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. 

 

August 17th, 2018

Dear Aretha… (A Letter from a Vietnam Veteran)

While biography forms the backbone of any obituary, it is the stories about a life that serve to illuminate it and give meaning.

The letter to Aretha Franklin below was originally written and mailed a few years ago by Earle L. Jackson Sr. — a medic for the 173rd Airborne. I publish it today (in slightly modified form by its author), with the thought that, perhaps, the story will help to illuminate the biography of her life that has been written and celebrated elsewhere

For context, the Vietnam combat below is the Battle of Dak To (Hill 875), some of the bloodiest fighting of that long ago, godforsaken but not forgotten, conflict.

The letter below is from a soldier surrounded by death, to an artist that helped keep his spirit alive.

Today is one of those days I post something that has nothing whatsoever to do with law. I publish simply because its one of these things that should not remain hidden.

——————–

Dear Ms. Franklin,

 

Please accept my apology for this letter being some 50 plus years over due.  In 1967, I was a 22 year-old combat medic with the 173d Airborne Brigade, the most decorated army brigade in Vietnam.  We were dug-in in a river valley next to the Dak Po river in Kontum Province, Republic of South Vietnam.  The valley was named Dakto which was about 50 miles by dirt road from the closest mountain village, in the rain-soaked jungles of the Central Highlands.

 

At any time during the day or night, from the surrounding hills and mountains, the North Vietnamese Army would rain down mortars and rockets killing and wounding scores of paratroopers and destroying critical supplies.  Dakto was an extremely dangerous place in 1967, over a four month period we had hundreds of troopers killed and another thousand or so men wounded.

 

We could never let our guard down in Dakto because the Cambodian border was just a few miles away where some 20,000 highly trained, battle-tested North Vietnamese soldiers were camped, poised to attack our position in the valley at any given moment.  If we did come under a full attack and had to defend this valley, we would do so with a little better than 1,200 men.  I don’t mind admitting, and I’m not embarrassed to say that for this 22 year-old kid from Plainville, Connecticut it was a very stressful time and place to say the least.

 

Every day as dusk settled into night over the valley, you could hear the hum of generators being started that provided the only electricity for 50 miles around.  The intermittent firing of our artillery into the surrounding hills and valleys kept the enemy off balance during the night and less likely to attack us.

 

It’s Saturday night in death valley, the enemy is taking a break from shelling us and the boredom is almost thick enough to cut with a knife, when through the crisp Dakto night air, as the moon rose above the dark peaks of the mountains, there came the sweet sound of a familiar voice belting out the soulful words “R-E-S-P-E-C-T find out what it means to me.”

 

Man, I say to myself, I’m missing home too much, could that be my girl way out here in this dusty hell-hole?  I want to get closer to what I’m hearing so I follow the sound and it leads me to a rain poncho being used as a door to cover an under-ground bunker.

In the bunker there are a dozen grubby, tired and home-sick paratroopers and they were partying in this hole in the ground like there will be no tomorrow.  On one side of the bunker, several paratroopers are harmonizing the background lyrics, and rocking to the beat of the music on the other side of the bunker are several other soldiers making up their own choreographed steps as they move to the rhythm of the music.

 

It’s a scene now etched into my heart and mind that will never be erased. This will be the start of a night in my life that I will never forget and its not over yet.

 

About 2:00 am in the morning I needed some fresh air so I stepped outside of that bunker.  It wasn’t long before my ears caught another familiar sound coming from the next bunker about 30 yards down the line of bunkers.  “You make me feel like a natural woman”, man, oh man, there is another party going on in the next under-ground bunker too. In this bunker there are another dozen or so paratroopers partying in the candle light, dancing by themselves while singing along at the top of their lungs with our “Queen of Soul”,   Ms. Aretha Franklin.

 

There may be a war going on outside of the bunker, but inside the safety of this bunker there is a party going on and performing for us tonight is Ms. Aretha Franklin, no charge.  In 1967 we spent many nights in some of the world’s most dangerous places on earth and you Ms. Franklin were always right there with us, helping us get through another tough night or giving us comfort on a bad day.  Even today when I hear your music I smile, a warm feeling comes over me, and I get carried back to those spirit lifting parties in that infamous river valley of death in the Central Highlands of Vietnam, in 1967.

 

Ms. Franklin you may never know the depth of the love we old veterans have for you and your music, or the impact that they had on us combat troops dug-in in the remote mountains and jungles of South Vietnam.  When we were down and needed a double dose of love, you gave it to us in your music; through your music we were able to get through the hard times and terrifying moments that lay ahead of us.

 

Well Ms. Franklin, I’m 74 years old now and I don’t think that I will ever get the chance to hug you and thank you personally for all that you did for me and the tens of thousands of other soldiers some 50 plus years ago, but please consider this, when you settle down to sleep and close your eyes please let your last thoughts for the night be about the tens of thousands of veterans who love you beyond words of expression and cherish those brief, precious moments when you single-handedly stopped the war and took us all home . God Bless you for that, and rest easy Ms Franklin, long live the Queen of Soul….

 

Sincerely and with much love , Airborne All the Way

 

Earle L. Jackson Sr.
Florida
(This publication is with the permission of its veteran-author, who maintains a copyright over the letter, so please do not re-publish without permission from his friend and lawyer, Ken Laska).

 

March 28th, 2018

In Defense of the Unicorn: Baseball, Peace and a Better Day

An old baseball of mine that I had stitched back together as a kid to keep the leather on. You didn’t buy them by the dozen back then. Every baseball was precious.

It’s in the air. I can smell it. And so can Jay Breakstone, appellate lawyer and wordsmith extraordinaire who, in 2014, penned Baseball, Poetry and Crocuses (Pitchers and Catchers Report Next Week!) for this space.

No stranger to conflict (of which he writes today), Breakstone grew up in East Flatbush, the product of a tumultuous mixed marriage: His mom was a Brooklyn-born die hard Dodger fan and his Dad a Bronx-born Yankee fan.

He survived that experience to emerge as a die hard Mets fan.

Perhaps, if the union of Dodger and Yankee fans can mint something like Jay, there is hope yet for the country:

—————————–By Jay Breakstone———-

America has become such an uncomfortable place to live nowadays. When I say “uncomfortable,” I thoroughly understand that such terms are relative. But being an American has meant that we worry about a lot less than those in other countries and I understand that.

Yet, to wake up every morning to the headache of political soap opera is taking its toll on me. I am more irascible than usual; quicker to yell at the morning news and yell at my family from dawn until dusk. This is not good, for there is a thin line between being a lovable curmudgeon and a raging lunatic. What to do?

And there it is. Shining through the gloom like a landing beacon on a dark runway; like Lady Liberty in the harbor; like Mom’s chicken soup, a Nathan’s hot dog or pastrami on rye from Katz’s Delicatessen. Goodness knows, its done it before; brought hope where there was none and salvation to the depths of hell. Opening Day.

Yes, Virginia, there is a new tomorrow, and sacrilegious as it may be, God lives only 60 feet, 6 inches from home plate. In fact, whether you believe in God or not, you can still believe in baseball.

You can be a Democrat and believe in baseball. You can be a Republican and believe in baseball. You can be a Democrat or a Republican, sit side by side in the same temple, and believe in baseball together. You can speak English, Spanish, Greek, Serbo-Croat, even Pig Latin, and believe in baseball.

You can belong to the N.R.A., the A.C.L.U., the National White People’s Party, the N.A.A.C.P. or the Mickey Mouse Club and believe in baseball. Because, as it says in an oft-forgotten footnote in Genesis: “And G-d saw baseball, and it was good.”

Have you ever noticed those old pictures of men in suits and hats, sitting in ball parks during the business day? Why weren’t they at work? One of them, a young attorney in New York City, nearly lost his job because he kept sneaking out to Giants games at the Polo Grounds.

Nonetheless, the kid made good, but never forgot the magic of baseball. So, when he worked his way up to being President of the United States and the country he led was in the depths of soul-shattering gloom following Pearl Harbor, Franklin Roosevelt knew one thing that would cut through the fog: baseball. He declared that the Axis could do many bad things, but it could never stop baseball, which continued throughout the war.

Time and time again, baseball has been that never changing point in an ever-changing American universe. To those of us who were at Shea Stadium on September 22, 2001, it was much the same thing. Roosevelt’s words to Judge Kenesaw Mountain Landis, baseball’s Commissioner in 1942, still rang true: “I honestly feel that it would be best for the country to keep baseball going[.]”

I suggest that we need baseball now more than ever (as if there was ever a time we didn’t.) I think everyone should stay home from work on Opening Day and head to the ballpark instead.

If need be, dig up that old note from your mother, the one that says “Arthur could not be in school today. He has Dengue Fever.” If you can’t find it, I’m sure you can still forge her signature the way you did on the original. Eat a hot dog. Have a beer. Most important, let it go.

Nothing is so bad if it’s Opening Day, where all the past is prologue. Sure, it could turn out lousy, like the 1942 Brooklyn Dodgers, who had a phenomenal season, were in first place until September, only to lose the pennant to St. Louis. But on Opening Day, the Boys from Brooklyn took the opener, 7-5.

Opening Day is all about tomorrow. It always has been.

 

December 6th, 2016

Opting Out of Uber’s Forced Arbitration (The Clock is Ticking)

Uber logo. Used without its permission.

Uber logo. Used without its permission.

You have until December 21st. That’s it. But you can opt out.

Here’s the deal: Uber changed its terms of service to force people into arbitrations, taking away consumers’ rights to sue the ride sharing company if something goes wrong. Like plow into another car because the driver was looking at his phone to see where his next right might come from.

That kind of thing.

And compulsory arbitration is very bad for the little guy, as I’ve discussed earlier, as arbitrators would love to have the repeat business of the companies that are always involved in disputes. There is a hidden financial motivation to arbitrators to be gentle to Uber and other large businesses so that they continue to hire said arbitrators.

That is why, for example, Wells Fargo is trying hard to force claims against it for creating sham accounts into arbitration, instead of facing the wrath of juries.

So while Big Business of all stripes can pull it’s business from arbitrators who might not be as nice as they’d like, the one-and-done consumer has no leverage. None. Nada. Zip.

Advantage: Big Biz.

So, courtesy of Marea L. Wachsman, comes this easy-peasy method of preserving your rights against Uber.

Take it away Marea:
————————-

mareawachsman_492128262

Marea Wachsman, of Schreier & Wachsman, LLP

If a passenger is injured in an Uber vehicle due to its negligence, passengers were required to arbitrate their claims for personal injuries before the American Arbitration Association.  They were required to arbitrate pursuant to the terms and conditions of the Uber contract the passenger “accepts” when using Uber.

On July 29, 2016, however, Judge Rakoff from the Southern District ruled that the Uber arbitration terms were not conspicuous enough or did not evince the users “unambiguous manifestation of ascent” to the arbitration provision and therefore the court ruled that the arbitration provision was not enforceable.

With its forced arbitration clause tossed into the dumper, Uber tried again.

On November 14, 2016 Uber sent an email to its users to undermine Judge Rakoff’s decision, announcing it was updating its Terms effective November 21, 2016 —  while everyone was scampering somewhere, or doing something, in anticipation of  Thanksgiving.

In that same email, Uber instructed its users to read the new Terms and expressly stated it had “revised our arbitration agreement.”  The revision is with an eye to ensuring that negligence claims by passengers must have their claims for personal injuries arbitrated, and not litigated, thereby waiving the passengers’ rights to a jury trial.

Fortunately, you can reject the November 21, 2016 Uber Terms, by providing Uber with written notice by mail, by hand delivery or by email within 30 days of November 21, 2016.

If the rejection is by email, the email must come from the email associated with the individuals account and addressed to change-dr@Uber.com. The notice to reject the Terms must include the individuals full name and state your explicit intent to reject the changes to the Terms.

By rejecting the November 21, 2016 Terms, the individual continues to be bound by the Terms the individual first agreed to when the individual signed up with Uber.  Thus, presumably, the individual would still have the protection Judge Rakoff provided in having the claims for personal injury for an Uber passenger against Uber heard in a courtroom and not in an arbitration hall.

You can find the information buried on Uber’s legal page, in paragraph 5, reprinted in full below:

Uber may amend the Terms from time to time. Amendments will be effective upon Uber’s posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If Uber changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Uber written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Uber USA, LLC (the name and current contact information for the registered agent in each state are available online here), or (b) by email from the email address associated with your Account to: change-dr@uber.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).

 

May 18th, 2016

Joan Rivers and New York’s Dreadful Wrongful Death Law

Joan Rivers

My Monday post regarding the settlement of the Joan Rivers wrongful death case was meant to be a two-parter. Part one to laud the lawyers and part two to write about the injustices of our current (and ancient) wrongful death statute that dates to 1847.

New York used to be progressive, with the first in the nation wrongful death law that was designed to protect injured railroad workers.  There was no common law claim for wrongful death. Since an injured worker needed to be compensated, perhaps for life, but a dead one was worthless in the eyes of the law, saving the life of the worker was, ahem, detrimental to the profits of the railroad business.

In fact, not only wasn’t there a wrongful death cause of action, but even a claim for personal injuries (the pain before the death) did not survive the death of the injured person (or of the tortfeasor). It just evaporated. It was better (for the railroads) to kill workers than injure them.

Thus, the 1847 legislation. (You can read the history of it all in Grant v. Guidotti.)

But while once at the forefront of progress, New York is now a laggard in the law’s development. It has not been updated in 170 years. The law provided back then, and continues today, that the survivors may only collect “pecuniary” loss, basically meaning the wages that others depended on. And if your family member that was killed by the negligent conduct was not the family breadwinner, but happened to be an infant, homemaker or retired?

Sorry, Charlie. Children, retired seniors and homemakers have no “value” to the New York Legislature. And disaster-struck families have been told by lawyers, for generations now, that they won’t get to hold the tortfeasors responsible for their grief. They are on their own. You can blame the Leg.

Before I had a chance to fully write that piece though, Marc Dittenhoefer dropped a long comment into that first post on that subject, dealing with the Joan Rivers case. So I just asked Ditt to expand on it a bit and presto, a new guest post on the very topic I wanted to cover.

Take it away Ditt:
——————————

Marc Dittenhoefer

Marc Dittenhoefer

I applaud the outcome in the Joan Rivers case and join in sending kudos to Ben Rubinowitz and his team for the excellent job they did on all counts. However, results like this one always give me pause in that they highlight a great inequity that still bedevils our system.

Joan Rivers endured no conscious pain and suffering, had no impending fear of death or disaster, was the legal and obligatory supporter of no one, and was worth tens – perhaps scores – of millions of dollars at the time of her death. By traditional NYS legal measures of recovery, this case should have limited value. But Joan Rivers was rich, famous, powerful, beloved and white. Ka-Ching!

Now let’s think of an unheralded Ms. Gonzalez, or Johnson, or Yee; with several children dependent upon her for support; with days, weeks even months or years of conscious pain and suffering; and with a dread of impending doom all about her due to someone else’s fault in causing her death. THAT case doesn’t settle so fast, nor for anywhere near sum likely received here.

The reason? In New York, wrongful death damages are measured by two things:

(1) conscious dread, pain and suffering of the decedent, and

(2) monetary loss to those legally dependent upon the decedent for support.

Joan Rivers went to sleep fully well expecting to wake up shortly, felt no pain and suffered not at all, and left behind as an only survivor a fully grown, emancipated and high-earning woman in her own right who stands to inherit generously from her mom’s Estate. But for her fame and public profile, the measure of damages here would be negligible by current legal standards.

But an unknown single mother of 3 with no special skills or educational advantages, earning modest wages and perhaps even lingering in a death-spiral of pain for months on end?  Who also happens to be the family matriarch giving love and guidance to those within her household?

Defendants would be in no particular rush – nor in  the grips of any particular generosity – to amicably resolve that case to the benefit of the motherless children in dire need of whatever recovery their lawsuit might hold. Those moms do not make the headlines: no insurer seeks to avoid bad publicity by paying quickly or generously for them. While the Rivers’ settlement is celebrated by the tabloids with speculation of an 8-figure sum, the lesser recoveries of the “ordinary” litigants are decried as “runaway” results when the press pays attention to them at all. Yet the self-same interest of improved public health is served in both instances.

Fame has its privileges, all right. But NY’s laws need to recognize that:

(1) the current measure for damages in a wrongful death scenario is woefully dysfunctional and out of date, and

(2) “regular” folks need to be afforded the same quality of justice that the rich and famous get, even if their cases do not alway make the papers.

“Wrongful Death” reform is long overdue.