Friday, November 26, 2010

File A Lawsuit: Drafting The Complaint

Every complaint has the same basic framework.  The idea is to tell the court, and your adversary, why you are seeking judicial intervention.  You have to explain what happened, what you want, and why you think you deserve it.  Thus, every complaint should do at least five things: (1) give a quick overview of the case; (2) identify the parties; (3) state sufficient facts to show that the plaintiff is entitled to relief; (4) explain the legal basis for the relief sought; and (5) explain what relief you are seeking.  In addition, sometimes you are required to include in the complaint statements explaining that you are in the right court and you have jumped through all the required hoops prior to filing a lawsuit.  

<< Format and Procedure || "Pleadings" Table of Contents || The Introductory Paragraphs >>

How to File a Lawsuit: Pleadings

Although it is often considered merely administrative, drafting a pleading can be an art.  In law school, I spent a while working part-time for a small firm that did mostly personal injury work.  While I was there, they took on a complicated severence dispute.  The plaintiff was an international finance executive who had gone blind from diabetes.  He was pursuaded to resign with a reduced severance package based on the promise that he would also be receiving long term disability benefits.  Then, his benefits were denied.  Because employee benefits were involved, we had to sue in Federal Court under ERISA.

The complaint I drafted was very unlike the firm's usual fodder.  I learned the area of law, read everything I could on drafting a pleading, and modeled it on samples from similar cases.  The attorney assigned, however, didn't like it.  She cut it down, took out the headings, and turned it into a list of vague, non-specific, allegations similar to the complaints filed for the firm's day-to-day car accident cases. After the now-gutted complaint was filed, the judge required it to be re-drafted, saying it was "not a model of clarity."  The criticism stung, but I took some satisfaction in knowing that my original work had been right, or at least more in the right direction.  

The point of the story is that "a model of clarity" is a good standard for any written work, and a pleading is no different. 


* Types of Pleadings

* Format and Procedure

* Drafting The Complaint

          - Intro Paragraphs

          - Jurisdictional Statement

          - Parties Section

          - Facts Common to All Causes of Action

          - Conditions Precedent

          - Causes of Action

          - Demand for Relief

Filing A Lawsuit: Types of Pleadings

Pleadings are the first papers in a litigation, where the parties lay out their respective positions.  The most basic pleadings are the complaint and answer.  In the complaint, the plaintiff explains why they are invoking the court's jurisdiction and what their claims are.  In the Answer, the defendant either admits or denies the plaintiff's allegations, asserts its affirmative defenses, and may also assert counterclaims against the plaintiff,  cross-claim against a co-defendant, or third-party claims bringing in a new party.

A complaint initiates what's called a "plenary action," meaning that it's a broad-scope litigation following all applicable procedural formalities.  The defendant can either move to dismiss or answer.  

In New York State practice, there is a second round of pleadings called a Bill of Particulars, where the parties ask for more detail concerning the allegations of the complaint or affirmative defenses.   Although bills of particulars are echanged (and at times supplemented or amended) during the discovery process, they are pleadings, not a discovery device, and so are really only meant to clarify the claims and issues.  

Once an answer is received, there's discovery: first the exchange of documents and things, then depositons.  In New York State practice,  Once discover is completed, there's motion practice to determine what, if any, issues can be decided as a matter of law.  Then, there's pre-trial proceedings; then a trial.

Other types of proceedings have their own pleadings. One example is a special proceeding, which is a summary proceeding wherein a hearing date is scheduled immediately.  Landlord-tenant disputes, Article 78 proceedings,, and foreclosures are typical examples of special proceedings. The initiating pleading in a special proceeding is usually called a "petition" and the equivalent of an answer is usually called a "response and objections at law."  

"Pleadings" Table of Contents || Format and Procedure >>

Filing A Civil Complaint: Format and Procedure

A complaint is the standard pleading for a civil action.  A complaint is a "short plain statement" showing why the plaintiff is entitled to relief.  Plain, of course, does not necessarily mean boring, vague, or bland. The minimum requirements are not a goal. It just means not to include irrelevant garbage, character attacks, or emotive argument

Individual courts have different formatting requirements, so it is important when practicing in an unfamiliar court to review the local rules.

The summons serves as a cover page for the complaint, telling the defendants how long they have to Answer and notifying them of the risk of default.  You can find a form summons relatively easily online.

The complaint should be in at least 12 point font, on regular letter-sized paper.

Unless the local rules require the law firm's name and address on the very top of the page (some do), the complaint starts with a caption, which lists the court and the parties.  All of the parties must be listed.  Next to the caption, the document is titled ("complaint" or "verified complaint"), and identifies the index or docket number.

Every paragraph, other than the opening paragraph, "wherefore" clause, and headings, is numbered.
The opening pragraph, as in many legal documents, identifies the speaker or speakers in all caps, and ends with a colon.  "PLAINTIFF, through his attorneys, LAW FIRM, as and for a verified complaint, alleges as follows:" then the headings and numbered paragraphs begin.

The first paragraphs should be intro paragraphs, explaining what the case is about.  Some courts will then require a jurisdictional statement, explaining why that particular court is a proper forum for the dispute.  Then there is a section identifying the parties; then the facts common to all causes of action; then the causes of action; then the demand for relief.  
A complaint is verified (some jurisdictions call it certified) if it is sworn to as true by one of the plaintiffs.  If a complaint is verified, it can serve as an affidavit of merit. An attorney can make the verification if the plaintiff is not within the same county, but an attorney's verification has no probative value.

<< Types of Pleadings || "Pleadings" Table of Contents || Drafting the Complaint >>

Drafting a Complaint: The Intro Paragraph

I generally put a preliminary statement in the first few paragraphs of every complaint. This preliminary statement is not long, but contains a few short, punchy, sound-bites.  That way, when anyone looks at it, they can tell in a few seconds what the case is about.

The Preliminary Statement is a brief overview.  Paint with broad strokes, and don't try to cram in every fact.  The thing to be careful with, however, is not limiting yourself.  Be sure to phrase things broadly and qualify facts with words such as "among other things," "including," "such as," or "for example."

A few of my cases have made national news. Without giving any comment, the reporters had a great quote right from the first page of the complaint.  This can be extremely helpful in high-publicity cases, since as a general rule attorneys should keep their media comments to a minimum.  Having done some freelance reporting and media relations work, I can tell you that reporters - like any other professional writers - appreciate a well-turned phrase.  Sadly, that can be a rarity among practicing attorneys.

More important than providing information for reporters, you want to give the court and the other side a clear sense of what the case is about.

The complaint is the first basis the defendant, their attorney, or their insurer has for assessing the value of the case.  Similarly, the first thing that happens in any trial is that the judge is given copies of the "marked" pleadings, which is a copy of the complaint and answer with notes in the margin as to whether each defendants admits or denies the individual allegations.

A great complaint gives a good first impression; a poor complaint gives a bad first impression.  It is the first salvo in a litigation, and should suggest the quality and competance that can be expected from the plaintiff.

<< Drafting the Complaint || "Pleadings" Table of Contents || Parties  >>

Drafting a Complaint: The Jurisdictional Statement

Many courts require a jurisdictional statement.  Always check the local rules.  If something is required, put it in.

In New York State practice, a jurisdictional statement is not required, but it is customary when seeking money damages in the state Supreme Court to put a statement in the Demand for Relief that the anticipated damages exceed the jurisdiction of the lower courts.  The New York State Supreme Court is a court of general jurisdiction: you can file any case, about anything (unless it is exclusively Federal), for any monetary amount.  When dealing with smaller amounts, however, there are lower courts where, as a matter of administrative convenience, such cases should be filed.  Cases below $25,000 belong in the County Courts ("Civil Court" in New York City); below $15,000 belongs in the District Courts; and below $3,000 should go to a small claims court.  If you file in the Supreme Court, and the Judges feel the case should go somewhere else, they will send it to a lower court under C.P.L.R. 325(d).  

The Federal Courts are where Jurisdictional Statements are typically required.  For a Federal Court to have power to hear a case, it must be either a Federal Question (i.e. arising under either a Federal Statute, the U.S. Constitution, Maritime law, or a Treaty), or be between citizens of different states and involve more than $75,000 in dispute.  See 28 U.S.C. § 1331 and 1332.  

Drafting A Pleading: Identifying The Parties

In the "Parties" section of the complaint, you should identify each party's legal name, any known aliases, and their residences (just the county, not the actual address).  For a New York corporation, you can check their official name and address in the Department of State's online database.  Many other states have similar databases.

This section has several practical implications.  First, in New York, venue (i.e. what courthouse you go to) is usually based upon the residence of either of the parties.  If the venue is inconvenient for the defendant, the court may consider a transfer or dismissal based on "forum non-conveniens." Thus, if the defendant has a connection to the venue, this is an appropriate section to include allegations such as that the defendant "resides in," "maintains its principal office in," or "regularly conducts business in" a particular county.

Second, if your case is a business dispute, the type of business entity makes a difference. There are different rules governing the procedures for internal disputes between owners, and the owners' individual liability to third parties, depending on what type of business entity is involved (i.e., corporations, partnerships, limited liability companies, professional corporations, etc.).

Third, sometimes a party can be misnamed or listed as John/Jane Doe. Misnaming sometimes happens, for example, when dealing with corporate subsidiaries. There are also a variery of situations where a John Doe defendant is appropriate, although in my experience the designation is over used.

If there's enough information in the complaint describing the proper defendant, even if there was a mistake in the name, it can make a correction go more smoothly.  If the defendant had notice that it was the entity that should have been named, a later correction may "relate back" to the original pleading date, thereby avoiding statute of limitation problems.

<< Jurisdictional Statement || "Pleadings" Table of Contents || Facts Common to All Causes of Action >>

Drafting A Pleading: Facts Common To All Causes of Action

Generally, the facts in a complaint should be very simple assertions, with each individual factual statement contained in its own paragraph.  One fact per paragraph.  The reason for this is that the answering party only has so many options.  They can: admit; deny; deny knowledge or information sufficient to form a belief; or refer a question of law to the court.

The simpler your factual statements are, the harder they are to deny.  In making your statements simple, avoid adjectives and compound sentences, which only give the responding party more things to disagree with.  Using the disjunctive "or," such as "agent or employee," makes statements broader and more likely to be admitted. Similarly, any uncertaintly about a date should be qualified with "in or around" the Month, or "on or about" the date.

Of course, clarity comes first. One fact per paragraph is not always a hard-and-fast rule.  It is not improper to have narrative paragraphs that tell the underlying story. Such paragraphs can be helpful in explaining what actually happened.  When you write a paragraph like that, however, it can easily be denied.  Thus, you should also put in seperate one-fact paragraphs stating hard simple facts that, taken together, lead to the inferences found in the more complex statements.

Overall, the facts contained in the facts section are supposed to be things that demonstrate entitlement to the relief being requested.  Before deciding what facts to include, or how to phrase them, you need to understand the law that governs the claims you are making.

<< Parties  || "Pleadings" Table of Contents || Conditions Precedent >>

Drafting A Pleading: Conditions Precedent

In some cases, there are conditions precedent to starting a lawsuit.  Where applicable, the fact that you have completed these hurtles should get their own section within the complaint.  Some examples of conditions precedent include demand upon the board of directors in a shareholders derivative action, filing a notice of claim in an action against a municipality, and filing an EEOC or NYS Division of Human Rights complaint in an employment discrimination or harrassment suit. These requirements can be imposed by statute, or by contract, and will require a party exhaust their administrative remedies (i.e., complete an internal grievance or appeal procedure) prior to filing suit.  This requirement is fairly common in employment disputes, insurance disputes, and when dealing with government agencies.

<< Facts Common to All Causes of Action || "Pleadings" Table of Contents || Causes of Action >>

Drafting A Complaint: Causes of Action

A legal basis for relief is called a cause of action.  Sloppy complaints will list facts in this section, not properly label each cause of action, or not include the actual elements of each cause of action.

If you are suing someone, you need a basis.  Did they breach a contract, commit a tort, violate a statute? In the facts section, you described what happened, in the causes of action, you explain - in terms of the Law - why you are entitled to relief.

Each cause of action should be labeled.  By labeled, I don't mean just "first," "second," "third." Claims always arise under either a statute or an area of common law to which the Courts have assigned a name.  

If you think you are pleading a novel heretofore unrecognized cause of action, you are probably wrong. In the event you are correct, and you've come up with a never before seen legal theory,  the Court will probably dismiss your case and explain that you haven't pleaded a legally recognized cause of action. Even in the extremely rare situation where you are actually dealing with uncharted legal waters, the courts will still operate within certain legal frameworks based on precedent.  Where changes in society bring about new types of relationships, the conduct between those parties is still governed by either the common law of torts, a statute, a contract, equity, or some similar claim.

Most claims have "elements," meaning the items all of which must be proven to establish a claim.  In a Negligence action, for example, the elements are: duty, breach, causation, and damages. Other claims, especially equitable claims, rest on concepts like "fairness," where the court will weigh various factors, not all of which are required.  Asserting a cause of action, provided the facts are there to support it, is as simple as identifying each of these elements and linking them to the particular case.  When asserting a statutory cause of action, parrot the language of the statute.

Asserting causes of action also becomes more complicated when you are dealing with multiple plaintiffs or multiple defendants.  Each cause of action should designate which plaintiffs assert what that claim against which defendants. In a shareholder's derivative case, for example, the business owner may assert claims both individually and on behalf of the company, but the court won't accept such a hybrid complaint unless the individual and derivative claims are clearly distinguished.

As a general rule, you want to be over inclusive with the causes of actions asserted.  It is easier to drop a cause of action than it is to amend the complaint to add one.

<< Conditions Precedent || "Pleadings" Table of Contents || Demand For Relief >>

Drafting A Complaint: The Demand For Relief

WHEREFORE, this is where you tell the court what you are asking for. You are literally pleading for something.  Some jurisdictions follow an old rule of practice where the demand for relief begins, after the word "wherefore" in all caps, "Plaintiff prays the Court enter Judgment against" the defendant.  The more modern way to phrase it is "Plaintiff demands Judgment against" the defendant.  However you phrase it, the point is the same.  You need to specifically say what you want.  Are you looking for compensatory damages, statutory damages, punitive damages, injunctive relief, a declaratory judgment, attorneys fees, costs, interest?  If you don't put it in, you might not be able to claim it.

This section is organized in different ways for different cases.  Like the opening paragraph, it is not numbered. Sometimes, a single unified paragraph will work for the whole complaint.  Other times, each cause of action needs it's own damages paragraph, or there are seperate paragraphs for each defendent or each type of damages.  Overall, the point is that you clearly state which plaintiffs are seeking what relief against which defendants.

When dealing with compensatory damages, the rule was formerly that you had to demand a specific dollar amount.  A specific amount is no longer required, and the phrase ordinarily used is "in an amount that will fully and fairly compensate Plaintiffs for the damages they have suffered" or something similar.  A specific dollar amount is still used in actions such as collection matters, or other actions where a set amount is readily capable of calculation.  The advantage is that, in those cases, a default judgment can easily be entered for the amount demanded without the need for an inquest if the defendant doesn't answer.

Where damages are for pain and suffering, emotional distress, or other non-economic losses, however, you cannot avoid an inquest merely by putting a specific dollar amount.  Some practitioners still put a dollar amount in these cases, mostly for shock value.  By doing so, you are capping your damages, but the dollar amounts are usually so outrageosly high that it doesn't matter.

I am generally against putting a dollar amount where it is merely for shock value.  Unsophisticated defendants may be surprised, and media outlets will almost always state the dollar amount if you put one in, but if the number is meaningless then it only serves as a distraction.  At best, it is a meaningless number that draws attention to your case as something you deemed "serious" enough to put a large number on.  More likely, however, the number sounds outrageous, you are playing a role in proliferating the inaccurate view of an out-of-control legal system, and you may have made an otherwise meritorious case sound frivolous.  

<< Causes of Action || "Pleadings" Table of Contents" ||

Tuesday, November 23, 2010

Products Liability Case Discussed in NY Law Journal

Almost two and a half years ago, back in June 2008, I wrote a post about the de facto merger doctrine.  (Prior post here).  At the time, I was working on products liability case where the issue came up.  The case was hotly litigated.  Not only had the company gone through several incarnations since the manufacture, there were also issues of third-party alterations, warnings, and everything you could think of in a defective product case.  This Spring, the motions for summary judgment were litigated, and the Court found factual issues precluding summary judgment and permitted the case to go to trial.  You can read the decision, here.  Tonight, I'm reading through blog posts, and I come across an article on, from the New York Law Journal, discussing the case! The article is by Steven F. Napolitano and Peter Luneau, entitled "Determining Successor Liability."

Saturday, September 18, 2010

Personal Injury Attorney - Car Accident Appeal Decided by Second Circuit

I recently briefed and argued an appeal in the Second Circuit - the Federal appellate court - related to New York State's serious injury threshold. The District Court dismissed my client's car accident lawsuit on summary judgment (i.e., decided the case on papers without a trial).  The issue on appeal was whether there were triable questions of fact as to whether the plaintiff met New York's "serious injury" threshold.

Nearly all states have enacted a no-fault laws requiring that everyone maintain minimum car insurance, with both drivers' insurances guaranteeing that medical bills for anyone injured in an accident are paid (up to a certain limit).  Even where neither driver is insured, the statute creates a state-operates fund which effectively insures otherwise uninsured drivers up to $25,000.  

The trade-off for guaranteeing medical treatment and ensuring a responsible payor is that people cannot recover for their pain, suffering and emotional distress unless they are "seriously" injured, which is defined as death, a fracture, a significant limitation, a consequential limitation, or being unable to perform usual and customary activities for at least 90 of the first 180 days after the accident.  So-called "soft tissue" injuries are not enough for a lawsuit unless they fit into the  "significant limitation," "consequential limitation" or 90/180 categories. (NY Insurance Law 5102).  

In Luo v. Mikel, the plaintiff suffered a torn meniscus, had corrective surgery, and regularly attended physical therapy for three months.  Although the lower court dismissed the case, on appeal the Second Circuit reversed and found that there was a question of fact as to serious injury.  (You can read the decision at the Second Circuit website and Findlaw, and read coverage at the NY Daily Record).  

Saturday, July 31, 2010

How to Negotiate and Settle A Personal Injury Case

For a brief video describing my services as a Suffolk County Personal Injury Attorney, click this link.

Most cases result in settlement. Some are dismissed outright, and a small handful make it to trial, but most cases are resolved through an agreement between the parties.  Thus, the ability to value, negotiate, and settle a case is an incredibly important skill for a civil litigator. Valuing and negotiating a case is a difficult process, which requires experience and talent. Ultimately, the settlement value of any given case is what one side is willing to pay and the other side is willing to take. Sometimes, these amounts never meet and the case should be tried.

There are four major factors to consider when evaluating a personal injury case: liability, sustainable value, comparative fault, and collectability.


The first step in evaluating any case is liability: how sure are you that your side will win. In some personal injury cases, such as a pedestian knock-down or a ladder/scaffold failure, liability generally strongly favors the plaintiff. In others, such as most slip and fall cases, liability tends to favor the defense.

In some cases, where liability is clear for one side or the other, the case may be subject to dismissal or summary judgment, meaning that the judge looks at the undisputed facts and decides which side wins as a matter of law. In most cases, however, there are questions of fact and credibility that must be answered by a jury if the case does not settle. When a jury gets involved, there is always a level of unpredictability.
Once you've evaluated the odds of winning, that number should be assigned a percentage or a range of percentages. Knowing how likely you are to win, and what percentage your client will be held responsible, requires knowing the law, knowing both sides' arguments and evidence, and being able to objectively apply the law to the facts.

A defendant's exposure is the amount it will cost if the defendant loses the case: its worst case scenario. This value is derived by examining the sustainable value of the case (your best case scenario) and factoring in comparative fault. Conversely, the plaintiff's worst case scenario is losing and getting nothing.

A - determine the sustainable value of the case

To know what a case is worth, you need to have some idea of the full value under the best possible circumstances. In a personal injury context, there are often records of settlements and verdicts in cases with similar injuries. There are some commercial publications, such as the jury verdict reporter, but the most valuable records are published court decisions.

With most jury verdicts, the parties have a right to ask that the amount be reviewed by the trial judge and, if necessary, the appellate court. In New York State Court, the Appellate Division takes an active role in reviewing jury verdicts, and will lower or increase the award if it "deviates materially from reasonable compensation." The Federal Courts are less active in reviewing jury verdicts, and will only change an award if if "shocks the consience." Federal juries, however, must decide civil cases with a unanimous verdict of eight jurors; whereas a NY State jury in a civil case can issue an award with 5 of 6 jurors agreeing.

When the injury you are dealing with has been examined published decisions, there may be case law that provides a range of "sustainable value" for that injury. By "sustainable value," I mean the amount, if everything goes in your favor, that the court will let the plaintiff walk away with.  One notable blog, John Hochfelder's New York Injury Cases Blog, focuses on discussing these decisions.  As John often notes, the courts often leave these decisions purposely vague. 

Every person, and every injury, is unique. Just as with evaluating liability, determining damages is as much of an art as it is a skill. The plaintiff's age and other unique factors (pre-existing conditions, unique limitations, etc.), are important to consider when comparing cases.
Juries generally award personal injury damages in two parts: past and future. Within that, the damages may further be divided into lost earnings and pain and suffering. To compare a case, you will need to break down this number by year so as to compare it to your plaintiff.
In examining comparative injuries, you also need to take into account the type of case and the venue. For example, a spinal injury is generally worth more in a construction accident case than in a motor vehicle case. With respect to venue, there are conservative counties and liberal counties. A Bronx verdict is not particularly informative when assessing the value of a Nassau County case.
B- If applicable, assess a range for comparative fault

In some cases, comparative fault (the plaintiff's level of responsibility) is not an issue. It is not an issue, for example, where the plaintiff was a passenger in a car, or where liability is "strict," such as in a ladder/scaffold failure. In contrast, comparative fault is nearly always an issue in slip or trip and fall cases.

When the plaintiff's fault is an issue, comparative fault can be one of the most difficult factors to evaluate. It is extremely fact sensitive, and something over which different people will have varied opinions. Also, many times, comparative fault overlaps with the liability inquiry. 

The choice of law can make this inquiry particularly important. In personal injury cases, the law of the state where the accident happened usually governs. In New York, in most cases, a person can recover even if they are mostly (but not entirely) at fault, although the award will be reduced by their proportionate share of negligence. Other states, such as New Jersey, do not let the plaintiff recover if they are more than 50% at fault.
C- Do Some Math

The full sustainable value of the case, minus comparative fault, gives you a sense of the defendant's exposure. From that, you can determine a settlement range by discounting liability.  Say a case has a full sustainable value of $750,000 to $1 million, but the plaintiff was 25-50% at fault and there's a 30-40% chance the defendant won't be held responsible at all.  In that scenario, the defendant's exposure is between $375,000 (750k - 50% comparative) and $750,000 ($1 million - 25% comparative). Thus, the settlement value is between $225,000 (375k - 40% liability discount) and $525,000 (750k - 30% liability discount). 

These numbers, of course, are fictitious, and would need to be adjusted to reflect the facts of any particular case. Realize also, both sides will likely have a different assessment.

Often, defendants have limited insurance coverage. Because of the difficulty collecting a judgment, the reluctance of insured defendants to contribute to a settlement beyond their policy limits, and the fact that the average individual does not have significant assets, the insurance coverage frequently serves as a cap on the amount of money someone can receive. You can have a million dollar injury, but a basic $25,000 motor vehicle policy and an impecunious defendant, leaving no-where else to look for additional compensation (other than, perhaps, social security).

Liens may also pose a problem with settlement. Any Workers Compensation lien or Medicare/Medicaid lien must be paid from the client's share. These don't interfere with the settlement per se, but are factors that can make it more complicated.

Litigation cost can also be an issue. If a case goes to trial, both sides have to pay for doctors to testify, which can be expensive. This should never be a decisive factor, but it is (along with the unpredictability of a jury) a justification for the plaintiff giving a small discount to avoid trial, and the defendant offering "nuisance value" to make the case go away. Not all cases warrant such a discount, but in some situations it is appropriate.


Negotiating a settlement is a back-and-forth process of demands and offers. The starting point is almost always absurdly low or absurdly high. You never start off telling the other side exactly what you want because then you have no room to negotiate.

Generally, the plaintiff leads off the negotiations with a demand. Having evaluated the case, the plaintiff's attorney should have a target number in mind, and will make a demand that is significantly higher than that. The defendant, in turn, responds to the demand with some sort of offer. Based on the defendant's response (the number will, of course, be extremely low), the plaintiff can get a sense of how the defense has valued the case.

Both sides will at least appear set in their ways, but that is just how attorneys work. It is not just an exchange of numbers, but also a discussion of the merits of the case.

Especially if your side has a strong case, you don't have to settle. One of the most pursuasive things you can say in settlement negotiations is that you want to try the case (as long as you mean it). In fact, some insurers will keep their offers low until you prove that you have no problem going to the jury; conversely, some plaintiff's attorneys will cave rather than take a case to trial.

As a case progresses through discovery, there are several instances where the parties exchange information. These are the ideal points to discuss the case with the other side and revise the demand/offer.  Each move is goal-oriented. If you give your bottom line, you probably won't get it: they aren't telling you what they are really willing to pay; why should you tell them what you are willing to take?

Bidding against yourself, generally, is a mistake. When one side moves, its the other side's turn. That's just how it goes.

Choosing whether to accept or reject a settlement is up to the client. Some clients are risk takers, while some are risk-averse. It is important to get authority, to manage the client's expectations, and to make sure the client is on-board with your perspective of the case. That said, clients, generally, have no experience on which to value their own case. That's what they hired you for. It is up to you as their attorney to explain what the case is worth, and to make them feel confident that their attorney is fighting to get them the best result.

Sunday, February 21, 2010


360 Adams St.
Brooklyn, NY 11201 
Phone: (718) 675-7699


The courthouse located at 360 Adams Street is the ninth of Brooklyn's courthouses.  The first was erected in 1668,  four years after Brooklyn was seized from the Dutch.  It was in Gravesend, the only area where the British had a solid foot-hold, . The Gravesend courthouse lasted twenty years, and was followed by a series of small courthouses in Flatbush.  For one hundred and forty years, the Flatbush courthouse was continually rebuilt on the same site, with each version keeping the original stocks and whipping pole in front.

By the turn of the nineteenth century, "the Town of Brooklyn," now Downtown Brooklyn and Brooklyn Heights, had seen significant growth.  This was attributable, in part, to the Fulton Ferry creating a reliable connection with Manhattan. The Brooklyn Bridge wasn't built for another 100 years.  As soon as Town of Brooklyn received permission from the State to build its own courthouse, the residents immediately rented space in a library.  Later, they rented space above a hardware store.

Finally, in 1846, Brooklyn's iconic Borough Hall was built. The statue of Justice, the building's most notable feature, however, was not added until a 1988 restoration.  After less than twenty years of use, Borough hall was too small for the growing county's needs.  As the civil war raged, a spectacular domed structure was built in downtown Brooklyn.  It opened in 1865, and -- despite being overshadowed in the press by the impending Union victory -- received tens of thousands of visitors in its first few days.  This courthouse served the County through the turn-of-the-century merger of New York City, but was demolished  in the 1950s and 1960s.  

The present courthouse, 360 Adams Street, adjacent to Borough Hall, was built in 1958.  It is a  "modern style" rectangular courthouse, with a limestone facade.  The planning began in the 1940's as part of a larger project to rebuild the then-delapitated downtown Brooklyn.  It was designed by the same architects as the empire state building, but was immediately criticized for its cold straight lines.

While the courthouse itself may place function over form, picturesque Cadman Plaza makes up the difference.  On the  east end of the park is Borough hall (which is nicely decorated for every holiday), and on the west end (near the federal courthouse) is a huge war memorial.  Frequently, there is a farmers market in front of the courthouse.

In 2005, a new courthouse was erected at 330 Jay Street.  It is a 32 story state-of-the-art skyscraper.  Although the courthouse has 82 courtrooms, most of the supreme court civil cases are still handled at the 360 Adams Street courthouse.


View Where To Eat Near the The Kings County (Brooklyn) Supreme Court in a larger map

(The map above is public, if anyone has additional suggestions, they are welcome to add them, both to the map and in the comments section)

Chipotle - incredible burritos, and supposedly healthy.

La Traviata - A tasty casual italian restaurant.  I don't know if they still make them, but they used to have a terrific deep dish pizza. While you wait, you can snack on a bread basket and olive oil.

Five Guys Burgers - relatively new, but I liked it.

Clinton Market - There's no-where to sit, but they make a great sandwich.  During law school, I pretty much survived on roast beef with cheddar on a roll.

Sushi Garden- decent, inexpensive, sushi.

Starbucks - I'm a big fan of the coffee, and the sandwiches and baked goods are usually very good.   This particular Starbucks  is usually very efficient.  There may be seem to be a line, and it may seem crowded, but it tends to move quickly.    

MontyQ's - Good service, consistently good pizza and pasta, a lot of seating, and a nice clean restaurant with a good atmosphere.

Fast food: There's a Burger King, Wendy's, White Castle, and a Subway in the Fulton Mall. There's also a McDonald's on Court Street.  Burger Kings has the most seating, but tends to be crowded.  Subway is smaller, but you can usually find a place to sit.  Service at any of them is hit or miss.  

Other: Every courthouse in the City tends to have a cart in front of it, and Brooklyn's cart is actually one of the best.  Also, within the courthouse, on the main level (technically the second floor), there's a snack stand and soda machines.

A bit of a walk (Fulton Ferry, Historic Area, Brooklyn Bridge, etc.)

Grimaldi's - Frank Sinatra supposedly had pizzas from this place flown across the country.  It's a good walk from the courthouse, but if you have a little time to kill, it's worth the trip.  The pizza is unique: a thin fire-touched crust, with fresh mozzarella.  Be aware, the "small" calzone will feed a family of four.  (Alternate Website; Wikipedia; Citysearch; NY Magazine;

Brooklyn Ice Cream Factory - There's an old lighthouse at Fulton Landing that's been converted to an ice cream shop (or maybe it was always an ice cream shop, I really don't know).  In addition to the best view of downtown Manhattan, the Ice Cream is fantastic.  (NY Magazine); (

The River Cafe - I haven't been here yet, but I've always wanted to go.  This restaurant sits under the Brooklyn bridge, jutting out into the water, and offers an incredible view of Manhattan.  


Note: court rules frequently change and these comments may be out of date.  Be sure to check the local rules.    Anyone reading this is free to add additional practice tips in the comments.  

Motions-  Substantive motions (not dealing with discovery) are made returnable to the assigned justice, each of whom has a set motion day (i.e. some judges only hear motions on Tuesdays, others on Thursdays, etc.).  You can make the motion returnable on any day, but it may be automatically rescheduled to the assigned judge's next motion day.  Motions for summary judgment in Brooklyn must be made within 60 days after the note of issue is filed (or 120 days, if the City is a party).

Discovery - Discovery is handled through relatively informal Preliminary Conference and Central Compliance Parts.  Discovery motions are also returnable in this part, and are expected to be stipped out.  If you can't agree to a stipulation, you'll be seen by a court attorney (all of whom really tend to know what they are talking about), and may have to wait.  

Trial -  Trials are bifrucated (i.e. split in two parts: liability and damages).  There is a central trial  assignment part, with the supervising judge rotating quarterly.  In the trial assignment part, the parties answer either application (meaning they want an adjournment); conference (meaning they want a settlement conference); "ready" (meaning you're ready to pick a jury); or "ready pass," meaning you're pretty much ready to pick a jury, but just need to come back in the afternoon or a day or two.  If you are ready to pick a jury, you have two options: first, pick and go, meaning you pick a jury and go immediately back the assigning judge, who then picks a judge to try the case in front of; or, second, "pick and pass," meaning you pick a jury and then they give you a date a week or two later to come back, get assigned a judge, and try the case.  


* Citizens Jury Project,
* New York Personal Injury Law Blog, Photo Essay of Chambers

Sunday, February 7, 2010

Personal Injury Attorney - Bar Fight Injury Triggers Dram Shop Claim Where Assailant's "Speech Was Slurred and His Eyes Were Red and Watery."

The Appellate Division, Second Department, recently released its decision in Morris v. Bianna. The case involved a bar assault, and the Appellate Division found that there was a question of fact as to whether the assailant had been sold alcohol in a "visibly intoxicated" state, thereby making the bar liable under the Dram Shop Act.  The strongest evidence in the plaintiff's favor was testimony from "the manager of the bar on the night of the occurrence ... that, when he observed [the assailant] shortly after he had stabbed the plaintiff, Penzo's speech was slurred and his eyes were red and watery." 

As many of you may be aware, courts tend to take the path of least resistance.  They won't, for example, address a Constitutional claim if they don't have to.  Similarly, where there are multiple legal issues, appellate courts will often decide the case based upon the simplest, most straight-forward, argument.  

In this case, there was another issue that the Appellate Division didn't comment on and, instead, left for the trial court.  The Dram Shop Act, N.Y. General Obligations Law § 11-101, creates a private right of action against a drinking establishment for injuries caused by the unlawful sale of alcohol.  Under Alcoholic Beverage Law § 65, unlawful selling includes sale to minors, to "any visibly intoxicated person," or to "any habitual drunkard known to be such."  

This case had a solid "visibly intoxicated person" argument, but I also threw in an argument that the assailant was a habitual drunkard.  There was plenty of evidence to support this but, to my knowledge, the particular issue had never been addressed in New York case law.  

Every State has a Dram Shop act, and many of them are similarly phrased.  They derive from an old English law.  A "dram" is a British word for a shot.  So, when the defendant made an issue of the fact that New York courts hadn't defined "habitual drunkard," I found a few courts that did.  

Colorado and Florida's highest courts have squarely addressed the issue.  The Colorado court found that "'known habitual drunkard' is a term of ordinary and common usage, and fact finders may apply its plain and ordinary meaning.... Whether a person is a habitual drunkard and whether the vendor of alcohol knew the patron was a habitual drunkard when served alcohol are factual inquiries based on the circumstances of each case.” K & S Corp. v. Greeley Liquor Licensing Auth., 183 P.3d 710, 713-714 (Colo. 2008).  Similarly, Florida's court found that knowledge of whether a person is a habitual drunkard “can properly be established by circumstantial evidence,” and “serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew that the person was a habitual drunkard.” Ellis v. N.G.N. of Tampa, 586 So. 2d 1042, 1049 (Fla. 1991)

There were also a few old cases that defined the term in contexts other than the Dram Shop Act.   See  Kendall v. Ewert, 259 U.S. 139, 42 S. Ct. 444 (1922)(a “known drunkard” is someone who is “generally recognized in a community as a common drunkard,” having “sacrificed themselves, to the craving for strong drink”); Sawyer v. Sauer, 10 Kan. 466, 471 (Kan. 1872)(“Proof of drunkenness so habitual as to be generally known in the community is sufficient to raise a presumption of knowledge.” )

Needless to say, the Appellate Division declined my invitation to decide a question of first impression in a relatively straight-forward Dram Shop case.  


Establishments Serving Alcohol Can Be Held Liable For Injuries Caused By Intoxicated Patrons

* Drunk Driving Dunce Hat (Long Island Legal News)

Saturday, January 23, 2010

How To Argue An Appeal

Below are ten tips for appellate argument. The tips are: keep it simple; don't make unnecessary concessions; respectfully disagree with a hostile judge; focus on the issues; don't be a jerk; engage the court; be organized; use verbal signposts; use case law intelligently; and, above-all, be sincere.

* Keep it simple.

To be persuasive, you also need to be concise and straight-forward. No-one will be receptive to your argument if it's too drawn out to follow. Overall, put your best points up front to make sure they get out.
Prior to actually arguing before the court, go over the arguments again and again so that you can squeeze your best points into as few words as possible. Trim your argument down to your best sound-bites, and the rest will flow naturally. A short focused argument is better than a long and rambling one, and the simplest argument is often the most compelling.

Also, you don't always have to repeat everything in the briefs. Don't concede anything about your weak arguments, and be prepared for everything, but there is nothing wrong with focusing on the strong issues (or the ones that you feel the court will deem most important). If you are going to concentrate on one or two things, tell the court. You can say something like: Unless the Court has questions about the other issues, I would like to focus on X and Y. This is particularly helpful if you are the respondent in a scattershot appeal.

Different courts have different policies regarding time limits, and you should plan accordingly. For example, in lower New York where I practice, we have the First and Second Departments of the Appellate Division. In the First Department, time limits are relatively strictly adhered to, with colored lights signifying that you are running out of time. In the Second Department, they are more prone to being flexible with time limits, but you need to get the hint when the judges are suggesting that you sit down. Whatever the court's rules, you have a finite amount of time and need to make the most of it.

* Don't make unnecessary concessions.

The judges will occasionally cross-examine litigators with yes or no questions, trying to get them to concede points. On a rare occasion, such a judge is trying to help you strengthen your argument, or is using you to mouth their own argument in your favor. More often, however, the judge is trying to make you see the weaknesses of your case, or to concede something that may be fatal to your argument. I try not to say never, but be extraordinarily careful about conceding any issue during your argument.  If you are going to concede a point, that decision should be made at the briefing stage, or at least prior to argument, not in the middle of your presentation. Don't press weak points, but you don't need to roll over if you disagree.

On the other hand, former Judge Wesley of the Second Circuit has argued that lawyers are often too-wary of conceding a point, thereby losing credibility with the court, saying "I would think that you would immediately concede it, if you're convinced that the judge is right and then immediately distinguish it." (NYLJ). 

Overall, whether to concede a point is a fact-sensitive  issue, and should not be done lightly.  If you don't agree with what the judge is saying, you should confidently say so.  If you think the judge may have a point, the best approach is to treat the question as meaning: even if this were true, why should you still win?

* Respectfully disagree with a hostile judge.

Dealing with a judge who clearly opposes your case is possibly the most difficult part of arguing an appeal. Most often, unless there is also a judge who seems to be on your side and they decided to play good cop/bad cop, an overtly hostile judge may signal that at least that judge (if not the entire panel) will side against you. If no-one else on the panel is bolstering your argument, they didn't give your adversary a hard time, and one or two judges attack your arguments vehemently, the panel is probably going to side against you.

At that stage, when you see a loss looming, don't give up. Don't unnecessarily drag it out, but your client has a right to be heard. Not only is it possible that you are misreading the judges, but in an appeal your arguments have a broader implication than just the case before you. Even if the judges disagree, you need to make sure they understand and respect your reasoning and issue a decision that is not bad precedent. Possibly, if your arguments are strong enough, you'll get a dissent. There are judges -- albeit relatively rarely -- who are more timid and won't speak up against a colleague during oral argument. Moreover, although the merit of an appeal is usually decided based on the briefs, there is always a possibility that a strong argument will sway one or more judges.

"With all due respect," is a phrase that very strongly signals that you disagree with someone. It can be seen as a polite F-U. I recently used it where a judge kept cutting me off, and the judge quickly cut me off again and said "the respect is implied counsel." (He then compared me to Charlie Brown listening to his teacher - but that's neither here nor there). The phrase "with all due respect" generally does not help you persuade the judge you are speaking to, or any that agree with that judge. It is adversarial, and its only real purpose is to draw the attention of any other judges on the panel who may be leaning (or teetering) in your favor.

* Focus On The Issues

Generally, appeals involve questions of law, and the judges are already familiar with the record and the issues. Get to the point, and stick to the real issues. It is not a jury argument, and shouldn't be treated like one. Be concise and straight-forward.

As a general rule, do not overtly appeal to sympathy or other emotive factors, but this rule very flexible and depends on what issues you are dealing with. When the panel is reviewing a jury verdict, for example, your argument may sound similar to a dense, evidence-focused, closing statement.

I watched a rather entertaining argument a couple months ago where a local Brooklyn business purchased an investment property at a foreclosure sale. The property had been owned by a rich old woman, there had been some confusion with the water bill, and it eventually went up for a foreclosure sale without the woman realizing it. The business was obviously a good faith purchaser, and had no knowledge that the woman intended to pay the bill. The old woman, however, wanted the building back because it had sentimental value (she grew up in one of the apartments) and wanted it to be part of a bequest in her will towards a complex for a medical school.

The lower court put a hold on the sale until a hearing could be held as to whether the woman's default could be vacated, and the business appealed. An overly-cocky lawyer represented the business, and started with a story about how he went to his son's class for career day and explained what lawyers do. The story had some moral about telling the truth, and the argument was that the other lawyer was lying about having served papers. While the lawyer snarkily grinned with pride that the judges let him finish his story before lashing into him, I thought to myself: I hope this guy didn't sound as sleazy when he spoke to his son's class.

Starting off with a story, and accusing the other side of lying, really didn't seem to sit well with the court. In fact, may have made the panel more sympathetic to the other side. Since the issue was whether the lower court had the equitable discretion to set aside the foreclosure, focusing on the grey area of credibility rather than black-letter law may have been very poor move.

Not helping the Old Lady's side, of course, was that her lawyer was a hot mess. The two attorneys were like Felix and Oscar. The Old Lady's lawyer argued that he had personally filed and served documents (which neither the Court nor opposing counsel received - but he was apparently permitted to submit during argument below), but the clerk had lost them and opposing counsel was lying. He refused to accept even the possibility that he didn't send them, despite the fact that it probably would have been easily excusable. Adding to this, the business had appealed from a motion to renew/reargue, filing two seperate briefs rather than consolidating, and the old lady's attorney didn't respond to the second appeal because he had changed offices apparently forgot to forward his mail.

As entertaining as it was watching this train-wreck of an argument, neither side squarely addressed the main issue of whether the lower court had equitable power to halt a foreclosure sale after the auction was already complete.

* Don't be a jerk

As you may have gleened from the story above, courts don't like when one lawyer attacks another or makes anything unduly personal. If you think the other lawyer or the lower court deserves to be chastised, let the court do it sua sponte. There's an old saying: if the facts are in your favor, pound on the facts; if the law is in your favor, pound on the law; if all else fails, pound on the table. Those are your choices (the table being policy or sympathy) and attacking anyone personally is not one of them. It's unprofessional, discourteous, and generally a bad idea.

I had a client once -- a law school graduate who, until then, had appeared pro se -- who had been granted leave to move for reconsideration in the Appellate Division on a legal issue of national significance. I came in to handle the reconsideration motion, with an eye towards going to the Court of Appeals. Rather than focusing on substance, the client insisted on personally naming and attacking court personnel, whom he believed had made technical administrative errors. Eventually, we parted ways, he argued on his own and apparently didn't heed my advice. Despite having a very winable appeal, the outcome was scathingly against him.

I had another case where my adversary's arguments - despite winning in the court below - bordered on frivolous (and only became moreso with time). He seemed to be doing his best, but it was just bad. Rather than asking for sanctions, or criticising him, I focused entirely on the merits. I argued that not only was the lower court wrong for granting the defendant summary judgment, but the Court should search the record and give my client judgment as a matter of law. The record was sparse, but I suggested that my adversary would concede that certain facts were not in dispute (and he did). My client wound up with a judgment overwhelmingly in his favor, and I'm convinced it would not have gone so well if I hadn't taken the high road.

* Engage the court

Justice Scalia and Brian Garner wrote a book on appellate advocacy called "May It Please The Court," in which they suggest that oral argument is your opportunity to participate in the judges' deliberating process: listening to each judge's concerns and addressing them. It is one of the best books I've seen in this area, and the approach is well taken.

You need to make listening a priority, both with respect to your adversary and the judges. When a judge asks a question, answer it immediately. If necessary, make a quick note (such as a little star in your outline/flow-chart) to remind you to finish what you were trying to say. If you're good, you'll be able to weave your response seamlessly into your argument without losing your flow. The outcome of deferring or ignoring a question will be that the judges will either jump down your throat, or completely ignore everything else you have to say.

In the end, the outcome you want is an opinion in your favor. In your argument, you should be giving the judges fodder to use in crafting their decision. If you're lucky, one of your sound-bites will be adopted. I once received a decision that copied the preliminary statement from my brief almost verbatim. You will almost never see your advocacy explicitly complimented in a written decision, but being quoted (even if its not attributed to you -- which it won't be) is a huge compliment.

* Be Organized.

Don't read a prepared statement and think that's an argument. That is obvious advice, but it doesn't mean that you should "wing it." You need to plan out your argument, know which are your best points, and be prepared to jump around in response to the judges' questions.

When I argue, I use a flow chart. I put the main topics in bubbles, with sub-topics coming out on spokes (and key case names next to their respective sub-topic). I rarely look at the chart, since it's really a proxy for what's already in my head, but it has come in handy for planning out the argument. Then, before finishing, I can glance at the chart to make sure I've covered everything.

Whatever notes you use, keep them to one or two pages that you can place face-up on the podium. No-one wants to flip pages. One of the most common strategies is writing your notes on the inside of a manilla folder, which you can also put the briefs in.

On those same two pages, save room to make notes about your adversary's argument. I keep my flow chart on one page, then on a second page I make a line down the middle. Notes on my adversary's argument go on the left; my rebuttal points, if necessary, goes on the right.

Flag the record. Generally, you will not need to reference a specific page in the record during an argument. The judges have already been directed to the important documents or testimony by your brief, and usually won't ask you to point to a page number. It does happen, however, and it happens because there is something important on that page.

Sadly, all too often during oral argument, there will be a minute of awkward silence as a flustered attorney flips through pages on the verge of tears, then says "I know it's in here somewhere." Any documents or testimony that you think are important should be flagged and labeled with post-its. In the unfortunate event you do look for something in the record and can't find it, play it cool, give the best description you can of what it is and where it's found, and move on. In reality, it's probably not as big a deal as you think it is.

If you need to know a lot of cases, make one or two word notes in the table of authorities. That way, if a judge says what about such-and-such case, and you have no clue which case it was (which happens, despite best efforts), you have a readily available memory cue.

* Use Verbal Signposts.

If you want to get out three points, say something to the effect "there are three main issues I would like to address: first... ". This way, the judges know where you are going. Be careful, however, not to promise to talk about three things and only get to two.

If you are addressing your adversary's argument, reference it to let the court know what you are doing. If you are going back to a topic that a judge previously asked about, say something to engage that judge (especially if they are seemingly on your side).

* Use Caselaw Intelligently

This seems obvious, and you probably already did a lot of the work in your brief, but the back-and-forth of oral argument inherently gives legal discussion more depth.

You need to know the comparable cases extremely well, especially those that are binding on the court you are in front of. If possible, you should read underlying and subsequent decisions that give more detail on key cases. Frequently, the facts of a given case are described in very general terms, seemingly similar to your case, but key distinctions reveal themselves with further research.

Whenever you are discussing precedent, keep it closely tied to your own case. Your job when dealing with precedent is to compare and contrast relevent cases, not just explain them.

Update your research. There is always a lag between when briefs are filed and when the appeal is argued. If there is intervening case law that is on point, from the jurisdiction you are in front of or one that's binding on it, you should bring it to the court's attention. In the First Department, they provide you with index cards to write down any additional citations for the court. In any court, you can always bring it up during argument.

* Be sincere.

You are an advocate, and you should believe in your client's position. If you don't, perhaps someone else should do the arguing. Even if you don't agree with everything, and believe the court is going to side against you, there is always at least one point that deserves to be made clear. If necessary, focus on that, and build your argument around it. Policy arguments are the weakest type of argument you can make, but fundamental fairness and the rule of law are still at the heart of every good argument.

I watched an argument a few weeks ago where one side responded to progressively stronger requests that she sit down with statements such as "one last thing," followed by another minute or two of talking. Her adversary, on the other hand, agreed with nearly every yes or no question that was posed to him, even when the answers didn't help his client and were not things he had to agree with.

The two were actually rather skillful and experienced advocates. One was from a District Attorney's office, the other from a legal aid organization. They both likely knew that they were bending the "rules," but were engaged in passionate and sincere argument, which generally trumps any black-letter rules so long as it is done respectfully. There were a lot of examples of what not to do, but overall it was a great argument because both attorneys seemed to realy believe in their case and made good points.


New York Motion Practice
Notice of Entry and Notice of Appeal