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.

 

August 26th, 2019

Vigilantes and Juries and Justice, Oh My!

Over the weekend, I guest-blogged at Kevin, M.D. It is republished here for wider distribution:

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Last week I was struck by a post by Dr. Saurabh Jha at Kevin, M.D., about his views of the jury system — as some of his comments mirrored things I’ve said to juries in the past.

Some things he got right, which go to the core our civil justice system. Some things, however, not so much.

His perspective comes from growing up in India, which doesn’t exactly have the most efficient of justice systems. And because of a lack of confidence in that system, folks sometimes take matters into their own hands. Like burning people alive:

One of my most harrowing memories in India as a child was when I saw a mob pour kerosene on a bus. My grandfather pulled me away before the bus was set alight, but I knew what was happening. The mob had tied the driver and conductor to the steering wheel. The mob was angry because the bus had crashed into a pedestrian fatally injuring her. The mob formed spontaneously and dispersed spontaneously. Mobs are as capricious as India’s legal system.

Dr. Jha writes because this concern over vigilante justice isn’t limited to crimes and motor vehicle fatalities, but to something that I’ve never heard of in the United States — retribution against doctors for bad results:

…doctors face a new tide – mob attacks for undesirable patient outcomes. The strike by doctors in Calcutta in protest of a junior doctor seriously injured by an angry family of a seventy-five-year-old patient who passed away, is just the tip of the iceberg. There’s more trouble brewing.

While we see vigilantism from time to time here when crimes are committed — think relatives seeking revenge on a rapist or killer — rarely do we see if for matters generally handled in the civil system such as bus collisions. And certainly not for medical malpractice, which is the heart and soul of his concerns as he discusses a family member’s decision on whether to go into medicine.

So Dr. Jha brings a different perspective. And the first part of that perspective is that there’s a price to be paid for a justice system that works to sift through and clarify the facts behind an incident in a manner that doesn’t involve guns, knives, fists or kerosene:

It was only years later that I understood the price of stopping mobs. When I arrived in Philadelphia for my medical training, I couldn’t afford a car because I couldn’t afford auto insurance, which was unaffordable because the costs of litigating auto-accidents were so high, which were high because of the generous compensation for a range of injuries including the nebulous “whiplash.”

Leaving aside his assumption that costs were high because compensation was “generous” for “nebulous” soft tissue injuries, was this increased cost worth it? Dr. Jha is clear in his opinion that, because mobs are more likely to exist when the justice system isn’t trustworthy, it is definitely worth it. And society becomes safer as a result:

Mobs attempt to correct for failures of institutions to make systems safer. Though mob violence is a blunt tool, unhelpful at making systems safer, their expression signals a void – the paucity of confidence in civil courts. If patients’ families had confidence in the legal system and were sufficiently compensated, over time they’d be less likely to be violent against doctors when they perceived real or imaginary medical negligence. Compensation doesn’t bring back the deceased, but it’s an apology of sorts. Though dreadfully cynical to say – money is balm to the grieving soul. In its absence, retribution rears its ugly head. Mobs exact retribution in lieu of compensation.

This mirrors, in part, some of my standard spiel in voir dire — particularly when I see a run on the room with all kinds of BS excuses to get out of jury service. Our system of justice, while imperfect in that money can compensate for, but not heal, an injury, stands as a substitute for the alternative of vigilantes.

Dr. Jha is likewise clear in his opinion that justice isn’t cheap, because safety costs money:

The mob problem faced by doctors in India won’t be cheap to solve. The government must invest a fair amount in courts, medical malpractice insurance, and hospital infrastructure. Due process is expensive. Safety costs.

But there’s a second part of his posting that also caught my eye, and that was the assumptions that he used about costs, particularly with respect to medical malpractice. He used at least three well-worn tropes, just assuming them to be true:

The United States is famously litigious, particularly in medical malpractice, where millions are awarded for bad patient outcomes which may or may not be caused by negligence.

This one statement isn’t accurate on multiple levels. First, one really can’t bring small medical malpractice cases because cases are expensive to bring. By definition complex cases must be larger than simpler matters. Who’s going to risk $50,000 in expenses and a couple hundred hours of time on a case with a $100,000 value? For smaller matters, the medical community enjoys de facto immunity.

Second, money doesn’t get awarded for cases not caused by negligence. While a jury may, from time to time award damages on insufficient proof (and, conversely, sometimes tosses out a case despite overwhelming proof) a judge can toss that verdict if the facts aren’t there to support it. And after that, there’s an appellate court to do the same. There are, therefore, two additional layers of protection against what Dr. Jha merely assumes to be true.

Next up is the trope about “defensive medicine” driving up costs due to the fear of litigation:

The net effect of litigation is defensive medicine where doctors over-order tests to avoid lawsuits. Defensive medicine has made healthcare costlier.

This was demonstrated in an empirical study to be false. In 2003 Texas passed a law that capped malpractice payments at a paltry $250,000, with the predicable result that fewer cases were brought and that doctors would feel “safer.”

So fewer “unnecessary tests,” right? Less “defensive medicine?” Wrong. Medicare spending in Texas went up 13% more quickly per beneficiary than the national average. The idea that fear of malpractice cases was a driver of increased medical costs was demonstrably false.

America, unlike every other westernized country, doesn’t have universal medicine. It is fee for service. There is a financial incentive to order more tests. Whether that is a driver of our escalating health care costs I don’t know, but it certainly isn’t a fear of malpractice suits, which are just 2.4% of our overall healthcare costs.

So, in response to Dr. Jha, you got it partly right, in that a functioning and trustworthy justice system beats the hell out of vigilante justice (which has its own costs). And it makes society safer. But you missed the mark on some of your underlying assumptions about our justice system. Those well-worn tropes that you (and many others) use is something to rethink.

 

August 16th, 2019

Fault and Personal Safety

Most readers know that when I write about safety it’s with good reason: There’s no need to hold someone at fault for injuries/death if the incident never happened.

The concepts of safety and fault come from very different places. And while this seems like second nature to many of us, some folks seem to conflate the two concepts.

So let’s straighten out that misconception.

Personal safety is a basic animal instinct. It’s why Bambi fled the forest fire. Why turtles retreat into their shells at the sign of danger. Why civilians flee war. Why we avoid cars drunkenly weaving on the highway. Why we lock our doors at night. Why we teach our kids to be careful. It’s not about right and wrong, it’s a Darwinian instinct for survival.

We can’t, by our conduct, always guarantee that personal safety. After all, even the world’s best driver might be hit from behind by a millennial too absorbed with texting to notice the stopped car in front.

But we can take efforts to hopefully minimize that danger. Most folks, for example, won’t open attachments to emails from strangers. The fact that some Bulgarian criminal trying to place a virus on your computer is 100% in the wrong is cold comfort when dealing with the fallout.

Some people take good driving classes, for example, when they are learning and insurance companies (at least in New York) will give discounts for those that take them.

By contrast, fault is a human created legal system of holding people accountable for their acts after the acts have occurred, whether those acts were caused by negligence, recklessness or intentional conduct. That fault finding could be either civil or criminal.

I’ve spent 30+ years in the fault part of this dynamic, attempting to hold folks accountable on the civil side for conduct that is negligent or worse.

There are some people, however, who seem to think that urging people be safe is someone giving a free pass to the malfeasors. This is particularly true in the realm of physical assaults when politics and passion seem to impair the ability to think logically.

Personal safety and holding people at fault are not incompatible. They are very much separate and distinct concepts. It’s why parents teach their kids to be careful to avoid incidents and why our justice system tries to hold people accountable after those incidents occur.

You don’t want to find yourself in a lawyer’s office after a bad event. Worse, your surviving family members don’t want to be there. I’ll often tell people, you don’t want me to be your lawyer. Because if I am, something bad has happened.

So try to avoid the bad. It beats the hell out of assigning fault afterwards.

When I was a kid I had a little paper back book called “Tombstone Humor.” This epitaph (or something similar to it) stuck in my brain:

Here lies the body of John McCray,

He died defending his right of way.

He had the light, He had some pluck,

But the other fellow had the truck.

 

July 12th, 2019

Will New York Settle?

I started this blog in 2006 and there’s one subject I’ve never broached in over 1,500 postings: Settlements.

There’s a good reason for it, that being that a personal injury lawyer doesn’t really want to be known as the one that settles, but the one that takes a verdict.

If you prepare your case for settlement you are stuck — you aren’t ready for verdict. But if you are ready for verdict can you be ready to settle if the opponent asks that this door be opened. The defense lawyers and insurance companies need to know you are ready for verdict.

I have subject headings on this blog for Bork, beer, baseball and the Boston Marathon, but until this moment, no subject heading for settlements.

The last Legislative session changes that, however, due to a crucial change in the law related to settlements that passed both the Senate and the Assembly. If Governor Cuomo signs it. He should.

The settlement issue comes up in the personal injury context when you have joint tortfeasors. Assume that Defendant A wants to pony up some money but Defendant B does not. Presently, if you accept the offer from A, then B gets a choice after verdict regarding a set-off. B can either deduct the percentage of liability of A (the equitable share), or the gross amount of the settlement that came from the settling defendant.

This choice is a windfall for B. But worse than simply being a windfall, it actively discourages settlements. Few plaintiff’s want to see themselves stuck after a verdict with Defendant B getting the bonus of this choice. The devilish law is Section 15-108 of the General Obligations Law.

But it’s the public policy of New York, and I suppose every other state, to encourage settlements. It lowers the burdens on the courts, eliminates appeals, and a compromise brings finality.

What does the amendment do? It forces the non-settling defendant to make its choice of the manner of set-off before trial.

The justification of the amendment is:

The key feature of the statute, and the feature most criticized by the statute’s detractors, is that it rewards defendants who do not settle and can penalize plaintiffs and defendants who do. [This leaves] the non-settlor with the choice of an “amount paid” reduction or an “equitable share” reduction. 
 
This benefits the non-settlor in two ways. First, in those instances in which the settling tortfeasor’s payment turns out to exceed what the trier of fact later determines to be the settlor’s equitable share of the damages, the non-settlor benefits by the difference between those two sums. The second benefit accorded to the non-settlor is that the risk of settlor’s solvency, formerly borne by the non-settlor, is now eliminated. The non-settlor is able to deduct settlor’s equitable share whether or not settlor actually could have paid such sum. By virtue of these features, the non-settlor often obtains windfall reductions of liability, usually albeit not always at the plaintiffs expense… 

This bill would allow the non-settlor the same alternatives as currently exist, but require that the choice be made before, rather than after, trial. The non-settlor still would get to choose whether it will reduce its liability to plaintiff by the amount of the settlor’s payment to plaintiff or by the amount of the settlor’s equitable share of the damages. The difference is that because the non-settlor would have to make the choice before the verdict was rendered, there would be an added incentive to a defendant to settle, rather than to sit back and choose the “best of both worlds.”

Governor Cuomo should sign this common sense legislation. Or build more courthouses and hire more judges.