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.

 

November 13th, 2008

Linkworthy (Updated)


Victoria’s Secret may have a secret you didn’t know: Some of its bras are made with formaldehyde. A class action suit has been started for rashes they caused. The line for jury duty starts behind me;

The fake New York Times has a real website, in case you missed the July 4, 2009 news of the Iraq war ending, Condoleezza Rice apologizing for the WMDs, the indictment of George Bush for treason, and the resignation of Tom Friedman.

[Added] A confidential informant reminds me that today is “Felix Unger Day:”

“On November 13, Felix Unger was asked to remove himself from his place of residence. (Unger’s unseen wife slams door. She reopens it and angrily hands Felix his saucepan) That request came from his wife. Deep down, he knew she was right, but he also knew that someday, he would return to her. With nowhere else to go, he appeared at the home of his childhood friend, Oscar Madison. Sometime earlier, Madison’s wife had thrown him out, requesting that he never return. Can two divorced men share an apartment without driving each other crazy?”

The Health Wonk Review is up at the Colorado Health Insurance Insider;

Ron Miller has advice for doctors in medical malpractice suits about how to answer questions. Some docs have been advised to fight with the plaintiff’s lawyer, which Miller thinks isn’t such a hot idea;

Hey doctors! You think medical malpractice issues are tough here? How about 15 years in jail and 1,500 lashes? Kevin M.D. with the story on medical malpractice in Saudi Arabia;

The American Association of Justice has released this report: Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse, and Refuse. From the summary:

Some of the nation’s biggest insurance companies — Allstate, AIG, and State Farm among others — have denied valid claims in an attempt to boost their bottom lines. These companies have rewarded employees who successfully denied claims, replaced employees who would not, and when all else failed, engaged in outright fraud to avoid paying claims.

Related to the above is my own post from March 26, 2007: Conseco Insurance Scandal Follows Movie Plot;

[Updated] TortsProf has the Personal Injury Law Round-Up ;

And Blawg Review #185 is up at the IP Think Tank.

Image: flickr / angel with horns

 

November 13th, 2008

Chief Judge Judith Kaye Says Goodbye

New York’s Chief Judge, Judith Kaye, has hit the mandatory retirement age of 70. She gave her farewell speech yesterday, according to this story in today’s New York Times.

Elevated in 1993 under Gov. Mario Cuomo, she was not only the first woman to hold the top spot, but also served longer than any other chief. She had been an associate judge for 10 years before that, giving her 25 years up on Albany’s Eagle Street where the courthouse sits.

She has opined on everything from jury selection to court consolidation to judicial salaries, in which she is the lead plaintiff in a landmark suit against the executive and legislative branches to force higher pay. And on that last subject, she held forth again during her remarks. According to the Times:

She also restated the case for a pay raise for judges, even in tough fiscal times. She said in her speech that she did not want to talk about the lawsuit she filed in April to force lawmakers to increase judges’ salaries. But she said it was “heartbreaking and frustrating and demoralizing beyond description” that “our proud judiciary” — some 200,000 full-time employees, including judges — had been the only part of state government to be denied “the increases they seek.”

Her lasting legacy might be (based on the fact that the Times led with this) that judicial salary lawsuit. The Times elected to lede with this:

After delivering what she called her “swan song,” an hourlong speech on Wednesday in which she said her role as “chief plaintiff” in a lawsuit over judicial pay “sickens me,” the state’s chief judge said she had not endorsed anyone as her successor.

Judge Kaye — and this probably comes as no surprise from a blog that (tries) to focus on New York law — has been the subject of more posts here than any other individual. Since I only started two years ago, my posts on here deal primarily with her flip-flopping decision on whether she should, or should not, try to gain those long-needed judicial pay raises by suing the other branches of government.

This is a wrap-up of my posts on Judge Kaye:

  • New York’s Chief Judge Threatens To Sue For Pay Raises (4/9/07)

    With badly needed judicial pay raises being left out of New York’s April 1st budget agreement, New York Chief Judge Judith Kaye threatened to bring suit against the legislative and executive branches for the raises. In harsh and emotional language she held a press conference and put out a statement on the issue.

  • A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat (7/9/07)

    New York’s Chief Judge Judith Kaye has abandoned her previous threat of a lawsuit against the legislative and executive branches for the failure to grant even a cost-of-living pay raise over the last nine years…….Justice Goodman, using an extraordinarily sharp tone considering her target, and often dripping with sarcasm that attorneys are unaccustomed to hearing from the bench, is anything but kind to Chief Judge Kaye…

  • New York’s Chief Judge Kaye Finally Brings Suit for Judicial Pay Raises (4/10/08)

    A year ago last April New York’s Chief Judge Judith Kaye threatened to bring a lawsuit because the judiciary hadn’t had a raise, even for the cost of living, for eight years. Their salaries remained stuck at $136K while first year associates at BigLaw top out over $200K including their bonuses.

Then in July she reversed herself, setting off a furious brawl among the judiciary when she said she would not bring the suit.

Then in December our Chief Judge Hamlet flip-flopped again and said she would bring suit.

  • Wachtell and Judicial Ethical Violations in New York’s Judicial Pay Raise Suit? (4/10/08)

    Yesterday Chief Judge Judith Kaye brought a lawsuit for long sought judicial pay raises on behalf of the New York judiciary. In doing so, some ethical issues now present themselves based on the free legal services offered to the judiciary by Wachtell Lipton, an issue quite apart from the more obvious question of how any judge that is part of the plaintiff’s class can actually hear the case.

  • Did New York’s Chief Judge Sue State in the Wrong Court? (4/11/08)

    Yesterday Chief Judge Judith Kaye sued the State of New York (among other defendants) in Supreme Court, the state’s trial level court. But New York law provides that the Court of Claims has exclusive jurisdiction of suits against the state for money damages. Did New York’s Chief Judge sue in the wrong court?

  • Kaye v. Silver, Judicial Pay Raise Suit (Today’s Argument) (7/17/08)

    I just came back from the courtroom where the matter of Judith Kaye (NYS Chief Judge) against Sheldon Silver (Speaker of Assembly) is being argued. This is the judicial pay raise suit that is, perhaps, the most unique suit ever filed in the state.

 

November 12th, 2008

Lawyer Layoffs: Problem or Opportunity?

Law firms are laying people off left and right, according to a story in the New York Times today as well as extensive coverage in the legal blogosphere. Above the Law even has a category, Layoffs, dedicated to the subject.

Or at least you would think the layoffs were coming left and right. The reality is that the layoffs appear to come mostly from BigLaw, not necessarily SmallLaw.

Lawyers like to think that, for the most part, we are recession resistant. Because if things go south, there are companies struggling with bankruptcy, litigation among feuding companies over deals gone south, and investigations galore.

But, according to the Times, the legal field seems to be contracting because the companies are so cash poor from the credit crisis, they don’t want to waste their cash on lawyers. According to the Times:

In downturns of years past, law firms exploited corporate failures and bitter, protracted lawsuits to keep busy and keep billing. But in this still-unfolding crisis, the embittered and the bankrupt have been relatively slow to appear, at least in court… 

A wave of big company litigation — those suits that pit armies of associates against each other — has also not materialized. A recent survey by one big firm, Fulbright & Jaworski, found fewer large companies reporting new lawsuits against them this year. Although executives may desperately want to sue one another over recent losses, they may not know how big those losses are or want to know how big they are. In any event, cash is precious in this downturn, and litigation is both costly and risky.

And what does that mean for the BigLaw firms that generally handle this stuff? Lost jobs and altered billing practices for those that aren’t nimble enough to change their (high billing) ways. And that includes, interestingly, a contingent fee. More from the Times, buried deep in the article:

“Rather than having hourly rates, we are increasingly negotiating flat fees or fixed fees, or success fees,” which include a premium based on predetermined conditions, said Ivan K. Fong, chief legal officer and secretary at Cardinal Health in Dublin, Ohio, and chairman of the Association of Corporate Counsel. Some law firms have resisted those changes, he continued, but may find they have to accept clients’ wishes. 

Success fees? Yeah, I’ve had those for awhile.

The problem with BigLaw is that some things can’t get cut back. Like that big fat rent bill from the Class A accommodations and the fancy wood-panelled offices. A healthy chunk of an associate’s billing goes to overhead, another healthy chunk to the partners and another chunk to the bloated salary of the associate who is two years out of law school.

SmallLaw, by contrast, generally doesn’t have these problems. SmallLaw doesn’t need to charge $800/hour because they don’t need to feed the vast BigLaw machine. And that means an opportunity for some.

Over at Legal Blog Watch, Carolyn Elefant asks this question in Should You Stay or Should You Go Now:

If you’re currently employed as a lawyer, should you stay at your firm or jump ship now? This Dallas Morning News story quotes experts who agree that, in this economy, it’s better to remain at a lousy job and take the paycheck instead of trying to find a new position. But I’m not so sure that’s the best approach. 

In a deep recession, with companies looking to cut back on anything possible including ridiculously high legal fees, savvy lawyers might not be so keen on staying with a BigLaw firm with diminishing work. They may strike out on their own if they can grab a client or two to take with them while they build their practices. While no one answer is right for everyone, it seems clear that starting up one’s own firm in a recession might actually be a viable option for some.

My guess is that we are seeing the beginning of a big shake-out in BigLaw. The pressure will come not just from existing clients that may balk at paying the outrageous fees they command, but from below where former others are now hard at work recruiting their former clients (and new ones) with the same talent. But at half the cost.

 

November 12th, 2008

First Pooch Barney Gets Defense Counsel

Right on the heels of Barney, the White House dog, biting biting Reuters reporter Jon Decker, we now find he may have the perfect defense lawyer.

Guide dog Skeeter Jones now has earned a law degree Juris Dogtor. I’ll try to reach out to Barney, carefully, for an updated interview on the ramifications for the species, and of Skeeter defending him.

Meanwhile, while one wag thinks you’d be barking up the wrong tree if you hired Skeeter, the paw firm of Barker and Meowsky has already made him an offer.

What will become of Skeeter and Barney? Stay tuned.