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.

 

November 10th, 2008

The Blogger’s Wife Sits Jury Duty

Mrs. NYPILB with her knight in shining armor.

Mrs. NYPILB sat jury duty last week She joins us today with a guest blog on her experience, with my occasional comments. That’s her pictured at right with her knight in shining armor.
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Last week was civic duty week. On Tuesday, November 4th, along with a record number of Americans, I cast my vote for a new President. On Wednesday, along with a few hundred of my fellow county citizens, I showed up for jury duty in White Plains, NY.

Eric — the guy who normally writes this blog — made fun of me as a I walked out the door at 8:00 am to arrive at 8:30 am in White Plains, as the summons proposed. He assured me that I would be the first juror there. [As my brother-in-law Dan was when he sat.] I chose to ignore him being that I’m always early in whatever we do and, well, he’s always late. To my punctual dismay, I walked into a full room of prospective jurors listening attentively to a woman giving instructions about the jury selection process. I secretly couldn’t wait to go home and tell Eric, “I was right and YOU were wrong!”

An elderly judge came in to tell us more about the process and the cases. He was quite genial and cracked some jokes — most likely the same ones he uses 365 days a year. Then he told us of two interesting cases on the roster; one case was criminal in nature and could take up to three weeks and the other was a Med Mal case that could take four. You could feel the tension in the room as we all made silent prayers not to be picked for one of those. When the judge stated that anyone with vacation plans could be excused into the other room, I seriously contemplated lying. But, being the complete dork that I am, I became convinced that they would ask me for proof and then I’d be screwed into serving some Grand Jury case that would take months. So, I sat still, squirming in my seat.

My get-out-of-a-long-trial for free card came when the judge also excused anyone with children 12 and under.

Within 30-minutes, I was called into a separate room to undergo the voir dire process on what was described as a short civil case. I wasn’t picked with the first round of jurors to be questioned but was asked to stay in the room. I listened to the Plaintiff’s attorney methodically question each of the 12 potentials, at first with interest and then with cynicism, annoyance and finally complete and utter boredom.

[ET note — Keeping it interesting after the first few is always a challenge. When I sense the boredom come on, I’ll ask the next juror, “You’ve heard all the prior questions, what do you think I should know that is interesting?” When the jurors question themselves, the answers can be interesting.]

The case was simple. The Plaintiff was Verizon. The defendants were two contractors. One a GC and the other a sub-contractor who specialized in boring holes under the ground for excavation work. In a nutshell, while boring, the defendant(s) clipped a Verizon cable. Verizon said the contractors were negligent. The contractors claimed that Verizon was negligent due to the improper demarcation of where the wires in fact lied underground. It was the jurors’ duty to assign blame.

Out of the first group of potential jurors questioned, the lawyers nixed a handful, which meant that more of us had to undergo a round of mundane questioning, including me. The lawyer handling Verizon’s end of the argument was painful to listen to. I’m convinced it was his first case. He asked the same series of “yes” or “no” questions to each and every juror. When it came to my turn I had to bite my tongue not to say “Let me save you some time here. Yes, I have Verizon services. Yes, I’ve had problems with it. No I don’t think my past problems with Verizon will prejudice my judgment in this case. Yes, my husband is a Med Mal/PI attorney but I don’t think it’s relevant in this case. Yes, I have little kids but my Med Mal husband has agreed to be home to get the kids off the bus this week so I can serve. So, take me, I’m yours.”

[ET note: Yes and no questions in voir dire, are, of course, some of the worst. You learn virtually nothing about the potential juror. In such a situation, the question I would start with is, How do you feel about Verizon? And with yes or not questions, the lawyers can never conduct the Turkewitz Beer Test.]

Of course I didn’t do that. While questioning me, the Verizon man seemed to want to find an excuse for me to not sit on his jury. After saying to me “well, won’t your kids be upset if you don’t put them on the bus,” I looked him in the face and said, “they’ll live for 2 days. This is a good time for me to do my civic duty and I’d be happy to serve.”

I got picked. It was going to be a breeze. One to two days at the most.

Right before entering the courtroom, I found out I was an alternate. After taking the first seat in the front row, the Judge started reading us procedural directions. When I say “reading,” I mean reading. All I could think of was Snoopy and the “Wa, wa, wa, wa, wa, wa” one would hear when an adult talked to Linus, Charlie Brown or any of the other Peanuts characters. In his closing directives, the Judge did the same. What’s the point in reading us the directives if we can’t understand what the heck is being said? My guess is that it’s just to avoid any appeals based on improperly directing the jury.

I can’t remember a single other situation in my life where I have been forced to be “taught” something and not allowed to interrupt with any questions. This was the hardest part of sitting on a jury. Every 10 minutes, I wanted to be like Horshack in Welcome Back Kotter — “ooh, ooh, ooh” with my hand waving high in the air! Instead, I had to listen and decide who was liable without having all the information I needed. Hmm…maybe I shouldn’t have cancelled those LSATs after graduating from Michigan.

[ET note: Some judges have experimented with having jurors ask questions, via a written submission to the judge.]

The funniest part of the day had to do with an incident regarding the court reporter. As he was typing away, every word uttered in the courtroom was magically transcribed onto a computer screen. This screen happened to be facing the juror box. There was one 30-second period where there was a pause in the dialogue and we all saw the Reporter check his email on AOL! Granted, it was the fastest email check I’ve ever seen in my life. Was he looking to see if his horse won the race? If his stocks were down? If he was gonna get laid later?

In the end, the trial was over in just a few short hours. I found the whole thing to be fascinating and was completely and utterly bummed that I was told to exit the courtroom and leave the building because, as an alternate, I was not needed anymore. I was not invited to deliberate. I had so much to say and nobody to say it to. I left with my tail between my legs. But once outside my tail started to wag when I realized that I wouldn’t be called to do this civic duty again for six long years. Phew.