To the Editor:
I always come away from one of David Horowitz's "Burden of Proof" columns feeling that I have learned something practical. However, in his "It's the Note of Issue, Stupid" column (May 2000), he has come up short. It seems to me that Mr. Horowitz has not gotten to the root of the problem, which is that in trying to make sense of the interplay between the rules and cases governing Note of Issue practice and the workings of the DCM system, he accepts the fact that the procedural tail (DCM) should be wagging the substantive (Note of Issue) dog.
Mr. Horowitz also does not acknowledge that it is not just lawyer's who are gaming the system, but judges as well. Since judges are "graded" by how well they adhere to DCM, they, too, have an interest in bending the system to make themselves look good by making sure the Note of Issue is filed on DCM's version of "on time" and allowing discovery to be completed while the case is on the ready trial calendar.
One by-product of this is that we return to the bad old days of summary judgment motions being made on the eve of trial and making it virtually impossible to appeal from a denial of summary judgment because decisions come down a month or less before trial.
One solution would be to set longer DCM periods -- who chose the 8-12-15 month periods and and why is a mystery, but they do not seem realistic. This solution might alleviate the problem somewhat, but would not solve it since lawyers notoriously wait until the last minute to do everything.
A better and more rational solution would be to return to the firm rule that no case goes on the trial calendar until all discovery -- including expert disclosure -- is complete. Period. No exceptions. DCM guidelines could still be used, but if discovery is not completed by the DCM deadline, the assigned judge could hold a hearing to determine which party was at fault. If no party was at fault -- for example if there was a stay caused by death or bankruptcy or if plaintiff had recent surgery or another accident -- then a new discovery deadline would be set. If one party or the other was at fault then sanctions, monetary or preclusion, would be imposed.
This would undoubtedly cause some shock and befuddlement among practitioners accustomed to not taking deadlines seriously and of counting on judges to play along with them in bending the rules beyond the breaking point. But if we are serious about setting up a system that works, then we should develop a system that works with firm and clear rules that are firmly and clearly enforced. Otherwise, we are just spinning our wheels.
Keep up the good work, David.
Harry Steinberg
Lester Schwab Katz & Dwyer, LLP
New York, NY