Sunday, May 31, 2009

Book Review: The Appeal by John Grisham

In John Grisham's
The Appeal a small town Mississippi husband-and-wife trial lawyer team win a large verdict in a toxic tort case. The CEO of the defendant company, the Trudeau Group, then hires questionable consultants to determine what his next step should be. The consultant, a clandestine organization based in Florida, specializes in rigging judicial elections in favor of business-friendly judges. (You can Find a more detailed description on: Wikipedia).

The book is similar in style to Grisham's other novels. It is plot driven, rather than character driven, but in a way that works well. The bulk of the novel deals with the mechanizations and plotting of the judicial election. The New York Times called it "a primer on... how to rig an election." (NY Times). It is creative, impressive, and scarily realistic. The ever-exciting process of writing and arguing an appeal, however, is not discussed.

The characters are dragged along by external circumstance until near the end of the novel. They aren't flat but, similar to real life, they aren't exploding with surprise. Towards the last few chapters, however, as the election comes to a close and the appeal comes up for review, several of the main characters are finally faced with tough decisions, and show very real struggle.
The novel is, overall, pessimistic, but in the end there is some awakening in the main character. "There's light shining into this darkness, a slight promise of change based on pure and growing disgust with the status quo." (Chuck Leddy, Boston Globe).

USA Today points out that The Appeal is very similar to a real dispute currently before the U.S. Supreme Court, where a newly elected State Court judge declined to recuse himself from a case involving one of his biggest contributors. (USA Today). [Update: On June 8, 2009, the Supreme Court released its decision in Caperton v. Massey Coal Co., holding that, under such circumstances, due process required recusal. (Coverage: Brennan Center, The Economist)]. The UK Times argued that it borrowed from Erin Brockvich, but the two have nothing in common other than involving a toxic tort case.

In New York, like most places, we have some great judges, and some poor ones. Under our system, rather than holding a primary, the political party leaders appoint their candidates, who then submit a ballot with 500 signatures to a Court of Appeals Committee and are then given a rating (qualified or unqualified). The candidates are then included in a general election. Independants can also run in the general election, without being endorsed by a recognized party, but must collect a ballot with between 3500 and 4000 signatures, depending on the size of the district, or 5% of the number of votes in the most recent gubernatorial election, whichever is less.

New York's judicial election system has been highly criticized, albeit in a slightly different manner from Grisham's novel. Because the political parties appoint their candidate without a primary (thus, in most cases, avoiding the need for direct fundraising by the candidates) local political leaders have a large amount of clout in judicial elections. Often, the party leaders will meet amongs themselves and compromise on a candidate, who will then run unopposed. In effect, rather than election or appointment by an elected official, the candidates are sometimes being selected by local political heavyweights through back-room deals. Independants, trying to run without the support of a major party, have a much higher threshold for getting onto the ballot.

In 2006, New York's system was held unconstitutional by a U.S. District Court, but the Supreme Court later reversed that decision in 2008, finding that rule does permit a "reasonably diligent" independant candidate to get onto the ballot and that the First Amendment cannot be used to regulate the internal processes of political parties. (New York State v. Lopez-Torres).

Overall, there does not appear to be a "right" judicial appointment system. If there are open elections, such as in Mississippi, there will be fundraising and special interest issues; if there are political appointments, such as Federal Judges, the appointment is by its nature political (see, e.g. here); and if there is a system run by the political parties, such as New York, then the system will be effected by questions of local corruption.

What we need are independant judges who will be above politics and special interst groups (See, e.g., here and here); how to accomplish that, however, is a difficult question.

Saturday, May 23, 2009

Bronx County Supreme Court

Bronx County Supreme Court (Mario Merola Building)
851 Grand Concourse
Bronx, NY 10451
(718) 618-1200

The Bronx County Courthouse is an imposing fortress of a building, with depression-era stonework evoking thoughts of turmoil and the struggle for justice. The building houses all of the civil cases in the Bronx -- from small claims and housing, to multi-million dollar personal injury suits, to business disputes -- and has been called a "one-stop justice shop." (NY Times).

The Bronx was first colonized in the seventeenth century by a swedish settler, Jonas Bronk. It remained a small farming community until 1898, when it was annexed by the newly-formed New York City and became part of Manhattan. (See Wikipedia). At the time, the Bronx had only 200 residents, but provided additional land for the growing city and provided the City's only connection to the mainland United States. Between 1900 and 1930, the population expanded exponentially, growing to more than one million residents. (Clerk's Office History).

In response to the rapid population growth, in 1933, amid the great depression, the City erected the Bronx County Supreme Court building to supplement the much-smaller Borough Courthouse. It was designed by Joseph Freedlander and Max Hausel, and was touted as an example of "Twentieth Century American style." ( The interior of the building boasts impressive marble floors and chandeliers; the outside, however, is "a conventional-looking, 12-story government building." (Octogenarian).

Above the entrance to the Courthouse is written:
The administration of justice presents the noblest field for the exercise of human capacity. It forms the ligament that binds society together. Upon its broad foundation is erected the ediface of public liberty.
This quote is taken from a speach by L.B. Proctor at the 1877 innaugral meeting of the Livingston County Historical Society, describing (and perhaps quoting from) the then-recently deceased Judge Isaac Endress, a noted jurist who was one of the delegates at New York's 1867 Constitutional Convention.

(Note: the first four photos depict the Mario Marola building; the bottom right photograph is of the Bronx Borough Courthouse, no longer in use, mentioned above).

Unlike many courthouses, the Bronx Counthouse has a flat roof and is, essentially, a giant cube. It is a massive, dominating, citadel of a building. In 1988, it was renamed the "Mario Merola" building, after the former Bronx District Attorney. At the dedication ceremony, Merola's successor, Paul Gentile, commented: "This fortress represents the indomitable spirt of the Bronx and of its namesake, Mario Merola." (NY Times).

In 2006, the Bronx County Courthouse became the first building in the Bronx to receive a "green roof," a roof garden that helps reduce pollution by both cleaning the air and reducing cooling and heating costs. (; Greenhome NYC).

The building is covered in frescos and surrounded by statutes. Although some of the depictions are classic courthouse scenes, such as Moses with the Ten Commandments, nearly all of the frescoes and statues contain large groups people who are, apparently, struggling to push forward. The stonework evokes servitude and oppression, perhaps suggesting that this is a courthouse for the people, meant to aid the little guy in obtaining justice.

Across the street from the Courthouse is Joyce Kilmer Park, with a fountain, several statutes, and green space.

Nearby, sharing a subway station, is Yankee Stadium. The photographs below depict, from left to right: (1) construction of the new stadium, as seen from the above-ground subway station; (2) the view from the courthouse steps; and (3) the front of the new stadium the morning before the first Yankee home game in 2009.

Saturday, May 16, 2009

Lack of Financial Responsibility Prevents Admission To The Bar -- Is It "Character And Fitness," Or Is "The Man" Holding People Down

The law should not protect education lenders as they pressure students to accrue exorbitant amounts of non-dischargeable debt, protect law schools as they over-state the return on investment in legal education, and then fail to protect consumers who fall prey to these practices. It is fundamentally unfair; and what is the Law, after all, other than institutionalized fairness.

That said, however, a person cannot fall prey to these practices without taking some level of personal responsibility.

The question raised by a recent Third Department Decision is whether an undesirable financial situation, caused by unwise student loans, is a basis for denying someone admission to the bar.

The Third Department answered yes, and denied admission to the bar for an applicant who had $430,000 in unpaid student loans, dating back to the 1980s, explaining that the applicant had not made any substantial payments and had not been "flexible in negotiating with" his lenders. (Hat-Tip to Sui Generis).

The ABA Journal and Legal Profession Blog coverage of the decision generated a flood of comments, including comments from the applicant himself and others familiar with the situation. These comments explain that the loans date back to the 1980s because the applicant had taken an extended medical deferrment after suffering a leg amputation; the loans appear to have gone into default shortly after graduation, while the applicant was studying for the bar exam; and the loans include more than $200,000 in interest and fees. The applicant also explains that he was raised in a homeless shelter, appears to have had some serious medical problems, and has no significant family support. He argues that it was not him, but his loan provider, Sallie Mae, who acted in bad faith; and complains that the delay in deciding whether to admit him to the bar has left him jobless and ineligable for the loan repayment assistance program he had been counting on.

The legal profession is frequently criticized as a mechanism for reproducing and solidifying the class heirarchy in our society, and a discretionary standard for "character" is an invitation for abuse. (See e.g., Duncan Kennedy's Essays on Legal Education). Whether this decision is an example of such abuse, however, is unclear.

In New York, admission to the practice of law is a two-part process. The first part is "education and ability," which is determined by the bar exam and the education requirements set by the Court of Appeals. The second part is "character and fitness." The character and fitness prong is more nebulous, and is a judgment at the discretion of the Appellate Divisions. See Matter of Anonymous, 78 N.Y.2d 277, 573 N.Y.S.2d 60 (1991).

Further review of the Appellate Division's decision on character and fitness is extremely limited. The "Appellate Division is the fact-finder on issues of character and fitness and its discretion is inclusive; [the Court of Appeal's] review is limited to ensuring that the proceedings have been conducted in accordance with statutory and regulatory requirements, that no right of the petitioner has been violated, and that there is evidence to sustain the decision of the Appellate Division." Anonymous, 79 N.Y.2d 782, 579 N.Y.S.2d 648 (1991).

In this case, the twenty year gap raises questions, but "there is no Court of Appeals rule regarding delay [and] that issue is not for “general fitness” review." Anonymous, 78 N.Y.2d 227, 573 N.Y.S.2d 60 (1991). Thus, the issue in this case would be whether the an extremely large, recently-defaulted, student loan, with a possible unresolved dispute as to fees, is an appropriate issue for character and fitness review.

"Character and fitness," or something similar, is examined in every state, and is, on its face, Constitutional so long as the determination is based upon "dishonorable conduct relevant to the legal profession." Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154; 91 S.Ct. 720(1971). "Although a court may neither act arbitrarily with respect to those licensed by it nor otherwise violate their constitutional rights,... state courts have traditionally been allowed wide discretion in the establishment and application of standards of professional conduct and moral character to be observed by their court officers." Erdman v. Stevens, 458 F.2d 1205 (2d Cir. 1972).

The Court of Appeals considers financial responsibility relevant to the legal profession and an appropriate matter for consideration by the Appellate Division in deciding upon character and fitness, reasoning that applicants “lacking in the

character necessary to discipline [themsleves] to control [their] standard of living and the amount of [their] indebtedness," demonstrate "a lack of financial
responsibility necessary for an attorney." In Re Anonymous, 74 N.Y.2d 938, 550 N.Y.S.2d 270 (1989)(admission denied where applicant sought to discharge debts in bankruptcy shortly before seeking admission).

Thus, overturning the decision is unlikely. The applicant's best chance for admission is to get his finances in order (whether through negotiation with his lender, or structuring a payment plan for non-dischargeable debt in a Chapter 13 Bankruptcy) and re-apply. With respect to the bankruptcy option, in April, a Houston solo-practitioner was disbarred for failing to pay $67,000 in debt after repeated warnings. (; hat-tip, Alan Childress, Legal Professions Blog). In its Decision, the Texas Court of Appeals suggests that bankruptcy would have been a viable option, and it was the lack of attention and failing to follow-up on his own representations to the court, rather than the debt itself, that demonstrated a "lack of trustworthiness." See also Long Island Bankruptcy Blog, Lawyers File For Bankruptcy Too (offering the opinion that filing bankruptcy is not, by itself, unethical for lawyers) and Discharging Student Debts.

That said, there has to be a line, and it should not be arbitrary. This is an extreme case, but it is an extreme example of a problem that faces many recent graduates. Nationwide, the average student loan debt for law graduates is more than $75,000, and the median salary for the first several years after law school is only around $60,000. (; Also, salaries for recent law graduates do not operate on a bell curve: the top people, at top schools, get top jobs; most other people are near the bottom, and there is no middle ground. (ELS Blog, The Cravath System; Not Every Law Graduate Makes 160K). It is only within the last several years, however, that this problem has been widely spoken about. (Jobs At BigLaw Limited -- Why Is This News; False Advertising in Legal Education).

This guy's "character and fitness" mistake was that he couldn't afford to go to law school; or he should have gone part-time to a public school and worked a full time job to off-set the expenses. How many recent law graduates, however, are now looking at their student loans and, in retrospect, saying the same thing? How many are falling behind? Are lenders going to start making disciplinary complaints as part of their collection efforts? If student loans continue to be a factor in determining whether someone is fit to be a member of the bar, there needs to be a solid articulable standard that prevents abuse, as well as greater oversight of the student loan industry.


Saturday, May 9, 2009

Long Island Legal News -- April 2009

In this issue:

Long Island Legal News is a monthly newsletter chronicling legal and law-related happenings in Nassau and Suffolk County.

* In Gorman v. Huntington, the Court of Appeals reversed the Second Department and Suffolk County Supreme Court, finding that the Town of Huntington could assert a lack-of-written-notice defense in a trip and fall case, despite the fact that a local clergyman had twice given written notice to the Town but had been directed by the Town to give the notice to the wrong department. (

* In Dupree v. Giugliano, 2009 NY Slip Op 50697(U), Suffolk County Supreme Court Justice Rebolini upheld a $416,500 jury award for medical malpractice to a woman who was taken advantage of by her doctor, who was treating her for depression. The defendants argued that the case was really a Heart balm action, which is illegal in New York. (

* In Anand v. Kapoor, 2009 NY Slip Op 03110 (2d Dept. April 21, 2009), a split-panel of the Appellate Division, Second Department, held that being hit by a misdirected shot is a risk assumed by playing golf, and a golfer may not be held liable merely for failing to shout "fore" before swinging. Instead, a prospective plaintiff must show that their injury was caused by a risk "over and above the usual dangers inherent in participating in the sport." In personal injury law, there are two types of "assumption of risk." Primary assumption of risk is a risk inherent in a sport, such as a boxer's risk of being punched, and is a complete defense to a personal injury action. Secondary assumption of risk is a risk that someone should have known about, such as walking over an icy sidewalk, and is a defense to a personal injury action insofar as the defendant's liability can be reduced by the plaintiff's share of fault. (; New York Injury Cases Blog)

* Sears Accused of Deceiving Consumers. A Long Island lawyer has spearheaded a class-action against Sears after learning that the store had a policy of not honoring its advertised price-matching policy. (Also covered on ATL).

* Officials Linked To State Comptrollers Office Charged With Fraud, Money Laundering, and Bribery. The Attorney Generals Office has issued the first indictment in what the refer to as a "network of corruption" among Queens and Long Island democrats linked to former State Comptroller Alan Havasi. Havasi resigned in 2006 after it was revealed that he had improperly used State funds to care for his ailing wife. The officials, only two of which are named, are charged with, among other things, securing hundreds of thousands of dollars in bribes, and using State money to pay for lavish gifts (such as Manhattan apartments).

* Murder-Suicide Over Financial Dealings. William Parente of Garden City, a Brooklyn Law School graduate practicing Trusts and Estate Law in Bayside, Queens, killed himself and his family on April 15, 2009, after Parente's questionable investment business went sour and he was accused of financial fraud.

* Agape Scandal. After a four month inquiry, Nicholas Cosmo, owner of Agape World Inc. and Agape Merchant Advance LLC, has been indicted for fraud by the U.S. Attorney's office. There are also new allegations in the related civil suit, Sullivan v. Agape World, Docket No. 09-cv-1274 (EDNY). Bank of America had previously been accused of opening a branch inside Cosmo's headquarters and of turning a blind eye to his activity; now, it appears that Bank of America's employees were actively helping Cosmo, providing him with investors' bank records so that he knew who to pressure for higher investment contributions and when to pressure them.

* Sex Offenders. Southhampton has joined in Riverhead's lawsuit to prevent Suffolk County from placing a sex-offender trailer park there. (; Riverhead News-Review). In Merrick, public hearings are being held wherein residents are asking for stronger sex-offender notification laws; apparently, there are 400 registered sex offenders in Nassau County, and 730 in Suffolk. (Newsday).

* Red Light Cameras. The State Legislature has approved the expanded use of red light cameras in Long Island. (The Both Nassau and Suffolk County anticipate that the cameras will bring in several million dollars in revenue. (Long Island Press). In Suffolk, the fine will be $50. (Suffolk Times).

* Illegal Apartments. Islip has raised the fine for having an illegal apartment. $2,500 for the first offense; $5000 for the second; and $10,000 for the third. (Newsday).

* LIRR Security. Locheed-Martin is asking a Federal Judge to excuse its performance of a contract to install a $300 Million security upgrade to the LIRR, claiming the MTA has delayed the progress of the project. (NY Times). The LIRR delayed and inefficient? It can't be true.

* Pine Barrens. Environmentalists have vowed to file a lawsuit to overturn the Town Of Brookhaven's decision April 16 to re-zone a portion of the central Pine Barrens region in order to allow a 39 Acre housing and commercial development project. (Newsday).

* Debate continues over the Markey Bill, which would extend the statute of limitations for civil suits brought by victims of childhood sexual abuse. (Newsday). The Catholic Church vehemently opposes the bill, arguing that it will open the church to a flood of litigation and unfairly singles out religious institutions over private schools. As a Catholic, who once considered becoming a priest, my position is that where the Church is responsible for these things, it should be held responsible. First, the Church's money comes from its parishoners, and it is more appropriate for donation money to be used to compensate victims of sexual abuse than for many of its current uses. Second, the Church should welcome justice, not oppose it. Studies estimate that between 1950 and 2000, approximately 4% of Catholic Priests in the United States were sex abusers, victimizing more than 10,000 people. (See VOA).

* Suffolk County Accused Of Discrimination Policy Towards Pregenant Employees. A Suffolk County Parks Officer has sued the County, arguing that the County's current policy of making officer's either take time off during pregnancy or continue with their full duties is discriminatory, and that the County should be legally required to make limited duty work available.

* Domestic Workers, such as nannies and housekeepers, are lobbying Albany for a Domestic Laborers' Bill of Rights.

* Local Unions are fighting against the Village Of Bellport after the Village hired a West Virginia Company (that does not comply with Long Island's licensing and wage laws) to restore a golf course.

* High School Mock Trial. Congratulations to the Central Islip Legal Eagles for winning Suffolk County's high school mock-trial turnament.

* From Above the Law, a review law schools 50-75 on this year's US News & World Report, including a scathing letter from a Brooklyn Law School Alumn calling the school a rip-off.

* John Hochfelder's New York Injury Cases Blog and Eric Turkewitz' New York Personal Injury Blog both have informative posts discussing the insurance company practice of paying off doctors for false reports.

* Not New York related, but still entertaining, ATL and GeekLawyer both offer commentary on a recent decision by Judge Richard Posner -- noted jurist, law professor, and semi-retired Chief Judge of the Seventh Circuit Court of Appeals -- discussing copyright infringement in the context of sex toys.