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Demise of the Civil Litigator

By: Marshall R. Isaacs

In recent years, there has been a noticeable decline in the skill level of New York civil litigation attorneys. They say, “Don’t blame the player, blame the game.” When it comes to litigation, I say blame both.

Consider this amalgam of several of my recent experiences:

A client of mine was sued in Kings County Supreme Court for failing to pay fifteen thousand dollars for consumer goods she ordered four years ago. According to my client, the product she received was a knockoff and was worth significantly less than the purchase price. Plaintiff’s counsel served my client with the Complaint by mailing it to my law office via certified mail. My client is a North Carolina resident whose only connections to New York were the three emails between her and the Plaintiff.

For those of you who don’t litigate, there are four or five significant problems with Plaintiff’s case. I called my adversary and explained the problems as diplomatically as possible. I then offered my full authority of three thousand dollars to settle. Perhaps I had been unwittingly condescending because my adversary exploded into a fit of rage. “See you in court!” he declared and slammed down the phone.

After the phone call, I did some research on my adversary. He had been admitted for a little over two years and had spent those two years as an associate in a large law firm.

The light bulb went on.

The case is now well over a year old. My adversary will not budge on his $15,000.00 demand. I stand corrected. He also wants attorney’s fees, though there was no written contract providing for them. My adversary has not taken any action to move his client’s case towards trial. I suspect either he or his client or both are out of money. My client has since lost her job and can ill-afford to pay for a motion to dismiss. The case file sits in the Clerk’s office, gathering dust.

The above anecdote underscores three reasons for the substantial decline in skilled litigators: (1) Staggering unemployment rates have spawned a bumper-crop of solo practitioners; (2) Many of these solos have no litigation experience or have practiced only in Federal Court and are unaware of the vast nuances of New York civil practice and; (3) Hubris.

I have practiced New York State litigation for over 15 years. I have won jury trials and have obtained reversals in the Appellate Division. Conservatively, I have been in court a thousand times. I still make missteps and I make them often. This is due, in no small part, to the lack of uniformity within the inaptly-named New York State Unified Court System.

To show just how disjointed the court system is, let’s look at the New York City courts. In New York City, there are five counties. Two of the counties (Manhattan and Bronx) are governed by precedent set by the Appellate Division’s First Department while the other three (Brooklyn, Queens and Staten Island) are governed by caselaw from the Second Department. Within each county there are three levels of trial court, Supreme, Civil and Small Claims. Within these courts, there are special parts for commercial cases, no-fault cases and self-represented cases. In addition, there is a separate Family Court and Housing Court. Each county Clerk has its own rules, each court has its own rules and each judge has his or her own Part rules. To complicate matters, courts and judges often don’t follow their own rules.

If I make frequent mistakes, imagine what I see from younger and less-experienced attorneys. The impact of this problem is obvious: Cases take longer to resolve (if they resolve at all) and clients pay more in legal fees; Disciplinary and lawyer malpractice cases increase as do professional liability premiums; meritless cases are unnecessarily filed and the courts become ever more congested.

The first step to solving a problem is recognizing that you have one. Young solos and experienced non-litigators, heed my warning: New York State civil practice can be a nightmare. If you are inexperienced in state litigation and have been asked to defend or prosecute a civil action, I suggest the following:

1. Recruit an experienced trial lawyer to work with you Of-Counsel. Half a fee beats a whole fee plus a disciplinary proceeding, fee arbitration or a malpractice claim. Conversely, ask a skilled attorney to accept the case and to allow you to serve Of-Counsel.

2. Find a mentor. Seinfeld references notwithstanding, the mentor-mentee relationship is wholly underrated. If attorneys love to hear themselves talk, then the same is doubly-true of experienced attorneys. When I opened my own shop, I constantly turned to former co-worker Pat Lyons for advice. I credit Pat with much of my success. Nine years later, Pat turns to me as often as I turn to him. It is a unique and gratifying relationship.

3. Trust but verify. It goes without saying that adversaries can be disingenuous. That doesn’t mean you should shun everything they say. On the contrary, listen intently to your adversary’s position and then do your homework. If a defendant’s attorney claims his client has no money, ask for proof such as tax returns and financial statements. Search Westlaw’s Public Records database. Multiple lawsuits, outstanding judgments and tax liens are good indicators of a party’s viability. Perhaps there truly is no pot of gold at the end of the rainbow. If an attorney claims he has caselaw supporting his position, ask for citations. Read and Shepardize the cases. If the law is truly unfavorable, put aside your ego and advise your client that a discontinuance or unfavorable settlement may be in order.

4. Focus your CLE on civil practice. David Siegel’s CPLR Update Lecture is a must.

5. Reject the case. If you can’t secure the help of an experienced attorney, CLE and gritty determination alone probably will not suffice. An attorney who is not competent to handle a particular type of case is ethically required to turn that case away.

While I recognize that there are few options for the young or inexperienced solo, State Court litigation is not an ideal first choice. Until New York adopts mentoring programs like those in Ohio and Georgia, solos dabbling in litigation are urged to exercise a great deal of caution and restraint.


Comments (5)

Jared Kalina:

This is an excellent blog post. I find the straight forward "tell it like it is" style refreshing and very helpful to a entry level to intermediate level litigation practitioner.

Please keep up the good work.

Marshall,

This is one of your finest pieces. Working with you over the past four years has not only been a learning experience but also one of growth. In the past, I have used lesser attorneys and have either gotten lucky, or, like you said, my case sits and gathers dust. You are 100% percent correct about the recent law grads and how they think. Personally I feel with your experience and credibility perhaps the mentor they consider should be you.

Congrats on a job well done.

Warmly,
Stacey Prince

Nice recognition of the issues and challenges, and good suggestions to improve practice in NY and reduce mistakes. Often, it seems, the self-awareness is lacking in the inexperienced professional - they don't know what they don't know.

We've offered our SmartRules (www.smartrules.com) service for years to try to aid civil litigators with the key items they need for compliance. I'd be curious your thoughts about the other things you think we should add to supplement our content and help the younger litigators learn, and help all litigators reduce mistakes.

Lora Como:

How does an inexperienced lawyer find a mentor? I've offered to volunteer in law offices without any success thus far.

Lora -

Thank you for your comment. I'm very suprised that no firm has accepted your offer to volunteer. My guess is that you are soliciting the wrong type of firm. In my experience, only solos or very small practices have the flexibility to take on voluteers. In fact, most solos I know would jump at the opportunity to have some of their work done for free.

Also, taking on volunteers and mentoring are two very different things. I don't have the space for a volunteer or the time to teach a volunteer. However, I field questions from younger and less-experienced solos all the time.

I hope this is helpful.

Marshall

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This page contains a single entry from the blog posted on March 16, 2010 5:53 PM.

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