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.

Monday, February 22, 2010


NYLJ 5-25-07


1. It’s an old story, dating back to the dawn of popular music, you could say. The first time a Tin Pan Alley tunesmith was asked to seel all the rights to his song for a month’s rent, it was with the knowledge, even as he scribbles his name on the page, that somebody was getting the mother of all bargains. Nary a con as the creator always knows that their work was of immense value, if only to them. That would be criminal. But a swindle? That isn’t quite right. If the scienter of mens rea proves the aforesaid, no matter how much the artist claims it was under duress and desperation, you won’t get any coercion charge to stick. Outside of being underage, drunk, or with a gun to your head (cf. the offer you can’t refuse).

So take your average ghetto youth from da Bronx, making the choice between the fast and dangerous life of a street thug/crack dealer and that and a teller of those tales, a hardcore gangsta rapper (and DJ, better to own the whole shop than share the profits, a true capitalist at heart). The contract is with a company called BBE—Barely Break Even, which should tell you a lot already. But that’s part of the ethic, no?

The plaintiff, not to be further coy, is Pete Rock, a “name” in the biz, nowhere in the Snoop/Jay-Z/50cent league, but respectable enough for a rep. in 2002, he signed on the dotted line to produce “no less than 10 newly recorded and previously unreleased tracks of no less than 60 minutes of master recordings.” That the minimum was not compared with a maximum was not of any significance at the time and it would be these master recordings which would become “Soul Survivor II”.

So it’s not “Get Rich Or Die Trying”, but neither is it Vanilla Ice. And decent sales are enough to have BBE come back to him (along with their new partner, Studio, a distributor) and seek permission to release all the rest of his recorded material. Now, as to whether the G is being sincere in saying they ain’t ready for air time, or is just cagy enough to want a new deal, it matters little. You’d think that the world’s shortest sentence would suffice. That they went ahead and dropped a 2nd plate of 15 tracks from those sessions, should have been enough of a breach of contract to put a chill on them, like a preliminary injunction at least.

Except our G was from Da Bronx, remember?

It is so standard that almost no one notice the Forum Selection clause for the ejudication of disputes, but, seeing as how BBE was a London-based posse, they chose the home turf avantage. So when it comes down to his claim of being “lord and master” over where he sues the defendants, the US Court of Appeals suggests that the rapper’s ego is “like an inflated balloon,” and may “suffer a considerable loss of altitude’—and attitude—when it comes down to earth where the forum is. “The contract clause is mandatory, not permissive,” was the SDNY verdict that brought it up to the C of A. Which should be the only bad news in this: if it sounds in Breach of Contract, the iron-clad ruling on the rest should only re-enforce the other provisions. That his suit also included direct and contributory copyright infringement and alternative state law claims for unjust enrichment and unfair competition was tossed across the pond. Because…yeah, there was nothing in the original paper that said anything about “Soul Survivor III”.

It is, then, sort of weird that the rapper’s mouthpiece would say, due to the expense (huh?) and difficulty of subpoena-ing witnesses (double that huh?), it was unlikely they would initiate the breach suit in England. Which all is a classic case of not only READ THE FINE PRINT, but EVERYTHING ELSE TOO!

Sunday, February 21, 2010


NYLJ 6/5/07


4. The Reader’s Digest section called Humor in Uniform was always a fond memory of childhood. There was a tacit guarantee of some form of received wisdom, of lessons culled from experience and distilled of all impurities by those who’d chosen a life in service to a higher cause than civilians. And, as one might suspect, responding to entrenched armed service bureaucracy frequently required a response that was, to put it mildly (as RD would), “salty”. This was how they would explain SNAFU: "SITUATION NORMAL: ALL FOULED UP." And if you think that's "fouled up", FUBAR was—even though not a neologism, as many had made it, coined by Vietnam vets—never mentioned. It is just not rational for anyone who has ever spent any time in or around soldiers or sailors to believe they would reserve such reserved speech for their objections; it don't make no sense.

This is only to preface how elisions of this sort my be used to gloss over indelicacies. Like the fact that such an august publication as the Journal chooses to put this in its headline shows how its constant usage has turned an acronym of sardonic contempt into a totally sanitized noun of its own. And, as with the astonishment concluding the previous paragraph, when it comes to the view from the high chair in the court, there are daily reviews of the absurd and profane which, occasionally, might employ common sense, when not overruled by precedent or statute.

In the matter of this Family Court contempt application, the petitioner here acknowledged receipt of the mailing. His quibble was that he couldn't read the warning section. And the judge can, as well, acknowledge that what the petitioner received was a piss-poor job of photocopying. This is when the Reasonable Person argument can be the best one; that this is no defense for ignoring it. There is something so inherently satisfying to make such a response to blatant statements like “This application was missing five letters from its statutorily-required warning, making it confusing and misleading” with a roundly sound, "SNAFU. So what?"

We may here acknowledge that the judge is entitled to one, long, profound sigh--and perhaps an admittedly theatrical rub of the temples. And no, he doesn't get to offer the above epithet. That the ruling can be summed up as something similar to 'Ok. So it wasn’t nice and clean and was probably a 10th generation Xerox of all-caps boilerplate. But if that doesn’t tell you it worked on generations one thru 9, you are deluding no one but yourself.'

So there you have what the petitioner might plead as a classic example of FUBAR...if the court allowed for even a Reader's Digest version of the facts.

Saturday, February 20, 2010


NYLJ 6/20/07


3. It is a question of, “To parse or not to parse… whether ‘tis nobler in the Law, to exact compliance with the letter, than to cast arms against a sea of regulatory statutes, and by the use of common sense, end them…” in an SJ ruling for the obvious.

Shakespeare rarely wins out over the possibility of overturning a verdict on appeal, which is now the co-op board lost to the retired cardiologist receiving treatments at Sloan-Kettering for colon cancer. The building’s prohibition on the installation of washer-dryer combinations may have been enacted after the fact of other apartments having them, but it was made clear at the doctor’s interview. That he felt it necessary to conceal his need to launder his incontinent status at the closing, then, should be considered as false pretenses, justifying the cancellation of his purchase.

But the modern world has much stricter standards for non-discrimination than it does for the Truth. The Lie of Omission then must cede to the cancellation of sale which commits the act of barring due to physical disability, and the all-mighty lobby of the “handicapped” (or “differently-abled”) who are responsible for everything from bowing busses and chair lifts to curb cuts to extra restrooms in all public spaces.

While these may be thought of as inconveniences and tax burdens upon those without such restriction of movement placed upon them by their appliances, they are the due and proper service owed to those for whom they were enacted. Federal Fair housing as well as local Human Rights laws bar any inquiry into whether a prospective buyer has any disability. Thus, “to parse or not to parse” becomes a moot question when a blatant case of discrimination smacks you in the prima facie. Just as the board needed no reason to reject, the doctor was under no obligation to reveal “obstacles” which would give reason for discrimination.

Friday, February 19, 2010


NYLJ 6/13/07


“Human lives don’t come with guarantees and certainly not money-back to the customer if not completely satisfied.” From the High Chair, you may often want to sport Solomonic wisdom but, 9 out of 10, the best you can get off on in a Judge Judy-style wisecrack.

When faced with a woman who has returned her adoptive son to social services as “unmanageable,” you can’t say: Hmm, this book isn’t living up to its cover. It is as much to say: She has an off-the-rack Bonwit-Teller look about her but bag and shoes match. So maybe she picked up the Gucci clutch on Canal Street, but those slingbacks are authentic. Hey, never made a bust on a blanket sale, and—anyways—just because she’s well-heeled, does that mean she’s less entitled to a fair hearing?

And, to be fair, the case of the boy “Jay” is about as sad as one can expect without physical deformity. Born to a drug-addicted mother, Jay tested positive for both cocaine and syphilis at birth, with a very low weight. When placed with an adoptive mother at 3-years-old he was already hyper-active. There is no question his new parent was aware that she was getting a handful, but there is also the question as to why she did not return to the agency to receive government-sponsored assistance. Her testimony painted the picture of a loving, caring person making every effort to accommodate a disabled child, one with severe mental impairment. As his illness progressed at day care, it was evident for his violent behavior—banging head against the wall, throwing chairs, kicking at other children—that something on the order of extreme care and constant monitoring was called for, something the adoptive mother could not provide. Jay was institutionalized in a private residential treatment center and the mother, at wit’s end or more, went back to the department to see if she could relinquish custody to the state temporarily. Or at least until some sort of treatment could be decided.

Her arguments—that she feared for her life, the child’s and the children around him—were sound. Unfortunately, social Services gave her only two choices: take him home now or permanently relinquish all parental rights. That they said nothing about parental obligations was never considered by the woman. As to why her own counsel did not ask for full elaboration on this issie one can only blame the mother’s haste. That thigns could ever come to such a pass, according to the counsel for the county department, was that the mother never sought the respite care or other preventative services the state law requires be given to families with disabled children. At best, the woman was ignorant and overly confident in her mothering skills; at worst, she and her son were victims of a careless, insensitive, regulation-obsessed bureaucracy. It was this that was entered by the concurring opinion, rebuking the state for its failure to inform her of her rights and privileges, but never failing in their duty to fill in forms, and follow the rules.

It is SS Law Section 398(6)(f) that relieves an out-of-wedlock parent of a surrendered child from future financial responsibility. Common sense would dictate that the same should apply to a relinquished child as well, along with signing over the $1,000-a-month state support payments. So you wouldn’t think that the State would garnish her wages, freeze her bank accounts and impound her car/ that, and make it necessary to sell her home.

Well, it may seem cruel and unusual punishment for not being Super-Mom, but it is also not enough to enjoin the Department of Social Services being equitably estopped from enforcing the support order.

“On your side of the scale are the various diagnoses of pervasive developmental disorder, obsessive-compulsive disorder and cerebral palsy. Along with the failures of the department to provide more aggressive care options, while, as well, failing to inform her that she would continue to be responsible for child care payments.

“On the other, regrettably, is the Law. Perhaps there should be the same relief provided for adoptive parents as it is for teen pregnancy problems of the 1950s—which is from where this legislation stems—but there it is. Until the state’s representatives and senators see fit to pass a law to that effect, there is little else to say. The adoption process was entered into with full knowledge of the child’s medical history and can claim no misrepresentation of the difficulties that were anticipated in his rearing.

“This is, unfortunately, not a case where you can get a replacement. And even though you didn’t break it; you bought it.”

Wednesday, February 17, 2010


NYLJ 5-22-07


2. The Nine are also know as The Nazgul, men who, having given their souls over the twisted influence of Sauron of Mordor, are now deathless wraiths, wreaking havoc on the world of men and striking terror into everything they touch. For the purpose of evaluating rulings by the U.S. Supreme Court of Chief Justice Roberts then, the characters of JRR Tolkien seem extraordinarily apt--especially that of their leader...The Witch-King!

The present scream screed puts a stake in the heart of a private plaintiff’s options for filing long-shot, anti-trust claims against big businesses. It may look monstrous on the human scale of things, but it is still utterly true: “A bare assertion of conspiracy will not suffice.” In other words: you see sinister plots everywhere--the Kennedy Assassination, the plane crash over East Moriches, complicity in 9/11, the reason you didn't get that raise? You may know something is wrong, ok? Just don't expect to get any help with subpeona deuces tecum. Without a first-class whistle blower on your side, the summary judgment stage in claims under Section 1 of the Sherman Act, may be your first stop, and your last.

Don't expect to lead a torchlight posse of outraged villagers with scythes and pitchforks to storm the castle. Or, to get a bit more contempo, do a Watergate 180. Go ahead, send in a marshall with some papers, like they do in the movies, uh-huh. And then they come out wheeling boxes straight from the secret, hidden files room. Check. If you've ever seen a Bill of Particulars you'd know; the key word here is "particular". You have to know something exists before you can make a demand for it. (Believe me, I've tried these omnibus numbers with boilerplate and got nothing back but acid reflux.) “Discovery abuse” is the term used by David Souter in his opinion--what everyone in the lower courts calls "a fishing expedition".

“Because the plaintiffs have not nudged their claims across the line from ‘conceivable’ to ‘plausible’, their complaint must be dismissed.” Justice Souter still requires “enough facts to state a claim to relief that is plausible on its face.”

Although the minority had a hand in cutting off the beast's head too. “The transparent policy concern that drives the decision is in the interest of protecting the defendant’s from the burdens of pre-trial discovery”, is Justice Stevens' Van Helsing touch.

[And if you think that's all the gothic tales, someday we must have a chat about their recent bit of vivisection which gives a twisted new life to Corps-orations to a degree that would make Dr. Moreau blanch and Lovecraft's "Re-Animator" blush.]

Tuesday, February 16, 2010


NYLJ 6/03/07


3. Does Judge Edmead get the most interesting cases, or does she make them just seem that way? Then again, it may be as much as appearing sage and succinct in summaries; clean and clear they almost inspire aphorisms in their formation. In this instance, she cut through the P.C. clutter to the core issue, characterizing the matter as dueling protected classes: gender politics vs. religious freedoms.

The case of Fairchild v. Doudek becomes the issue when it is the defense’s company which fires the plaintiff after the president learns he is gay. Like the day after. Any other explanation becomes absurd when the circumstances are made clear.

The plaintiff sees a lesbian magazine on the defendant’s desk and either believes the defendant is into kink, or has a similar inclination to his. The defendant says it is for his gay daughter. The rest of the conversation may have been droll, until the defendant hauls out his bible and starts quoting scripture on the damnation of homosexuals. The following day, his pink-flavored veep is given the pink slip.

The contention is whether or not the defendant has to answer the plaintiff’s counsel’s questions on his religious beliefs. The defendant stands mute on the ground that this would impede his constitutional rights to privacy and free exercise of his religion.

Time to parse, again. In Judge Edmead’s ruling, that word comes up again. “No person should be permitted to use that right as a cloak for acts of discrimination or as a justification of practices inconsistent with the protections against invidious discrimination proscribed in New York State law.” Going further, she nails it when “it forms the basis of a bias against a member of a protected class, an inquiry into balancing the competing interests favors disclosure in order to uncover evidence.” In the matter of a finding of fact, you have to give full disclosure the nod.

The defense motion to compel, outside of the constitutional objections, was as well as that they “were overly broad in scope, vague and confusing”, which sounds more like a personal problem, seeming to sum up in it being likely, “to encourage a jury to equate certain religious beliefs with bigotry.”

To the judge, it was not confusing at all. “It cannot be said that a belief, regarding a protected class member, is irrelevant or has no bearing on establishing discrimination.”

The funny thing is how the counsel for the plaintiff saw the decision. “You can’t have civil rights statutes protecting homosexuals and others and then be put in a position where a person uses religious freedom protections as a shield.”

So let's try to take an axiom to them?

Cloak & Shield. You can't hide the elephant in the room if you want to hide behind it.

Or: Don't call someone a wolf in sheep's clothing, if you want to cry wolf?

[Yup. Fun...within the law.]

Monday, February 15, 2010


NYLJ 6-03-07


1. Once upon a time, the US Court of Appeals opted for a three-way split on the issue of religious activity in public buildings, a/k/a The Enchanted Ruling…or, The Logic That Ate Its Own Tail. No one says that the justices were looking to the language of fairy tales or legends for parsing suggestions. Still, if you start seeing Rapunzel as a cure for illegal possession of Rampians via personal service contract, or Hansel & Gretel as cruel and unusual punishment for trespass and criminal mischief of eating a house or Cinderella as estate malfeasance and failure of fiduciary duty by Cruel Stepmother, you’d be forgiven to think this particular decision having as much Grimms as Blacks to it.

The story of this spell begins in a dispute that dates from 1994. At that time, the Bronx Board of Education opened the use of school facilities to outside groups for “social, civic or recreational meetings…and other uses pertaining to the welfare of the community.” In accordance with that wording, from the Standard Operating Procedure manual, they had denied a permit to the Bronx Household of Faith, and later revised it to encompass “any use as a house of worship.” This would seem to be all she wrote…if she was Lady Justice and blind to the evils of the world.

But the Grand Wazir of SDNY (who granted a preliminary injunction against the old rule) sure wasn’t…and certainly not blind to the fact that churches are also voting blocs. This is also the same Robed One who gaveled a permanent injunction to stop the city from enforcing the revised version. And it is this that became the basis of the Enchanted Ruling. So great was its power that it had to travel all the way up the Magic Kingdom of the Court of Appeals. There, the Three Fates brought it into their mystical pot and brewed up the following alchemical incantation:

The spell is vacated by decree,
But, alas, apart, you see,
We are not One but Three,
And such the course it set for we
Is that all must disagree…

It all came down to the original curse: Good News Club v. Milford Central School District, 202 F.3d 502 (2d Cir. 200). The Supreme Court’s original wand wave there was that the petitioner was “seeking to address a subject otherwise permitted in the school, the teaching of morals and character, from a religious standpoint.” This “standpoint” created the evil miasma which would later be dubbed, “viewpoint neutral”.

The Enchanted Ruling’s permanent injunction took a cue from this hex with by even more dissimilation in the 2nd Circuit majority opinion: “It cannot be said that the meetings…constitute only religious worship, separate and apart from any teachings of moral values.” Somehow, in their conjurer’s vapors, “separate and apart” can obscure faith-based codes, embedded meanings and vocabulary references and good values equals God values, and vice-versa...irregardless.

Such is the further obfuscation that, when it came time for the C of A to render its opinion, the Three Little Pigs may come to mind (in their choices of building codes) as much as the Three Bears (if Goldilocks was the ultimate arbiter on the merits of their positions). For the purposes of this tale, however, we need to separate the unholy three to know their roles in this metaphysickal drama, which was something of a problem even for MacBeth. Then again, when you’re talking terms of art, any type of stock characterization will do. So let’s call them by their off-duty hobbies: the Woodsman, the Huntsman, and the Bishop.

It was the Bishop who went dogmatic. “Though our Milford decision was reversed, holding the restriction was viewpoint neutral, they did not address our conclusion that were the restriction only content-based it would be reasonable.” This might be seen as a bit theodic-biased were it not for his insistence that the exclusion of worship services makes it viewpoint neutral, and reasonable if content-based…as if there was a provision in the manual to have someone stand around and after-hours classroom and monitor every word, gesture, symbol, smile and eyebrow lift in the lesson plan to ensure that hairs were being properly split. And someone tell me he isn’t going to count the number of angels dancing on the head of a pin…

The Hunter took an even narrower bead on the Bishop’s spoor as a “fatally defective approach…to fail to define ‘limits’ of a limited public forum, leaving an open question about the differences in one ‘expressive activity’ and another, and as well failing to define ‘worship’ as an ‘expressive activity’, leaving it up to the Board of Education to come up with a standard.” You would think that he could at least distinguish his prey better than that.”

And master tracker manages to get even higher on his horse than that by proclaiming, “This case is one that requires us to draw lines. The Woodsman has drawn a prudent line in the sand…and declines to cross it.” The upshot for the Hunter was that the master of the forager’s art felt the issue was “not ripe” for adjudication came from the fact that, as the Board had yet to actually refuse a permit to the Household of Faith based upon the revised SOP manual—not that the injunction on the previous rule had ever been vacated long enough to do so—and, it appears, his “prudence” was not thought of as equivocal or even overly-fussy, but admirable! Like he can’t see the forest for the trees?

The Bishop was not so kind to the great gatherer either. “The Woodsman, meanwhile, has drawn a circle around our schools to keep worship (whatever that may be) out.” His eminence’s biggest legal qualm was that “the Board engaged in a form of invidious viewpoint discrimination forbidden by the First Amendment, by comparing the purposes of Household’s proposed use of property with the purposes by which the Board has opened the property to the public.”

Thus was the Enchanted Ruling established. No one dared ask the terrible question: What purposes? Purposes that conform to the U.S. Constitution’s separation of Church and State?

Maybe we should call up the Talking Mirror from Snow White and ask: Who’s the fairest of them all…

Saturday, February 13, 2010


NYLJ 5-11-07


2. The possession of a Formula One classic Lotus model is the purview of those for whom the dollar value is nought. Unless you are a museum keeper, and then it is more a matter of stewardship than ownership. And, by that time, all issues of provenance have been worked out well in advance of cash on the barrelhead. Any questions left open after you have signed on the dotted line are the “risks of conscious ignorance.” And that’s not a “mutual mistake”—sorry—even if you wanted to call it “fraud”.

By the time the dead champion’s mechanic’s letter arrived, it was already too late.

Chrome had heard that there was a kit model being bandied about as Falco’s original 1962 title machine. The internet is a great way to pick up on these things, if at times a bit difficult to use when you choose the wrong search parameters. He apologized for the time it took, adding at the end that the last time he’d seen the car it was still in the widow’s garage in Bern, Switzerland. And badly in need of a tune-up.

It was not Werner Von Heisenberg who was quoted in the courtroom, but it might as well have been. The court, in granting Summary Judgment, stated that, by having his own mechanic verify the authenticity of the Switzerland car, the owner accepted “uncertainty as part of the deal.” Perhaps ignorance is bliss but it cannot be offered as a defense when proof was available, if that was essential to the terms of the contract. In this shifting world of false assumptions one must face the caveat emptor: Beware the Bona Fides!


NYLJ 4/23/07


[This preface may sound like an episode of "The Wire" that got away, but it isn't fiction--at all. (The reason it is more comprehensive than the excerpt is that this is written in retrospect. As much as I prefer letting the abstracts speak for themselves, however brief or long they may get, this one deserves a tiny recap on its own. And that it is longer than the abstract just proves the essential message of this blog -- there are a million stories in the New York legal system, and twice that many in the appeals process.)

It involves the Brooklyn Democratic Party, the largest machine east of Chicago, and possibly its only equal remaining in America, and how its patronage system still resembles something out of Louis XIV. And considering it is the courts at issue, it seems uncannily appropriate that what is for sale are judicial appointments in the County of Kings. And what august personage could dictate these imperial fiats? A State Assembly leader for 23 years, at best, but merely, mostly, nothing more than the Brooklyn Democratic Party boss Clarence Norman. That he would later go down on charges of extortion, solicitation of illegal contributions and theft of $5,000 from his re-election committee may be less than he deserved, but they were lucky to get that.

The reason? The other actor in this drama was one of those judges. He presided over matrimonial: apportioning alimony, child custody, and support payments. Some might have wondered at his decisions, but the only ones who knew for sure were the lawyers who bought them. It got to the point where bribes were offered to the calendar clerk to get their cases before him. Those in the know would pimp his services to other sleazeball attorneys who knew which butter was on the side of the bread.

After five years of following these rumors, to sweated confessions, leveraged revelations leading to full investigations with wiretaps and video plants, watching ex-parte discussions and cash and cigars, the final straw was enough to break the back of Judge Gerald P. Garson and earn him a 10-year bid, doing a minimum of three. Not to mention all those sad and tortured parents who got a bad call from a bad man rapping on the door of his attorney with Civil suits.

But all this is getting ahead of ourselves, by at least two months. The scene today is but a whisp of the whole. And so, we adjourn for a bit of whimsy which might have occurred previous to the Oyer Terminus...]

2. “The sword of justice cuts both ways” was what the Jimmy Stewart character said to the parole board in “Calling Northside 777”. “It protects Wanda Skutnik’s lies but keeps cutting the ground from under Frank Wieczek,” who was imprisoned by false testimony whose only virtue is that it is on the record as accepted by a court and jury.

In this case, the way it is held over an ex-judge—in the form of a maximum sentence or an unconditional discharge in the event of concurrent sentences—it gets invoked by defense counsel as being used as “a sword to extract information,” isn’t really accurate. More like a knife at your throat. The DA liked that one, but it wasn't quite...there, if you know what i mean. So he went with the default setting; lay it on the line. “Tell me what you know about Borough corruption, bribery and the sale of Judgeships and maybe you’ll see some sunshine before you kick the bucket. Hold back and…need I say more?

“No? Then you should.

"See, this is how it works. That’s the reason we had you wearing the wire for a month. And no, we don’t know who tipped the dailies you were doing it. The deal was you’d get Winesburg talking and we’d crack his operation. You may say he blew it, or maybe one of his boys, but the fact is it was your chance and you blew it. You didn’t want to spill on your own past—hey—that’s your problem. Do you really think we’ll let you go in the appeals process? C’mon.

"So why don’t we put the screws to the party’s county chairman? Because he was better at covering his tracks than you!

"You know, the way your counsel put it—about the sword—it just hit me, he prefaced that with the premise that “a sentence is supposed to be individualized, it’s supposed to fit the crime.” Whaddaya know—it’s “The Mikado”! That’s the song of the Lord High Executioner! Pretty funny, huh?"


And the hits just keep on comin'!


Today is a sum-up of the proceeding proceedings, including ancillary fallout. This includes thre other defendants who pled out or were convicted: the court officer who steered case to Garson, an Israeli businessman who acted as his tout/pimp, natch, but also the client of the atty who snitched (ahem--"turned state's evidence" or "cooperated") for making the bribe which led to the revelation. The atty himself? He cops a plea to a single misdemeanor count of giving unlawful gratuities and gets a recommendation of no jail time.

On the bright side, the Brooklyn boss who turned the judiciary into a pay-for-play system, Norman, got a stay pending appeal for 18 months until the 2nd Dept. affirmed his first two convictions. Meanwhile, Garson himself could have made his own deal to cap his prison time at 16 months, but thought he'd get a better decision than the full count and three consecutive sentences. (In what world?) At 74, with bladder cancer, his atty is "concerned about his medical condition." Not to be cruel about it, but was that from all the free meals and drinks he got, on top of the $250 box of Dominican cigars? Oh yes, and also "severe alcoholism." Unfortunately, the Joint is a great place to dry out.

This is NOT in the four-paragraph order from the AppDiv 2nd Dept., but it might as well be. Curious point is differences in their appeals: the former raised numerous trial issues (like immunity handed out like party favors) while the latter goes back to pretrial issues that were already litigated.

The other thing is the understandable (well-nigh justifiable) and righteous anger from his fellow justices. Enough have refused to write letters requesting leniency to put to rest any idea that there is a "long blue line" among black robes. Figure, as well, that tapes of him in his robing room saying, "One of the great things about this job is that I don't know what the fuck I have tomorrow until I get here and I don't give a shit either."

MAkes you proud to be a Marine.

Friday, February 12, 2010


NYLJ 5/24/07


4. Start at the statute and it all seems dry as melba toast. The Federal Trafficking Victims Protection Act of 2000 covers forced labor and coerced behavior in what is defined by the term of art as a “commercial sex act”. And that is when the taint of some salt begins to hit the tongue. You roll it around and there’s “commercial”, which makes you think of everything from a 30-second spot to a lower-grade of product one step up from generic. Then comes the well-nigh compound noun that runs together as “sex act”, conjuring visions from old 42nd Street peeps shows to a hand job from a TV in the sordid depths of the Meat Packing District (once aptly-named) and all points in between, neither excluding nor underscoring prostitution in any form.

At this point, it reaches the state of the taste of a really interesting appetizer.

When it comes down to case, you have a defendant, non-descript as you might expect from a webmaster, expect that the ‘master’ also applies to his much softer-ware, his slaves. This is where the simple bite and tang begins to sour. How do you draw the line between a consensual relationship for mutual gratification between two adults and pimping out a stable of whores addicted to pain and low-self-esteem?

You don’t. You just add it up. The He-man makes a profit from his She-Ras by using their provocative photos to bring members to his internet site, offering them anonymous pleasures of selecting women they like, the costumes they would like to see them in, and the tortures or positions they would find most piquant. Sort of an “ala carte order of perversion” was how it was nailed in cross, imprinting the idea of “one from column A, one from column B” in a whole new manner upon the jury. Have to hand it to He-Man though. For him, as it was for her, this was a creative exercise, a craft in which they were partners. The “alternative lifestyle” which is so often bandied about would have to measured against the “work of art” argument.

Then the famous pornography definition comes into play. “I may not know how to define it, but I know it when I see it,” proves that you don’t need to be a wit to be on the Supreme Court, but it helps if you want people to remember your decisions. Looking for “transgressive material productions’ via Google may be one way of getting to the site. But, as well, page markers for “bitches brought to heel”. While one may be called “art”, the other is purely prurient interest.

Follow the testimony plain and unvarnished and it develops much as any inhuman affairs. Sherry met Herman in a B&D chat room and began an increasingly intimate correspondence, leading to a physical encounter in which she consented to the relationship as a submissive to his dominant will. This is not in dispute. At his direction, she moved to Baltimore and took up residence with another slave, with whom, as part of her duties, built and maintained his website, including answering correspondence with members as well as posting photos of herself being “abused”.

The question of abuse, at this point, was more a term of art than a felonious assault. There is no question that she derived pleasure and gratification here. That participation in the financial enterprise and the psycho-sexual gameplay which, however much it may be indistinguishable from what a reasonable person might term both “crass exploitation” and “sick, depraved and ugly”, is a choice made by an adult who is mentally competent. Any further question of whether or not she is “compos mentis” is really answered by the fact of the instant case: she tried to leave.

It was a year later when during a visit to his slave quarters in Maryland that Herman had handcuffed Sherry to a wall, preparatory to a long session of torture. As characterized by the DA on direct, the proscribed limits of sado-masochistic role-playing are when the victim and 'administrator' have a pre-arranged “safe word”: an agreed-upon non-sequitor that signals one has had enough. “Crying ‘Uncle’, as it were?” was the way to get it into the record to remember.

However, in the social contract, there existed no such exit clause. When Herman places a whiffle ball into her mouth and sews up her lips with surgical suture, any other option for protest becomes moot. Then came the hood and an extensive caning session followed by rough intercourse. This was not the culmination. That Sherry was then moved to a flat board and rechained in order to continue her brutalization on her front is what triggered her fear that she no longer had any out save flight.

It was shortly thereafter when Sherry left Baltimore and moved to New York City. Some jurors may have found it strange that she would move in with another of Herman’s slaves, in that city, but the prosecution’s expert witness on cult survivors offered a perfectly acceptable explanation. “In such cases of extreme exposure to a particular doctrine or discipline, and ex-member will seek the counsel of other disciples or ex-members, much as you or I would, after say, an extended stay under water in the deep, need time in a hyperbaric chamber. The body adjustment to sea-level pressure is similar to what the mind must overcome, the prolonged exposure to the domination of another’s physical prescence and will is better dealt with by others who know the codes; the modes of behavior, the moods, and can share their knowledge and empathy. Just because the person she went to live with is another slave does not mean she cannot aid in the victim’s recovery from her own slavery.”

Then there was the additional aspect of the control of her “intellectual property”. Herman still had distribution rights to her images, even, as if in some cheap porno stroke book, threatening to send them out to her friends and family if she did not resume her submissive role. While living with the slave in New York, Sherry made a few attempts to convince Herman that their “product” should be under her control as well, attempting to gain some degree of choice about this joint venture. However, her assertions of independent action clearly had the reverse effect, and it was at this point when she went to the authorities.

Such as it was that the judge ruled in favor of a statute more used in the prosecution of RICO-affiliated cases, in counterfeit smuggling of artificial snuggling as well as the standard import of foreign nationals to work in ethnic enclave brothels. Even the view from the bench was that this was a “Novel application,” observing “while the Congress did not expressly indicate its desire to regulate labor or services performed within this household, for that was, in essence, the situs of the continuing incidences, the legislative history provides no cause to believe Congress intended to exclude this type of labor from the statute’s reach.”

Which was exactly the basis of Herman’s attorney’s in seeking to set aside the conviction. It was their contention that insufficient evidence was presented for the jury to find a nexus between the defendant’s coercion and the commercial sex act or labor element. It should be enough to ask, “Can anyone tell me when the accrual of revenue from the photographs could be differentiated from the acts themselves—‘acts’, mind your, is the word which is used here, and while it may mean ‘actions’, it also applies to the consensual gratification of two adult individuals engaged in role-playing games, as much as movies, and one’s in which no Oscar is more rewarding of a brilliant theater piece than convincing the other that what they are experiencing is real. To that end, then, whatever props, ploys or plot devices which are employed to that end, are not only fair but expected.”

As arguments go, this is pretty good. A bit of sophistry and some rhetorical flourishes (especially the redefining of ‘acts’), but all-in-all a fair summary of what is at the back of a lot of male juror’s minds. No matter how liberated and balanced the attitude on the sexes, there is always that primitive part of which comes in a guttural utterance: She asked for it. There it is; that overwhelming conundrum at the heart of the defense case: if “no” was part of the script, when did it change to being part of the contract?

This is exactly the premise his counsel would put forth on appeal. “Unless you are a major proponent of judicial activism,” couching the issue in terms readily understood as left-wing in the preset climate of conservative retrenchment, “this calls for a narrow reading of the statute. If read as broadly as this case would present, it would subsume within it a lot of fay-to-day innocent conduct. It would be hard for me to see any federal interest being vindicated here.”

The Court stuck to its guns-&-butter issue. “The evidence entered at trial was sufficient to show that the defendant’s conduct—no matter how you read ‘act’ or ‘actions’ or ‘theater piece’ or ‘therapy’—fell within the plain language of the statutes.”

“And as for your ‘contract’, the ‘no’ part became active the moment she exercised her option on the Escape Clause. Don’t look for it in the fine print; it’s in approximately the same spot as in the Constitution of the United States. I know Jefferson didn’t make any specific reference to a 3/5ths compromise about sex slaves, his Sally Hemmings aside, but the bit about Liberty, and Freedom from tyranny, is close enough.”

Tuesday, February 9, 2010


NYLJ 5/24/07


It takes a broad canvas to paint a picture of eras in turmoil and transition. It probably wasn’t invented by them, but it would be hard to beat Dickens with “A Tale of Two Cities” and Tolstoy with “War and Peace”. The events of the day are the macrocosm of large events that give it real form; the microcosm fills the space with details we can readily understand. So when two articles appear on the same day, even with a tangential reference, one must pause to appreciate the novelette presented.

3. When judges clash, mix-and-match animal behaviors come to mind first because that befits organizing myths. So…Caveat Lector—this is not going to be pretty. Miscegenation in metaphor means locking horns over the pecking order to see which Great Ape gets to mount the other. And to further confuse the faunal, the stream of consciousness, in Judge Mendel’s mind, is one in which his salmon of logic gets to vault torrents from one jurisdiction to another, hoping to spawn in new pools of thought. Yes, all well and good and beautiful, yet there’s another stream out there and, it’s not that he ain’t polite, but in a pissing contest employed to mark territory, when Justice Wasp can grant a writ of mandamus, you’re in the urine, Gefilte-Fish-boy.

To trace the scent to its source, it would have to be the Thompson Memorandum. This was the document setting out standards to be followed by federal prosecutors in deciding whether to bring charges against companies. Think about it: you can go after alleged perps or the business they represent—and then it all becomes a matter of who has the deepest pockets.

Because this is the issue at issue today and the way of the weight of the world. In Dickens it was despotic rule vs. bloody revolution. In Tolstoy, it was the aftermath of that revolution devolved to a despotic end. Taken together, you can see the wheel go round its cycle if life. Here, it is America, so it has to be all about money. One of the “Seven Sisters” in the realm of super-sized accounting firms, KPMG is accused of bilking the US Treasury of billions in taxes. You’d think the prosecutors’ first mission would be to go at them hammer-&-tongs until a settlement was offered & cash coughed. With a gang of ex-execs already indicted, there would be ample opportunity to leverage them into turning state’s evidence, right?

Then put yourself in KPMG’s shoes. It would even appear to be a wise investment of capital to have the firm continue to pay off their legal expenses, no? Not. Not when you cut off the defense dollars at the source. This is where the beavers of the DoJ figure to put their dam; to where KPMG, the Big “D”, stops the cash flow, and the government drops the charges, letting the little “d”—the ex-execs—fend for themselves. (If this sounds too much like a Jack McCoy move, should.) That’s how the game of high conviction rate gets played. Watching it from the riverbanks, you get a sense that somebody must like the Big “D” very much. That’s when Old School ties and Masonic handshakes and class warfare start to stir the imagination.

Mendel, though, didn’t have to go all Talmudic logic or Rombom wisdom; he just thought he could see the writing on the wall. The “mene mene tekel upharisian,” freely translated here, came out in his previous decision in United States v. Stein, 435 F.Supp, 2d 330, concluding that the government had used the threat of prosecution to pressure the company to cut off the defendants, thereby violating their rights to a fair trial and effective assistance of counsel.

And that was why he claimed ancillary jurisdiction over the fees issue and found for the defendants in Stein v. KPMG, 06-4358-cv. In a perfect world, this would be the cherry on top of just(ice) desserts.

Unfortunately, a criminal prosecution being heard in SDNY is a dog that not only won’t hunt, but should have never been given the scent. In Wasp’s opinion, that case, and its claims, sound in contract—a far cry from the faintest Federal odor. He did throw Mendel a bone, though, leaving him free to offer other remedies for prosecutorial misconduct, event the most drastic one of dismissing the indictment for 5th and 6th Amendment violations, “if it turns out that the government’s conduct separates them from their counsel of choice.”

Which brings it all back to the Thompson memo. Mendel could yelp and yip all he wants that the prosecutors let their zeal get in the way of their judgment, violating the Constitution they swore to defend. Let ‘em howl for all I care, says Wasp, a trial of claims to expenses based on contract—especially implied contract—will go over very different factual ground. You’re on the wrong track, Bowser; time to get the snout out!


2. Now, so that ground can be seen from both ends of the binoculars, let’s go for the up-close and personal. It’s the story of the tax partner at Phallus Dallas, one Sidney Tsarina. He was part of the package when Greene & Foliage merged with Phallus and was, at that point in time, quite a quill in the cap for creating tax shelters, the very same ones he managed with the ex-execs of KPMG. And it was bogus opinion letters he, and they, issued by the hundreds which were used to provide legal cover, giving shade to the shelters from the bright light of reason.

It took Phallus nearly two years to come to the conclusion that Sidney’s terrific billing rate had a heftier price. They, too, had seen the writing, but their ‘mene’ was another “Sister” called Arthur Anderson. When too much of Sidney began to resemble Arthur, they politely steered him to the Golden Parachute & Greenmail exit. This was at the same time as Jenkins & Gilchrist were reaching a non-prosecution agreement… mostly because they were going belly-up when their clients began to read similar screeds—that wall now resembling interiors of grafitti-ized subway cars.

So, if everybody is caught dead-to-rights, then why was the Anderson case overturned by the US Supreme Court? Was that the same reason that the Thompson memo was crafted? Ah, question, question! We might let our conspiracy theorists suggest that orders had come from on high, revising the guidelines and setting higher hurdles in criminal investigation and prosecutions of business organizations. It wouldn’t require a license to paranoia to believe the justice department had decided to go out of the business of justice, or justice in business—or something…but it might help. All of this inevitably leads to watching the wheel go round again, and letting the old hound tell the pups the truth: it is not so much a Get-Out-Of-Jail-Free card as much as a Make-A-Contribution-to-The-Community-Chest. Either way, the money game could go on, at least until Monopoly merges with Clue.

And that’s how Sidney ended up all alone in criminal court (except for his own well-heeled attorneys), Phallus pays a $40-million-dollar fine and KPMG gets off the hook while its staff goes surfing in the sewers.

Thus barketh the Big Dog.

Monday, February 8, 2010


NYLJ 5/23/07


1. An Appellate Division’s reversal isn’t uncommon on divorces granted by juries under the “cruel and inhuman treatment” standard. A wife on the stand would be expected to bring up cold shoulders in the bedroom and withering sarcasm to constraints on personal allowances or cutting remarks and public embarrassment. The more titillating topics might entail extramarital affairs or simply call girls and whores, or orgies, beatings, wild living, financial extravagances, drugs, booze, gambling--the list is endless as are the possibilites.

Then again, recounting allegations of near-rapehave to rivet twelve peers by sheer drama alone. Not that lurid descriptions such as “ramming me up against the wall in the bathroom…” and the many occasions in which he’d “physically grabbed her,” and the times he’d “grab me, pull me down the hall, block me so I can’t leave the room, throw me on the bed and push me against the wall,” aren't adequate to express the horror that conjugal relations might descend. However, it can be as much a description of assault and unlawful restraint as it is a jolly good time—in some minds.

But when Domestic Relations Law section 170[1] is brought into the mix, the plaintiff offers only vague references to the subjects under text and no evidence of injury. That leaves it to uncorroborated testimony and no demonstrable affect on her mental well-being, meaning that the defendant’s conduct is not much of a fact-finding mission for a jury as possible material for Jerry Springer.

Oh, except for one material fact: they are still living in the same Upper West Side apartment.

Make of that what you will. The AppDiv did as well.

Sunday, February 7, 2010


NYLJ 5/7/07


1. So, the release of documents surrounding the arrests of protesters at the 2004 RNC would prejudice the City’s right to a fair trial? In what way? On what planet? In which universe?

Of course the public has no right to know; it wasn’t as if any of “them” were arrested. That was only the criminal element, right?

All that posturing over who leaked the documents to the Times—the demand from city attorneys for affidavits of denial from the ACLU attorney’s?—ludicrous. I’ve seen better jockeys working the weekday claiming races at Belmont. And these clowns think these are big stakes?

Probably. Everyone gets delusions of grandeur when they start getting their name in the papers.

A “no-summons policy” for arrests? Fingerprinting people? Under what pretext? Felony? Ok, fine. The city claims justification by prior knowledge, from intelligence gathered before the convention. Me? I’ll go along with Reagan’s old commercial vs. Mondale: WHERE’S THE BEEF?

Yeah, and what is “misleading” or “inflammatory” or “prejudicial” in repeating to the press the exact iterations made in the S&C?


When politics enters the courtroom, there’s always got to be plenty of extra seating. You’re going to have to make space at the plaintiff and defense tables for extra motions as well, along with extraordinary privileges and exclusions—that goes without saying. Just also expect a benchworth of pleas and arguments coming from the steps of 60 Centre Street, where cameras can turn an exit into an impromptu press conference. Ergo, hence, thus thereafter, into the subjects of rulings. And the only way to know you’re doing it right is when both sides are unhappy with you.

Throw a bone to the DA’s office—that’s easy. The questionnaires taken by the ACLU of just-released protesters, on their arrests, was a no-brainer. The “intake form” was for the purposes of creating a general study survey of practices and procedures used by police, their tactics and results. But an expectation of confidentiality?—Nope! Not a chance. Attorney-client privilege? Geddoudaheya. Unless you show intent of further legal services, that dog won’t hunt. When you publish results in the pamphlet entitled “Your Rights, Their Wrongs,” don’t come into my court and start waving the constitution. I’ve already got one.

On the other hand though, it gets equal application when the Government makes asinine representations like accusing the lawyers for the plaintiffs of leaking classified intelligence reports to the press. You can do that all you want on Foley Square—that’s public property. But when you put a demand motion in front of me, saying that all 30-plus counsels should give me sworn affidavits that they were not responsible…well, you gotta laugh.

How many employees on the city payroll could’ve handed over these documents? Oh yeah, and the two reporters who got them? One showed me raw data abstracts. The other had their final product—but without the “attorney’s eyes only” stamp that’s on all the papers you turned over in discovery, right? So maybe they could’ve used white-out? I’ll buy that—useful stuff; doesn’t even show up on copies, if you do it right.

So let’s play ‘Let’s Make A Deal’. You want disclaimers, even after the reports had come out in the press and I lifted the confidentiality order. You want me to discount the DD5 forms, used by your intelligence units, that showed up as the source for one article—the forms you didn’t turn over to the plaintiffs. That the other piece may have come from someplace else, that’s your case, right?

Ok. So now that we have the full Monty Hall on the table, you get to choose Dorr #1 or what’s behind the Curtain of Silence. Door #1 means I want direct evidence of a violation of the protective order by a lawyer for the plaintiffs. Show me something with a chain of custody. Either that or go behind the Curtain and get me sworn declarations from all of the State’s employees who had access to these documents.

Then we’ll see who gets the big prize.

Saturday, February 6, 2010


NYLJ 5/23/07


4. Another lesson of “Our Lexicon In Action” is, more specifically, two words in the Longshore and Harbor Worker’s Compensation Act, 33 U.S.C. Section 901 language which is, ultimately, the issue between a federal administrative law judge and the U.S. Court of Appeals for the 2nd Circuit. This would seem altogether academic and austere, twee even, were it not the end of a man in another of those sad series of events, choices, acceptances, of our daily burden as wage slaves without much recourse other than a shrug and a sigh of “That’s our lot in life”.

Mr. Shipfitter, shall we say, contracted asbestos lung over the years at Electric Boat, putting in a claim for the pittance figure of $30,000 for his debilitation over the years. Small price to pay for your health, it would seem, but the company must have thought any other amount would have been less deserved as they invoked Section 8(f) of the act which states that an employer only has to compensate an employee for two years where said employee has an “existing permanent partial disability,” and then sustains a work-related injury that results in total disability. And after these two years are up the only recourse remaining is a special fund administered by the Secretary of Labor. So the Boat people were perfect citizens under the letter of the Law. But that doesn’t mean words.

So, leaving aside the probability that it was only his job which killed him, when Mrs. Shipfitter went to apply for death benefits to Washington, it was still their right to persuade the power-that-do-such-things to credit the whole 30k for the disability award to this application. After all, they shouldn’t be taxed twice for the same payoff, don’t you agree? The judge sure did, stating, “in the absence of specific evidence of the apportionment of a state settlement, the employer is entitled to credit the amount of the state benefit paid.”

But wouldn’t you know it?—it was the minority reort who had the last word, and, ultimately, the best.

USCA 2nd found the reading of Section 3(e) as credit should be given for “amounts paid for the same injury, disability or death for which the benefits are claimed.” Judge Kittykat said, “the use of the present tense unambiguously indicates that only those injuries currently being claimed can be considered in applying the 3(e) credit.”

That he goes on to further cite the Black Letter law of Grammar makes it all the better. “When disability and death are listed in the disjunctive in the Longshoreman’s Act, they should be treated independently, even when both were cause by the same event.” And further, in accord with how other circuits have addressed the problem of double recovery, the key point is what is being claimed currently, and also that the burden of proof for the allocation lies of the party that seeks to apply the credit.

Kinda makes you glad that, beyond all the Westlaw references, headers, keynotes and such, somebody still uses good old Strunk & White when they really want justice…

Friday, February 5, 2010


NYLJ 5-22-07

[This is probably the beginning of an ongoing series called Sidebar. The idea is that there are these moments when, in a trial, or in discussion among justices, the court stops, everybody steps out of their roles and everything is thrown into a heightened relief.

At any rate, this is also is going to inaugurate a new label for blueback. Just for a bit of background, several years ago, the Modern Language Association of America did a study that went on for a while as they wanted to find out a bit how we talk, which also implies how we think. Let's not cite chapter and verse and just cut to the chase, for once. It is estimated that in post-industrial, First World States, there are roughly 10,000 words in the general lexicon--outside of specialized vocabulary as in professional jargon or hobbies or past-times (different classes)--available to anyone to use. Of that set, the average person uses, in the course of their entire life, something in the neighborhood of 1,000 words, in regular rotation. In their daily lives, in the course of one sidereal rotation: 100.

That is all said to say this: most people don't care. At all. Period. Language is either for making money, gossip or comedy. The rest is action. For the purposes of this blog, however, it is of paramount concern. And when you stumble across a day like this one, in the Journal, you need to give it your full attention.]

So the word for today is PARSING or TO PARSE! What most of us would think as a job for Webster’s, the New Collegiate or Funk & Wagnalls—and at the extreme, the O.E.D.—becomes something quite different when the Court of Appeals is asked to rule on definitions. It is Clinton’s famous excuse “What is the meaning of the word ‘is’?” that comes to mind when the oral argument calendar brings up the importance of statutory clarity.

Regard the situation of a loon who inhales “Dust-Off” spray from an aerosol can while operating a motor vehicle. While this might be excusable if he were trying to clear his dash board of lint, the fact that he was actively seeking the affect the hydrocarbon propellant would have as a depressive on his central nervous system, has to mean he was looking for a “down”. As any seasoned huffer will tell you, he had to get a nod, and while driving at full speed on the highway, resulting in his straying over the divider and smacking head-on into oncoming traffic. Vehicular homicide would be the coroner’s assessment, but “Depraved Indifference” in Felony, or “Negligence” in Liability? Depends on where you draw the bright line. For the former, in the 2nd Degree, you need proof that the defendant has violated Vehicle & Traffic Laws Section 1192(3) that “no person shall operate a vehicle while in an intoxicated condition.” And that is where the tragedy of instant death accelerates past comedy and leaps the guard rail to do another header into absurdity.

An acting Supreme Court Justice shouldn’t conclude that, within that particular statutory scheme, intoxicated should only be limited to the consumption of alcohol, should it? Well, surely the Appellate Division should not concur, right? I mean, they are all working with the same basic tools: a/k/a the English Language. Not if you take the anti-drunk driving statutes back to 1910 and add in the 1941 blood-alcohol content evidence inclusion—of course they should. And did.

So you might be led to think that it would be covered under another section of the VTL? Perhaps one on drugs? That would be 1142(4). And you would be wrong, again. It seems the writers of this section never anticipated anyone using that particular substance to get their rocks off. But they were wrong too.

However, the only miscarriage of justice would be that one charge didn’t make the cut. There are still criminally negligent homicide and second-degree manslaughter to content with—and these can’t be argued away over a question of semantics.

As for some antics...of another sort... Is it the Great Escape…or the Great Attempted Escape? It depends on how far away you get from an officer’s custody, and what appears to be your motive.

The motive is important as the distance. The mens rea here might be, 'I wasn't trying to escape, it was just exercise... I thought the guard didn't mind, he wasn't paying attention.' Or it might be, 'I forgot where I was!' Or 'If I was trying to get along, then why wasn't I farther along?' And until you can get that nailed, you are not going to be able to assign any penalty based upon intent.

So ya gotta go with what you know.

One might be a chronic repeater or a first-timer with opportunities, but it all starts with drastic measures. You're being walked from your secure ward down to the solarium and back and somewhere along the're not. If your first flight was 30 feet, before being grabbed, and your second only 12, and both are within the hospital facility, then you must ponder “physical contact” as much as “out of sight”. Which might also lend itself to the remainder of that saw, “out of mind”, if you were in deliberations over this one, and to wonder perforce: what was his escort thinking while his charge made his way away?

Thursday, February 4, 2010


NYLJ 5/23/07


2. It is always a hoot and pretty much moot when one of the richest men in the world brings a racketeering suit. The first thing any jurist packing a gavel must quip is: takes one to know one, eh?

With a moniker like Duli Yang Termat Mulia Paduka Seri Penigram Muda Haji Jefri Bolkiah how you get called Prince Jefri is probably a story in itself. But when you plead as Cedar Swamp Holdings v. Zamin, 06 Civ. 13626, in the Southern District of New York, there’s a great likelihood that the court officers will probably call you the Duke of Paduka, anyways.

This brother of the sultan of Brunei put his investments in the hands of this husband-&-wife team of English barristers, who probably put down their own prayer carpets to Allah to offer orisons for their good fortune. That their own diversified portfolio extended to buying and selling real estate, while acting as both agents of the purchaser and the sellers themselves, churning paper to up their compensation on deals, hiring wifey’s brother to a management position on one of the properties, as well as brokering below-market lenses, even, meant that they were busy little beavers during the two years of their employment by the Prince. But that does not come in under the heading of “mob related activities”.

“The Court recognizes that the RICO statute was intended to cast a wide net and that even loosely-affiliated individuals with little organizational structure can constitute an enterprise where the group exists solely for carrying out a pattern of racketeering activity. But it is not persuaded that the group constituting the alleged ‘enterprise’ in this case is anything other than a laundry list of individuals and entities connected to the alleged schemes of the defendants.

“Moreover, the Courts have held that allegations of a ‘hub-&-spoke’ structure do not satisfy the enterprise element of the RICO claim. That requires a plaintiff to allege that the defendants operated symbiotically and played necessary roles in the achievement of a common purpose.”

We don’t have any trouble defining a hierarchy in criminal enterprise—at least not since the Sopranos ended up in sanitized syndication—but look at this loose aggregation of isolated and independent individuals is to see an adhoc coalition of entities who just happened to luck out. That Prince Jefri decided to drop all this on the laps of the barristers is the same thing as walking into a dominatrix dungeon and saying: Hurt Me. What chafes is that you let it go on, either co-signing their bullshit or worse—giving them a durable Power of Attorney over unspecified real properties—was the sexual equivalent of adding, Oh, and I don’t need a ‘safe word’.

Yes, almost any One-L student and probably any number of paralegals could have looked at this and given it the same SJ: You may have longball hitters at your firm but that is dependent on you getting one over the plate, so to speak. This wasn’t even in the right ballpark.

So, from the bench view, it would be the Duke of Paduka becomes the palooka, or Mother of Mercy, this IS the end of RICO…in this action. (Which only means that a half-hour after this gets tossed they are filing the same 23 of 24 claims in Civil.)

Wednesday, February 3, 2010


NYLJ 5/21/07


[Off the top, was their headline writer channelling a New York Post scribe that day? It is almost surreal: the story of a hurt tavern patron's suit--possibly a double-breasted, maybe two-button, who can tell?--that is killed (mind you: it was already hurt, talk about adding insult to injury?) by a knowledge question? Can you see it hurtling out of the dark? Sharp and pointed, something between a flying swordfish and a corkscrew, writhing like an exclamation point with intestinal cramps, insane with pain, entering through the lapel, then augering, twisting deep into the fabric, batting, coming up through the shoulder pads and then, in one final thrust, delivering the death blow to the back like a seam ripper?]

2. In the dark, all pools of vomit look like floor tiles, like in the same abstract pattern as kitchen linoleum, but maybe with a bit more sparkle. On the other hand, if you’ve been in a bar for several hours and can lay claim to the fact that you had no alcohol to impair your judgment—including sight—the question arises as to how you could miss a splat like that, even above the other odors of the Ladies Room? And so it must be, with all deference, asked:

“How did you manage that?”—would be the leading one, leaning towards a sneer, delivered with the broad gesture which could be easily understood at the back of a mezzanine, in a manner of speech projected with equal measures of credulity and honest curiosity.

Her protestations would be no less award-worthy. "Yeah, well, It's really dark in there, you know?"

"And you never went in there before that night?"

"A'course I did! Does it look like I got a hollow leg?"

And he wonders, for a moment only, if "Jersey Shore" is a mindset or type casting or just bad casting. "So you have no idea how long the ejecta was there? It could have been an hour, or it could have been one minute."

"If I knew it was there, would I've stepped in it?"

"No, you wouldn't want to break you leg and be forced to sue for damages."

"Ya think?!"

For it is all an act; never forget that.

The corrections officer, moonlighting as a bouncer, could have been the type to have been written off as a liar on a CYA mission. However, when regular joe goes against a bar patron, out with her gal pal to maybe get lucky (who knows?), he comes off more credible than the tea-totaling twosome. The plaintiff’s attorney would call it “impugning the testimony”, but the jury wouldn’t. They can—and do—split hairs worse than cheap shampoo. There can be fault found in an unsafe condition existent extant, but, while the management may be liable, his testimony sure isn't negligent.

“Is it your standard and practice to check the restroom condition on a regular basis?”

“Every half hour. Otherwise, nice people wouldn’t patronize me.”

“And the function of the guard outside is not only to maintain the peace but lavatory facilities as well.”

“Well, that’s the Ladies Room. If I can’t get someone to report something, I can’t very well have my guy just walk in, now can I?”

"And you don't have bar maids?"

"They're the reasons I have male customers."

"And you can't have them check on the conditions in the rest rooms?"

"Can and do. But not every ten minutes."

"And why is that?"

"They're the reasons I have happy male customers."


Tuesday, February 2, 2010


NYLJ 4/10/07


4. When the town council meets in any sleep little old fishing village, the ordinances are as much whims of the electorate as they are meant to regulate the affairs of commerce and revenue allotment & distribution. Then, the major issue might be whether to install a parking meter outside the general store or an ordinance against dropping a pole off the intercoastal bridge during the hours when the schoolbus is making pickups and dropoffs.

However, when that sleepy little village wakes up to the fact that property values have skyrocketed since becoming the summer tourist resort for refugees of the steaming megalopolis next door, these votes can have far-reaching implications. Like First amendment conflicts.

Every time the average American see a Hari Krshna, Moonie, or Jews for Jesus pamphleteer, they have the same reaction. Something happens internally, a cringing sensation more borne of revulsion than fear, and the overwhelming desire to flee, or to put the blankest of expressions and the most speed as you walk past their desparately friendly pleas and imprecations. And Jehova’s Witnesses which—in some ways—are even worse as being so passive-aggressive. But they do have their rights.

It would be a toss up to who is more offended by them. The indigenous population, generations of Episcopalians and Methodists, god-fearing as any who would make their living off of one of the basic elements of existence, would have good cause; as if anyone had to come into their town square to tell them how to worship the almighty. Why you might as like invite Muslims and Mormons to the debate as well!

As for the transplants, those summer birds who jack up prices for five months—at the outside—and allow the natives to live off the difference for the next seven, they would be in two camps, and both equally hostile to the proselytizers. There’s the Eastern Liberal Intelligencia of The Establishment, or, as they are known by outsiders: the E.L.I.T.E. At the first sign of the approach of someone with a fixed smile and a blessing, they run as fast as they can for a decaf, double-latte and the shelter of treasured agnosticism. The others are the real Jews—those of the five boros who want a smeck of the goyim’s paradise instead of the usual mob in the mountains. The Borscht Belt might’ve been fine for their parents, but Moishe don’t surf, a Bubbe don’t blog. And sure, you got wireless in the Catskills and Poconos. And its Kosher too, you shouldn’t mind a bit. But you want to live in an emerging global economy, you got to make a break, you gotta go where the goys are….