October 25th, 2019

It’s “Eric Turkewitz Day”

There are three kinds of people in the world: Those that get things done, those that watch things get done and those that wonder how things got done.

Last night in New Rochelle I was honored by Meals on Wheels at their annual gala for getting something done. Not for its organization, dedicated to getting meals into the homes of those that can’t get out, but for community service in putting together a half marathon trail race that has averaged 700 people a year over the last several years. We get registrants from 15-20 states each year, and net proceeds go to the trails and parks.

We get good reviews.

But writing about myself isn’t exactly my comfort zone, as regular readers know. You noticed that the prior paragraph says “We?”

I write today with a broader message. About volunteering.

Stick with me here, because this time I hope to have a point.

The room last night at the gala was stuffed full of volunteers, people who are doing things for their community. People who get things done. For many of them the volunteer work they do is completely divorced from their occupations.

When I put on the race, we turn out about 200 volunteers on race day, handling a wide variety of race logistics needed to put on an event that rambles a giant loop through multiple jurisdictions. I chose a photo for this post that included a few of those volunteers for a damn good reason.

When Meals on Wheels does it, it isn’t a one day affair after a few months of planning, but a month-in and month-out commitment to give something back to the community.

Volunteering is like that, giving people a chance to step out side the box they have placed themselves into and get another perspective on the world while helping others.

Professionals in particular, I think, need to do that as many of us become so consumed with the profession — be it law, medicine or any other — that it myopia becomes easy. We become known for doing x, and as a result become ever more specialized in life regarding that x. But in doing so many of us unwittingly lose sight not only of the big picture, but all other pictures.

So get out, step up, and do something different, even for just a few hours a week. Being the person that gets something done is rewarding not only to those that benefit your actions, but for yourself as well. It’s good for the soul.

OK, short preach/pitch over.

Now about that headline calling saying that today is “Eric Turkewitz Day.” Well, it is in New Rochelle. By proclamation of New Rochelle’s mayor.

And October 28th will be “Eric Turkewitz Day” again, this time by proclamation of the Westchester County Board of Legislators. And I have the documents to prove it.

One fun little note about the documents — and this includes citations and proclamations from statewide legislators — is that much of the information comes from the little bio that I wrote for the official gala program.

But I had no idea that, when I mentioned my dog Tucker McDoofusPants in that bio, it would end out in many of those official proclamations.

The Mayor said, “So let it be written.” And it was.

 

October 10th, 2019

Personal Injury and …Copyright? Seriously?

Well, it isn’t often (read: never) that personal injury law runs headlong into copyright. But here we are.

As many people know, when you sue somebody over a broken body part the defendant gets to have that body part examined by one of their own doctors. This is known as a defense medical exam, or medical-legal exam, but sadly often referred to as an independent medical exam despite being an inherently adversarial situation.

But regardless of terminology, the defense still gets their exam. And every so often that may entail a neuropsychologist exam.

And these exams are often contentious because what actually happened (a fly-on-the-wall view) and what doctors write in reports may be starkly different. Some exams last just 2-3 minutes. A few years back there was a big hullaballoo when a lawyer had someone secretly record that exam to prove the point. The appellate courts ultimately said no dice, not without a court order. Notes only.

In a neuropsych exam nobody asks you to touch your toes. The point is to ask questions and get answers.

And so, because recording the exam needs a court order, lawyers (or their representatives) sit there and take those notes.

Full stop! The reason I’m writing this is that a doctor actually tried to claim, I shit you not, that the plaintiff’s representative couldn’t take notes about the questions. Only the answers.

Client showed up with lawyer for exam. Doc tells lawyer no note taking regarding the questions allowed because “it might violate copyright law.” Lawyer refuses to budge on the issue and doctor refuses to do exam.

Next stop, motion practice.

If the defendant were to win such an argument then it would be even more difficult than it is now to cross-examine the doctor at trial. After all, no notes. And the trial lawyer wasn’t in the room (or would likely be disqualified as also being a witness).

Justice Arlene Bluth, a trial court judge in New York County, made short work of that outrageous copyright argument.

“Because an IME is used solely for litigation purposes, the Court cannot limit the ability of plaintiff’s counsel (or a representative) to take notes in order to zealously represent his or her client.”

So what if the test is copyrighted? Use a different test, says the judge.

The doctor, the court also notes, had one other itty, bitty problem: The doc was merely speculating that it might be a copyright violation, having provided zero proof that it was. Not that it would have mattered, of course, as the court made clear.

And the idea that only the answers could be recorded and not the questions was equally dispensed with by the court. How, Justice Bluth wrote, would you actually enforce such a rule? The lawyers’ notes from such exams, after all, are privileged. Are our seriously understaffed courts now going to do tens of thousands of in camera reviews after these exams?

And that’s how copyright law managed to wangle its way into a personal injury case.

The case is here: Nieto-v.-CLDNDownload

 

October 3rd, 2019

Overhauling New York’s Convoluted Courts

Last week New York’s Chief Judge Janet DiFiore suggested a fix that every practicing lawyer in the state knows is needed: revamping our Byztantine court system that has 11 different kinds of trial court. Yeah. Eleven. More than any other state.

We got County court, City Court, Surrogate’s Court, Family court, City courts, Criminal Court, District court and a Supreme Court that is not the supreme court of the state, only the supreme court of the myriad other trial courts. (see map of court system at bottom)

Judge DiFiore wants to knock down our 11 levels to three. Admirable, for sure. Yay, Judge. Go Judge!

But let’s wrestle with one small issue in the process. Not the entire proposal. Just one subject, the Court of Claims.

In New York, if you want to sue the state, there’s only one place to do it: The Court of Claims. And that is the only defendant allowed.

So let’s say a state park’s worker is driving a truck while working and runs a 4-way stop sign at the same time another driver does the same, and a pedestrian is hurt. The pedestrian is forced to bring driver two separate actions in two separate courts: One in the Court of Claims for the action against the state and one in Supreme Court for the action against the other driver.

And that means not just double the work and double the court appearances and two trials (with double the costs for experts appearing), but the possibility of inconsistent results.

Part of Judge DiFiore’s proposal is the abolishment of the Court of Claims.

Why do I pick on this one, as opposed to other problems such as custody battles being fought in Family Court while divorce would then get to Supreme Court?

Because it’s the low-hanging fruit. It’s easy. There’s no rational reason not to do it.

And since a restructuring of the court system requires a constitutional amendment, let me urge here that the Legislature — even in the event it doesn’t want to grapple with the entire overhaul (which it should) can still go ahead and take care of the easy stuff.

OK, I have five more minutes, so let me tack on one other point: Our Constitution caps the number of Supreme Court judges at one per 50,000 residents of a judicial district. That is a century old provision.

Anyone that has practiced law in New York City knows how sorely we need more judges as our courts are swamped. I once calculated that $10,000,000 of legal time is wasted every year in just one Brooklyn courtroom with lawyers waiting, waiting, waiting, waiting. Just one courtroom. I wrote the eleven years ago. It hasn’t gotten any better.

So get to it Leg, get to it. There’s a ton to unpack from Judge DiFiore’s proposal. This kind of reform has been needed for decades. How about we actually get around to doing it this time?

Elsewhere:

 

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. 

 

September 18th, 2019

The Golden Rule of Laws

The issue popped up again yesterday. This time, in a New York Times op-ed by Jamelle Bouie.

Bouie suggests that if the Democrats hit the trifecta in the next election — meaning majorities in the House and Senate and winning the White House — that the Dems should pack the Supreme Court with extra judges that they see as favorable.

This is to make up for, he says, the stolen seat that Neil Gorsuch holds because Senate Majority Leader Mitch McConnell refused to do his constitutional duty of holding a hearing and vote on Obama’s pick, Merrick Garland, and the circus behind the confirmation hearing of Brett Kavanaugh when the FBI wasn’t permitted by the Senate to do its full investigation of the candidate and the allegations against him.

Sounds great, huh? Just pack the court to even things out? What could possibly go wrong?

This is as good a time as any to discuss the Golden Rule of Laws. This rule states that when you want to use some legal maneuver to attack “the other side” ask yourself how “the other side” could likewise use it.

While the name might be my creation the concept is not exactly new: What goes around comes around. What’s good for the goose is good for the gander. Karma. You get it.

But Bouie doesn’t get it. He says that in response to the Republican hardball that resulted in these two seats the Democrats should play hardball back. By packing the Court.

He comes to this conclusion by citing a litany of problems, including:

In the past, courts have walled entire areas of American life off from federal action. They’ve put limits on American democracy and blocked the people, through their representatives, from tackling fundamental issues of public concern. During Reconstruction, courts handcuffed the government as it tried to address violence and state-sanctioned racism; during the Progressive Era, they kept Congress from putting the economy under some measure of democratic control.

We’re living through a version of this right now. Under Chief Justice John Roberts, the Court has denied Medicaid coverage to millions of poor people, neutered the Voting Rights Act, authorized new waves of voter suppression, unleashed the power of money for entrenched interests and would-be oligarchs, and opened the door to extreme partisan gerrymandering.

But there’s a significant difference between identifying problems and coming up with good solutions.

And court packing doesn’t really solve any of the problems, does it? When the political tides flip back, and they surely will, the Republicans can do the same thing. And add yet more judges. Just as the Democrats will one day hold up a Supreme Court seat under the “McConnell Rule” in response to the Garland nomination.

When it comes to the potential dangers of the new tactic, he is dismissive:

Yes, there’s the risk of escalation, the chance that Republicans respond in turn when they have the opportunity. There’s also the risk to legitimacy, to the idea of the courts as a neutral arbiter. But Trump and McConnell have already done that damage. Democrats might mitigate it, if they play hardball in return.

Bouie is not alone in walking this dangerous path. Former governor and presidential candidate Howard Dean suggests that, instead of packing the Court, that certain unfavorable Supremes be rotated out to the trial level District courts. In a tweet he wrote:

Actually the Supreme Court is NOT for life. The Constitution says the federal bench is for life. Which means Supreme Court Justices can be rotated off onto district courts. Since two of them were put on illegitimately, that is important to know.

Same problem, of course. The Republicans can do the same thing when the time comes.

As David Boaz of the libertarian Cato Institute wrote when I twitted about Dean’s proposal: In my experience, neither side ever asks, What if my opponents had this power?

Now there are solutions floating around for de-politicizing the Court. Term limits of 18 years are one example. With a regular rotation of judges each seat and each appointment becomes less of a concern as folks no longer worry about an ideologue on the court for 30+ years. De-politicizing the Court should be a goal of both parties. But, alas, those in power don’t seem to agree.

This concept of fashioning new laws and rule without regard to how others might (ab)use them also came up two weeks ago when the San Francisco Board of Supervisors dubbed the NRA a “domestic terrorist organization.” As Walter Olson, also of the Cato Institute noted, this concept has repercussions. What organization is next, but this time from a red state/city? Maybe a pro-immigrant group? A group protesting police violence?

Think some Bible Belt city might want to take a shot at Planned Parenthood by calling it a terrorist organization?

In the race to play hardball one must always, always, always, always ask: How can this come back to bite me in the ass? Because one day it will.