Sunday, January 31, 2010


NYLJ 5/17/07


There's so many things to do when you get a client that they should walk in the door with checklists attached. And Criminal over Civil? With charge, you get eggroll...but you don't get a second chance at a defense of false ID or improper arrest.

Cast an eye on that ROA to see how it got here and page one stops your clock at "Citizen’s Arrest". No question, there should be real chain-of-custody issue, illegal detainment, or even kidnapping, if it goes wrong--leaving the door open for lawsuits as well.

We can assume that you didn't do it, why not? However, arguendo, when you rob her place and can’t even carry all the goods away with you--first and foremost: don't be greedy. If you get nabbed coming back to pick up the DVD burner which you’d stashed in the trash, then you have only yourself to blame…unless you can bring in the vigilantes. As it was the neighbors who put the arm on you, that immediately gives you a wedge issue. But it has an expiration date.

The catch is, you have to bring it up before the Appeals process and the sooner the better. Like even before you got into jurisdictional disputes. Honestly, how many have you seen tossed because of improper service? Basically, it should be your first motion, gratis, a given—and if it isn’t, you should wonder who’s representing you. The best defense starts, as any fan of “Law & Order” will tell you, right in the identification room. Sign up at the line-up or miss the boat entirely. You may not be procedurally barred but merits?—that’s another thing. In New York, a party is considered to have preserved an issue for appeal either through objection at trial (under CPL section 470.05(2)) or where the court makes and express ruling on the specific question. If all you do is object to the second ID, the aforesaid police one, whatever the civilians did is long past a valid defense.

At first blush, it looks like counsel screwed up royally…until you look at the minority opinion. “The inconvenient fact is that the trial court prevented opposing counsel from explaining the full scope of his suppression motion after the close of evidence—arguably the most important time… And did raise the issue of suggestive civilian conduct through testimony at his suppression hearing.” The 'inconvenient fact' means, the judge may have screwed up...but not enough.

Somewhere down the line, this could end up in a test case before the Nine...but not the present Nine. The right to petition for a writ of habeas corpus is always an option, just not much of one, right now.

Friday, January 29, 2010


NYLJ 5-22-07


3. In real estate, there is boilerplate in all deeds that says, “the holder may rely on the continued use and enjoyment of their property.” There are times, as well, that prove the rule; it is not just words on a page to fill in the space between the “whereas”-es and the metes-&-bounds--it is what makes your Estate real. This is why title companies proliferate like dandelions after a spring rain; somebody’s got to guarantee that your premises are yours and yours alone. That’s why no bank will give a mortgage without a survey. This is as basic as an 8-bar blues—and just as infinitely complex and resonant. And it’s why you pay your attorney so much dough for a few hours of phone calls and a quick scan of Schedule A & B.

Under the Doctrine of Laches, there is no “better late than never”, there is only “too late”. Yet, on occasion, Justice knows that some things require even Black Letter Law to bow to a higher cause.

The Oneidas were a mighty nation of the upper Hudson Valley of New York. If you start with the Treaty of Canandaigua in 1794, it was a tract of land that extended over 6 million acres. That wouldn’t be long after George Washington retired from public life and the veterans of the Revolutionary War were still mending fences broken by the Redcoats’ march. Who can say what is fair when a sovereign state decides, a year later, to buy off the tribe’s prize 100,000 acres at 50 cents per? How could the fair-market price sale’s be seven times that over the next two years to white Anglo-Europeans? But once your tribal council had begun down the slippery slope of selling off their homelands, who could expect to contain such monstrous swindles? Small wonder that whole lodges and clans would choose to migrate west, to Wisconsin, and north to Canada? What compensation could ever match such a loss of heritage?

This question has arisen as the remaining members of that tribe have sought redress of grievances against the US Government. What the court has to weigh are the solutions in the real world. Bring out the scales and put a horrible injustice and theft by malfeasance and coercion on one side and people who actually have title to every square patch from subdivisions to horse farms and the cost of displacing them on the other and you have arguments of equal heft, and neither of which can be assessed as a solution. But that's why someone has to sit in the high chair and bring down the wooden hammer on this auction of tears.

Your appraisal experts on historical land use and valuation records will tell you that an absurd and impossible task is only made worse by a calculator and a checkbook. You may conclude, and rightly so, that the state took advantage of tribal members, but could be as correct to say past injustices suffered cannot be remedies by creating future and present ones. Repossession would be overly disruptive and subject to an equitable defense.

So, forget about that redress, about a perfect world remade by judicial activism. The Doctrine remains—culpable of abetting a misdeed, bent, perhaps—yet unbowed. So you go into that which will work within its limitations: style it as a contract claim that seeks to reform or revise a contract that is void for unconscionability.

Or give them a casino.

Wednesday, January 27, 2010


NYLJ 6-05-07


In the present climate wherein the now-infamous right-wing muckracker can be lauded for his portrayal of a pimp looking for ACORN money and its second life on YouTube, there's a lot to be said for undercover revelators. Then again, perhaps not as much for this particular one as news breaks of him and a crew being caught trying to bug the office of the Senator from Louisiana yesterday. It is safe to say his defense is likely to be a cross between 'the public's right to know' and a 'harmless prank gone a bit too far', but that is not the comment here.

2. Put yourself in someone else's shoes, then--for real. Try it. Then walk around in them. Then pretend to be who you are not and do it without the benefit of a SAG or AFTRA card (or a license to wait tables in New York). Then lie to some people and get them to give you something or do something they didn't want to because they thought you were who you were pretending to be. That's how you become a crusading journalist, covert operative, or even public advocate.

That's also a con game, by the way.

Is it any different from putting on a wig and goatee set and marching into a chicken processing plant, claiming to be THE meat-packing mogul from Bratislava looking for a new investment, and exiting after sharing your vodka flask with the manager, a shift supervisor and the loading dock crew, looking like Colonel Sanders and sounding like Borat? It is, if you work for the FDA. Then, each time you toasted a guy and that microcamera in the flask’s heel took in a gigachip’s worth of health code violations and safety hazards, would that act alone—setting aside the impersonation of Kentucky’s major league fowl-baller—be a breach of the standards of conduct under Disciplinary Rule 1-102(a), and its subsections?

Now, while the first example may gall a lot of liberals (and it is not in this jurisdiction to judge the second), this one was for the benefit of the public, by a state employee, to get at what could be a serious (lest we forget: salmonella, e-coli, etc. outbreaks of recent memory) threat to public safety. Presumably, this is someone who has sworn to a code of ethics. (Yes, some government workers do.) And even though it may sound like the punchline to a joke, given the present climate of moral relativity and bitter cynicism, this is the way the world should work. We still need it as a "bright line" by which to measure conduct of one's office.

So it was for the good of the whole, yes? Does that make it any less a dirty trick? Do the ends justify the means?

It seems it was closer to permissible, if not exactly conforming to DR 1-102(a), in this jurisdiction, all things considered. Everyone else may think of the only analogy as coming from divorce proceedings in civil and entrapment in Criminal, but courts don’t have to be that rigid--or need to have the same “bright line” as the rulebooks do. This isn’t a school lesson—this is the real world, and sometimes the bar for the Bar must be lowered. And sometimes it should be bent.

So pull out that flask and give a toast to our dear good friend, ethics opinion No. 737 and to our dissemblers, and the new interpretation of “deceit or misrepresentation”. Call it equal opportunity deployment, or tit-for-tat, or quid pro quo—if you want to get fawncy. Sometimes you just have to fight fire with fire. It all comes back to mens rea, doesn’t it? Or, like it says on the British Empire seal and Order of the Garter—“Honi Soit Qui Mal Y Pense”, “evil to him who evil thinks”.

Food for thought, Democrats. Just avoid the fried chicken.

Tuesday, January 26, 2010


NYLJ 5/21/07


3. "Say what you will, you can say what you long as it isn't slander." It's always a good idea to try out your rulings in the mirror first. That one's close. Certainly not as quotable as Judge Carcarterra of Bronx Supreme, I'll grant. I mean, Lorenzo actually gets movie deals, not to mention regular Law & Order scripts. Again, though, may not be as sage as, say, Learned Hand or wise as Thurgood Marshall, or even as witty as Potter Stewart, there's a turn to it. Anyways--why bother pretending you're not after the star turn? Jurisprudence be damned; I'm on cram-it camera.

It is not vanity to make sure the robe's been brushed; this is one of those one's that draws the papparrazi swarms. The movie star who brought the suit was bound to attract that crowd. And the strobes on her entrances and exits, blinding. Nobody cares about the law, then why bother with citations? The important part is the verdict; you want something that resonates...and gives the press a little zinger to include in the local roundup.

More, there's nothing wrong with this part of the craft either; it goes to the very heart of the matter. The Bill of Rights, no less, and then some; its all about words. The usual Big One is: Freedom. That's the one that sells everything, democracy to magazine subscriptions. Not here, though. How free is free speech? But not this time, no; it must be “are unsolicited comments unwelcome?”—no, that’s still not it. Too many negatives; try to shape what it is instead.

Well, the first one cost postage, to start. The secret admirer may have thought he was Cyrano de Bergerac, granted, but how many suitors believe that? Love makes you blind, and also a lousy editor. As for the rest though, this was hardly a case for cash prizes. Whatever threat she alleges, any intent to “harass, threaten, annoy or harm”, a restraining order is about all the freight it will bear. The US Mail can't be seen as stalking, by any stretch of the imagination. As for his letter-writing skill? Little more than the wild ravings of a lunatic—which is, we are told, frequently indistinguishable from the ardors of the smitten. Yet, when vulgarity comes into play, the matter of offense has to be weighed, even if one man’s “sweet nothings” are the intended’s perverted proposals.

And then there’s the particular of the billet-doux deuxieme. Having clearly stated that non-response would be construed as a rebuff, he could scarcely have missed the popular version of a summary judgment—she just isn’t that into you. Touting his initials, initially, and their symbolism for all good things associated with them, along with techniques in foot massage as auguries of Nirvana, could not be considered any more sinister than “Advertisements For Myself”…if of a lesser literary provenance. And so, ineptitude and simple bad taste are insufficient grounds to support the charges.

Now, take that and tack on, " least until McKinney’s has a section on Plying Troth and Unlawful Suitors." Ok. too square for the room?

Monday, January 25, 2010


NYLJ 6/5/07


1. When it comes to the Court of Appeals, 2nd Circuit, it may not be as satisfying to have to get a majority, but that renders into a verdict with a greater stability. Over the years the FCC had mutated from a simple commission on the regulation of broadcast frequencies into a behemoth that strides the nation as Big Brother and Nanny. When they watch every domestic station, they are also watching the way we live. When they make regulations on what we say, they are also telling us what we can and cannot say. And when they want to penalize the transmission of “fleeting expletives”, they are saying, “don’t be spontaneous—it will cost you.” Celebrities and politicians may sling the common slang, one wherein the occasion of choice language—sometimes as crass or unexpectedly joyful—may offend tender ears and those of tender years, but that doesn’t mean they can do so with impunity. The five-second delay had better be there is you don’t want to pay a hefty fine. As has been said before: free speech isn’t free.

So there is the notorious “wardrobe malfunction”, the earthiest references of the Prez and Darth Veeper caught on open mikes , and the idols of screen and tube making candid remarks on award shows and each incident further incenses the gatekeepers of civil liberties. Yet, when it comes time to assign the blame for their off-color asides, none of them will be the corporation who fell asleep at the switch.

That is when you are given the power to call the gatekeepers to task—or find that the Lord High Elocutioners have acted “arbitrarily and capriciously” in doling out the dollar duns. Except that, sometimes, you can say the plaintiff “failed to articulate a reasoned basis for its change in policy.” The dissent might find a “sensible, although not necessarily compelling reason for the change,” but that’s what makes horse races, doesn’t it? I say “objective,” you say “subjective,” let’s call the whole thing off.

And maybe the greatest freedom of expression—that right to call something off, or dismissal of complaint.

Look at it from the FCC’s point of view and they can assert the action stems from the same interest in protecting children as it did when the regulation and prohibition was instituted 30 years ago. On the other hand, “under their current indecency regime, any and all uses of an expletive is presumably indecent and profane, with broadcaster’s under an unidentified burden of proof to show the expletives were integral to the work.” If that work is nothing more than a live transmission, it would require the prognosticative abilities of Nostradamus to protect the parents and concerned citizens from that on-the-air pollution.

More damage might be done by this selective enforcement by choosing those incidents over others. When they violate the Administrative Procedures Act, that doesn’t send a mixed signal? Like: “We are responding to an extreme reaction and public outcry…” which constitutes a mail-in campaign whipped up by ultra-conservative ministers after repeated segments loop thru the 24hrs news cycle? Then there is the additional point of: “Yes, we know the rules but this is a special case that requires we violate them.”

Or say, if the public good might be considered an ongoing, work-in-progress sort of project and the “rules” as more of a term-of-art, guidelines rather than regulations, then you could say that their prosecution was “integral to the work.”

Now where have I heard that before?

Sunday, January 24, 2010


NYLJ 4-10-07


2. The standard cant you can get from the professionals themselves--or any number of comedy club rejects, really--is: all lawyers are, first, lazy; second, liars, and lastly, overcharge like breathing. This bad attitude about the profession has placed it so far from a laughing stock it oughta be called cursing stock. Get down to cases, though, and it all becomes moot...and that's not a court. You gotta do the do, right? It comes as part of the basic package.

So, it's gotta give you pause to find yourself making an application before the bench to drop a client. Asking? That was then. Now, you're determined to put the plead in plea. If necessary, you'll try beg. Which is no answer at all, if this is the second time you’re tried it. And it is. And it isn’t. Because the answer is still No. Maybe grovel?

You can say such things as: "I have represented his interests to the best of my abilities. In convincing the DA to take the death penalty off the table, I feel little else would be possible, even given the advent of my client’s cooperation." What you don't say it that you get the same cooperation you’d expect from an Al Queda detainee at Guantanamo—minus the persuasion techniques of newly-enfranchised interrogators.

No. What you do say is, "The present situation, which your Honor is well-aware of, being that he wishes to proceed pro se, no longer even desiring independent counsel as advisor on motion practice and statutory option from an attorney before the bar, and that he even refuses to meet with me or my investigator…" It would be nice if you could get the lady justice to take the hint. Maybe phrase it as if the Truth was your client, and just the suggestion that your efforts at trying to portray him as an authentic maniac would be a disservice, maybe convict the truth under circumstantial evidence, like guilt by association. Maybe you ought to have your head examined.

What seems perfectly reasonable, even logical, in this context, becomes another thing entirely when seen through the lens of judicial authority and responsibility. The cause of action doesn't matter as much as the law must be satisfied, and if that means conforming to the image of fairness--the image will be fair enough. Under the convex and concave warping the Constitution of the United States and New York State and City Charters, once you get tagged, you're it. What the lady in the high chair doesn't say is: You are doing a fine job with this degenerate nutjob and there’s absolutely no chance in Hell you’re getting out from under it.

What she does say, though, is almost as candid. “Face it,” she’ll offer off the record, “when he starts with the jurisdictional challenges on the basis that the indictment has his name in all caps, you pretty much know where this is going." Sympathy and a shoulder to cry on, that seems to be all you're going to get here. "Somewhere along the line I’m going to order a sanity hearing on him and then we’ll have to find him competent and start this all over again. Right now, I’d like to rule him ‘hostile and uncooperative,’ but that would just give his next counsel grounds to move for a dismissal on prejudice, or ask me to recuse myself. And I’m not going to give that S.O.B. an inch if I can help it. The only way this goes to appeal is over my dead body. Or somebody changes the law.”

You could be unkind and say: I think you're just protecting your image, you Honor. And she could counter: No, I'm protecting my ass, counsellor. But, truth be told, nobody wants to get that honest.

Saturday, January 23, 2010


(this one is a double-entry, double-header)

NYLJ 5/1/07


2. Security arrives as your escort--a pair of beeves in blue and the butthead in the polyester jacket--and if you think anyone is going to help you carry out your own banker's box of personal possessions, you'd best not wait for the offer. Good thing you left the luggage caddy behind the door; aren't bungee cords marvelous things? Then, it's time to take that final walk, don’t look left or right and forget about any bridges. Those not burned outright to charred planks and smoldering stanchion wouldn’t support much more than temping on the q.t., and under the table. If anyone does cross your path, don't single them out for goodbyes, unless you want to put them on the slow track, if not for a similar exit.

Later, they would paint this passage in a different light, as if you were looking for one more bit of evidence, blackmail, forgotten photocopy discarded in the recycling bin...leverage. Later, they would ask: did you take the memos and leak secrets or was it merely common knowledge, arranged in a provocative manner? And you could get the opportunity to ask for clarification: What do you mean by provocative, like a flash of lace at the edge of her skirt or that extra button undone on his shirt?

Funny, isn’t it, how the default reference is always best? Breeder flirting must always take precedence over queer. We always have to deal with innuendo over contact, and context, or the potential stare. That way, if it goes the wrong way, at least you have some maneuvering room—like Oh? Well! And other such CYA options. Why are women flattered when other women come onto them and men grow deadly? All it means is: I find you attractive. Not: Do you find me attractive?

Pass the partner’s office with a wide berth, as if to say: Don’t let me accidentally pick up a vibe! Please! As if that was a classified document purloined from the central vault. Like it wasn’t sitting in the copier trash bin when I came through? Perhaps the pro se was the wrong way to go; a fool for a client, right. Another eye would've told you the complaint overshot the mark. Alright, ok--and then you could've shot back--But no less than the Answer with counterclaim! And then you'd be here anyways...

Judge Schoenstein was right, however: neither one of us was acting from a contractural position as much as a matrimonial one—locked into our death struggle of hate, no consideration of the welfare of the children, community property or joint tax to speak. You should have seen that including contracts was out of line, just as they should have realized attorney/client privilege and confidentiality can’t be extended to the work place farther than harm to a client’s case or ongoing business interests. And fiduciary? Your duties end when they say your services are no longer required.

NYLJ 5/22/07


1. You appreciate a dismissal without prejudice like a gift of a second chance. Pro Se is the only way to go when you want a fool for a client. A second chance also means a second opinion, and even a third. Get the whole picture, even if you got to get someone who knows how to pry alimony out of a rancorous dispute.

"Just start with a settlement meeting", was the first piece of good advice from the divorce specialist in your barbershop trio, if you like: the amicable splitter, the acting coach, and the Torah thinker. "Right," #2 says, setting the stage for testimony. "It was the ugly results of that head-butting which forced you to destroy your hard-drive," neatly answering their new counterclaim, how sweet. "So then we can add in intimidation and a conspiracy to discredit you to make it all into one grand mishegoss," says your spiritual advisor.

Then you have the weight of the evidence and the lack of evidence to contend with. They can allege all they want you were having a inter-office affair with another associate. "And that only digs the hole deeper,” is the matrimonial perspective. "But without incriminating photos or phone taps, it ain’t even He Said He Said for the partners against the two fehgeleh boys," the rabbi's slight slight being no more than stating the obvious, you guess.

"It’s better than that. When one of the boys gets told he either cops a plea or gets deported back to Mexico, that’s coercion. And when he happens to have been responsible for firing the firm’s ex-attorney, who now has field an affidavit saying no such discussion ever took place and the meeting regarding that destroyed hard drive—" for Mr. Theater, the scene come together.

"Mare’s nest," pipes in the expert in entanglements.

“Meshuggah," affirms the Sage of West End Avenue. "And trafe too."

With a team like this, you could take the highway, Broadway, or the Temple Mount.

Thursday, January 21, 2010


NYLJ 3/27/07

[Background preface}

A disbarred attorney, a sheriff’s deputy raid looking for 43 boxes of files he refused to hand over, a wrongful death action on behalf of a Bronx woman who’s husband plummeted to his death at the Brooklyn Navy Yards while working as a ship-rigger.

They came up empty-handed. No photos, trial notes, witness staements, pleadings—zip. And that’s the hand’s-up, hands-down conclusion from the lawyer that took it over.

The previous $25 million award, reduced to $7.6 million, never made it out of the Appellate. And 50 days after they remanded the case back for re-trial, another 1st Dept. panel disbarred the 1st atty for a pattern of improprieties, predating the instant case.

“His (respondent’s) 24-year history of sanctions, his perverse refusal to accept administrative rulings reflective of contempt for te judicial system, reprehensible, unprofessional behavior, including screaming at, disparaging and threatening judges, adversaries and experts, and disrupting the legal process through both verbal and physical aggression…”

Truly, a loose cannon, if not a rolling grenade.

So where are the files? Lost, in a house upstate, damaged by flood, discarded by workers—and baldfaced (-headed) liar too boot! The disbarred atty is an expert in Maritime Law? Small wonder—he swears like a sea cook!

POINT OF CONTENTION FOR APPEAL: whether barge owner breached its active control duty.


Call it the “Closeout Sale on Sanity”. Rational behaviors and reactions end up in the cut out bin, remaindered among the sample sizes and those items at the edge of expiry.

The robe in the high seat jokes with his clerk, just as he has for the last decade, about the bald fat man with the bottlecap lenses, eyes rolling about and looming in and out, some loony tunes fish caught in an aquarium with magnifier walls, amid the sea of gesticulations accompanying his protestations, raising foam to the lips with every frothy explanation.

“I’ve seen him raving, raging and launching objections to everything from the Affidavit of Service to how much light is coming through the courtroom shades. But, by and large, in the main, on the whole, never seen him as bat-shit crazy as today.”

Clawing at the air while the bailiffs restrain him from approaching the bench, “I have the right to counsel! Your dismissal of my motion is with prejudice—I know that! You’ve had it in for me for 10 years and now you want to take away my boating license? HAH! I’ll have your daughter on the water! We’ll be frigging in the rigging!” dewlaps red and wet, a contrast to the beige polyester one-button showing signs of blown-out elbows and knees on the green mismatch, the disheveled dervish spins on. “My medical condition precludes your ruling! I have been diagnosed with a bipolar disorder which invalidates your judgments—they discriminate against us suffering from afflications not of our making! These are acts of God! Uninsurable! Where’s my coverage policy? I demand to see the carrier’s underwriter!”

“What was that part about the boat?”

“Maritime Law was his speciality. Any time you have a harbor case, he’ll have a piece of it.”

Hizzonner leans on his hand while the other ambulance chasers bring up their petitions, compliance ordered, restraining notices…and notices the cloth more. ‘These suits are from Syms; that one Filene’s basement, at best,’ as the blueback unfolds before the clerk who hands it up to the bench. “Oral argument, yer honuh.”

“So what do we have here? … Reconsider? Why did your substitution of counsel plea get tossed in the first place?” he thumbs the exhibit tabs in the dismissal, reads, “’Plaintiffs counsel did not execute the Substitution of Counsel Stip’, and that is because… ‘Mr. Todtberg said he was under treatment for repetitive motion stress disorder and on advice and stricture of his doctor’s orders was constrained from---‘ And Judge Levinson let this go on record?”

“As far as I can figure, your honor,” the senior partner offers, like from an open palm attached to French cuffs, it appears, “He was playing it safe.”

“This I understand. None of us wants to get reversed on appeal on our record, but jeez and jeepers…” the judge picks up the record of the proceedings, a finger scanning fast as a veteran of the Evelyn Wood Reading Dynamics Course might, yet muttering a few choice phrases. “…defies… Subpeona Duces Tecum—ok. What happened here?”

The Syms suit juggles some chump changes at the bottom of his pockets. “Said they were in a flood in his office, ruined. Then the landlord said there was no flood and he changed the location to a beach house in Montauk. When he was told to produce an address, it turned out to be an empty lot on Old House Road.”

“Is that anywhere near Shepards’ Neck Inn?”

“I believe it is a few streets up toward the hills, yes, your honor.”

“Used to go there with my parents every August, about 50 years ago. Motor court, they called them in those days. So what was the excuse then?”

“I am entitled to all defenses in my answer! I object to this line of questioning! Only Block Island vacations may be mentioned! You can’t afford it anymore! Not since the Hamptons—“

“Sergeant, please put a sock in him…”

“You want we should take him to a holding pen, yer honor?”

“Naw. Until the M.E. gets here with an analyst, I don’t want to make a move without him. He’s got templates on his Palm Pilot for every occasion from mistrials to prejudicial conduct for mammalian bigotry.”

“Huh,” this stumps the clerk, and even the court steno has to look up. “What’s that?”

“Filed a discrimination class action on behalf of a dolphin that took a wrong turn into the Hudson.”

Filene’s is puzzled as well. “But it thought dolphins were mammals.”

“That’s why it was dismissed on Summary Judgment.”

Wednesday, January 20, 2010


NYLJ 6/13/07


4. So, a couple of ATF agents raid the bakery and find a larder with powder that is not flour. The owner-operator has that glazed look of the deer-in-the-headlights as much as a survivor of a fire, giving the same appearance while sitting on the neighbor’s stoop with his head in his hands. The way he figures it is ‘dead to rights’, see? And despair does funny things to the instinct for self-preservation, loosens inhibitions of the tongue, see?

It is the guido in the leather car-coat with chain-mail on his bush-league chest that matches mustaches over a Neapolitan pout asking, “So, the brown stuff, what’s that?” Real casual, as if an exercise rhetorical, to the wind, to his partner in the jeans ensemble, biker ‘tats on biceps through sleeveless vest, certainly the junkie stand-in for their buy-&-busts.

When the hapless baker answers, “It turned,” he could just as easily be talking about sour milk.

The Stand-in perks up his observation. “Thought it was morphine base. Sometimes you get brown,” adding in with a shrug, like this was an everyday conversation about everyday stuff. Guido can’t believe his luck and so presses it with another. “So, was that it? Pure base?”

Still holding up his heavy hang, the baker muffles, “Coke. Dunno what they cut it with. Went like that after delivery.”

The report that the ADA read came with a codicil from the case officer, who, having seen enough of these by now, added the post-it postscript with his own version of events. Rather than undermining his associates, his comment was more one of humanizing the serendipitous occasion with social context and a bit of native wit.

“The old ‘Aztec Two-Step’. My, you’ve got to hand it to them. They do have ambitions,” said the ADA with a smirk and a page turn.

“Some might call it that,” his assistant agreed. “Others might call, oh, say, a deliberate strategy to obtain a self-implicating statement from a suspect pre-Miranda.”

“Yes. That would be US v. Carter 05-2823-cr,” cites the ADA in a sigh to his brief. “Doubtless we’ll hear it called that at the suppression hearing.

“And much more as well, I would venture to guess.”

“One would assume. Do you suppose Phipps was making an analogy to getting a pre-rights admission of guilt as the same as a whole load of legislature diarrhea?”

“Running into a bit of shit-zu puppies? Could be…”

But it was, contrary to both their beliefs, in point of fact, a reference to an obscure 1970s folk-rock band which his elder sister owned in LP format during her brown-rice/homespun/Annie Kelso Earth Shoes phase.

Phipps was only going on the full-disclosure track in order to head off the anticipated comparison to Missouri v. Seibert 542 US 600 (2004). The defendant there had no warning before blurting out a statement which became the basis for the formal, recorded confession. That one had been clear enough for the Nine to toss.

However, they hadn’t been as kind to a like mind with Oregon V. Elstad, 470 US 298 (1985) and that was where he was hoping this would go. It’s not like the questioning was more or less about the same thing the defendant spoke about, as if the subject was followed up on like an extension of the previous inadmissible utterance. Nope. Not even the same agents did the office interview, and you could count on that being among the factors to consider. Add it into “the completeness and detail of the Q&A in the in the first round of interrogation, the overlapping content of the two statements, the timing and the setting of the first, the conformity of personnel…”

Tuesday, January 19, 2010


NYLJ 5/11/07


1. The thing that hits you is that this is a married couple, so you have to assume that, at some point of other in time there were all the exchanges of ardor, agreement and acceptance of mutual goals, desires, etc. then you see the Italian names and all the stereotypes come flooding in: Mafia, criminal, clannish, overemotional, and worse. At the end, you start counting the ill-gotten gain, seeing that greater profits went to the dealers and traders and brokers than the actual tipsters and you have to consider the haul in the whole: What was it all for? They weren't Corelones, or even Sopranos. Get past Michael in "Mean Streets"--who couldn't tell German lenses from Jap adapters--and you're shaving points for a comparison.

In the process, though, your cultural prejudices get the final nail, when the tag line details that their co-conspirators are, as well, Chinese man-&-wife attorneys, doing the exact same thing. Makes you wonder if it is something endemic to the breed, like Sickle Cell Anemia? Then, the Seven Year Itch might be closer.

These are not people who marry for love or passion or any of the commonly-accepted reasons in romance. (It might actually make one think of the arrangement between Bill and Hill, even.) Theirs is a commercial agreement; a bond of holy matri-money. The upside is that, in the event of a subpoena to testify, the ring exchange also precludes offering evidence against the other partner. It is a joint venture in greed—better to file as an LLC, if they intend to put $$ into a Florida condo to keep it safe from seizure under that State’s Homestead Act.

Then, was it larceny at first sight? Or if love was present, what kind was it? Would it be recognized by Eros, or Ares? Or Midas—who is not a god, only as a symbolic one. Which came first, the ring or the rope? The compliance officer position which made temptation impossible to ignore?—or the attitude of “Hey, everybody does it…so?” Did it matter that her spouse worked at a labor & employment firm and saw the daily dose of capital practices…and badly wanted a piece of the action his old school pals were getting? Why didn’t he simply go into that himself?

Useless questions all—as much as the one: Why didn’t he go into securities operations in the first place? It sure wasn't wedding vows that got in the way.

Monday, January 18, 2010


NYLJ 4/23/07


3. “They don’t make goniff’s like that anymore,” the prosecutor laughed.

“It should be his epitaph,” said the clerk. “Like engraved on his tombstone.”

In the finding of the Court of Appeals, using language like “frivolous petition” and “disruptive and dilatory” for his behavior and claims, and a “web of complicated, confused and often illegal transaction and manipulations, mingling corporate and personal funds, filing false refunds and cheating partners in a legion of schemes and deceptions” about his dealings ancillary to the tax fraud case which brought him to this conviction. The prosecutor was more than amused; he was happy. Mirthful.

“So what was your favorite part?” the prosecutor asks, egging him on. “The fact that he copped to an Alford plea on the re-trial, just so he didn’t have to admit guilt?”

“Naw,” bubblegum pops as the inveterate smoker mixes it up with Nicorette. “I gotta go with him offering three grand a piece to the hung jury on the first trial. I mean, eleven to one for conviction? He don’t mind giving a reward to everybody for one knucklehead hold out’s muleishness. That’s chutzpah.”

“I like that. Muleishness. Perfectly describes the breed.” The prosecutor leaned the chair back, fingers laced behind the neck, as he watched the boxes being loaded onto the storage room cart. Just looking at the labels, he could recall highlights from the decade-plus siege of the late parking-lot magnate’s empire of concrete slabs. Funny, how the steel-&-cement fortress was really protected by a wall of paper—all those filings. The box at the bottom of the pile was restricted to nothing but subpoenas, for the mayor, Boro president, Governor, US president—boy, the marshals must’ve laughed themselves silly with that one. And, considering that he’d also run for public office for almost all those positions, and a few others (the campaign finance materials were mixed in with brochures, bumper stickers, and buttons for “Honest Abie” in the back room), he probably, at least, knew what he would ask any of them, if he got them under oath. The one-halfpack one his desk contained most of the pleadings and a few with exhibits on one of his juicier frauds, a particularly nasty bait-&-switch number where he took the sale of downtown multi-level garage and laundered about a fifth of the proceeds thru a Canadian offshore to be directly deposited in his stock investment account. In one fell swoop he bilks the tax payer and his junior partners.

The last of the filings were the icing on the cake, sitting dead center on his blotter where he’d dropped them, like some animal carcass or body part that was sent via post as a message from a Mafia don to intimidate the intended ADA or such. It was from the executors of his estate—and it was a doozy. As a native of Poland, he’d emigrated with his parents—made an aliyah—long before WWII broke out, and was a Palestine national when he became an American citizen. Yet there it was: the claim that he was a Holocaust survivor. And that wasn’t all.

“What did you say? Holocaust survivor isn’t all?”

“Must’ve been thinking aloud,” he says. “I was just reading how his will puts his son in as an executor, but puts all his money into a pour-over trust to be administered by a bunch of rebbetzim.”

“Man. He didn’t trust anybody did he?”

“What led me to that was him filing as a holocaust survivor.”

“No kidding? Thought he lived here all his life.”

“Well, let’s put it this way. The closest he possibly came to it was seeing “Schindler’s List”—on broadcast, not PPV.”

“Hah. Sorta gives a whole new meaning to the term chutzpah, dud’n’it?”

Sunday, January 17, 2010


NYLJ 5/2/07


NYLJ 5/14/07

2. AGENCIES HIRED TO REPRESENT PARENTS ON ABUSE AND NEGLECT, sub: some cases shifted from 18-B lawyers in 3 boros

It was Herbert Hoover’s great misunderstanding that “volunteerism” would take over from Federal services in filling in the gaps for those who had lapsed into the Great Depression.

Today, Family Court is shifting representation of parents of neglected and abused children from appointed private lawyers to non-profit. And, yes, they all have powerful-sounding names and seem to cover all boroughs—the 175 lawyer group for Brooklyn, 31 lawyer group for the Bronx, and the 5 lawyer group for Manhattan. But you have to wonder: when child welfare authorities already have you behind the proverbial 8-ball, who you gonna call?

This could actually be seen as a breakthrough opportunity to do the work right, instead of relying on the Article 18-B provision of the County Law that requires judges to appoint lawyers. And anybody recognizes that there’s plenty of work to go around. Yet that doesn’t stop the current crop of 18-B atty’s from wondering if this isn’t the foot in the door to their ousting. When change is in the wind, you either tack into it or get capsized—that’s what a sailor would tell you…not a bloodhound. That’s what a scent will do for you; create suspicion and get you ready to give chase. It all depends on what way it grabs you.

'So, time to pack it in, crate it up, take the name off the door and give the plants to the secretarial pool. Family court just won’t be the same—it will be much less. There will be neglect and abuse cases that no one will touch—no lawyer or social worker will ever open that can of worms, let alone try a fishing expedition. But the silver lining?—sure! A cap to caseloads! Even better: because you can’t take on any more work, there isn’t going to be any more abuse or neglect, right? In Albany, of course, the Capital Defender’s Office has had their budget doubled—so isn’t that nice? All one needs to do is a have a family crisis recognized by the state, right?'

“I don’t think irony is going to help here.” The Legal Aid Supervisor leans against his doorframe, those half-specs making her look ever more like a cat eyeing a hole in the floorboard. "Yes," she confirms, "you were muttering again. I'll be good for you to go into private practice."

“Under Article 18-B, I get $75phr for felonies and $60phr for misdemeanors and family court.”

“Which means?”

“Which means, amongst other things, I get $15phr less to listen to children crying and perps lying than I do in traffic court, L&T or—“

“And you don’t have to think about Nixmary Brown or all the other babies who die because of budget cuts with a 147% increase in cases, do you?”

"Math was never my strong suit. And I look much better in pinstripes than courderoy."

"I wouldn't worry about the dress code if I were you," is her parthian shot over-the-shoulder in departure. "With your credentials, you'd be likelier to get them from the Yankees than a Fortune 500 outfit."

Shouting at the shot, "Hey, can I count on you for a letter of recommendation to Girardi?"

Legal Fictions

a Statement of Purpose...

...probably isn't necessary but it's always better to preface any endeavor of significance, if only to summarize the wherefores and the whys.

The title tells the tale. In the process of getting a paralegal certificate, one has to learn a lot of things that one is unlikely to ever need again. [cf. 11th grade algebra] And that's too bad because, in order to get this little paper, you have to, at least partially, think like a lawyer. Now this may not be thought of in too great a light, considering the number of jokes on the subject, but it does offer one benefit. For a brief time, you see not only your side of an argument, but the opposing side as well--the "devil's advocate" position--and even a third perspective, the "Rashomon" view of the Law itself.

One of the results of this is that the endless reruns of "Law & Order" start to make more than sense. For example, seeing opposing counsel serving papers on Abbie, one of Jack's many ADA's, you could see the blue back, indicative of a Supreme Court motion, but you could also see that someone hadn't bothered to actually staple it on. This would never get through the door in the real world. Not to say that it spoiled subsequent episodes, but once your eyes have been opened...well...

The other is that, somewhere along the line, the New York Law Journal began to seem more like morality plays. Or at least telenovellas. Is it possible that these dry, dull recitations of things in medias res before the State and Federal court systems could be as engrossing as "Desperate Housewives"? Ok.--that was facetious; but "Harvey Birdman"? Yes, if you understand that the drama is also in the wording of statutes and the parsing of judgments along the thinnest of lines. And if you read between the lines.

But to really get inside, it is also necessary to take the legalese and give it some attitude. Then fill in the blanks with snappy patter, bits of business, stagecraft and all while wearing as many hats as you can.

To that end, a few years ago, I set myself a sort of challenge: take the four headline stories each day and try to absorb, as much as possible, what was going on to whom by which and for what reason. Sometimes I wouldn't get more than a wiseacre abstract that might sound like keynotes written by Damon Runyon. On others, I settled for an extended metaphor; admittedly cheap, but memorable. And then there were those that just opened like flowers. The only rules were that it includes quotes from decisions and the law verbaitum, change names whenever it felt right, and had to be handwritten on a steno pad and in pencil.

This then is what I dusted off for the sheer anarchic joy of random trips into the often surrealistic world of jurisprudence. And yes, they are, pretty much, the original scribblings, give or take a little tweaking.

Let's Oyez Terminer!