Outside Counsel

A couple of weeks ago I was talking to a colleague who practices full-time in New York about the quality of the judiciary. The conversation arose in the context of a discussion about the note of issue-- the device in New York practice which signals that a case is trial-ready. Actually, let me amend that-- the note of issue is supposed to indicate that a case is ready to be tried. In fact, in current practice what the note of issue actually does is to start the clock running on when motions for summary judgment must be made. It does some other things that matter to the office of Court Administration too, but lawyers mostly don't know, or care about that. Judges care, though, and that means that when a lawyer files a note of issue, judges are not inclined to strike it, even though the case might not be remotely ready for trial. When that happens-- and it happens all the time-- the judge directs that the parties get moving on discovery. This situation gives rise to the question, to paraphrase Col. Pickering, "Why can't New York State Supreme Court be more like federal district court?" In federal court when you haven't finished your discovery, too bad. You go to trial without it, and if that means your case is dismissed, tough. (Most of the time.)

The answer to this question is that state Supreme Court Justices are running 400 or more (civil) cases at a time, and do not have the luxury of being as hands-on as federal judges and federal magistrates. I would be the last to suggest that any of either are killing themselves with work, but it is fair to say that state court judges, for the most part, are working quite a bit harder than federal court judges. What was interesting about what my colleague had to say about it, to me, was that in his view there has been a real drop-off in the quality of the judges on the bench in recent years, attributable to the fact that judges in the state court are under-paid. While at one time a judgeship was a nice reward for being a good Democrat (in the City) or Republican (most other parts of the state), now it is a gig that gets handed off to hacks, who hang around leaning on their shovels.

I suppose there may be something to this. $125k per annum is pretty short dough in the Apple, and I can't say I've encountered the reincarnation of Learned Hand on the NYC bench lately. So I guess I'm thinking that a raise is in order, and I suppose the Appellate Division's decision in the judicial salary lawsuit makes sense. Judicial salaries should not be tied to unrelated issues like campaign reform or legislative pay. I can see the constitutional issue there. So here's my question: what happens if the legislature votes on a judicial salary increase tomorrow. Straight up-or-down vote, no linkage, and votes it down? What then?