Tuesday, May 18, 2010


NYLJ 6-11-07


3. Putting aside the Spitzer fiasco, one of the few things that came out of his brief administration is the Commission on Sentencing Reform. One assumes it took a really hard-as-nails prosecutor to see how flawed the system is—and to want to reform it. Everyone may know “an eye for an eye”, if they like biblical retribution, or “Let the punishment fit the crime,” if they are into the Mikado, but the only other people outside the DAs and defense attorneys who know what’s going on are the ones facing jail time.

And this is what you can give props to the ex-gov for: every society deserves to be judged not on its successes, but how it deals with its failure—such as those who step outside the Law and must be brought back in, one way or another. The another is what is more interesting. The Commission’s mandate to review criminal statutes, sentencing practices, alternatives to incarceration, programs to reduce time for inmates, parole and programs aiding convict’s re-entry into society—promises to bring authentic change to an area of law enforcement desperately in need of it.

4. And this includes a backlog of court cases, particularly immigration. The Second Circuit Judicial conference, meeting at Bolton Landing at Lake George has discussed such measures as borrowing district and magistrate judges and providing law clerks funded by circuit monies. There are 45 to 50 appeals each week from asylum seekers on the non-argument calendar, which has led to a large increase in terminated cases.

Even with this buffer, Chief Judge Jacobs says, “This circuit is fortunate and unusual in having so few judicial vacancies.” (Only four then.)

Monday, May 17, 2010

NYLJ 6-11-07


3. Putting aside the Spitzer fiasco, one of the few things that came out of his brief administration is the Commission on Sentencing Reform. One assumes it took a really hard-as-nails prosecutor to see how flawed the system is—and to want to reform it. Everyone may know “an eye for an eye”, if they like biblical retribution, or “Let the punishment fit the crime,” if they are into the Mikado, but the only other people outside the DAs and defense attorneys who know what’s going on are the ones facing jail time.

And this is what you can give props to the ex-gov for: every society deserves to be judged not on its successes, but how it deals with its failure—such as those who step outside the Law and must be brought back in, one way or another. The another is what is more interesting. The Commission’s mandate to review criminal statutes, sentencing practices, alternatives to incarceration, programs to reduce time for inmates, parole and programs aiding convict’s re-entry into society—promises to bring authentic change to an area of law enforcement desperately in need of it.

4. And this includes a backlog of court cases, particularly immigration. The Second Circuit Judicial conference, meeting at Bolton Landing at Lake George has discussed such measures as borrowing district and magistrate judges and providing law clerks funded by circuit monies. There are 45 to 50 appeals each week from asylum seekers on the non-argument calendar, which has led to a large increase in terminated cases.

Even with this buffer, Chief Judge Jacobs says, “This circuit is fortunate and unusual in having so few judicial vacancies.” (Only four then.)

Monday, May 10, 2010


NYLJ 6-11-07


2. When it comes to diversity of jurisdictions, it probably doesn’t get any wider than when the Long Arm Statute has to cross an ocean. Not to belittle the New World’s complexities, but the Old World has such embedded historical precedent that you could call the Magna Carta a relative newcomer when stacked up against Talmudic body and the Code of Hamunarabbi.

So it gets even more humorous when an upper level authority, like the US Court of Appeals for the 2nd Circuit, has to ask a lower one, namely the NY CoA, for “guidance”—a term more familiar when applied to camp counselors or spiritual gurus. Although, when it does come down to a statutory interpretation, namely CPLR section 302(a)(1), the 2nd is preferring to err (or not) on the side of caution, as the lower court’s prior decision does “not yield a clear answer” about the scope of it. The statute confers jurisdiction over a non-NY resident who “in person or through an agent…transacts any business within the state,” if the cause of action arises out of the defendant’s NY transaction.

The instant case is one of a libel judgment won by a Saudi multi-billionaire banker against a writer-researcher in the city. That Ehrenfield was too broke to defend herself in England, where the wily arab filed and won his suit, should tell you a lot about the Hunter and the Game. From the giddyup, the rules of evidence and burden of proof being a whole lot looser there (and assuming Shiek-Yer-Moneymaker could afford some major talent), it was as close to a done deal as you might imagine.

So when he tries to get an enforcement here, the lady countersues that the judgment is not enforceable on constitutional and public policy grounds. The SDNY judge dismissed this outright, finding a lack of personal jurisdiction—which is pretty much how this involves New York State vs. a British court. Then, the US CoA 2nd got a hold of it and had a second think, certifying the question to the state CoA as to whether the statue applies to someone who “sued a NY resident in a non-NY jurisdiction,” which she is and he did, “whose contact with New York stemmed from the foreign lawsuit and whose success in the foreign suit resulted in acts that must be performed by the subject of the suit in New York.” Seems to be pretty clear on the “if” part of the proposition, which is all you need for a certified question. Now the NY CoA is not obligated to answer certified questions from the 2nd Circuit, but—hey!—let’s worry about “then” when we get there, right?

Ehrenfield put up as evidence the number of papers served upon her and her publisher and the overall plan to use the suit to chill out the work of investigative journalism and the research she does in NYC. This is her attorney’s means of putting the ball in the local courts and taking it “into the paint”—so to speak in some metaphor about “Home court advantage” or such—on the issue of 1st Amendment rights and THAT IS the public policy issue in and of itself. That this would be setting a precedent is why it is being so carefully parsed and measured and weighed.

In poring over the process to date, the 2nd DID agree with SDNY that, at least in one part, CPLR section 302(a)(1) does not provide for personal jurisdiction. Also, that it was correct in refusing to grant a motion for jurisdictional discovery (whatever that is).

At the heart of the matter, the issue at issue, the res, is Eherenfield’s book linking Mahfouz to Al Qeda as a financier of terrorism. In America today, perhaps, there has never been so favorable a climate for this particular contest. Yet, the present state of the legal wrangling has nothing of the nation policy about it: this is strictly on personal jurisdiction—whether the billionaire tribesman has to re-sue in the USA.

When you look at whose filing the Amicus Curae briefs in this—including the American Society of Newspaper Editors, the Author’s Guild, Association of American Publishers and the Online News Association—there’s little question in the peer group that it doesn’t mean here evidence is conclusive. They just want to know what ground they stand on, in the whole world of possible places where such arguments may arise.

Saturday, May 8, 2010


NYLJ 6-11-07


1. The song comes to mind, if little more than the lilting refrain: “You got me caught between/the Devil and the Deep Blue Sea.”

The state of the immigrant is tenuous, at best, and an illegal non-existent, when facing felony drug abuse charges. Having pled guilty to an offense in order to enter a treatment program, which includes community and domestic violence and mental health/therapy courses, is to truly enter into the court of last resort. After this, upon conviction, is prison, no question. But the lingering threat as well, and one which is unvoiced, is the possibility of deportation.

The Deputy Chief Administrative Judge’s position is that the guilty plea at the outset is crucial to the treatment regimen, ensuring that the defendant’s know the consequences of walking out or otherwise refusing to cooperate with the program. And that the cases are usually dismissed once the treatment has been successfully completed is also a potent spur towards the model.

The Special Narcotics Prosecutor takes exception to the recommendations of the report, citing no known cases where participants who plead guilty were deported. However, the supervisor of the Immigrant Defense Project said she’d handled two case where Homeland Security had leveled the threat.

The Rockland County DA added his support of the model with more practical concerns. “Many defendant’s are in treatment programs for one or two years and the passage of time is very detrimental to the prosecution.” From that angle—the actual job to be done by his office—can’t be argued with: if a defendant drops out down the line, then witnesses are more difficult to find and their memories may have faded as well. Add to that the starting up of a case again, with arresting officers and calendaring and adding in the up-to-speed need for new ADA’s and you’ve got cost as well. Also, it is “not very victim-friendly”. It may be that the standard version of drug offenses is that they harm themselves the most, but wives and lovers and children? That changes whatever compassion one might have for a disturbed defendant, and allows for the possibility of stalking or other predator moves.

Nope. The guilty plea looks best, but some alternatives are being floated, such as allowing DA’s and judges to use their own discretion. That it has been found that a number of judges actually failed to inform defendants of their exposure to the deportation possibility has been noted as well. One might think this would be grounds for a misconduct suit but Criminal Procedure Law Section 220.50(7) explicitly states that the absence of a warning shall not be ground for invalidating a plea.

So, perhaps, as the Brooklyn DA’s office has been experimenting with—taking a confession of judgment, without the consequences of 8 USC section 1101(a)(48)(A)—a method to take La Migra out of the loop, there are creative alternatives being offered. And even allowing judges more latitude and discretion in taking pleas—shall we call it longitude as well?

Which would put a lot more Deep Blue Sea out there, and possibly less Devil.

Friday, May 7, 2010


NYLJ 6-8-07


2. Do not ask for whom the bell tolls, just where and when, especially if you’re one of the Seven Sisters: the major accounting firms who audit corporate America. Arthur Anderson only heard the peals after it was on its way to dissolution. That they were much too cozy in their continuous relationship with Enron should have alerted investigators before that, but, up to then, no top rank auditor had ever been forced to pony up for their client’s defaults—or not in such a drastic extent.

Price Waterhouse Cooper LLP’s big league rep for decades, and even star power as being the ones who count the ballots and deliver “the envelope” to the Oscar podium. (Ok. So you need to tack on the Lybrand as well…but if that ain’t the seal of integrity, what is?) While the various Lipper funds (namely convertible and Fixed Income) have been high-flying arbitrageurs since the go-go ‘80s, at least from 1995 to 1999 PWC hass done the annual bookkeeping check-up. It was, in their figures, reasonable to value their assets at well over $1 billion every time. Thing is, when the funds hit a slide in 2002, as two top managers bailed with golden parachutes, the actual number was more like $400 million. This news sent a lot of limited partners scurrying for the exits and set the whole damned thing on a downward spiral to dissolution as well. The Bankruptcy trustee Williamson looked at the cooked books and concluded collusion.

It was his lawsuit under the continuous representation doctrine that brought them to task; not so much that 3-yr. Statute of Limitations could be tolled in 2004 for a last ledger in 1999, but that it was the compounding of errors that inflated assets, capital & profits—which is how you get from an H&R Block visit in early April to continuous rep. while the Manhattan Sup. Ct. could dismiss claims for all but 2000 and the 1st Dept. could reverse on the 3-2 decision, the trustee was entitled to no less than an opportunity to develop his case, it took the CoA to nail it shut.

It was a unanimous decision, just to make it more serene.

The history of the continuous representation doctrine shows its first and primary application to have been a medical malpractice, in 1962. Only 20 years later, in 1982, would it be applied to the legal profession. And, while it has since been used against engineers, architects, and surveyors, the latest is a new wrinkle, most likely as a result of the aforementioned Enron, et alia. The key here is that both sides understood and accepted that they were involved in an ongoing professional relationship. In the instant case, however, that was not present.

“The plaintiff’s allegations makes clear that the funds entered into an annual engagement with the defendants for the provision of year-end financials. Once those services were completed, no further work was undertaken. This constitutes a continuing professional relationship and not a course of representation.” The plaintiff’s attorney was quick to cop to that interp. “Auditors typically have long-lasting relationships with their audit clients, “ hanging out that representation as the sole flag of surrender, he put his best face on a worst case scenario. “As a consequence, one’s exposure for an event, no matter how old and stale…” Ah me! Not purposefully neglecting the fact that you could just as easily rule they should return the money for having utterly failed in their obstensible duties. And we, naturally, are speaking of their fiduciary duties; not the one’s they owe to Enron’s investors and employee pension funds and retirement accounts when they allowed monstrous malfeasance to go undetected, unprosecuted and unpunished.

That’s another bell-ringer altogether.

Wednesday, May 5, 2010


NYLJ 6-8-07


1. You say po-tat-o, I say po-tot-o. You say to-mat-o, I say to-mot-o. I say the DMV of NYS requiring people to verify that they are in the US legally when they can’t produce an SSN or a card denial notice is well within the province and scope of Vehicle & Traffic Law Section 490, 501, and 502 and 15 NYCRR Section 3.9, if they want a driver’s license. You say the DMV is usurping the power of the legislature by introducing an unauthorized prerequisite to get that primary piece of precious ID and discriminating against immigrants.

Let’s call the whole thing off…icially a matter for the Court of Appeals to say the whole thing is “merely an interpretation or explanation of a pre-existing rule,” but—with a dissent. That it was J. Carmen Beauchamp Ciparick who sided with the Puerto Rican Legal Defense & Education Fund counsel may be thought of as possible Hispanic favoritism (along the grounds of the “wise Latina” catcalls from the right-wing peanut-job gallery), until you regard her opinion. “Through this policy, the Commissioner is effectively setting immigration policy—an act well outside his authority—in the guise of verifying identity, which IS within his scope.”

That the Commish in question is also named Martinez only further spices up the lexical imbroglio. After all, it really does come down to the flexibility of labels…which brings up a favorite of our own at blueback blues: Parsing!

As one might suspect, any time regulations and Homeland Security come into the picture, 9/11 and the constant vigil against terrorists get ref’d. However, the majority opinion pointed out that an internal DMV document dated 11/6/01 proves that such measures were in place while Moh. Atta and his boys were still hanging out at Florida stripper bars. At its core, this measure was adopted, originally, to guard against fraud. So, then, the H.S. documentation is not that different from the card denial notice, only a bit steeper a climb, maybe. By the Court’s lights, “this classification plainly creates no suspect class, infringes no fundamental right, and raises no serious equal protection questions.”

Ok. Now you need the denial card AND an H.S. one saying you are here legally, not just entitled to work.

Ahhhh1 Let’s call the whole thing bureaucracy.

Tuesday, April 27, 2010


NYLJ 6-8-07


4. You may have seen it a thousand times and leafing through the Yellow Pages it would seem as innocuous as all those subway ads for Fitzpatrick & Fitzgerald or Fitzwilly or Fitzwhatever, you know?—the one with the fightin’ leprechaun? Or that guy with the 1970’s mustache? It probably won’t work for the blind lady or scales: too generic.

But the doodle of a guy wrapped in bandages in a hospital traction bed has been Newmark & Newmark’s trade advert since 1988, and registered since 1990. Howeer, the Berne Convention Implementation Act, which eased copyright notice requirements, was also 1988, which meant that their usage/image pre-dated it, briefly.

And that was where Ronai & Ronai, another personal injury firm felt they had enough wiggle room to put out their own version of the hapless patient. As the image had been published without copyright notice, it appears possible for them to get by without trademark infringement. An N&N are based in Rockland and R&R in White Plains, it ended up in the lap of SDNY, where the R&R SJ was summarily denied. N&N’s 1990 registration and steps taken in the intervening years cured the earlier distribution. SDNY approved as it was within the allowance of pre-Berne, that steps were taken within 5 years of initial publication. And as he had the discretion to reduce damages to $200 if he found the infringement were unwitting, it was his urging that the parties all settle as amicably as possible.

After all, they wouldn’t want to injure each other’s reputation, would they?

Wednesday, April 21, 2010


NYLJ 6-8-07


3. The First Amendment once again clashes with Intellectual Property law, entering through the nebulous portals of Internet “Fair Use” provisions. However, it isn’t the law that is in dispute as much as everybody’s lack of form-filling.

The US-based website that published pictures of a French fashion show did so in full belief that a public event holds no particular rights to their images, especially when the suit against them included an unfair competition charge as well. While there is no mention made of Process of Service outside of the Hague Convention on the Service of Extra-judicial Documents in Civil or Commercial Matters, one assumes it must be good to have passed through to the present state of affair. That, in 1/01, the combined suit was filed against the website, and, having failed to respond to the complaint, the defendant’s had a default judgment found against them on 5/2/01. is four months too long or too short was never mentioned either, but it certainly was enough for the Court of Appeals for the 2nd Circuit to hang their first objection upon. “They had their opportunity to respond, but chose not to at their peril.”

When 12/04 rolled around and the Frenchies finally got down to filing in SDNY, a consolidation of the actions ended up in the usual attachment request. Now the Webbers responded fast and furious: motion to dismiss, motion for SJ and to vacate—all in one. It was the Fed judge who gave them their early victory, ruling the 1st leave no doubt about the issue of the plaintiff’s control of the way information is disseminated in the mass media, in regards public events. That, along with “fair use” rule, seemed to be all she wrote.

And that was the problem for the CoA; the Fed justice just didn’t write enough. Or “did not conduct the full analysis necessary…because the record before us [CoA] does not permit us to determine whether enforcement of the foreign judgments is repugnant to the public policy of New York.” Which may sound like: “Ugh! French justice is as ripe as their cheese! Icky!” But it was Ackerman v. Levine, 788 F.2d 830, 840 (2nd Cir. 1986), which was cited “by defaulting in a foreign adjudication, a defendant ensures that a judgment will be entered against it and assumes the risk that an irrevocable mistake of law or fact may underlie the judgment, and, while the 1st Amendment does provide categorical protection, Intellectual Property laws co-exist with it… The fact that an entity is a news publication engaging in speech activity does not, standing alone, relieve such entities of their obligation to obey the IP laws.”

In vacating the judgment and remanding it back to the Fed judge, it was, at very least, to do a more thorough analysis of whether fair use was in play and establish a clearer record as to “the manner of protection afforded plaintiff’s fashion shows by French law, as well as infringement.”

So—go upstairs and do your homework, SDNY!

Tuesday, April 13, 2010


NYLJ 06-06-2007


4. The toll of the bell is the metaphor most oft employed in lawsuits and criminal acts, best known for the Statute of Limitations. In reality, the more apt phrase that pays is “the clock is running” or “the clock stopped”. In medical malpractice, you have 2 ½ years to start your action with the filing of a complaint. If you miss that, forget it. When that airport metal detector finds the forceps in your peritoneum, its too late.

When you get into other situations, the “he said/she said” or, as in this case, “he said he did”, the whole circumstance begins to become nebulous. And when the supporting evidence is just as amorphous, it gets downright murky. Add in children’s testimony and it quickly becomes a “whaaa?”

Perhaps Mr. Sodom should not be as civic-spirited as he is, being the upright pillar of the community you’d expect from a funeral director and a scoutmaster, even taking foster children and runaways, bringing them into the bosom of his family, his wife and own spawn joining together to create a home for the weak and innocent. As it was, the boy who boarded with him, wife and kids from 12/02 to 7/03 was 16, then 17, but it was 5/04 2when the 18-yr-old reported the touching incidents to the police. In response to the information brief and charge, the Scoutmaster argued that the time frame was so long that building an adequate defense would be unfairly difficult.

This seemed to have no impact on the jury which convicted him and sentenced him to one year in jail. However, the Record On Appeal was enough for a stay. The CoA justice found no reasonable, distinct length of time when prosecutors are alleging a non-continuous act in an accusatory instrument. Which means less “What did he know and when did he know it” and more “What could be proven about when and where”. Even the victim could not offer a specific date. Mr. Sodom tried to reconstruct events during the time frame and came up with communications, witnesses, even video tapes, as the teen had claimed an occurrence during a play-wrestling bout. As one would suspect, the ambiguity of viewing such material is paramount to prove that an activity took place is not the same thing as having a smoking gun. What may appear as innocent horseplay to one side, can be said to be a cunning ruse to be stimulated by physical conduct, by the other.

In any event, whatever persuaded the jury to a guilty verdict was not an influence upon the robes at the top. After looking at two cases—one where a conviction was overturned at a nine-month gap, and at another where the verdict was sustained at a five-month gap—the opinion was that the evidence, and first-person testimony, was not enough to sustain the decision of the jury, given the time factor as well. But, in reversal, it was also the point at which they refused to draw a “bright line”—meaning to delineate a standard by which a precedent could be set for all such cases to follow.

Which doesn’t mean that they won’t fry the next guy either.

Thursday, April 8, 2010

the daily trifecta [an omnibus verdiction]

NYLJ 8-01-07


1. & 3. & 4.

Naw, naw, sure sure—everybody knows about the Louima case. Volpe and Schwartz got the can and Bruder and Wiese got canned. For the cover up. Yeah, yeah, they had fine records up to then but, hey!—HEY!—when you get caught in a shitstorm, nobody comes out smellin’ like a rose, y’know?

What do you mean what do I mean? Huh? Huh? Conspiracy to obstruct the Grand Jury--am I right or am I right? Sure, sure, reversed by the 2nd circuit. There was no—I repeat—no evidence Bruder ever testified before the Grand Jury or had been put on notice that his statements might be put before the Grand Jury. So the conviction couldn’t stand, couldn’t stand the weather. Same-o, same-o for Wiese—charges were based on a conspiracy theory so it was just as faulty. See, see, they may have fixed up their stories and that’s a safe bet, you bet. But it only wins on appeal, draw the moral point and loses on anything in the public sector. Like, like—they agreed to mislead, and that’s the deed that did impede investigators, sooner or later.

And the-th-the-th-that’s all folks! “Technically exonerated is hardly vindicated,” that’s what the judge put in her opinion. “Tainted for the purposes of regaining their positions,” no sale, no way.

Now them, now here’s the flipside of that, almost an ‘inspired by the events of’ or ‘taken from the true story’ or ‘ripped from today’s headlines’ type’a deal. Like Albany saw the writing off the wall , on the city’s dicta, and got with the program. The Appellate Division’s 3rd Dept. said that State, mind you, State troopers do not have a right to be represented by counsel during preliminary investigation interviews, even if that were to lead to subsequent disciplinary proceedings.

Yah, yah, pretty rough, pretty rough! But the presiding justice said that there are enough safeguards built into the critical incident inquiry that troopers are protected. From what, you say, form what? Self-incrimination—the root word of that being “crime”. When the protocols changed in 2005 to isolate the intake interview from being shared with other investigations makes it almost blood kin to attorney-client privilege.

The governor just signed legislation which the trooper’s union thinks would tip the scales back again. Takes it back to basic black and white, prohibiting a public employer from denying union or legal rep to any employee if “it reasonably appears they may be the subject of a disciplinary action.” But that’s the other side, the other side of Albany.

And right, right. It isn’t the same Gubenator who has to have the ethics commission look into whether key aides were tracking the state senate majority leader to see what kind of dirt they could dish on him? Using the same radar gun as the boys behind the billboards to clock his limo and jet hours instead of those guys in the Porsche rockets on the Parkway? And if that don’t put the irony in the nail, the nail in the coffin, here’s the capper: they wanted to use the state AG as a special prosecutor on the deal, even after he’d said no laws were broken, no broker will call. Bent? Ask the commission on Public Integrity, ok? It came on line September 22nd and its set to be helmed by the dean of Fordham Law so it don’t squeak, being oiled by character, and not because its dirty, see? Same guy who was responsible for getting the Ethics Commission together in 1987. The balliwick here is going to be Public Officers Law Section SS 73 (on a gift acceptance and after-civil job placement) SS 73(a) on financial disclosure and SS74, the code of Ethics, everybody’s favorite.

Get the picture, get the picture?

Monday, April 5, 2010


NYLJ 06-06-2007


[This is one I never seem to get tired of (see entry for February 13, 2010). Perhaps it may strike some as schadefreude, but is actually the sweetness of Justice relaized in the material world. It happens not often, and is rarely poetic, but is still a marvel to witness.]

1. The ongoing saga of corruption in Brooklyn’s court system is sordid, tawdry and a prime example of how machine politics still works; an eternal weed rooted in the soil of man’s nature, festering and spreading underground, only know when it raises its scandal as a flower of evil, one that no amount of pesticides of regulation will ever…

Yeah, a day at the vegetable patch turns into an election-year stump speech.

When Justice Garson was sentenced to 3-to-10 for bribery, receiving rewards and official misconduct, it was at the end of a classic “Law & Order” episode which swung between the detectives and the ADAs like some tennis volley in Hell. It began with an investigation into alleged sales of Democratic nominations for local office. That led to Clarence Norman, then Dem Party leader and assemblyman. In the four years since, one of the odd fruits of their labors was uncovering a link between Norman and a divorce attorney who was turned, wired, and eventually burned Garson, getting him to offer ex parte advice on how to frame his brief, guaranteeing him a win in the case before him.

What was revealed was the rather banal and meager nature of the Judge’s slide. He was convicted of providing the aforementioned advice for accepting free meals and drinks, giving court assignments and even “free range of the judge’s robbing room.” Exactly how plum that is may be open to question, but not without substantial value to the 100+ protesters and women’s groups who showed up at sentencing. They were there to express their outrage over this as an expression of the “old boy’s club” still being in full force and to offer support to the woman whose rigged trial proved to be Garson’s Waterloo.

How dearly were these favors were sold? The most money that changed hands was $1,000, for two referral fees. In this light, the fall from grace appears to be worse for being so cheap. Perhaps this is what galled the Judge’s Judge so much. It must have been obvious that Garson’s drinking problem was a factor; the defense offering a major mitigation, the State a minor one. In any case, the plea also considered his bladder cancer and heart problems…but not very much. While the Court felt these circumstances would have made him a “slam dunk” for probation, for any other defendant, this one couldn’t go there.

“A judge must be the Lone Ranger, “ and, “as pure as snow,” said the sentencing judge. However, whatever sympathy Garson might’ve had evaporated as he’d already spurned a plea deal that would’ve capped his prison time at 16 months. After that, the test of the empathy goes out from this Bench to the other robes, “and especially the Judges of Brooklyn.”

Friday, April 2, 2010


NYLJ 06-06-2007


3. Sometimes the Good Guys win…even when their opposition is also the Good Guys. In these cases, it never really fits into such simplistic dimensions. “God does not write cheap melodramas with quick fixes” (to paraphrase Einstein beyond all recognition)—everything is complicated by pain and suffering and even victory is sad and the losers seem all the worse for doing their jobs to the best of their abilities.

The parents who regained custody of their 6-yr-old daughter had been fighting for three years. The Saratoga County Dept. of Social Services successfully petitioned her removal to foster care when evidence began to, in their eyes, prove insurmountable that she was the victim of horrible abuse. It was in December of 2003 when her repeated hospital trips were reported to the social workers, the last resulting in a skeletal survey and CT scan showing fractures of ribs, skull, forearms and tibia, when they asked the Family Court judge to intervene. The Court declined the county’s request citing the obvious fact that the parents were doing all they could, conceding nothing, or at the very least, evidencing no suspicious behaviors, in their quest to find a solution to this mysterious malady.

In March 2004, when EMT’s said she’d coughed up a mucous plug, the county examiner, Dr. Suez, concluded that she had been intentionally smothered. The next day she was declared an abused child and ordered taken from her parents. The County didn’t ignore the other two children, still at home, either, subjecting the family to monitoring as well as unannounced visits.

The original doctor was soon joined by a second, Slather, who has at first been sympathetic to the parents, but later went into full war against them, even soliciting opinions of other physicians as additional ammunition, in both of the Doctor’s views it was a process of elimination: for Suez, there could be no other explanation because there was too much evidence of the standard issue; for Slather, it was a mounting crusade which blinded him to other possibilities. “Once they fell under the eye of SS workers, it was a no-win situation,” concluded the defense argument. “No matter what they did or didn’t do, it wasn’t the right thing. If they were at the hospital every day, they were with their child too much. If they missed a day, it was a bad thing.” Very much the same thing as when the police decide you are a “person of interest”. At that point, if you don’t get a lawyer, you are a fool.

What was missing in all this was any competent professional who knew about OI—Osteogenesis Imperfeda, a/k/a “brittle bone disease.” That it took an orthopedic surgeon and a pediatric rheumatologist to see the syndrome as the probable cause underscores the trauma in italics “In 10 to 15% of OI cases, neither collagen or genetic testing will indicate the presence of the condition.”

And, like the elusive syndrome itself, the court found absolutely no evidence whatsoever that the other two children were neglected or abused in any way. But what the judge was most critical of was the two “experts” of social services. “Simply put, Suez’ lack of expertise with OI, deductive analysis (or lack of) and quest to divine a single solution to the complex host of maladies, coupled with Slather’s transition” (from parent’s advocate to Inspector Javert), “all but eviscerates the value of their medical testimony.”

What makes matters even worse is that the Saratoga County Attorney want to ride it again, flogging the dead horse up to the Court of Appeals.

Words cannot express…the wheel turns round again…

Thursday, April 1, 2010


NYLJ 06-06-2007


2. Coincidence or not, Coolidge v. New Hampshire, 403 U.S. 443 (1971) came out the same year as “The French Connection.” That the Nazgul deal with the same issue as Popeye & Co. may only have to do with the zeitgeist, but is as valid an association as any: both concern the same suspicions in the instant case.

“That car is dirty,” Doyle tells his partner, meaning: he knows there is dope in it. He just has to get a warrant, and then have it searched, stripped and re-assembled before…the owner blows his cork de vin. They’d tailed a low-level wiseguy, making his first bow as a go-between, and that led to a wire-tap and hence… If the Northern District Judge hadn’t had Coolidge to cite, he probably would have added the movie into his list of precedents. As it was, his finding that the State Police and Feds had ample time to get straight-up warrants and didn’t have to resort to shabby tricks that neither Wm. Friedkin’s scripter, nor the REAL NYPD, would have us believe, in their wildest imaginations, in the audience.

It was two separate cases the NDNY Justice ruled on. One was where the troopers and DEA watched these clowns making a pickup in the parking lot at Woodbury Commons. If that isn’t an indication of low wattage, the ruse used was even lower; the troopers claimed to be investigating a case of road rage. The second one stopped a guy as a potential gas station drive-away-w/o-pay. Lame-O. If these were not officers of the law, this could be called “false imprisonment” or “improper detention” or even—without too far a stretch—“kidnapping”. As for acting? Let the Academy be the judge.

“Was this necessary?” Any drama desk stringer could put that in his critique and not be faulted. According to the Judge who heard the matter, what sounded like entrapment was due to the fact that “the normal exigencies that would justify auto searches were not present because neither the drivers nor passengers were close enough to their vehicles to obtain a weapon or destroy evidence found in the trunk.” As well, “the defendants were in no position to offer chase.” When added together, the capper was none of the defendants were able to challenge the search on any grounds as they were not even aware they were happening.

Not that this was any different from “The French Connection,” except that they had warrants! However, that wasn’t the main reason for the reversal on appeal. The CoA used the logic that the Nazgul had clearly justified warrantless automobile searches under two theories: one, a lower expectation of privacy in a vehicle, and two, because a vehicle is “readily moveable”, exigent searches are dictated. The opinion states that the lower court had erred in determining that they were not “readily moveable” simply because the drivers and passengers were in police barracks, not sitting behind the wheel. This was seen as a gloss over the potential of the vehicle being moved to another jurisdiction, thereby precluding search, and the lower court’s reading of “ready mobility” had long ago been rejected by US v. Vassilion, 820 F.2d 28 (2nd Cir 1987). (Here, one suspects, Vassilion must’ve been one hell of a brain teaser to apply in the instant case.) It was also the opinion of the CoA that, if this lower ruling were adopted, it would impermissibly graft onto the automobile exception a requirement of some additional exigency beyond the inherent mobility clause. Perhaps even that a driver be present.

But, as well, the district court seemed to have ignored the fact of the diminished expectation of privacy. Which stands to reason, as a house has windows and sides, air-conditioning, luxury sound system, DVD screen, reclinable furniture and is always advertised as “a man’s castle,” as opposed to his “home on the road”. So, of course, one should never think you have the same feeling of security in one as you do in the other.

Which begs the other question: if this were an RV or mobile home, would this still apply? And just what does it take to affect the “inherent mobility clause”? A flat tire?

Wednesday, March 31, 2010


NYLJ 6/20/07


4. Ah, ‘tis enough to drive a murderin’, thievin’ boss of a drug cartel t’drink!

When government bribes fail, you’d think you could at least count in a solid business relationship to maintain the alliance against the bureaucrats.

But no, you say help the makers and distributors or Smirnoff and Tanq and—lord help us—Guinness, not to mention…well, hell yes! Let’s mention just Pernod-Richard and let you fill in the blanks, but that isn’t going to save you from a RICO investigation and prosecution when you’re found to be playing “scratch-my-back” with Columbian traffickers in narcotics. There may be better ways to outsell the government brands, but none quite as good. Money-laundering, that’s what they called it, and price-fixing via cheaper, and illegal, methods of distribution.

And even if I must face the revenue rule, common law doctrine which prevents the courts of one sovereign nation from enforcing the tax claims of another, I can readily dismiss the tax issue and allow the bulk of the suit to proceed. It is all well and good to say: My country right or wrong, and my taxes as well. But when a sovereign state brings a suit as a commercial actor, it should have the same rights or wrongs as any other capitalist. And we don’t want to set a precedent, now do we?

Of course, to win the suit it would have to show that their lost sales were directly attributable to the money-laundering. And those closing arguments would have to be heard elsewhere.

But, for now, last call has been given at these taps.

Monday, March 29, 2010


NYLJ 6/20/07


1. If you arrived at training camp with a busted finger, unable to fulfill your umpteekazillion-dollar contract, your employers might ask a question like: how did that happen? This is not out of politeness, understand. Then, your reply of “slipped on a banana peel” or “hauling a rope on my yacht” or I don’t remember” would give one pause. For real. And not out of sincere care for health and well-being. Sorry. Nope, it is the inevitable insurance carrier’s concern: does the injury come in under the heading of unfortunate circumstance or, possibly, sound in callous disregard of liability for specific performance?

Oh yes, and when dealing with such weighty matters, that would be the end of it, wouldn’t you think?

No, the other big ticket controversy sounds in an accusation of defamation, without malice aforethought, maybe. The libel wouldn’t be part of that issue though. The NY Post reporter could allege that the superstar Knick had put his fist through a bulkhead on his boat, based upon 2 eyewitness accounts, and the action against said scribbler would still be on difficult grounds, even if there weren’t previous pieces in print to establish a pattern of pugnaciousness. As certain proof of same, even a pro-basketball player—with obvious anger-management issues—is just as likely to go down without a fight.

“Assuming, arguendo, that defendant’s statements regarding how plaintiff injured his hand, and his alleged attempt to cover up the incident are false, the Post and reporter are entitled to summary judgment in dismissal. The information was not reported as incontrovertible fact, but rather cautioned the reader of the two allegations, mentioning as well the denial by the plaintiff, that the reporter demonstrated, to the satisfaction of editors, and this court, that he had good reason to trust the personal testimony of his informants based upon their demonstration of knowledge of the yacht’s interior, providing additional indicia of authenticity.

“You then only have to add in the calls to plaintiff, agent, publicist, personnel on the team and three doctors to conclude that the due diligence of a reporter was not overlooked, even if you were to call it ‘sensationalist’.”

And that’s a slam dunk! Swoosh…

Wednesday, March 24, 2010


NYLJ 6/20/07


2. Makes you wonder about some interpretations of the term ‘fiduciary duties’ owed by counsel to client. By now it is understood that delaying tactics are part and parcel of the patient ploys in attorney/client relations, taking longer to get to trial being merely a card in the hand of the players at the poker table. In that, the counterclaims (“I raise”) and motions to preclude or set aside or dispute of jurisdiction or of proper service (“I see you and raise”) before they enter the courthouse (“I call”) are all what can turn the felt forum into a bargaining table.

Still, destroying evidence, pretending you didn’t know it existed or stating that the files of the chief underwriter in an insurance case were not considered relevant—that’s just opening the door for malfeasance. And for what? The bet might payoff? Sure, that’s what you ante up for in the first place. It’s not like the insurer can’t afford to make good on their policy, though, is it?

So then, it comes down to the old formula: which came first, the chicken or the egg? The insurance company was clearly laying the eggs by deleting the electronic files, as well as scrambling them by claiming no knowledge of them, when the e-mail trail is as easy to follow as paper. So, a “culpable state of mind” can exist, even it is a Swiss-based conglo-giant. And the other? “Counsel’s failure to recognize the importance of this document and produce it in a timely fashion, especially when alerted to it by opposing counsel, also constitutes a violation of discovery obligations.”

What defense then is “inadvertence”? “Not apt,” said the judge. “And a finding of negligence or worse would be a more appropriate characterization.”

Which seems to call their bluff, alright!

Saturday, March 20, 2010

A slight digression…a field trip

January 8, 2009
Appellate Division, First Judicial Department

If you’ve never been in the courthouse off Madison Square Park, do yourself a favor. The lobby alone is worth a look; the WPA murals are still as brilliant as the day they were laid. If you are there on business, however, you can get past the guards and into the cloakroom of wooden stalls and pegs for your top hat above dyads or such carved into the mahogany, rampant (as they used to say). But when you get into the august chamber itself, you’d wish they let you bring a camera. The associate I was with said this was where the ceremony was held to admit her into the Bar and thought the joint was really classy—and she is one sharp cookie, well-known to be given to dry understatement. It is a truly beautiful thing to conduct the People’s business under a ceiling of stunning Tiffany glass in elaborate pastel and marble scrolleries of vines and laurels around the block names of previous chief justices, each surmounted by an urn between matching torches, alternating with the word “EXCELSIOR” arched over a sunrise-&-windmill motif—no doubt in tribute to our Dutch forebears. And many more paintings of New York history and heritage in the surround, painted by Edwin Howland Blashfield. As well, if you’ve ever doubted the veracity of the phrase “high court”, this place will convince you. These five judges probably have more altitude than the Nazgul in Washington.

There were 20 cases scheduled for the afternoon session, starting at 2pm. This may sound like an ambitious agenda but it really isn’t. By the time a case has reached here, it has been honed to a fine edge, one that either shreds the whole Record-On-Appeal or is blunted by its rock-solid stolidity. All these Justices want to know is: does it meet the test requiring an overturn, or can they uphold? In each case, there is one point of contention; mostly it has to do with a prejudice of a jury member or a ruling which seemed unjust or (rarely) new evidence. Most are decided in chambers, by review, and never see the light of day. Then again, you could be going along with your everyday legal life, sending out letters and e-mails, even perhaps an S&C or BP, and amid the faxes and phone calls you get one that says: You have been scheduled for oral argument…

The procedure is simple: take a seat and wait until you’re called. Don’t expect preferential treatment, even of being taken in order. The justices are in charge and you’re there at their bidding. The only thing you’re guaranteed is that if you have a “10” or “15” after your cases name, when the green light goes on before your lectern you MAY get ten or fifteen minutes before them. Which can easily be 5 minutes with 2 questions and it’s “THANK YOU FOR PLAYING JEOPARDY! Please exit to the rear…” So relax and enjoy the show.

What follows is a smattering of impressions culled from a fascinated-but-disinterested observer that sunny Thursday a year ago.

People v. Gregory Wright – “missing witness”? “immediately after” “How do you translate that into…?” “No evidence seen just heard?” The Appellant’s “standard is People v. Gonzales...its general principle is that within 15 feet of a crime scene MIGHT be a material witness”? “You’re making it sound like a glimmer, a one-shot identification…” Respondent (State) is asked if he has anything to add: Nope, everything you’ve asked is ok by me! The Appellant gets to restate the case and is asked: “You took this pro bono, on behalf of your firm?...Thank you.”

If memory serves, the entire case was about a criminal act perpetrated in a bar, an assault with a pool cue or such, wherein the bouncer or bar employee was badly injured. The defense was self-defense, but there was no witness, per se. What was in question was the non-admission—by the court at the original trial--of the testimony of a friend of the defendant. Said witness was in an adjoining room and did not see the assault but heard the commotion, beginning with some threats being exchanged, and more, or so it is alleged.

184 West 10th Street Corp. v. Marvits – Appellant on the No-Pet Clause of the lease “I’m asking you what it said…assuming that a child kept in a goldfish bowl…” “…have a right to enforce on a substantial obligation…” “I think it would be insane to bring a case…” “…& I agree it would be insane for a landlord to…” “let’s assume the cats are cats…” “Judicial waver from the Respondent” “There is nothing in the statue that says a landlord has to enforce…” “Adverse possession…” “Open and Notorious…” “Under Robinson we don’t actually have to see the cats…´”These were shy cats, rather than outgoing cats…” “Litterbox…” “Let’s test that argument: Suppose they meow outside the doors?” [this causes laughter throughout the room]
Q&A between the parties:
Respondent: Can you make anything a substantial breach of obligation by putting it in the lease?
Appellant: …is represented in this case before three courts previously [think this entire line of questioning focuses on the “substantial breach” issue]
Respondent: REDIRECT—re-enforce the clause in the lease that says “any violation is cause for void of lease…. It means you are operating under an overly-broad language, asking we modify the terns by redefinition.”
Appellant: I’m not aware of any case where this is… [and goes back to administrative code and whether or not a contractor, let in for repairs, can act as an agent of the landlord in this issue]

The case hinged upon the eviction of a person for having cats. Over the years, it was no secret to the other tenants—some light meowing, some crumbs of stray clay litter on a welcome mat, but no scent or odor. Hence the “Open and Notorious” statement—which sound ludicrous from here. Yes, it means everybody knows there are cats there; but “Notorious”? Yes, a Term of Art, but…oh come on! This is one where the sad and the comic walk hand-in-hand.

People v. Michael Rose – Appellant’s 1st point, “he bought a small amount [crack] and used one-third himself, before turning the rest over to the actual purchaser who would distribute it…” [the next bit had something about “benefit and self-interest”, implying the benefit “up to the point at which he buys three bags…”] “In Harris, didn’t he use friend’s money to make a buy, before using his own?” “Everything in Harris, which is your best support, goes against you here.” “”I have nothing else to offer.” Respondent asks, So you are a 2nd year student? Appellant’s last ditch question: “Is it possible that the Appellant was only doing a favor for somebody else?”

This is pretty transparent. Appellant bought crack in a sufficient quantity to qualify for the maximum penalty for sale of narcotics. His claim is that it wasn’t his money, but a friend’s, and he only bought the drugs in order to satisfy his own habit, a third of which was going to be his to use. The best part is that the 2nd-year law student got to carry the ball this far and the court was impressed with his defense.

Sheffield v. B. Chancel – [International case] Appellant claims Lack of Jurisdiction as this is a corporate, US subsidiary of a Belgian or French company [unclear] and bears no relationship to anything in New York State. “…the foreign parent company sending products here to be sold?” “In NY or USA?” “Breach took place over there, French law to apply…” “Is there any substantial difference between arguments before Justice Lowe and Justice Baer?” “Centered around a stock purchase agreement…” “I see a tremendous distinction without a difference…” Respondent argues “It’s a red herring…” “The subsidiary counterclaim…” “If the case is dismissed here, does the counterclaim still stay here?” “It points to one phone conversation with the bad guy [with respect to compensation for the US subsidiary] while he was in Florida…and identifies himself as a Paris resident…” “Formal convenience…” And comes down to a mare’s nest of filings over and over and subsidiary claims were never pursued in France.

When viewed close-up you can see that this is the pivotal point as to whether the US Courts have the right to try this company in America. At stake is probably more money than most human beings will ever see. The fees on this one alone have put both firms in the black for this year, of that you can be sure.

Morsechi v. Dipasquale – Appellant offers Affirmative Defense Doctrine of Laches [with respect to 1988, when stock was transferred, or supposed to be transferred, to client] “A claim of prejudice?” “The Ex-partie motion moved to dismiss on delay.” “You cite various gifts, personal relationship—nothing to do with the chicken business.” “Some claim 18 years later—same in 2001 and 2004?” “The issue is not whether promises were made or not made.” “What is the prejudice?” “After the original action was dismissed in 1988, there were gifts…” “Ultimately, you have to show those gifts were on reliance…” Respondent: “The key issue is whether or not there was prejudice…” “The Ex-partie moving to dismiss under the Doctrine of Laches, not once in that Affidavit was there one defense of prejudice!” “Two individuals entered into a personal relationship in 1976, before the entity was established…” Matrimonial, Engagement Ring, Cars, etc. 1988 was about the establishment of an interest [probably of mutual assets] and that she was the owner of this company…”

At its core, this is about a husband and wife (or a couple that played around with the idea of marriage, more or less) who went into the chicken business in the late 70’s/early 80’s and divorced, or parted ways, somewhat amicably, around 1988. When they split, the idea was not to split up the company…as much as…sort of, keep it together but… It gets pretty greasy here, and with less traction due to the fact He kept giving She gifts and promises but maybe never actually signed over any stock to Her, but She accepts these tokens of affection without realizing they would later be referred to as partial payment, or something. So where do you draw the line at this? In time and Laches? Or love on the installment plan?

People v. Morales – The Appellant alleges there were 2 errors by the court. The Respondent says the judges are very consistent (very affirmative) “the presumption is severely rebuttable…” “…3 unidentified gunshots at officers…” “…55 bags” The Lady DA is pleading the sentence is just for the compound felony of drugs, weapons and attempted murder. The Appellant says this “addresses the point of Gonzales, with respect to a man who was willing to kill to protect his drug trade…”

This was a drug bust that resulted in a conviction in 1978 and the Appellant has already been serving for 30 years by this point. You get the impression that this is a real “jail-house lawyer” who has nothing but time on his hands and figures he might as well give it a shot. The appeal is to determine whether the penalty with respect to the drug sentence part of it, should be reduced.

Speranza v. Reprolab – This is the marquee attraction here. Looked at strictly on the ruling, it should be a slam-dunk. Son goes to sperm bank and deposits, signs and checks off box for disposal on death. Dies a few years later of massive cerebral hemorrhage. Mother goes through papers, finds contract, contacts sperm bank, is told they are going to dispose of specimens and then… Mother begs not to, says last hope for children. She is told: 1) he said toss them and that’s in the contract; and 2) even if he said otherwise, NYS Health Dept. Code says they can not be used without testing for disease PRIOR to freezing. Mother promises to pay storage fees, says she’ll get attorney to change the laws…

It didn’t work out that way. Hence, the arrival in this chamber, and, as well, they reason it was called out of sequence (originally the last on the day’s schedule) is because, in all probability…THEY JUST COULDN’T WAIT.

The judges are human, you see, and this issue is one that is going to be used as precedent well into the future. We are already in a world where the Rights of the Un-Born are frequently considered over and above those of the Born. The next phase may just be the Rights of the Unconceived. [Don’t laugh… Ok—laugh if you want. But not too loud or too long.] What gets said in this Appeal may not EXACTLY have to do with the Law, which is pretty cut and dried, but even a Minority Opinion may get cited down the road for nuances which no one can predict.

For the Respondent, this is icing on the cake. There’s no question of any liability or even adverse possession, no position they can’t accommodate. All the Justice Questions are therefore, softballs, at best, if not philosophically ruminative.
JQ: So the reason behind the delay of disposal?
RA: Who’s harmed? As long as my client’s license is in order…
JQ: So your position is?
RA: We’ll do whatever the court wants.
JQ: Even if this goes outside of the State of New York?
RA: I have no problem with that either. And the Attorney General of the State was asked to take a position on this and refused, so there’s no restriction there either.
JQ: The Family Court judge in me, as well as the Surrogate Court judge in me…is troubled by this. We’re getting into territory of who has the rights to bring another child into the world from Mr. Sepranza’s sperm. And we are not unmindful of the Mother’s sorrow and hopes.
JQ: The problem is that it would not be going to a regular sexual partner, as well…

The Appellants have a TRO on the case, which is the first question as to status; the vials of vile remain inviolate. Their motion is then that the sperm bank’s taking of storage fees—against the dictates of the State Health Code—constitutes a Reformation of the Contract between the Estate and the bank, which gives them certain rights over the specimens. It is a good gambit; contract law is the hardest on the books—if you get a point across there, you’ve got a real foothold. The Justice Questions come quick and fast, and sharp. The Appellant Answers each on the pivot, ready to swivel on any new tack that offers some air.
JQ: You say the lab sat on its rights when it didn’t dispose?
AA: It appears as if they were prepared to accept a new contract.
JQ: What’s the basis of reformation? You have a contract?
AA: Their acceptance of the fees for continued storage.
JQ: Wouldn’t the two regulations be dispositive?
AA: That’s what we’re here to test as well.
JQ: What’s the purpose of the samples: storage or donor?
AA: Of course, we’ll never know, but the action itself has a meaning beyond the scope of making a deposit and paying fees.
JQ: The second problem is the Department of Health.
AA: It may be possible to test the samples in the future, something might be developed.
JQ: As for reformation?
AA: We see the Estate as a new entity within the contract to take possession.
JQ: But in order to get to reformation, don’t you have to have some execution of the original?

Ok. NO answers here and no conclusions. This is merely the true art of the Law: a bit of debate in open court. Should be simple--but it isn't. The world of talking points, and pre-packaged scripts, the ability to respond to the immediacy of an issue, and with substance, not persiflage, is a fine thing to see.

Sunday, March 14, 2010


NYLJ 6-04-07


2. The wreckage of the Twin Towers was still burning when the State Legislature began tacking the word “anti-terrorism” onto their latest anti-crime bills. And those provisions governing speech, conduct, and other areas of behavioral suspicion have gotten a bit of use by prosecutors—just not against anyone really threatening to bring down the government. Just ask the head of the Public Defenders.

“Those charges make these cases that are essentially meaningless into something far more important. We’re seeing a pattern of serious allegations resulting in de minimus outcomes.”

Take the guy who threatened two social services workers upstate. The Appellate for 3rd Dept unanimously upheld his conviction of making “terroristic threats” and the 15-year-to-life sentence he received. A persistent felon? Sure—but an Al Qeda operative? How many of them lose their temper over an SSI disqualification? And his son too?

The big nut here is Penal Law Section 490.20. it makes a Class D felony punishable by 2 to 7 years to make threats “with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.” Any more vague and you could add in “loitering with intent to create a public nuisance”. Might as well get Cool Hand Luke and turn cutting the heads off parking meters into a capital offense.

The 3rd says otherwise: “The statutory language sufficiently apprises persons of ordinary intelligence of the type of conduct that is forbidden and provided law enforcement officials with clear standards for enforcement.” Which is kind of like saying: The Rules were posted on the Barn last night. If you sheep didn’t read them, that’s your problem. If the paraphrase of the Pigs from George Orwell’s “Animal Farm” offends you (with the tacit association of the 1960s radical label for police), don’t let it. There is a complete disconnect from the people who pen these pieces of legislation and those who look at them as a means of enforcing the peace. ADAs and Grand Juries only see the presentation of the letter of the Law, and thereafter what it implies. For prosecutors, this is a new screwdriver to put into the toolkit; something which can be used to leverage a reluctant witness as much as twist the twistos into the planks. Yet there is nothing that says you can’t use it to pry open cases, wedge defendant’s away from standard please (where precedent can stop a lot of arguments before they get started) and thump a couple of small brads to anchor an offense. They don’t have to be threatening to overthrow our form of government.

As it is, this is being applied in every aspect where either intimidation or scare tactics are in use—from street-level gang violence to leaving messages on a phone with promises of a “Virginia Tech”-style massacre. It would seem, then, that once this sort of label gets placed upon previously unclassifiable, tragic behaviors, it take on a life of its own. As well as a new identity.

The native American who had done two pervious bids—’82-’88 Grand Larceny, and '91-’95 for sexual abuse—is by no means an innocent; canned for even corking off to the cops (and SS Admins). But even with his admission of a terminal illness, which gave him “nothing to lose”, and membership in the Akwesasne Warrior Society, giving him easy access to “a gun…at any time,” his conviction on this seems disproportionate, to say the least. For the exact same incident, he was convicted, on the Onodaga County level, for 2nd-degree Aggravated Harrassment: a six-month sentence. Under 490.20, 15-to-life appears almost absurd. And to make matters worse, his son mouthed similar threats and ended up getting charged and convicted, with his father’s prosecutor as a witness, on the same section number.

In the present state of government, not only can’t you not fight city hall, but it is almost one step from treason to do so. When threat and dissent become known under the same heading, you’d better be damned sure of what side of the line you stand, at all times.

Saturday, March 13, 2010


NYLJ 6-04-07



This one is a mid-brainer, when you look past the motive of self-serving interests. The General Counsels of 37 corporations (GE, Ford, Pepsi, Intel, Dow, Pfizer, Merck and Colgate-Palmolive among them) made the petition to the Guv to increase the bucks to the bench-warmers. The way it pans out, they are more likely to be fronting for their orgs before the robes and it wouldn’t hurt to let them know which side of the baked goods has the primo oleo.

Which leads us to the lead story...

1. Every time a salaried schlub logs into ACRIS to prep a client’s RPTT, fiduciary duty will always evoke an impulse towards deciding ‘Which box do I check for an exemption?’ at the back of the mind. But when you’re the head honcho of that self-same Dept. of Finance database, you can have loftier ideals—such as ‘If I enter this…so, no one will ever have to ask for the Mansion Tax on this one’ or ‘We’ll just back-date this assignment of mortgage 2 years and that’s another $15,000 saved right there…’ and you can be as altruistic as you like on the Public Trust. The problem is that, unless you are making such patently illegal transactions possible out of a sense of anarchistic rebellion, to smash the system by boring from within—as we used to say in our olde commie-pinko, radiclib leftie days—then these actual entities who benefit from such tricks probably shouldn’t be on your private client list.

However, the queer bit is that, even though it is against the law to have such clients (conflict of interest and all that), it is just as much against the law for the prosecution by the State’s AG to subpoena that list.

Yeah. Say whaaa?

In any civil suit, the language in the Discovery Demand would sound exactly the same: “All documents, including but not limited to, lists, invoices, billing records, cash receipt journals, bank deposit records and time records reflecting, identifying or referencing by name, all persons on whose behalf you provided legal service for the period,” and here we’ll insert “1/01/03 through 6/20/05”.

That the defendants moved to quash as “overbroad” would be laughed out of 111 Centre Street—but not at 60. In April 2006, the Supreme Court in Manhattan denied the motion, finding each item sought as relevant to the department’s investigation, as would any “reasonable man”. But the Law can be irrational at times, and that was how the 1st Dept. would make this doozy: a complete dismissal of the subpoena unless the defendant is given immunity from prosecution. See, being compelled to turn over evidence of wrongdoing is, somehow, wrong? Like where does the right of Discovery end and self-incrimination begin? Not so much the "chicken/egg" puzzler as the "your fist/my nose" postulate.

“It is plain that compelling Brasskey to produce the requested client list would constitute a compelled testimonial act. In essence, Brasskey would be stating “'these are the people to whom I have provided legal services’,” the panel held. And seeing as how this “would place him in jeopardy of prosecution for representing them and would be a misdemeanor in violation of the Conflict of Interest Law,” he isn’t compelled to offer “testimony” against himself. If this sounds like a closed loop, that’s because it is: the perfect Mobius Strip of modern jurisprudence—It is against the Law to follow the Law!

Thursday, March 11, 2010


NYLJ 6-03-07


4. In the case of sexual abuse hearing for children, even those grown older in the seven years after the fact of the incident, the issue will be both why it took so long and does this violate the defendant’s right to a speedy trial?

When CC was 9, visiting his stepbrother’s family over a holiday, CR was 5. The obvious question to ask is: what were they both doing in the same bathtub at that age? Which is completely irrelevant. It seems strange to say, but this is the nature of the job. The allegation of sexual abuse has to take a back seat to the frame around that event. Before you can get to the facts of the situation, you have to find out if Time has rendered the situation moot or more. It is all well and good to say, this is why the Courts are so clogged up and bogged down: every case is multiplied by its circumstances. At the end, this is how it should be: the courts are FIRST--the protection of the innocent. In this case there were two minors, which further complicates the issue. But then there is SECOND--the prosecution of the guilty. Here, you have to, as well, find out if that is part of the Time factor as well. And, further, does the victim change with Time?

The delay was both the lack of the victim’s report of the incident—only discovered by his mother six years later, finding an open journal entry in his hand. As well, upon that discovery, wanting to not assume the perpetrator’s actions were unprovoked by other factors—such as abuse at his mother’s home—and also wanting to bring this to counseling and therapy, the mother’s course of actions were careful and prudent. The prosecution of a law suit for the finding of juvenile delinquency is, as it should be, the last resort.

And yes, we can say that justice delayed IS justice denied. Then look again and ask: can an abstract concept be subject to Time? Only if we decide it is.

Wednesday, March 10, 2010


NYLJ 5-08-07


1. The civil confinement law gets its first test on a pass/fail system, and squeaks by. In essence, the question is: can you hold someone without the benefit of a jury trial? Yes, according to Mental Health Law Sec. 10.06(g). In the New York State's Attorney General’s position, to be “summary” in nature means the same as Summary Judgment. But the Justice hearing the immediate case doesn’t read it the same way. The term “summary” is the sticking point. “The Legislature has made very specific provisions to the procedures and rules governing such hearing, which mandate more than a ‘summary’ proceeding.”

How much more "more" is is a toss-up, however, when you are using the label “convicted sex offender”. You join the club of public opinion and controversy, you get a bigger bat to swing. In that event, it wouldn’t take more than the state psychiatrist’s testimony to get a 60-day period slated in for the Court to begin a jury trial to determine whether a secure Mental Health Facility is appropriate. What with so many "Fill-in-the-saddest-victim's-name" Laws out there you won't have trouble with schedules or venues, you can be sure of that. The Sex Offender Management and Treatment Act is the pro-active response and there’s very little dispute that it is a popular piece of legislation who’s time has come—it’s just that closed-door portion of the proceedings could still make some people, Civil Libertarians at least, very nervous.

Still, the jury trial is required to offer clear and convincing evidence, or at the minimum more than a shrink with a sheepskin and an Albany paycheck. And that's the safeguard. And this is another case wherein the parse is part and parcel.

Tuesday, March 9, 2010


NYLJ 6-04-07


3. In the broad scope of what is the role of the government in public education, when does a student’s social anxiety disease and depression necessitate his placement in a private school? Moreover, exactly who decides where, and if there is a disagreement between, say, the parents and an Impartial Hearing Officer, is the state still responsible for the costs of his tuition, when the parents chose not to follow those recommendations?

As “Education Presidents” come and go, and teachers end up at the bottom of the food chain of goverbucks, this will never be more than the most personal of issues in open debate, and the last to be resolved. So it is no wonder that it comes down to an administrative finding to bring a federal Appellate Court to reverse the SDNY judge’s verdict overriding the IHO decision.

Like most such rulings, it often comes down to the seated SDNY robe not standing up to the take the US Supreme Court book of School Committee of the Town of Burlington v. Department of Education, 471 US 359 (1985) down off the shelf. But the CoA, 2nd Circuit did. And what was found was “the question of whether the parents carried their burden of demonstrating that the choice was inappropriate was a close one.”

Odd construction, but the Burlington case precluded that question and “easily disposed of” the matter in the second part of the 2-part test: Whether the private placement was appropriate to the child’s needs. The judge cautioned that the job of the district court’s independent review is NOT an invitation to substitute its own notions for that of the school system’s. That the IHO officer had come to his conclusions after reviewing the same evidence pretty much proved they weren’t operating under the same criteria. “The district court grounds for disturbing the IHO’s reasoned conclusions are NOT SUPPORTED by the record. …[and] ignored the substance of the recommendations” offered by a psychiatrist who examined the boy.

The chosen school had a staff trained in dealing with anxiety disorder—something the other school could not offer. Even though the boy had shown no progress in the IHO-preferred school, it had no bearing on the issue… (About the same as saying the troop surge in Iraq justified the invasion because it was bringing peace and stability. Which ignores the obvious—any change would be likely to be an improvement on a bad situation.) “A unilateral private placement is only appropriate if it provides educational instruction specifically designed to meet the unique needs of a handicapped child.”

Monday, March 8, 2010


NYLJ 5-31-07


2. “How long is too long in a trial?”—is NOT the question.

“How much ‘how long’ meant” is.

The U.S. Court of Appeals bore down on that one in the 2nd Circuit for their review of U.S. v. Andrews, 05-2639-cr. It doesn’t matter what the case was, either; it was the time Andrews’ attorney was barred from speaking with his client that they were weighing in on.

It was during an overnight break during cross-examination that Counselor Donovan was barred by the court from consulting with his client. Exactly what transpired is a bit murky, on his end, but clear enough to the Prosecutors. They immediately reviewed their request for constitutional issues and had the ban rescinded.

However, by that time Donovan and Andrews had gone their separate ways and—incredibly—this attorney was, “for some or one reason of other,” unavailable to meet with his client (even after the 3-hour ban had been lifted?—who knew?) until the next morning.

Did this unfairly handicap his defense? Sure. Was it misconduct on the Government’s part? Not if you see their immediate review and withdrawal of the ban as acting in good faith. Ultimately, the burden fell on the Defense. The court recessed the following morning to give the attorney ample time to review testimony with his client, but, due to the fact that Donovan had failed to take notes—saying his memory of the trial was ‘hazy”, since he thought he was going to speak with his client right after the day’s court—and paid scant attention to whatever service would have told him he could meet with Mr. Andrews… Well, it was not so much a ‘bad call’ as no call at all.

That being said, the Appeals panel came to the conclusion that the 6th Amendment rights were not materially affected as to effective assistance from counsel.

(Ok. So it was bribery, fraud and other charges in connection with a scandal involving illegal investment of state pension funds with the Connecticut Treasurer…)

(And now we segue into an Olberman-type musical insert of “How Long (has this been going on)” by Ace…)

Thursday, March 4, 2010

IMPROPER CONVERSATIONS BRING CENSURE (a/k/a new pilot for next fall)

NYLJ 5-31-07


1. You could call it “ex-partie discussions with counsel.” Or, as the State Commission on Judicial Conduct administrator Tmebeckijan argued it, this was the latest incident of a type for which the subject was admonished less than a decade ago. Oh, and that his repetition of same undermined the integrity and impartiality of the system. Which statement was freely interpreted by the members of the commission as having “displayed an insensitivity to the appearance of bias.”

Or you could simply call it Folk Justice. And seeing as how the town of Hamden, in Delaware County, has seen fit to keep this court official in place since 1989 and being that he is both a non-lawyer and a farmer, we could—and shall—call him Justice Folkes.

(I know. This sounds like a pitch for a new TV show. Something that might have been a vehicle for Andy Griffith way back when.)

One would not expect Hamden to need extreme measures of rigor from the bench when, like as might, he will be settling nothing too drastic in the way of consequences. The 1998 action was by way of attempting to mediate in a tenant-landlord dispute, then failing to recuse himself while eviction proceedings went on. There was another one where he predetermined he would not issue a protective order against one of the parties in a property dispute before him. He also arraigned a defedant in that case without the DA being present, though the commission found he ultimately did the right thing in disqualifying himself when he found the counsel for the defense also happened to be the same attorney who represented Justice Folkes himself in his first disciplinary proceeding. Who also happened to be the local dairyman. So, Dairy Esq., was not only the only milk-&-butter man around, he was close to a local monopoly on legal matters, appearing before Folkes in six other cases from ’02 to ’05. and, again, Folkes gets a citation from the commission for both failing to recuse himself and not informing the other parties about the prior attorney-client relationship.

The latest incident evolved from his attempt to mediate a dispute between his neighbor and an auto body repair shop owner over a $3,000 bill, and the repairman holding the neighbor’s two cars as a hedge. Justice Folkes tried to get the mechanic’s lean to accept a partial of $800 to release one of the cars, which Folkes accepted, as the commission saw it, as an appearance of advocacy. Not that an arbitrator from the county seat, of Albany even, would have done it any different. But, hey—it didn’t work out for anyone in the end, the neighbor choosing the Dent King for a sparring match, the dust-up getting the Ring King a bout call against himself.

And wouldn’t you know it, again, guess what came up before the mediating magistrates bench? Yup, the assault warrant and two rather sheepish-looking dudes. So what does our boy do? Offer to let someone else adjudicate the matter. But he must have been doing something right because the two combatants did waive the option, and let the wayward weigher continue to preside over the dispute.

It is exactly this sort of behavior, of getting last minute reprieves, holding out ‘til the cows come home, that was getting the goat of the hot-blooded Armenian administrator. He’d recommended removal of judges in 16 cases in 4 years, getting his thumb’s-down approved 10 times and even reduced sanctions on the rest. Between censure and admonishment, there doesn’t lie a lot of room, but enough for Tmebeckjian to drive a HumVee through, loaded with stormtroopers out for revenge. And that he considers the former as little more than a bitch-slap to the latter’s finger-wave of tsk-tsk, also means the statement, “it is the proper role of a judge to preside in court proceedings, not to mediate disputes out of court,’ won’t cut the mustard.

But that’s Justice Folkes, and his “just folks”.

(Can't wait for the next installment.)

Tuesday, March 2, 2010


NYLJ 5-25-07


1. When one of the robes sitting in judgment over you used to be a Brother Officer you’d think the Blue Wall would be a consideration. And if he authors the sole dissent on your 2nd appellate reversal, you’d expect at least a soupcon of simpatico, no?

Consider the case of a former elite squad of the Street Crimes Unit chasing down a ‘suspicious black teen’ who ran from questions. You were driving the car with one hand—which also holds the gun with the finger on the trigger—and you’re trying to grab him with the other. Now you wouldn’t believe that criminal negligence would come up in your citation? That it could have been “extreme bravery in the line of duty”, true, though it ended up as “conduct unbecoming”, leading to the ex-Cop Justice to say this case “present a perfect example of why police misconduct is such a persistent, endemic problem in this county; it is condoned in high places.”

What he didn’t say was “twice”.

This time, the issue derived, as it did in the first, from whether the prosecution’s proof was sufficient to support the charge. Here, however, the Court of Appeals remanded the case to the First Department to conduct a factual inquiry into the “weight of the evidence”. This comes after the legal sufficiency review, giving the prosecution the best light, when the scales get brought out to see if there would be enough for a jury to convict beyond our old friend “reasonable doubt”. That the second review came to the same conclusion wasn’t a shock: it was almost the exact same panel. It was the prosecutor who was just as disappointed as the Ex-Cop judge, who, speaking of the Bronx, said, “I find it extremely disheartening that 3 Appellate judges cannot perceive the risk in this situation.” And further, “As the finding said the case was factually deficient, we are powerless to appeal.”

Meanwhile, the Ex-member of the Street Crimes Unit no longer had to perform those 150 hours of community service. After all, who ever heard of the pot having to scrub the kettle clean?

Monday, March 1, 2010


NYLJ 5-31-07


4. In Dziennik v. Sealift, 05-4659, it would appear that EDNY Justice Irrizarry found the defense was all at sea—like, did they know the first thing about the issues, or were they floundering from the moment their case hit the water?

The lead attorney for the plaintiff’s certainly knew his way around the dockside of things, having worked for years to limit the ability of foreign swabs to scab aboard US flag vessels. This experience in Maritime Law is almost enough to qualify him as an old salt, alone. But the way he tacks over the defense argument that his previous representation of American worker’s interests would present an “insurmountable ideological conflict” was purely naval maneuvering.

“You don’t really see that in the admiralty bar, that kind of denigration,” Mellusi mellowed. And as for the Marine Counselor’s use of a legal argument for a separate case as evidence of his lack of qualification—as “word for word shouldn’t be allowed”—well, the Judge wasn’t buying that either. As if the defense had never heard of “precedent”, or perhaps they somehow thought they’d stumbled into a copyright infringement case, Irrizarry summed up both postions as “without merit and entirely irrelevant,” respectively.

Whiter res, though? Much more sounding in the immigration debate than the sea. Consider the plight of the plaintiff’s: 209 Polish and Filipino seamen disputing lower wages dating back to 1999. the whole thing is rendered by one group of foreign workers vs. ship owners and operators Sealift, Fortune Maritime, Sagamore Shipping and Victory Maritime. The latter failed to provide “shipping articles” to the former (in violation of federal law), failed to pay overtime and represented these seasoned sailors as students, to circumvent U.S. laws. In the entire action, it was the most controversial part, for the owners, that these non-Americans could seek certification as a Class, in order to inaugurate a civil suit. As it was couched in terms of “’U.S.’ vs. Them” by the defense, they also tried to frame the plaintiff’s counsel in a traitorous light (as if they would never have opposed him in any other suit for locals). So it was their further stretch of the imagination to claim that the plaintiff’s missed the boat by not meeting tow of the four criteria of the FRCP Rule 23(a), namely: 1) they were not typical of their class; and 2) that the three Poles were not really adequate to represent those interests…which would sound like racism, if it weren’t couched in such high-falutin’ language.

Irrizarry took those to task, along with the “predominance” (read: # of incidents, like a pattern of abuse) and “superiority” requirements in FRCP Rule 23(b)(3). “The putatitve class members rely on common legal theories, namely, whether plaintiffs have been paid full wages and overtime and, if not, whether failure to do so entitles them to federal statutory penalties. Moreover, their claims arise from a common nucleus of fact, that the plaintiffs (as a group) worked for the defendants (collectively, individually) vessels from 1999, proves the defendants engaged in a uniform practice or scheme to deprive their employees of wages and overtime.

“The court finds that a class action is superior to other available methods for adjudication of the controversy at issue herein,” Iz the final word in certification.

Or the defense is all wet, is another.

Sunday, February 28, 2010


NYLJ 5-31-07


3. Break it down to the element and the 2nd Circuit panel vacation of the award in Grace v. Corbis-Sygma, 02 Civ. 8597 meant two things: a bad calculation methodology by the judge and bad record-keeping by the defendant. You don’t have to be perfect, but you should come closer to half.

When the top photog terminated his agreement with the Agency in 2001, they failed to return thousands of images to him. When Justice Chin rejected the industry’s liquidated damages of $11,500 per lost transparency, he based his verdict in the fact it would lead to “an absurd result”—as the lost images were neither unique nor irreplaceable—and would’ve resulted in a number like $40 million. Which sounds rational only if you don’t consider one picture worth a thousand words, or $1,500 bucks.

It was Judge Miner who dug out the nut in this bit: the defenses own wrongdoing prevented the plaintiff from proving his losses. “Mr. Grace had no obligation to offer a mathematically precise formula as to his loss.” And the formula? Why not go back to the videotape: if he earned X amount of $ over the years for Y amount of submissions, then compute that in progressions of what was worth what when and then multiply then by now, etc. Which makes a whole lot more sense. And dollars. And probably a lot of headaches for the SDNY judge who took it on the Chin.

As for the boilerplate, depriving Grace of possession and enjoyment? If the figure comes any closer to the industry damages, then he’ll probably agree that absence makes the heart grow fonder.

Saturday, February 27, 2010


NYLJ 5-25-07


2. The “Good Samaritan Rule” is about the closest one comes to direct biblical reference in the canon of New York Law. In Restatement of Torts, it refers to “One who…takes charge of another who is helpless adequately to aid or protect himself, is subject to liability to the other for any bodily harm caused by him by the failure to exercise reasonable care to secure the safety of the other while within the actor’s charge…” Normally, this would be applied in a situation of peril, or so goes the trophe.

The instant case has none of that attachment of responsibility about it. Even on the face of it, the plaintiff’s arguments smack of nothing so much as bitter recriminations and a desire for the kind of justice that would be more at home in a Greek tragedy. With any other ending, this could have just as easily have been a comedy, if not quite a satyr play.

The drama was mellow for the first few scenes. Fisher, the NJ college student making his first unsupervised trip into Manhattan (at age 19) with some pals and went to an LES eatery, meeting an acquaintance from Fairfield U., the femme defendant, Angel.

Exactly what transpired is just as much classical myth: the Boys give into the Dionysian, walk too far to the edge and are abandoned by their traditional household gods, and becomes marked by some blind destiny; perhaps even as much as Cain was marked by God…but this one is without the assurance of divine protection for his sin. The Mark gets drunk, separated from his running buddies and we find him, after the last return trains to the Garden State have already departed, without taxi fare or even a cell phone. 3:30AM is a bad time to be non copos mentis on the streets of this city, & worse if the only person around is little more than someone with whom you share a graduating class. And worst when that’s all you’ve got.

His Angel lent him her cell to contact his pals. No go. Tried to convince a cabbie to take him home on credit. (“Are you kidding me?”) So, perhaps out of kindness or simple decency, or just on the old saw of “What do you do with a drunken sailor?” is one of those refrains which resonate throughout our culture (no, really; someone who is helpless and easy prey yet who or what gives you the need to take charge of them? How about: Am I not my brother’s keeper vs. …the very subject of this trial: personal liability and criminal negligence), the Mark’s Angel offered him a place to crash at another acquaintance’s pad.

She would have done better to leave him on the curb for the police to pick up, true. But hindsight is 20/20 for a reason.

It was one of those things where somebody said, What do you want to do now?, and somebody else said, I’ll call Spanish Johnny, and then another said, He said it’s cool, come on by and bring your friend’s—he’s just hangin’. And no one said, I dunno, he’s kinda creepy and he’s the head of his own little gang, The Ghetto Mafia. But somebody might have replied, Oh real Thug Life, awesome. Certainly, no one, on their arrival said, Gee, this G is giving me a weird vibe, like, can we just chill? I don’t really need another blunt. Or, wow, he’s just like my Mom, wants all the brewskis on drink coasters, and ‘Don’t let any of those ashes drop on my rug’, and ‘Hey man! Don’t sit on my table!’

Or it could have been that way, or it could have been Johnny’s need to bring one of his dogs to heel, or maybe just to bloody him. Whatever the case, Tony and Johnny beat the Mark, probably to the amazement of the stoned-out girls—maybe shrieking or crying or possibly giggling, as if they couldn’t believe what was happening and so colored it to fit a teen coming-of-age farce. Then Tony shot the Mark and both of them dumped his body out on the edge of Ditmars Park, below Prospect.

The salient facts are that, even though they know what happened, the group was reluctant to come forward and bear witness. It took over a year to arrest, try and convict the perps, which may have been a factor in the decision of the Mark’s parents to bring this suit against the girl they thought should have been his Guardian Angel. It was more than likely a matter of either Ma or Pa saying, She should have to pay for what she did, or didn’t do; She killed him just as sure as those monsters! And, despite the pleas of the sad, heartsick, and mutually-suffering spouse of: Just let it go, honey, It won’t bring him back…

The wonder is that it ever got to trial.

Thursday, February 25, 2010


NYLJ 5-25-07


2. Just to show you that attorney’s exorbitant fees are not limited to just their clients, when given the opportunity they’ll even overcharge themselves.

Take Mr. Varick, Esq., and his action against the IRS. Pretty easy to root for him, sure—lesser of two evils, even if you have a grudge. However, when Justice Acreage gave him leave to seek financial redress for the cost of the action—mind you, not yet punitive damages—Varick the litigant pro se was presented with an invoice from Varick, Esq., for the whopping sum of $21,206.

The unusual ruling came out of the challenge from the IRS that all circuits had unanimously come down against awards to pro se litigants, but, as the US Court of Appeals 2nd had never expressly ruled against attorney’s acting on their own behalf, Judge Acreage decided it was time to give the IRS a taste of its own medicine. But even Acreage wasn’t ready for that big of a dose.

The justification of the justice was USC Section 7430(c)and 2412(d)(1)(b) that permits fee awards to attorneys who’ve prevailed in cases, who did not unnecessarily drag out proceedings and who can show opponent’s positions were “not substantially justified.” When Acreage tallies up the bill he sees 25.1 hours for photocopying, filing and clerical tasks—not exactly fertile ground for that plow, even if it were a John Deere. His “failure to maintain contemporaneous time records, lumping of tasks, vague descriptions of services performed,” all come under the aegis of “troubling”. This is without including his rising rates, from $150phr in 2003, $160phr for 2004, $170phr for 2005—you get the picture?—and modest ones, by most accounts, including a CPA’s.

Also, by this factor (and for a number of them, for that matter) it would be a legitimate to ask if he did anything else during these periods and, if so, where does he draw the line between counsel Varick and client Varick? Certainly, he is a more-than-generous advocate, with his time; returning every phone call, each fax, and the volumes of motion papers he doubtlessly manufactured from scratch…

It took Acreage to remind Varick that he could just as easily disallow the entire award and offered him $125 an hour as the closing cost.

He must’ve felt like Monty Hall.

Wednesday, February 24, 2010


NYLJ 5-25-07


3. At first notice, when people hear about the Warsaw Convention, they think it should lie somewhere between the Geneva Convention and the Warsaw Pact. That this is the ruling principle which governs venues for trail and limits damage award with respect to international flights is something none of us hopes to even be concerned with…nor would we ever wish to know. It would mean that we faced injury while in the care of organizations so inhumane and unfeeling as to rival the worst actions of the East Germany’s STASI or the Tsar’s Chekha.

This is why Mr. Bunis wanted to bring his case to Brooklyn when he began to suffer a low-grade heart attack as the Israir flight reached the gate at Kennedy (which would have to be a further stretch as the airport is in Queens). Under the aforesaid law, the most he could have hoped to realize would be $75,000, which, after taxes and counsel fees, wouldn’t be more than a third, and, seeing as how Brooklyn is only second to Da Bronx in its reputation as a plaintiff’s cash register…well, you can see the venal aspect, in any event.

However, what people really would like to know is if the employee who was supposed to get the wheelchair was fired or promoted. That is, anybody with an innate grind for the airlines.

But not the federal judge. Her only concern was, as it should be, the Law. And every time the pilot gives you that good-ol’-boy unctuous bit of Right-Stuff aside and reminds you not to unbuckle until the plane has come to a complete stop at the terminal gate, it should be a reminder that he IS the captain of this ship until that last moment you step off the treads of the skyway corridor. Mr. Bunis might have wanted it another way, but that’s all she—the judge—wrote.

Tuesday, February 23, 2010


NYLJ 5-25-07


3. As long as it isn’t a US Supreme Court ruling, no judge is going to have the last word on words when a senior partner doesn’t like it. You’ve got a 300-attorney slave ship in Philly and couple of hot 2nd year associates with no personal life to pull the all-nighters needed to generate any appeals you want. No one is going to give her an order on what to do with her action...even if she has to take the call on vacation.

Of course, SDNY is going to, at its discretion and within moderation, make it an expensive snit. Justice Bear here clawed Dorsey & Whitney’s Esquiress Peters and poured salt in the wounds by recommending her to attend a CLE on “Ethical Bounds of Aggressive Litigation.” Her stance was just that as well, taking the offense to the injury out of jury, saying the decision was “riddled with errors” and that her firm had “jumped through hoops” on this one. Does resorting to shopworn stock phrases reflect genuine outrage or knee-jerk reactionism. Further, was it justified?

The case involved three former employees of Wolter Klunver being sued, along with their present company, Scientage, for theft of trade secrets. What this flap flew on was a flock of depositions, transcripts of the individual defendants, given over to Peter’s group—but marked “confidential” pursuant to a protective order. That little codicil would not have been so significant had WK not dismissed the suit before the Bear and then filed a near-identitcal suit in Federal Court in Massachusetts. And, as the defense’s claim that the MA pleadings contained no info from the transcripts—in violation of the discovery order—even while WK & Peters moved to use these papers in the new action.

As you might expect, the ursine definer got up on his hind legs, with good reason. He denied the motion on the ground that the protective order stated the material could not be used in any other proceeding, and rejected the allegation that the MA matter wasn’t a new one but merely a continuation of the old NY one. (And if the Bear wasn’t a Yankees fans, it would still be a stretch to say the Red Sox were the same as pinstripes.) And went further to say that the defendant’s in MA could be as prejudiced as, when the NY action was dismissed, they’d given substantially more discovery that the plaintiffs.

All of this was background to the issue of the transcripts’ handover, however.

The day after Tax Day, the Bear repeatedly ordered the turnover of transcripts within 24 hours. Which they did, with an unspecified number of copies and with an unspecified number outstanding. Then, 11 days later, the plaintiff’s counsel turned over an additional 20 copies saying, “we missed some.” Naturally, Peters had the best explanation of all: “I was literally standing in the Grand Bazaar of Istanbul when I got these e-mails.” Like, she was on her vacation, so how could her assistants be expected to follow through without her personal supervision. Like, another partner (who was a former US attorney), along with an associate, couldn’t be expected to locate a bunch of bound volumes amid the clutter of so much of her similar effects. Like, of course Peters was solo-ing on this case without any legal assistants or paralegals—and definitely no co-counsel—and there should have been no expectation of any other kind of competent entity or party to come in and pinch-hit on this throw. Like, we’re sure the same issue comes up when Mr. Dorsey or Mr. Whitney goes on vacation—probably having to shut down the practice during summer…

Like, who has this much imagination outside of fiction? And we ain't talking John Grisham either.