April 19th, 2010

The SCOTUS Nominee and The Tissue Box Test (Revisited)

A year ago I wrote my thoughts on what I’d like to see in a Supreme Court justice to replace David Souter in The SCOTUS Nominee and The Tissue Box Test. This probably doesn’t come as a great surprise, but one year later, with Justice John Paul Stevens having now announced his retirement, those thoughts haven’t changed.

I was looking for someone who had fought uphill battles for people in need. Supreme Court short lists always seem to be filled with those from academia, BigLaw or former prosecutors. And traditionally missing were those who had stood in the well of the courtroom with people whose bodies or spirits were broken or severely compromised.

In fact, it was that desire to find out what kind of people that Justice Sotomayor had represented that led me to find, last year, that she had named her solo law firm Sotomayor & Associates. While others were interested in how she would rule on hot-button political issues, I wanted to know who she had stood up for. I wasn’t looking for the minor ethics lapse that I stumbled upon, and wasn’t intending to cause a small kerfluffle, I just wanted to know who she had actually done work for.

I was heartened when I read in The New York Times last week that, when a clerk was interviewing for a clerkship, Justice Stevens pulled a plaque off his wall that honored him with a small town lawyer award. Not because he was a small town lawyer, but for the kinship he felt. The short piece, part of a longer piece on memories of Justice Stevens, read:

DURING my clerkship interview with Justice Stevens, we talked about our hometowns. When I mentioned that I had grown up in a small town near Seattle, he leapt from his chair and pulled a plaque off the wall. It read: “Small Town Lawyer of the Year: Associate Justice John Paul Stevens.” It had been given to him a few years before by the bar association of Poulsbo, Wash.

At the time, I was puzzled that the award was so meaningful to him. I shouldn’t have been. Although Justice Stevens has always practiced law at the highest levels of the profession, his modesty would make him feel right at home in a place like Poulsbo. He may not have actually been a small town lawyer, but he was definitely a kindred spirit.

While that doesn’t mean that Stevens fit the definition of what I would be looking for, at least his heart was in the right place.

Will our next SCOTUS nominee know what it’s like to struggle on behalf of the desperate and downtrodden, in at least one part of a distinguished career? One can only hope.


  • Stevens Retiring: Time For A Trial Lawyer (Norm Pattis)
    …The current court is composed almost exclusively of lawyer’s whose blood runs pure blue with Ivy League pedigrees, big law experience and years laboring in the vineyards of the nation’s federal appellate courts. Altogether absent from the court is anyone with substantial experience in the trenches where legal abstractions have the most direct impact on the lives of ordinary Americans…

  • Obama’s Diverse Shortlist (Orin Kerr)
    …Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices…

  • Birth Of The Trench Lawyer Movement (Scott Greenfield, 2009)
    …In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn’t limited to the defendants. We have philosophies, but we live realities…


March 17th, 2010

City of NY Gets Whacked Again With Sanctions By Appellate Court

The City of New York is on a roll. But not the kind they like. After years of favorable treatment by the courts in the face of repeated discovery delays, it seems as though the appellate courts have had enough of they city’s dilatory tactics and refusal to obey court orders.

In Elias v. City of New York, the Appellate Division (First Department) hit the city yesterday for $7,500 in sanctions. According to plaintiff’s counsel, Charles Gershbaum, the city blew through five different discovery orders in this personal injury matter. Rather than simply accept the lower court’s new order (a sixth order, to comply with five old ones), an exasperated Gershbaum took the matter up to the appellate court, on the legal theory that enough is enough.

And the First Department responded by modifying the lower court order to smack down the city again.

It was just three months ago that 18 of the 20 appellate judges of this same appellate court took the City’s Corporation Counsel, Michael Cardozo, to the woodshed. They called Cardozo “imperious” and “insulting” for having published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

Well, it seems that the appellate courts have performance measures in mind too, notably the lax performance of the City’s lawyers. The irony of Cardozo’s complaint was not lost on anyone.

It was only one day after Cardozo tried to spank the judiciary last December that the Second Department hit back, with its decision in Byam v. City of New York where the city’s answer was struck due to “willful and contumacious conduct” that the court inferred “from their repeated failures, over an extended period of time, to comply with the discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failures to disclose,” for a case going back to 1997.

While the decision yesterday in Elias was brief, it brought back echoes of the First Department’s letter of response to Cardozo, where the justices wrote that:

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence.

That letter had noted that, “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.”

The lower court judges that handle the city parts, who hate to get reversed, are no doubt taking notice of the substantial change in tone from our appellate courts.


March 8th, 2010

New York Appellate Court Gives Lesson in Lousy Legalese (In an important case) – Updated

It’s a contest! For the worst judicial writing in America. And I have here the first entrant.

Now I confess that I publish this with great trepidation, since I appear before this appellate court from time to time. And what I have to say isn’t kind.

But at the risk of pissing off some judges before whom I may appear, I have to ask, would you want our briefs to contain sentences with 300+ words? And would you want me to make you strain to figure out the points I’m making?

Exhibit A: A decision from the Second Department in December in Dockery v Sprecher, regarding a $109M medical malpractice verdict that was reduced to $9 million for a brain damaged man. The first sentence of the decision, regarding the procedural history, weighs in at a staggering 303 words. Without any semicolons. Is there a secret law that says writing a procedural history must induce dread on the part of the reader?

But wait! There’s more! Not to be outdone, the second sentence of the same decision laughs in the face of the first, stomping it into the ground with a jaw-dropping 343 words. But at least that has two semicolons. (Both re-printed below.)

Really, is such gobstopping exposition necessary? Have simple, declarative sentences been outlawed? Is clarity a crime?

I challenge anyone to find a sentence in another judicial opinion of such length.

The format of this decision is unfortunate given its importance. The decision speaks to the issue of how outlier verdicts — those that “deviate materially from what would be reasonable compensation,” in the parlance of New York law — get reduced by courts on review by ordering a new trial unless a party stipulates to a lower amount. I had written of the subject as a newbie blogger (How New York Caps Personal Injury Damages — 1/23/07) due to the popular misperception among the public that the verdicts they see in newspapers are the amounts that actually get collected.

But those verdicts in the papers are there for a reason; either because a celebrity was involved or the verdict was an outlier.

A decision on a blockbuster verdict that helps to define the limits of permissible compensation, and demonstrates how the courts manage those outlier verdicts, is one that would assist the public in understanding how our judicial system works. And it would assist trial judges and lawyers in understanding how the appellate court might see things, and therefore it would be important guidance.

But sentences of 300+ words don’t do that. Instead of offering clear explanation, they offer the reader the opportunity to engage in code breaking, with a WW II Engima machine as a required tool.

And that is not the only place this decision lacks clarity. Because the decision also fails to explain the injuries. Imagine that, a $109M verdict reduced to $9M, and no discussion of the damages? John Hochfelder has written quite a bit on that recurring issue, including this:

So I don’t at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why [the Appellate Division] can’t make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

It takes much hard work to actually figure out what the Appellate Division did in Dockery v. Sprecher, because not only did it reduce the verdict but it also lowered the apportionment of fault for the defendants from 45% to 10%. And it failed to let the reader know what the actual effect of that apportionment change was.

And since this report indicated that there was also a $4.4M pres-suit settlement with a hospital, that means that there would be an offset for the settlement amount under New York’s General Obligations Law 15-108, though you wouldn’t know if from reading the opinion.

So we have a major decision on the issue of damages, with a new trial ordered unless the plaintiff stipulates to a reduction, a change in the apportionment, a settlement requiring an off-set, but with tortured language in the decision, missing information, and open questions for the reader. And that’s a shame.

[Update: Hochfelder unravels the guts of the injury claims in a new post, and comes up with this result:

$4,400,000 (the pre-trial settlement the hospital and one doctor) plus
$957,000 (The 10% share of the remaining defendant, resulting from the new $9,570,000 limit placed by the court)]

So let me politely suggest that our appellate judiciary do a few things:

1. Read the opinions of Justices Scalia, Posner, or Kozinski. Just for style. Ask yourselves this question: Would any of those jurists compose anything resembling the mind-numbing legalese I’ve re-printed below?

2. Contact legal writing guru Bryan Garner, who has given a gazillion seminars on writing to lawyers and judges;

3. Take the writing manual that you are working from and dump it. Whatever comes out the other end of the recycling process will be of better use.

OK, here they are, the first two sentences, in all their gory glory, followed by my closing thoughts:

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Hart, J.), entered July 10, 2008, as, upon the granting of that branch of the motion of the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., and Peninsula Hospital Center pursuant to CPLR 4401, made at the close of the plaintiffs’ case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, upon a jury verdict finding the defendants M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C., 45% at fault, and nonparties Philip Howard Gutin, and Memorial Sloan Kettering Cancer Center 55% at fault for the injuries sustained by the plaintiff Thomas Dockery, and that the plaintiff Thomas Dockery sustained damages in the principal sums of $10,000,000 for past pain and suffering, $27,750,000 for future pain and suffering, $370,000 for past loss of earnings, $80,000 for future loss of earnings over a period of 28 years, and $21,636 for loss of Social Security income, and that the plaintiff Karen Dockery sustained damages in the principal sum of $18,000,000 for past loss of services, and $48,700,000 for future loss of services, and upon so much of an order of the same court entered December 3, 2007, as granted, after the jury verdict, that branch of the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs’ case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, dismissed the complaint insofar as asserted against the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., Peninsula Hospital Center, M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C.

Ordered that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C.; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs’ case, for judgment as a matter of law dismissing the complaint insofar as asserted against them is denied, the order entered December 3, 2007, is modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for a new trial as to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., on the issues of apportionment of fault and damages for past and future pain and suffering and past and future loss of services unless, within 30 days after service upon the plaintiffs of a copy of this decision and order with notice of entry, the plaintiffs shall file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to the apportionment of 10% of the fault to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., and 90% of the fault to nonparties Philip Howard Gutin and Memorial Sloan Kettering Cancer Center, and to reduce the damages for past pain and suffering from the principal sum of $10,000,000 to the principal sum of $1,200,000, the damages for future pain and suffering from the principal sum of $27,750,000 to the principal sum of $6,750,000, the damages for past loss of services from the principal sum of $18,000,000 to the principal sum of $350,000, and the damages for future loss of services from $48,700,000 to the principal sum of $1,000,000, and to the entry of an amended judgment accordingly; in the event that the plaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

Two final thoughts. One reason that this decision might be written so poorly is that the court doesn’t want it to be cited and followed. But, like Hochfelder, I believe that such obfuscation leads to more litigation as it leaves the current state of the law a mystery. If the bar understands that, for example, a verdict for a broken arm will be tossed out if it exceeds (or is lower than) x, then the parties can turn to the liability aspects and make informed judgments with more confidence of the best case and worst case scenarios. And the trial level courts will have guidance on permissible parameters when deciding post-trial motions. And that would mean fewer trials, fewer appeals, and reduced judicial case load. It would, dare I say, promote efficiency.

And last: When I appear before you next, please, please, PLEASE, don’t hold my criticisms against my client. I write because I think the courts can do better, and that we are all better served when decisions are clear.


December 16th, 2009

NY Appellate Bench Rips Cardozo in Law Journal Letter

In a stunning rebuke to NYC’s top lawyer, Michael Cardozo, 18 of the 20 justices that sit in the Appellate Division, First Department have taken him to the woodshed with a letter in the New York Law Journal coming out tomorrow (12/17/09). The response comes due to Cardozo’s attack on the state’s judiciary last week. Cardozo is now starting his third term as the city’s Corporation Counsel.

The appellate court judges are responding to Cardozo’s December 7th column on improving efficiency in the courts, a subject I wrote about a few days ago when both bench and bar came down on him hard in NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar).

But now it is not simply one panel of judges ripping the city for its own inefficiency, or lawyers writing letters to the paper. Now the vast majority of the appellate bench that hears NYC cases has called Carozo’s “imperious outpouring of advice” “insulting.” They went on to write, led by Presiding Justice Luis Gonzalez (pictured), that:

“We feel compelled to respond to his misguided assertions, his misplaced blame and his attacks on the state trial judges…”

The First Department hears cases from the Manhattan and Bronx courts. And the Second Department, which sanctioned the city just last week in Byam v. City of New York for a decade of delay in providing discovery, handles Queens, Brooklyn and Staten Island (as well as other downstate counties).

You could almost see the smoke pouring off the keyboards of the judges as they wrote of Cardozo regarding changes in the use of 60-day reports that judges make to track cases:

In large measure, his facile proposals amount to an echo of reforms that are under way or have already been adopted by our former and current chief judges… Every one of these items has already been implemented by the Office of Court Administration, which on a constant basis compiles and circulates large amounts of information regarding judges’ job performance.

The idea that current reports are being inaccurate implied, to the court, that some dishonesty was going on. The letter stated:

The idea that complaints must be filed with the Judicial Conduct Commission in order to ensure accuracy in 60-day reporting requirements baselessly implies that there is actually a problem with inaccuracy, an implication for which Mr. Cardozo provides no support.

After defending the trial judges against Cardozo’s charges, the appellate judges lowered the hammer on him, placing the blame for much delay and inefficiency squarely at his feet (just as this letter Helene Blank and Marc Dittenhoefer did the other day):

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority.

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).

What followed then was a litany of First Department cases in which the sanction of attorneys fees was imposed on the city as a result of its “inexcusably lax” responses to discovery orders.

And then a concession about city cases that all the personal injury attorneys in this town already knew, but had always been simply implied by the courts:

[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.

Cardozo isn’t having a very good holiday season. In fact, having so many judges angry at him, I’m thinking this will be his last holiday season in his office.

It’s worth noting, however, that in an interview with the Law Journal that accompanied the letter (can’t find link), Justice Gonzalez said the First Department’s “track record of evenhandedness in our treatment of Mr. Cardozo’s client, New York City,” would continue despite the judges’ criticism. He went on to say, “The bottom line is our judges are always mindful of our ethical responsibilities and our members have always dealt with Mr. Cardozo’s client in a fair and even-handed manner and we will continue to do so.”

The Corporation Counsel has 650 attorneys working for it, and handles a wide range of legal issues on behalf of the city. Background here on Cardozo as he prepared to start his third term.


December 11th, 2009

NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar)

You just don’t often see a city’s top lawyer get shot down so hard and so fast as we did here in New York this week. Shortly after writing a column for the New York Law Journal on inefficiencies in the court system, an appellate court struck the city’s answer in a case they were defending. The court’s extraordinary action was taken due to a decade of delay by the city’s law department in furnishing documents to the plaintiff. This was followed by a blistering letter in the paper from two of this town’s top personal injury attorneys regarding more inefficiencies by the city.

It started Monday, December 7th, when city Corporation Counsel Michael Cardozo published his version of a “Top 10” list related to court reform. The column focused its attention on our underpaid judiciary, lambasting them with a screed focusing on a lack of efficiency from the bench with respect to motions and trials. He suggested performance goals for the judges, focused on delayed decision making, more status reports from the judges, more evaluations of judges and moving judges to understaffed parts.

Response was swift, perhaps swifter than he ever imagined, and is an instant classic with respect to throwing stones from a glass house.

Just one day later, the Appellate Division Second Department decided Byam v. City of New York, lambasting  Cardozo’s office in a false arrest and malicious prosecution case for failing to produce records that were first requested in 1997. The court, in reviewing the numerous attempts to get the documents, finally struck the answer of the city as all other sanctions would have been insufficient, saying that their “willful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with the discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failures to disclose.”

And Cardozo was trying to call the judiciary inefficient?

That  was followed yesterday, December 10th,  with a letter in the New York Law Journal that eviscerated Cardozo and his office. The letter, by Marc Dittenhoefer and Helene Blank (both well-known and well-respected among bench and bar) is reprinted here with their permission, in its entirety.

While one may believe that Dittenhofer and Blank have taken great risks by having this letter published, given the substantial amount of work they do where the city is the defendant and the risk of pay-back from that office, I agree with them that such inefficiencies must be disclosed. The idea of the city’s top lawyer throwing stones at the judiciary while he can’t clean up his own house is one that can not be ignored.

As attorneys practicing in the courts for over 30 years, we were eager to read what Michael Cardozo, our three-term Corporation Counsel had to say about the courts because, after all, one of the biggest problems we encounter on a regular basis is dealing with the Corporation Counsel’s office on almost every case in which the city is involved. We are not alone in our experiences. The court system and all litigants — plaintiffs or defendants, petitioners or respondents — have to regularly deal with the inefficient office. That is not to say that many of the women and men who toil there are not doing an excellent job, but the bureaucracy of the office
is designed to hamper, delay, sidetrack and stop the smooth and efficient progress of any lawsuit in which the city is involved. Instead, what we read was no less than a thinly veiled assault on our hard working judges and another plea for “merit selection” over election.

Mr. Cardozo would prefer that his boss have the ability to appoint all the members of the bench who will then preside over the cases that he litigates. Fortunately, that is unlikely to happen. The U.S. Supreme Court has spoken and no matter how imperfect our system is, it is in our minds preferable to one person selecting the man or woman who will ultimately decide a client’s fate.

We have seen both the good and bad in both systems and no one who practices daily in our courts believes that merit selection is only done on the merits. We were disappointed that Mr. Cardozo didn’t take the time to inform the bench and the bar of what changes he is going to make in his third term to improve his own house. Because no matter how he views Office of Court Administration, at the beginning and end of the day the elected judges are accountable to the people who elected them, but his office is accountable directly to him. We speak from experience as plaintiff’s attorneys, defendant’s attorneys and court appointed fiduciaries. Ask any judge how easy it is to get the city to comply with a court order.

While without question there have been great strides at the city’s law department to operate more efficiently, it is still impossible to obtain even the most prosaic information from the city’s counsel in the course of legitimate litigation including the names of city contractors who are responsible to both the plaintiff and the city, due to the deliberate, arcane and byzantine methods it uses to catalogue same, apparently designed to frustrate identification and retrieval.

The inordinate delay caused by the city’s presence in a case prompts plaintiff’s counsel to do anything to avoid having to sue the city, which might very well have been the plan in the first instance. Yet, however satisfying such a misdirection might be to the winning hand, such is hardly the proper way for a city to treat its citizenry. And this is not yet to mention the eve of trial witness revelations that happen constantly.

Perhaps Mr. Cardozo, who in his article talks about removing matters from the courts, can explain why the city will not participate as a litigant in mediation let alone arbitration. Is there a 60-day reporting system for his attorneys? Are they being held accountable for failing to comply with court orders and for the repercussions that follow? Are his attorneys being evaluated on their performances? Or does he just accept as we are told to accept that the volume of cases, lack of sufficient staffing and budgetary constraints make it impossible to be better than they are?

We were offended by Mr. Cardozo’s article, offended for the judges who confront unmanageable caseloads, insufficient staffing, unreal expectations from OCA and Mr. Cardozo, and who suffer from low morale because they haven’t had a pay increase in more than a decade.

We were also offended because the article was written by the three-term Corporation Counsel whose own house needs serious re-ordering. Since Mr. Cardozo has the ability to impact the way his office operates, we sincerely hope his third term is spent getting his own office better prepared. Perhaps if that’s done, just once, when a litigant asks for the information to which s/he is entitled, they can get it so they might avoid litigation and not have to sue the city to keep the statute of limitations from running out. That would be a great thing to accomplish indeed.

Helene E. Blank
Marc M. Dittenhoefer
Full disclosure: I know both Blank and Dittenhoefer and frequently litigate against the city’s Corporation Counsel.