December 23rd, 2015

New York’s Judicial Diversity

NewYorkCourtofAppeals

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

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)

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?

 

December 7th, 2015

Watching Danger in Real Time

LaborLaw Violations

Photo by Sarah Nir, Dec. 7, 2015. Painters on The Wave in Brooklyn

As I prepared to go to lunch a few minutes ago, I checked Twitter and saw this photograph from New York Times correspondent Sarah Nir. She knew instantly there was danger afoot:

Painters on The Wave in Wburg paint tethered just to a slim balcony rail. I’m sick.

And she said something. The response was in a follow-up tweet:

I told the man here that they were improperly rigged and needed to be safer, and he responded “I just need a job

This is life for many people. And this is the reason we need tough laws that hold contractors responsible for putting workers in danger. The workers — often poor, immigrants, and sometimes undocumented — often have little choice. They can do the job or they can go home and never come back. And when you need to eat, that is a tough decision.

Then, if  something awful happens, it will be the contractor that will control the construction site and the other employees (witnesses). Who will risk their job to testify that the injured worker was told “Do it or go home?”

It was just this morning that I wrote a piece responding to complaints about our scaffold law, which holds contractors strictly liable for injuries if they fail to provide safety equipment and the accident is height-related. Insurance companies complain to the Legislature that we should instead have comparative fault, and that the contractors should get a chance to lower their liability by blaming the worker (who likely had no choice) and having jury awards reduced by the proportionate share.

But this is living proof why that doesn’t work. You do the job or you go home. And it is the contractor that controls the job site.

Despite the fact the man appears he might be tied to the railing (which is being worked on by a co-worker), it is clear that this would be insufficient to arrest a fall, and doesn’t even come close to OSHA guidelines.

Of course, not all contractors risk the lives of their workers this way. But those that provide proper safety equipment don’t have to worry quite as much about injuries and death, do they?

 

 

December 7th, 2015

Hey New York! Can We Let the Sunshine In?

EmpireStateBuilding, under construction

Empire State Building under construction. Photo by Lewis W. Hine/George Eastman House/Getty Images

Much has been written recently about the conviction of New York Assembly Speaker Sheldon Silver, and New York’s opaque “method” of distributing money. Short version of the story: there is a ginormous amount of discretion that goes to New York’s legendary “three men in a room” when it comes to distributing cash from various slush government funds.

This leads to the not insubstantial problem that public money may be traded for private favors or business.  Our former Senate leader Dean Skelos is also on trial for corruption, and for all I know, Gov. Andrew Cuomo could be next.

But the money and favors sloshing around Albany are not, by any means, the only places where opaque business might be done.

It also exists in insurance company arguments to eviscerate a part of our Labor Law known as the Scaffold Law, which protects people working at heights if the contractor fails to follow required safety rules, by making the contractors strictly liable.

These two concepts are tied up together in a Cato Institute article written by Walter Olson, he also of Overlawyered fame. I won’t take issue with his conclusions on trial lawyers, but rather, upon one of the “facts” that his opinion is based upon. Notice those scare quotes around “facts?” That’s where we’re headed.

In condemning trial lawyers, Olson writes:

I got interested in Silver originally because of his distinctive role as protector of New York’s trial lawyers and their various schemes for using liability law to keep up a steady flow of redistribution through the court system.

But what factual support does he cite? It apparently comes, if you follow his links, to a 2012 column in the Daily News by Bill Hammond regarding the scaffold law, and these comments from a defense lawyer and contractor (with the bolding provided by me):

“The problem with the law is it’s so expansive that virtually every accident on the job site is going to result in civil liability,” said defense attorney William Greagan of Goldberg Segalla in Albany. “I tell my contractors, if an ambulance comes to your site, you’re going to get sued.”

The result, according to Michael Elmendorf of the General Contractors Association, is that New York contractors have to pay an extra 30% for their liability insurance.

For the $5 billion Tappan Zee project, that senseless cost equates to a whopping $100 million.

That claim of 30%, however, is wholly unsupported. In other words, Olson’s theory is supported by an unsupported anecdote, and not empirical evidence.

So here’s the funky part, and the reason that I write today. The actual data that is needed to reach a conclusion as to how much, if any, additional cost is caused by the scaffold law is kept secret by the insurance industry. The insurers simply lump the scaffold law lawsuits in with all the others: motor vehicle injuries, trips/slips and falls, electrical injuries, chemical injuries, and food poisoning from the company food truck.

When the insurance companies, therefore, claim that premiums are going up due to scaffold law lawsuits, the only proper response is: Show me the claims data. And they won’t. They refuse.

The conclusion of a 30% hike based on the scaffold law is nothing more than a wild guess.  It has just as much validity as me typing up 2%.

In a Twitter discussion over the weekend, Olson defends his argument by writing that”Customers, not just carriers, can measure how much more it costs to insure certain kinds of job in New York.” But this is error. The customer doesn’t know, because the customer can’t know, because the data is kept secret.

Hammond does the same thing, citing to a 2013 Crains’ article by Daniel Geiger on rising school construction insurance costs. But that article suffers from the same problem: opinions are given without actually looking at the data to determine the reason for the costs. There is no way to determine how many claims, or payments, are due to height-related injuries where the contractor failed to provide safety equipment.

Conclusions based on undocumented anecdotes are worthless, for as we all learned in grade school, “garbage in, garbage out.”

But wait, there is a remedy for this! I’m not going to leave you hanging.

And it sits in the form of legislation proposed by Assemblyman Francisco Moya. This legislation calls for transparency by the insurance industry, so that it opens its books so that the claims can be examined. For only then can an intelligent discussion even begin. Moya writes:

“The Sunshine Bill will shed much needed light on insurance industry pricing and practices. For years the industry has claimed that New York’s strong workplace safety regulations drive up insurance rates, but have never provided any actual proof.”

trust meIf I showed up for a trial and asked the jury to just “trust me” they would toss me out on my ear. As they should. I can only help my clients by presenting evidence.

And if the insurance industry claims that hikes are based on the scaffold law — but it steadfastly refuses to support that case with actual evidence — it too should be tossed out on its ear.

Unsupported claims shouldn’t be used  by people who care about public policy.

So here’s the magic question: If you were a legislator, or advocate for policy change, wouldn’t you want to know what the data said before trying to fashion a solution?

As Louis Brandeis once said“Sunlight is said to be the best of disinfectants.”