Outside Counsel

I am delighted that Governor Pataki has appointed Gene Pigott to the Court of Appeals. It is unfortunate that the selection of this highly capable jurist is tainted with the fact that Judge George Bundy Smith was not reappointed, and by the fact that the court is now all white, but I'll take a court with Judge Pigott on it any time-- I really can't think of what a better judge would be like. It says a lot that Elliot Spitzer pays lip service to diversity but concludes, "Gene Pigott is an eminently qualified justice with a distinguished record".

A couple of side notes. First, it is not accurate to say, as some accounts have, that there has not been a Western New Yorker on the Court of Appeals since Matthew Jason retired in 1985. The Honorable Richard Wesley, from Geneseo, was on the Court from 1997 until June 2003. Second, how hilarious is it that Pataki says, "Reflecting back on it, I think I did know that Judge Pigott was a Republican, but it’s not something that even entered my mind"? I mean, please, dude, you have never picked a Republican for any court, ever. Who are you kidding?

The marriage recognition rule seems to be tripping up the Court of Appeals. It needn't.

"Judge Pigott frequently returned to his point that recognizing out-of-state same-sex marriages would discriminate against the New York residents who are in domestic partnerships or civil unions, but who have not crossed across the border to get married in Vermont or Canada, two nearby jurisdictions where same-sex marriages are now legal.

"We're going to say to Canadians and to Vermont residents and to people of other states that, 'You're more valuable to us than our own residents,'" Judge Pigott said. "That, if you're married in Canada, we're going to recognize your marriage. But if you have a civil union or a domestic partnership in the state of New York we're not."

The problem here is that there are two problems. One is the problem identified by Judge Pigott: New York ought not treat its own residents like second class citizens. That's not the issue before the court-- that is something, the Court of Appeals has already ruled, that the crooked and incompetent New York State Legislature has to deal with. Western New York's own State Senator William Stachowski is the chief impediment to this-- people should write to him. The other problem is less of a problem. Lots of places have different rules about marriage. Different kinds of cousins can get married in some places, there are different rules for what constitutes legal age, there may even still be places that recognize common law marriages. As long as the marriage was legit where it was entered into, if you are living in New York you are entitled to the protection of the laws of the state of New York. That's been the rule for a long time, and it shouldn't be too hard to figure it out in this case.

To a CLE yesterday in the WDNY: "Which Court? State or Federal and Why? Selecting Your Jurisdiction". Judge Pigott was one of the presenters, and unsurprisingly was insightful, but most of it was "State court litigators walk this way, and federal court litigators walk like this," you know? There was a hypothetical about an non-compete case, and everyone was very vanilla, so I said (because I'm an idiot), "Isn't the real difference in the outcome the client wants? If I'm the plaintiff, and I just want the faithless ex-employee to quit it, I'll take it to state court-- but if my client tells me that they want to grind the guy into the dirt, of course I'm going to federal court. My client isn't going to care about posting a bond, and the discovery costs are going to crush the defendant. I really hope someone tells me I'm wrong." Nobody did.

The reasons for this would actually have made for an interesting presentation. Judge Pigott had pointed out earlier that only 4% of litigated cases are heard in federal court (on a national basis) and of course that's because state courts are courts of general jurisdiction. Federal courts are courts of limited jurisdiction. Judge Pigott's advice was to approach cases like a sport: when you are playing a game you don't think, "Hey, I'm following the rules, how come I'm not winning?" and that a lot of people approach litigation as though the procedural rules are what matters, rather than the merits. Of course, that's always been my reason for going to federal court, and sometimes it works-- but the reason it works is because federal court judges have less discretion than do their state court counterparts. Federal court is far more rule-driven, which tends to mean that there are fewer points along the process to halt, or even slow down the process. It grinds forward, inexorable, bloodless. If a client comes to me, as they do, with a TRO, and I see that it's in federal court I know what the conversation with my adversary is going to be like: "Hi. I'm holding some papers in the ABC v. XYZ case. The rules say we should talk, and I'm wondering if you'd like to talk about the path out, or if you just want to talk about scheduling and disclosure issues." If it's someone I don't know, the answer is going to be terse: I have closing papers ready if your client wants to cease and desist, and pay the liquidated damages and attorney fees." Sometimes it will be someone I know, and then what I'll get is more along the lines of, "Sorry, Bill. My client wants to see hair on the walls."

Now, I'm not saying that my client-- a moron, who would have been spared a lot of agony, and even more money-- deserves much sympathy. He signed the non-compete, probably without talking to a lawyer, and maybe without even reading it. He eventually got around to reading it, maybe, and cooked up an argument in his mind about why it shouldn't be enforceable-- frequently this is a sophisticated piece of reasoning that boils down to, "It's not fair." He didn't consult with counsel at that point either, and now he is in the soup. That's not my point. All I'm saying is, the kind of soup, and the temperature of that soup, and the issue of whether this guy is going to be eating soup served out of the back of a church for the rest of his life depends a great deal on forum selection. Somebody should mention that.

Somewhere I got the notion that the Judicial Nominating Committee's list for the spot being vacated by Chief Judge Judith Kaye had already been announced. I was wrong--it came out yesterday. George Carpinello, Evan Davis, Steven Fisher, Theodore Jones Jr., Jonathan Lippman, Eugene Pigott Jr., and Peter Zimroth are the men on the list, which does not include any other sorts of people. Governor Paterson is upset about this. Judge Jones, who is presently an Associate Judge on the Court of Appeals, is African-American, the rest of the fellas are white. With the departure of Judge Kaye there will be three women on the Court; they are all white. The only one of the candidates whose political affiliation I am sure of is Judge Pigott, who is a Republican. Judge Fisher has been recommended for the Court of Appeals five times-- basically, every time there has been an opening since the year 2000.

A look at the credentials of these people is a pretty powerful argument for merit selection-- Patterson could use a dartboard and do okay, although I'd like to see Judge Pigott get the nod. Moving him into the middle chair would give Governor Patterson a second pick (as would moving Judge Jones, obviously), and it would allow the selection committee to re-boot. Justice Fisher would reapply, because he really wants this gig, and presumably there would be some candidates from different backgrounds that would submit applications as well.

UPDATE: Apparently Carmen Beauchamp Ciparick, the senior associate judge on the Court, did apply. I've appeared before Judge Ciparick, back when she was a Supreme Court Justice, and I am surprised that she did not make the cut. I don't know enough about the way the Commission goes about its process to comment beyond that, but it does explain why Patterson is put out. It makes sense that he should have had all three of the presently sitting Associate Judges who applied to pick from.

The Hon. George Bundy Smith's term on New York's Court of Appeals is up. He is 69 years old-- a year away from the mandatory retirement age-- and he has applied for reappointment. The system for appointing judges to the Court of Appeals-- New York's highest court-- is pretty good. A panel reviews the applicants, then presents a list to the governor, who nominates a candidate. The state senate must then approve the governor's nomination. Judge Bundy Smith has been a pretty good judge on a pretty good bench, and I can see why he might want to stay for another year, but there is exactly no chance that George Pataki will re-appoint him. The effect of re-appointment would be to hand a Court of Appeals seat over to whoever is elected governor next year. That's probably going to be Elliot Spitzer, a Democrat.

This leaves Pataki in an awkward spot. Judge Bundy Smith is the only African American on the Court of Appeals. Governor Pataki, in a fit of optimism matched perhaps only by the ant that wanted to move the rubber tree plant, thinks he'd be a good Republican presidential nominee. How he fills this opening could become a big issue. Around here, in Western New York, the assumption has been that the next time a Court of Appeals opening came along the nod would go to the Presiding Judge of the Appellate Division, Fourth Department, the Hon. Eugene Pigott. Actually, a lot of people, myself included, thought the last opening should have been his. At Outside Counsel we are fans of Judge Pigott, and make no secret of it. He is as smart as can be, which is always nice in a judge, but more importantly he is possessed of the two other qualities that I believe make for an outstanding jurist: a first rate temperament and a genuine concern for doing justice. Although I have known him a long time and consider him a friend, I really don't have a very clear picture of where he is ideologically, except that I think he is probably more conservative than people generally assume. Over the years that I have known him we have, as people who love the law do, discussed the law frequently. Even so, I have no idea how he feels about exclusionary rules, for example-- suddenly a very fashionable issue. I suspect that he'd be open to argument, because I believe he approaches things with an open mind. I would bet money that he'd be more conservative than Judge Bundy Smith. Judge Pigott would also restore some regional balance to the Court of Appeals-- but I really doubt that he will get tapped this time, either.

I don't know if there is a conservative African-American out there that Pataki could pick, but none come to my mind. My hunch is that he'll do what Republicans usually do under these circumstances and try to find a Hispanic candidate-- but in the past he's shown that racial considerations don't always weigh that heavily with him. Indeed, he passed over a senior sitting African-American judge when he appointed Judge Piggot P.J..

In the narrative of the Law, the judges are the protagonists-- even though the lawyers think we are. I've heard that when Judge Wesley left the Court of Appeals to go on the Federal Court of Appeals for the Second Circuit there was some good natured banter among the appellate court judges in New York as to whether it was a lateral move or a step down. In terms of autonomy I'd say that federal district court judges are probably as close as it gets to being monarchs-- but being a judge on the highest court of a state has got to run a pretty close second. (The notion that Circuit Court judges have a great deal of power is the flaw in Stephen Carter's otherwise good novel, "The Emperor of Ocean Park".) It would be nice to see Judge Piggot in the room where Learned Hand and Benjaman Cardozo once sat.

The Hon. Salvatore Martoche is known to a lot of people around here as a political cat-- he was a Reagan appointee in the DOJ back in the day, and when he came back to town he raised a ton of dough to run for Supreme Court (New York's highest trial court)-- a position he won in a walk. Characterizing him as "political", however, sells him a little short. All judges are political, even the ones who appear to have been bodily assumed onto the federal bench. I suppose the reason he isn't on the federal bench is that he preferred to live in Western New York, and there are only so many federal judgeships available here. I don't think he'd have been content as a federal magistrate-- he has always been ambitious, in a way that certainly seems modest-- at least on the surface. Justice Martoche is a much better judge than I think he gets credit or from some people, and now he will be doing his judging from the Appellate Division, Fourth Department. I wouldn't rule out a federal judgeship for him if one were to open up around here, but the more interesting question is what this portends for judicial politics around here-- and state wide. Regular readers of this site know that we are big fans of the Hon. Eugene Pigott, the present Presiding Justice of the Fourth Department. Judge Pigott has twice been passed over for the Court of Appeals (New York's highest court-- what everyone else calls their Supreme Court). What does the appointment of a Republican stalwart like Judge Martoche mean? Does it give the Gov. a guy to move up into the PJ slot when Judge Pigott moves up when the next C of A opening comes up? Does it mean that Judge Martoche is now a candidate for the Court of Appeals? I do not know, and I have no way of knowing. For the time being I am content with the fact that the appellate court where I appear with the greatest frequency is full of judges that I know, and know to be capable and knowledgeable. There are few things more enjoyable in our glamour profession than appearing before a good judge-- but appearing before a panel full of them is one. Our track record with Judge Martoche as a Supreme court Judge has been mixed, but that is as much a reflection of the cases we have had before him as it is of his abilities. Right now I'm thinking that the Fourth Department has got a pretty impressive bench at the moment.

The Honorable Eugene F. Pigott Jr, the Presiding Justice in the Appellate Division, Fourth Department has made the short list to fill the Court of Appeals seat vacated by Judge Wesley. Judge Pigott took himself out of the running the last time there was an opening at New York's top court; I noted at the time that it was the first time in his judicial career that he had not been promoted when there was an opening. The others selected by the panel are Syracuse University law professor and former Dean Daan Braveman; Queens County Supreme Court Justice Steven Fisher; New York County Supreme Court Justice Helen Freedman a (Smith grad!); Stephen Friedman, former member of the Securities and Exchange Commission (and a Brennan clerk-- cool); Robert Smith, a Manhattan lawyer and former instructor at Columbia Law School; and Guy Miller Struve, a Manhattan attorney and former lawyer with Lawrence Walsh, the independent counsel in the Iran-contra case.

I've appeared many times before Justice Freedman-- she is a terrific judge. My exposure to Justice Fisher has been more limited, but he is also the sort of judge you are glad to draw, and he must be well thought of, since this is the third time he's made the list. I don't know the others, so I can't speak to their merits, except to note that the Commission on Judicial Nomination has always impressed me as a group that makes the sort of quality selections that I wish all judicial selection processes were capable of. All that said, the only downside to Justice Pigott's elevation to the Court of Appeals is that we will not get to appear before him as much. I cannot conceive of what a better judge would look like in terms of intellect, enthusiasm, fairness or temperament.

New York's Court of Appeals got it right, I think, by holding that the State must recognize marriages that are legal where performed, including same-sex unions, and I am pleased that Western New York's own Judge Eugene Pigott wrote the majority opinion. During argument Judge Pigott had seemed troubled by the idea that holding this way would amount to telling "Canadians and ...Vermont residents and to people of other states that, 'You're more valuable to us than our own residents,' That, if you're married in Canada, we're going to recognize your marriage. But if you have a civil union or a domestic partnership in the state of New York we're not." As Outside Counsel noted at the time, the problem here is that there are two problems. First New York ought not treat its own residents like second class citizens. That said, different kinds of cousins can get married in some places, there are different rules for what constitutes legal age, there may even still be places that recognize common law marriages. As long as the marriage was legit where it was entered into, if you are living in New York you are entitled to the protection of the laws of the state of New York. That's been the rule for a long time, the Court of Appeals got it right in this case. Now it falls to the Legislature to repair the other problem.

Interesting decision by the Court of Appeals in Arons v. Jutkowitz (pdf file)today. It has been the practice among medical malpractice defense attorneys to request an authorization permitting an ex parte interview with the plaintiff's treating doctor after the plaintiff has filed a Note of Issue placing the case on the trial calendar-- and to make a motion compelling the production of such an authorization if such is not forthcoming. Apparently these motions were routinely granted.

I have a couple of problems with this notion. First, the ex parte interview with a treating doctor in this scenario takes place after discovery has closed-- that's the effect of a Note of Issue. Second, if defense counsel want to speak with a non-party treating physician, the CPLR provides for a means to do so-- it's called a non-party deposition, and it keeps everything on the record and above board. There is something inherently fishy seeming to me about conducting ex parte interviews with a doctor after discovery is over. In its decision the Court of Appeals calls this "informal discovery"- if it weren't a doctor, I'd call it "investigation", or pretrial preparation-- but either way, there is a privilege involved here, and the potential for crossing a line and violating that privilege when there is nobody watching from the other side seems significant to me. As Judge Pigott notes in his dissent, "there is simply no statutory authority under [Article 31]for off-the record interviews of treating physicians". He even goes Latin on it: "expresio unius est exclusio alterus"-- probably an expression he learned at LeMoyne. (I note also that Judge Pigott's dissent uses the word "perusing" in its correct sense-- that is, "to examine closely". Good work. I have no doubt that he will use "begs the question" correctly as well when the opportunity presents itself.)

So now we know what the law is. I suppose the next question is, should this be what the law is?

Governor Paterson was pretty unhappy with the process that brought him Jonathan Lippman as his nominee for Chief Judge of the Court of Appeals, and Wayne Barrett is fuming. It is a little troubling that Judge Lippman has only ever worked in the court system-- some time actually representing clients is a nice qualtity in any judge. Barrett's beef is that Lippman is a crony of Assembly Speaker Sheldon Silver. His other rabbi was Chief Judge Judith Kaye, which suggests that Judge Lippman's rise isn't as tawdry as Barrett suggests, but the Voice article is worth reading for its portrayal of New York judicial politics. The NYTimes is gentler in its coverage, emphasizing Judge Lippman's accomplishments as an administrator. In that connection it is interesting to consider that one of the candidates on the list that the governor had to pick from included the Hon. Eugene Pigott, the former Chief Administrative Judge for the Appellate Division, Fourth Department. It is also still interesting that Judge Carmen Ciparick who has been on the Court of Appeals for 15 years, and who the other five Court of Appeals judges voted to serve as the acting chief judge after Judge Kaye retired, was somehow not on the list of finalists. The question of what qualifies someone to be a good judge is an interesting one, and being Chief Judge is certainly a job that calls for an unusual set of skills, but it is not a unique skill set. I'm a fan of the merit selection process that New York uses to appoint Court of Appeals judges, but that's not the same as saying that it is not a political process. It obviously is, and like any political process it could always stand a little more sunlight. Judge Lippman breezed through the Judiciary Committee, and the full State Senate will now vote on his appointment

I'm late in getting to it, but back in June The New York Court of Appeals held, in Reynolds v. Amchem Products(pdf file) that when a High-Low agreement is made between the plaintiff and a party who remains in the action, the defendants who are not a party to the agreement must be advised of both the agreement and its terms. I've been on the wrong end of this sort of thing, and I don't think the decision goes far enough, frankly. The opinion, by Judge Pigott, applies only in circumstances when the agreeing defendant remains a party, not to circumstances where the agreeing party is carved out of the action by way of an agreement to arbitrate, or some similar arrangement.

I am coming to think that, on the civil side at least, there are a lot of exclusionary rules that should be rethought. Insurance, for example. Time was, if you were picking a jury and the word was even mentioned-- outside of the Judiciary Law permitted question about a prospective juror or family member being employed by or a shareholder in any company that issues casualty insurance-- was grounds for a mistrial. People got mistrials if insurance was inadvertently mentioned during the proof. Things have loosened up somewhat, but not to the extent that they should-- juries believe that there is insurance out there, and, I would submit, act accordingly. Why not inform them instead? If nothing else, it would allow a jury to act according to what exists or doesn't exist, rather than on assumptions that remain unexpressed. It probably makes a lot of sense to relax the hearsay rules, too. People are sophisticated enough to parse this sort of thing out, I think. Arbitrators are, so why wouldn't lay people be?

The New York Law Journal reports that John F. O'Mara, the chair of the Commission on Judicial Nomination has released a statement (pdf file) explaining how it is that the candidates it submitted to the governor were all men.

Don't get me wrong-- I respect and like Judge Pigott, and I hope he gets the nod. From what I can tell about the others they all deserve the sobriquet of "well qualified" also. I believe in merit selection, and I think that the Commission on Judicial Nomination has traditionally done a fine job. The results speak for themselves-- our appellate bench, and particularly our Court of Appeals are everything New York's courts should be. Even so, it seems peculiar that Judge Ciparick, a sitting Court of Appeals Judge, isn't on the list.

I don't think I know any of the people on the Commission, although a couple of the names are familiar. This disappoints me-- I like to think that I've been around long enough to be acquainted with some of these sorts of behind the scenes power players. It really wouldn't be appropriate to ask any of them about it. ("Yo, Gerald B. Lefcourt, WTF? E. Leo Milonas, how come no chicks?") I guess the best we can say about the situation is that there has been some consciousness raising, which is a good thing.

Court of Appeals speculation. We'll know soon enough, and I expect there will be howls of upstate indignation if Judge Pigott isn't tapped. He picked the wrong year to be a Republican white guy, I'm afraid.

I don't know what David Paterson did to Obama, but it sure is weird seeing the President of the United States pushing to have him step away. What could be motivating this? A possible clue is in this NYTimes piece-- I have a hunch Rahm Emanuel is settling a lot of scores: "The intense involvement reflects the tactics and style of the White House chief of staff, Rahm Emanuel, who helped Democrats win the House three years ago as chairman of the Congressional campaign committee." Who can tell me what's wrong in that sentence? It seems to me that the individual most responsible for winning the House was actually Howard Dean? Howard Dean who is presently on the outside looking in?

If Rahm Emanuel wants to throw his weight around, fine, but perhaps he should be picking on some of these Blue Dogs that are actually screwing up the Obama agenda, and laying off the liberal Democrats.

In a story that is not entirely unrelated, the Court of Appeals has just held that Paterson's appointment of Richard Ravitch as lieutenant governor was constitutional. It was a 5-4 decision, and it turned on party lines, with Judge Pigott writing the dissent, but they don't ask by how much, just who won. I didn't read Public Officers Law §§ 41 and 42 that way, but I didn't think it was all that clear-cut a question either.

The present vacancy in the New York Court of Appeals has every lawyer in Buffalo buzzing. I have become privy to some background information about one of the candidates, and, Bertie Wooster-like, feel that I must share it.

Ahem. I have been reliably informed that one of the candidates on the list before Governor Pataki at one time dated someone who kept a pet skunk. That's all I'm saying, except that it wasn't either of the two upstate candidates, and it especially wasn't Presiding Justice Pigott.

Tinkerty tonk.

The list of candidates for the Court of Appeals seat presently occupied by George Bundy Smith includes Judge Smith himself, who could only occupy it for another year before mandatory retirement; the Hon Eugene F. Pigott, Jr., Presiding Justice of the Appellate Division, Fourth Department; A. Gail Prudenti, the presiding justice of the Appellate Division's Second Department (said to be a great pal of Al D'Amato); Justice Thomas Mercure from the Third Department in Albany; the Hon. James Catterson and the Hon. Richard Andrias, from the First Department; and Justice Steven Fisher from the Second Department.

Everyone on the list except Smith is a Republican. Political realities really mean that Judge Smith will be entering private practice shortly, and after that it is hard to say how it shakes out. Buncha white guys, and a woman. Only two upstate candidates-- and right now Western New York is not represented on the Court.

Our preference here at Outside Counsel has never been any sort of secret, but I feel I have to point out that any process that can produce this sort of quality is working pretty well. It is peculiar, in a way, that the only Democrat is the incumbent, but I have a hunch that there were probably not a lot of Democrats who threw their names into the hat. It would be interesting to know. I suspect that Elliott Spitzer will be more in the Mario Cuomo tradition of judicial appointments, and at least receptive to qualified Republicans, but for most of the people on this list this opening is probably their best shot for a while.