January 15th, 2016

30 Years Ago Today…

Studying for the bar on the front lawn of parents’ home, summer of 1985. That’s not a laptop — it’s a briefcase.

Oh gosh, I don’t even know where to begin. So I’ll just type and see what flows.

I remember standing there on January 15, 1986, in the well of the courtroom at the Appellate Division, Second Department, hearing my name read as part of the roll of freshly minted law graduates. Despite a small hiccup because my bar exam answers were lost, I was ready.

And thirty years ago today I was sworn in as an attorney. Ronald Reagan was President. Martin Luther King Day had just become a federal holiday. Chernobyl would soon melt down in the Soviet Union. And the subway was $0.90 and still used tokens.

I’d already been working for months as a “non admitted attorney” or “J.D.” or however else it was that I signed my name to letters back then, to qualify that I wasn’t actually authorized to stand on my own yet before a court.

But once admitted, I was quickly tossed into the litigation fire. And with that, there was one Golden Rule I was given: For the first year, there was no such thing as a stupid question. My mentor understood the risks of a young attorney too afraid to ask.

The boss went around the office and asked each of the medical malpractice attorneys to self-select a few files for me. You might rightly conclude that these were not the easiest cases in their file draws, nor those in the closest counties.

Within two months I was taking depositions in a medical malpractice case concerning a one-year failure to diagnose and treat lung cancer, when a spot that appeared on a routine chest x-ray was not appreciated. When surgery was finally done to remove the diseased lung, the pulmonary artery slipped out of the clamp and the man bled to death on the operating room table.

Everyone was sued. Internist, surgeon, assistant surgeon, anethesiologist, hospital. Everyone.

And it’s amazing what you remember from your first time, and the lessons (if you had good mentors, which I did) that carry through over the decades.

My marching orders were clear: No matter how much obstruction I faced at depositions by the battery of seasoned attorneys from the five law firms on the other side:

Keep asking questions, no matter what the other lawyer says.

Lawyers will object — don’t fight back. Just establish that the lawyer won’t allow the question to be answered.

Make a clear record of the obstruction.

Then make motions to bring back the doctors for continued depositions if they were recalcitrant in answering due to the antics of their lawyers.

Then actually bring them back for those continued depositions, even it’s for only one question and a few follow-up that need to be answered. Doctors are not happy when they have to take off half a day to answer just 10 minutes of questions. And their anger will be taken out on their own lawyer, who caused this to happen. That law firm will never do it to you and your clients again.

All the time, I was astonished that I was allowed to do this, and wondering if, at some point, one of those lawyers would point a finger at me and cry “fraud.”

I learned that it was OK to be inquisitive like a child, and to force witnesses to explain complex terminology as if I was a high school student. Because that might be all the education that some of the jurors have, and a real trial lawyer (not a baby one like me) might one day want to read it to those jurors.

In my first two years I tried two medical malpractice cases. And I’d completed over 100 depositions of doctors/nurses.

I was 28, and recognizing I might never have this opportunity again, took a year off to travel the world, knowing (or at least believing) that by that point I’d acquired the skills to be hired by reputable firms, and that no one would look at me and cry fraud. Because I had good training.

On return, I wasn’t certain what I would do, so I printed up some business cards, taped one to a blank piece of paper and xeroxed that onto good paper. I had letterhead, and I was in business for myself doing per diem work for other lawyers. Court appearances, depositions, and eventually trials.

I typed up reports on the Smith Corona I had used in law school. I filed papers myself. I made countless phone calls from courthouse pay phones, always carrying with me a roll of emergency quarters.

That was 1989. And the business I have today is, except for the technology, the same one — small firm practice doing personal injury (but not needing the per diem appearances and trials that consumed my first few years).

In this capacity I have represented people in big cases and small, famous (a client on 60 Minutes) and not (the vast majority). I’ve taken verdicts in every county in the area, and tried cases in both state court and federal. From the most mundane of tasks, to arguing in the Second Circuit. At the end of May, I am scheduled to be sworn in at the Supreme Court.

Along the journey I rented offices, hired (and fired) staff, and started this little blog (nine years ago). Many times I wasn’t really sure what I was doing, but sitting still wasn’t going to be part of it.

Today, I’m older than I ever was, but know that I am younger than I’ll ever be. So I keep moving, and if I get a chance, will continue to run marathons. It may be that one day I look back at these as the good old days.

The lessons along the way have filled this blog — on deposition and trial tactics, ethics, marketing, law office management, cases in the news, recent personal injury decisions, tort “reform” and much, much more. I rarely write about myself in this space — I’m not big into navel-gazing and if this blog was about self-promotion I’d have an audience of one — but I make an exception today.

It’s my anniversary. Or barversary. Or something. There must be a wonderful portmanteau to invent for such an occasion, but I just haven’t thought of it yet.

Happy anniversary to me. I think I’ll go have a beer tonight.

December 30th, 2015

Let the #BillCosby War Begin!

I don’t even have to look at Twitter to know what is happening given the announcement that Bill Cosby has been charged with aggravated indecent assault based on a 2004 incident.

On one side, those that defend him. On the other, those that want to flay him.

And they both share this is common: They have formed their opinions before any evidence has been introduced in a courtroom and before any juror has been able to evaluate any piece of evidence.

Nor will it matter to those staking out their ground. ‘Tis a magnificent piece of confirmation bias being played out now.

Few will be likely to change their minds once evidence is actually introduced. Because everyone will want to be “right” and will seek out that which supports their own first impressions.

The public discussion and trial will follow the same course that white “subway vigilante” Bernhard Goetz did when he shot down four black teenagers in a subway in 1984. Protesters filled the streets outside the courthouse, some claiming he was a racist and others saying it was self-defense, with the protesters sharing one thing in common: None were in the courtroom listening to the evidence.

And it will follow the same track as the George Zimmerman trial, who shot and killed Trayvon Martin in 2012. First form an opinion based on your gut, the look for evidence to support that opinion.

Confirmation bias is in the air again. Can you smell it?

December 23rd, 2015

New York’s Judicial Diversity

New York’s top court, the Court of Appeals

New York has announced seven potential replacements for the Court of Appeals seat vacated by Judge Susan Read, who retired this year. And New York’s judicial selection for its highest court — and the reason that I write — looks nothing like the potential nominees for Supreme Court of the United States.

As previously noted here when discussing Court of Appeals nominees, I want to see practicing lawyers (or judges that used to be practicing lawyers) get elevated to the top bench. I want to see the same at SCOTUS, using a method I called the “tissue box test,” but that is never seen.

There is a stark disparity in the origins our our state/federal judiciary, which I discussed in 2011 by showing where each of them attended law school. The line-up at the time looked like this on SCOTUS — and it’s tough to miss the homogenous nature of the Harvard/Yale lineup:

Chief Judge John Roberts: Harvard Law School
Antonin Scalia: Harvard Law School
Anthony Kennedy: Harvard Law School
Clarence Thomas: Yale Law School
Ruth Bader Ginsburg: Harvard Law School
Stephen Breyer: Harvard Law School
Samuel Alito: Yale Law School
Sonia Sotomayor: Yale Law School
Elena Kagan: Harvard Law School

But it looked like this on New York’s top court:

Chief Judge Jonathan Lippmann: NYU Law School
Carmen Beauchamp Ciparick: St. John’s University School of Law
Victoria A. Graffeo: Albany Law School
Susan Phillips Read: University of Chicago Law School
Robert S. Smith: Columbia Law School
Eugene F. Pigott, Jr.: University at Buffalo Law School
Theodore J. Jones: St. Johns University School of Law

And what does the line-up of potential judges look like to replace Judge Read? Like this:

Michael J. Garcia, attorney in private practice (Kirkland & Ellis LLP) – Albany law School
Hon. Judith J. Gische, Associate Justice, Appellate Division, First Department; – SUNY, Buffalo
Caitlin J. Halligan, attorney in private practice (Gibson, Dunn & Crutcher LLP) – Georgetown
Hon. Erin M. Peradotto, Associate Justice, Appellate Division, Fourth Department – SUNY Buffalo
Benjamin E. Rosenberg, General Counsel, New York County District Attorney’ s Office – Harvard
Rowan D. Wilson, attorney in private practice (Cravath, Swaine & Moore, LLP) – Harvard
Stephen P. Younger, attorney in private practice (Patterson Belknapp Webb & Tyler LLP) – Albany Law School

One of the problems we currently have in SCOTUS selection is the part about them serving for a lifetime in the same seat. Presidents then try to pick young judges — late 40s or early 50s — that might sit on the bench for 20-30 years. Or potentially longer. With people living longer lifetimes, and slower turnover for a seat, the stakes have risen dramatically from the days the republic was founded. And there are plenty of people out there who think that should change.

Rather than the top court being the capstone of a long career, during which, hopefully, much was learned, it becomes the career itself and folks learn on the job.

But a 14-year term — which is what New York has — and a mandatory retirement age, leads to constantly changing seats. That leads to a different variety of judges, as we don’t have as much stake in any one judge as the federal equivalent.

While I limit myself here to an analysis of law schools — to the degree that this shows some variety — Scott Greenfield over at Simple Justice thinks there is not enough diversity, based instead on philosophy:

But in law, diversity isn’t built on gender or race, or ethnicity or ancestry. It’s built on legal philosophy, and legal experience. And what you don’t see are two things: lawyers who spent a day of their career working in the trenches on behalf of a criminal defendant, and lawyers who didn’t get a (often sizeable) paycheck from an employer.

There are many ways to view diversity, of course. Greenfield says that the lack of a criminal defense attorney or person with solo or small practice experience shows a lack of diversity. I, on the other hand, see the bar that SCOTUS has established with its Harvard/Yale fixation, and am happy to see that bar easily vaulted by people coming from diverse places.

This post isn’t about which New Yorker should sit on our high court, but rather, about the need for limitations on the power of any one individual. And that comes, in large part, from having a constantly changing dynamic bench from a diverse legal background instead of a stagnant one from a homogenous legal background. For the stagnant homogeneous ones attain too much power.

December 21st, 2015

Stanley Tessel (1929 – 2015)

A 60-year-old trial bag that I use, which I inherited from the firm of Turkewitz & Tessel

Way back in the day, students sat in classrooms in alphabetical order. So if your name was Turkewitz, you’d sit next to a kid named Tessel.

And so it was at Brooklyn Law where my father sat next to Stanley Tessel, who scared the crap out of dad with his incredibly organized notes, made with different colored pens. My father, by contrast, has handwriting like mine, which my 5th grade teacher charitably called chickenscratch.

Stanley Tessel died on December 7th at the age of 86, having retired after 62 years of practicing law. He wasn’t just one of the preeminent medical malpractice attorneys in the state when it came to obstetrical cases and brain damaged babies, but was a pioneer as the field developed through the 1960s and 70s.

You see that photo of a trial bag to the right? It says “T & T” on it, which stood for Turkewitz & Tessel, the firm my Bronx-born father and his Brooklyn-born buddy formed a couple years after they graduated in 1952. That bag is about 60-years-old, and sits in the corner of my office, ready for my next trial. It’s held a lot of stories, including those from the days that the two friends did defense work for Professional Insurance Company of New York, defending doctors and hospitals in medical malpractice cases.

Tessel, according to my father, was an outstanding trial lawyer back in those days.

After Turkewitz & Tessel split up after 15 years — when Professional Insurance went belly-up — my father went on to lead the medical malpractice department at Fuchsberg & Fuchsberg while Tessel went over to Charlie Kramer’s law firm, which subsequently became Kramer, Dilloff, Tessel, Duffy & Moore.

If that name sounds familiar, it’s because the firm is one of top medical malpractice firms in the nation, now known as Kramer, Dillof, Livingston & Moore. Tessel, even long after he’d retired in 1989 and moved to Florida, would still fly up to New York to take the depositions of doctors in obstetrical cases. When the top firm in the nation has a lawyer flying in from Florida to take a deposition, you know the lawyer is good.

Chuck Silverstein, who worked with Stanley for years at Kramer Dillof, and with whom I shared office space for several years, wrote to me:

One of the things I remember most about Stanley was that he liked to talk about your father a lot. He told me the law school story (related above), always with a big smile on his face.

At one point Stanley bought himself a Rolls Royce but realized it was a dumb thing to do and got rid of it. (ET – But before getting rid of it, he came by our house to give my folks a ride. My mother quipped, “It rides as nice as our Cutless!”)

Stanley used to love going to Harry’s in the basement of the Woolworth building. He and I would sit at the bar and he would order two drinks and two shrimp cocktails and the war stories would flow.

The joke at the retirement party was that Harry’s would go out of business without him around.

At the party, a prominent obstetrician toasting Stanley said that “He knows so much about obstetrics, I’d like him present in the delivery room when my own wife gives birth.”

When I first started working at Kramer Dillof Stanley told me that I’d need a copy of Williams on Obstetrics. I think he gave me his own copy since he basically knew everything in it already.

Stanley was a very generous man. I think the term ‘magnanimous’ really sums him up — both professionally and personally.”

One day, many years back, Silverstein asked me to try one of the cases that Kramer, Dillof had worked up. This happens from time to time when there’s a manpower shortage and the judges are screaming at you to go pick a jury.

I cracked open the file and found handwriting that looked like it came from a typewriter — with analysis to match. In different colored inks. While I had never actually seen Tessel’s handwriting before, as I’d never worked with him, I recognized his work immediately based on my father’s stories. And so I went on to take a verdict in this case my father’s old partner had worked up at a different firm.

Stanley Tessel

A long obituary appeared in the New York Times this past Friday, written by his survivors. It recounted Tessel’s service in the Air Force during the Korean War, serving in Pusan as part of the Judge Advocate General.

While the obituary mentioned that he was entombed with full military honors by the Air Force Honor Guard, it failed to mention the time he almost got court-martialed. For working too hard.

It seems that the officers on the base would quit work at four and head over to the Officer’s Club for drinks. And Tessel’s office in the JAG was just across the way. And with Tessel-the-perfectionist working late, the light was always on.

(This late-night work came as no surprise to my father as he recounted the almost-court-martialed story to me, since in law school my father would quit a long day of studying at 7 due to exhaustion, while Tessel continued deep into the night even though he knew the material cold.)

So the other officers discussed this “problem” of Tessel working so hard and so late with Tessel’s superior, telling the boss it wasn’t right to make Tessel work that way. The commanding officer, in turn, told Tessel that maybe it would be a good idea to quit work at four like everyone else.

The court-martial risk came because Tessel thought this had just been a suggestion.

Not bad for a war story.

December 8th, 2015

Can Trump Claim His Campaign Was A Hoax?

Donald Trump speaks at the 2015 Conservative Political Action Conference (CPAC) at the Gaylord National Resort & Convention Center at National Harbor MD on February 27, 2015. (Photo by Jeff Malet)

When I first saw the news that Donald Trump wanted to ban all Muslims from coming to America (“a total and complete shutdown“), I scratched my head.

Was this a parody or the real thing? As he utters more and more outrageous and bigoted comments, it becomes difficult to know.

But the bigger issue, lurking in the backs of many minds, was this: Will Trump claim one day that his whole campaign was an elaborate hoax, concocted to expose the bigotry and racism of others?

Or, perhaps, as some have said, this is a “false flag” campaign to help Hillary Clinton.

These related ideas seem to be far more reasonable at this point, than this being an actual campaign to become president. Because other than the overt Archie Bunker bigots, there isn’t anyone else that would vote for him.

Would anyone really be surprised if he turned around one day and said, “Ha! The joke’s on you! Look at all those extremists out there that I have uncovered!” (Always done with exclamation marks, of course.)

The problem is that, if he tries it, he runs headlong into an altogether different problem. In federal court. Where judges might not find the humor in what he claims he had done.

Remember, if you will, that in July Trump filed a $500M defamation and breach of contract lawsuit against Univision, a Spanish language station. The station dumped Trump’s Miss USA and Miss Universe contests, after his comments about Mexicans being rapists.

That case was then removed from New York’s state court to federal court where a motion to dismiss by Univision is now pending.

So what happens if Trump tries to claim that his campaign was just a giant ruse to expose the ugly underbelly of American bigotry and racism? Or that he deliberately mocked the worst part of the Republican base with his bigoted comments to help Hillary? It means he will have effectively conceded that, by bringing the lawsuit, he had committed a fraud on the court.

And you know what? Judges don’t like to see their courts used in that fashion.

While the sanctions of case dismissal and legal fees may be a drop in the bucket at this early point in that litigation, courts retain an inherent power to police themselves. And that inherent power includes the imposition of sanctions for bad-faith conduct, which is not displaced or limited by any particular sanction scheme set forth by statutes and rules. (See Chambers v, NASCO).

The sanctions could also affect his lawyers for having perpetuated a charade on the court. And not just monetary ones, but disciplinary ones. Which lawyers want to risk their licenses for Trump?

And since he is involved in dozens of other lawsuits, there could be fallout there, as he would have acknowledged dishonesty not just out of court with the hoax, but in court as well. Pulling a joke or hoax to prove a point may well be a fair thing to do, but you can’t involve the courts. Trump, after all, signed the verification to his lawsuit.

So Trump, it seems, doesn’t really have an escape hatch from his bigotry. If he tries to claim it was all a joke, he (and his lawyers) will likely have a very mad judiciary to deal with. And they may not give a damn about confining themselves to the limited amount in legal fees already wasted. If he tries to do this, will a judge decide to test the limits of the power to sanction?