Bork’s BigLaw counsel flunked basic drafting by failing to even properly allege who owned, operated and controlled the premises.) I did an extensive analysis of the original Complaint here: Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees.

The firestorm of ridicule was deep and strong, and even included one of his own; Ted Frank at Overlawyered called the suit “embarrassingly silly.” It was so bad that Judge Bork’s own son went on to the Overlawywered site to defend his father in the comments.

Being the good sport that I am, I suggested ways for Judge Bork to fix his many problems, among them getting the hell out of federal court due to the additional expense, dumping impermissible claims, cleaning up the drafting deficiencies in the Complaint and bringing the action in state court if it actually had merit (See: What Bork Should Do Now).

That botched Complaint did get amended, but it was clear that despite the wealth of commentary that was available on the subject (not to mention the many thousands of personal injury attorneys in the state), he was still incapable of getting it right. Thus came my open letter to the judge on the subject analyzing his amendments and their failings: Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages.

The dismissal comes to light from a simple docket entry yesterday in the court’s computer dated yesterday:

ORDER OF DISMISSAL: that the above-captioned action be, and hereby is, dismissed without costs and without prejudice to restoring the action to this Court’s calendar if the application to restore the action is made within 30 days. (Signed by Judge Naomi Reice Buchwald on 4/24/08)

My best guess is that the damage to Judge Bork’s reputation from botching the lawsuit exceeds the physical injuries he may have suffered.

And the man who botched all the lawyering? He was first appointed to Rudy Giuliani’s judicial search committee, and then earlier this week to John McCain’s. As I think is clear by now, hiring someone whose strength is political connections, when you actually need a practicing lawyer, is a mistake.

Robert Bork has filed an Amended Complaint for the New York personal injury lawsuit started on June 6th against the Yale Club. The then 79 year-old Bork had fallen a year earlier at the club while ascending to the dais to give remarks to a gathering sponsored by New Criterion magazine, injuring his leg.

A review of the Amended Complaint shows that Bork — a former appeals court judge, Supreme Court nominee, conservative leader and avid tort reformer — has kept his claim for “in excess of $1,000,000” plus punitive damages despite widespread ridicule, but has dropped his claim for legal fees. The Amended Complaint, filed June 27th and entered by the clerk of the court today, is here: BorkAmendComplaint.pdf.

The error-riddled original Complaint is here: BorkComplaint.pdf

My open letter to Judge Bork regarding his edits now follows:
———————————————————————————————–
Honorable Sir:

Since New York personal injury law is what I do, I decided to peruse your Complaint back on June 11th. I saw a whole mess of errors, and took the liberty at that time of commenting on What Bork Should Do Now to fix the problems. While I was a bit concerned about giving a big-shot judge advice, I see now it didn’t really matter because neither you nor your attorney apparently saw my blog. Don’t worry, I’m not offended. My wife doesn’t read this either.

Nevertheless, I’m gonna take a crack at this once more, because, well, I’m in a good mood and wanted to help. Below are my June 11th comments in red, and today’s comments follow in black. Let’s see how you and your attorney did with the lawsuit amendments:

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.

Judge, you failed to do the most important thing, and that is get out of federal court while I think you still can. As a result, your litigation will be more expensive since the New York state courts don’t provide for expert depositions the way federal courts do, and depositions of examining physicians are rarely undertaken. This means, most likely, depositions of at least one doctor and probably one building inspector (if there are code violations) for each side. Assuming you entered into a standard contingency retainer fee, the out of pocket expenses will be paid off the top, resulting in a lower recovery for you if you should prevail. Just because you were a federal judge doesn’t mean that is the best forum for you.

9. Re-start in New York State Supreme Court….
(see above)

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.)

Incredibly, the punitive damages claim is not only still in the lawsuit, but is also still set forth as a separate cause of action. Given that such a claim has almost zero chance of success — and I think I am being overly generous by saying “almost zero” — I thought that, when I saw an Amended Complaint had been filed, this demand would be gone. I know that admitting a mistake is hard, but perpetuating it will only make things worse. If you were sitting on the bench for such a claim, how badly would you rip such a plaintiff?

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

Appropriately dumped.

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

Despite the fact that we don’t allow claims for pre-judgment interest, it is still in your lawsuit. This is clearly frivolous. If you would like to come to Albany with the New York State Trial Lawyers Association next year when we head up for our annual lobby day, and ask our legislators to make this law, you are welcome to join us.

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.

Ownership of the premises has now been clearly alleged.

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.

Control and operation of the premises has now been clearly set forth, though you failed to put allegations in separate paragraphs. This doesn’t kill you, but you are less likely to get an Answer that eliminates certain issues due to admissions.

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?

You cleared up the mistake in the original Complaint of calling New Criterion the “host.” But if you are not going to sue New Criterion, you should explicitly allege that they were not responsible for placing steps to the dais. If the Yale Club denies that allegation, it would be quite meaningful.

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.

In paragraph 11 you state that the injury stopped you “from working your typical schedule.” It remains to be seen if you will make a claim for lost speaking fees. While I don’t know if speaking fees to conservative groups is an element of your lost “schedule,” I think it is likely that perceptions of hypocrisy by bringing this action in the form you did will probably hurt you financially if you plan on speaking in the future to conservative groups for a fee. In other words, if you make substantial income from speaking fees, the filing of the lawsuit could hurt you worse than the accident.

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.

I know that the guy you hired, Randy Mastro of Gibson Dunn, is a big mucky-muck. He used to be Deputy Mayor under Rudy Giuliani, among other things. But you know what? That doesn’t mean he knows how to handle a simple personal injury lawsuit. And it is clear that he didn’t consult one, either prior to filing the original Complaint or after the storm of ridicule that followed.

I wish you all the best, but the legal decisions you have made thus far are nothing to brag about. You have already been ripped as a barbary pirate and hypocrite for making such high monetary demands, but something else is also going on here. A former Supreme Court nominee and his elite BigLaw counsel have been unable to competently draft a decent personal injury complaint after two tries. And I’m not sure which of the blunders is more frightening.

(By the way, congratulations on being celebrated by the Federalist Society this week for your contributions as a conservative thinker and brilliant jurist. I understand about 200 people dropped $100/head to be there. I’ll assume these particular legal proceedings weren’t part of the discussion.)

Respectfully yours,

Eric Turkewitz

Addendum 7/2/07 For more on Bork’s feting at the Federalist Society, see An Interview with Robert Bork by Ilya Somin at The Volokh Conspiracy.

Addendum 7/17/07 — Bork Attorney Randy Mastro is picked by Rudy Giuliani to be on Justice Advisory Committee
(Eric Turkewitz is a personal injury attorney in New York)

The New York Times weighs in today on Judge Robert Bork’s New York personal injury case, skewering him for bringing the type of case that Bork, as a judge, would have derided.

Bork — a former Court of Appeals judge, Reagan nominee to the Supreme Court, and long time advocate of tort “reform” — sued the Yale Club on June 6th for “in excess of $1,000,000.” I had previously described this run-of-the-mill slip and fall case with injuries that, based on the Complaint, won’t even come close. Notably, he also asked for punitive damages, attorneys fees and pre-judgment interest, and his white-shoed attorneys have apparently little, if any, experience handling such matters. (Irony duly noted.)

The Times writes:

In an op-ed article, he once complained that “juries dispense lottery-like windfalls,” and compared the civil justice system to “Barbary pirates.”
…

We can imagine what Mr. Bork the legal scholar would ask if he had a chance to question Mr. Bork the plaintiff. If it was “reasonably foreseeable” that without stairs and a handrail, “a guest such as Mr. Bork” would be injured, why did Mr. Bork try to climb up to the dais? Where does personal responsibility enter in? And wouldn’t $1 million-plus punitive damages amount to a “lottery-like windfall”?

It is also worth noting that Judge Bork, a conservative icon, is scheduled to be feted at The Federalist Society on June 26th, an event no doubt scheduled well in advance of the filing of the lawsuit. It is likewise worth noting that this suit has not been mentioned by any of the dozens of conservative columnists over at Town Hall, despite widespread ridicule heaped upon him (see links at bottom). One wonders how many more such honors Judge Bork will receive if those who celebrate him won’t even rise to his defense.

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