Judge Gerald Lebovits has a monthly column called "The Legal Writer" featured in the Journal, a publication of the New York State Bar Association.

In this month's issue (Vol. 79, No. 1), Judge Lebovits addresses "Ethical Judicial Writing" and examines a bankruptcy court decision we've scrutinized in a prior blog post. [See, "This Is Incomprehensible," by clicking on the following link: http://www.nyrealestatelawblog.com/2006/11/this_is_incomprehensible_1.html#000375]

Interestingly, Judge Lebovits echoed many of the sentiments expressed in our piece and we thought you might find his analysis of that twisted decision of interest.  Here are his observations:

One bankruptcy judge from Texas used humor to deny a defendant's motion as incomprehensible.  The judge compared the defendant and his motion "to Adam Sandler's title character in the movie 'Billy Madison,' after Billy Madison had responded to a question with answer that sounded superficially reasonable lacked any substance." Billy Madison, like the defendant in this case, was berated for his stupidity:

[W]hat you've just said is one of the most insanely idiotic things I've ever heard.  At no point in your rambling, incoherent response was there anything that could be considered a rational thought.  Everyone in this room is now dumber for having listened to it.  I award you no points, and may God have mercy on your soul.

Judges are different from everyone else in a courtroom.  They should decipher rambling, irrational, incoherent thoughts.  They should unearth the buried argument, comprehend the incomprehensible, clarify the opaque.  They shouldn't give up easily on a litigant who sounds like Billy Madison.  Judges who act disrespectfully to lawyers and litigants will in turn be treated disrespectfully.

Kudos to Judge Lebovits for getting it right!  (Unfortunately, a few too many of his colleagues neither strive to achieve these fundamental goals nor accord litigants--or their counsel--the "respect" and "dignity" they rightfully deserve.)

To download a copy of Judge Lebovits's article, please click on the following link: http://www.nyrealestatelawblog.com/blog~legal%20writer.pdf

Posted by Lucas A. Ferrara, Esq. at 8:26 AM | Permalink | TrackBacks (0) | Comments (0)

If you've ever considered becoming a judge, you may want to think twice. The campaign process is highly regulated and riddled with technicalities. It's so convoluted and complex that all judicial candidates--except those for town or village justice--are required to attend a "judicial ethics education program." The many issues addressed by the program include:

pre-candidacy activities;
endorsements by political parties, caucuses and PACS;
attendance at gatherings;
fundraising;
proper use of campaign funds;
campaign advertising; and
campaign speech.

We were recently able to secure a copy of the "Judicial Campaign Ethics Handbook," which was distributed at one of the training events.

You might be surprised by some of the content. For example, did you know that once a judge is elected, any unexpended campaign funds may be used to purchase "office equipment or furniture" (like "computers, word processors, microphones, telephone answering machines, judicial robes, carpeting, office equipment or office furniture for chambers, video equipment, etc."), and, that these items become the property of the New York State Unified Court System?

According to the Handbook, "Any items so purchased must be specified and donated [by the Judge] in writing to the local District Administrative Judge."

Anyone in the market for a used pink leather couch?

For a copy of the Judicial Campaign Ethics Handbook, please click on the following link:
Judicial Campaign Ethics Handbook

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By the way, the New York City Bar--formerly known as the "Association of the Bar of the City of New York"--is conducting a special program on Saturday, December 2, 2006, entitled "How to Become a Judge." According to promotional materials that have been distributed by the Association, more than 30 state and federal judges will be speaking about: Supreme and Civil Courts, Family and Criminal Courts, Federal Court, Housing Court, Judicial Screening Committees and Judicial Campaign Ethics. The Honorable Philip S. Straniere (Supervising Judge, Richmond County) is program chair, the Honorable Judith Kaye (Chief Judge, New York State Court of Appeals) is the scheduled keynote speaker. The cost for the entire 6 1/2 hour program (which includes lunch) is only $25 for members, $35 for non-members.

For additional information about this special event, please click on the following links: How to Become a Judge or Event Flyer

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

It's fortunate for the Honorable Gregory A. Presnell, a United States District Court Judge of the Middle District of Florida, that federal judges have life tenure. Appointed in 2000, by President William Jefferson Clinton, Judge Presnell has been the subject of national attention, and considerable public ridicule, as a result of a decision made by him in the case of Avista Management, Inc. v. Wausau Underwriters Insurance Company.

Unable to reach an agreement as to location of a deposition (pretrial questioning of a witness under oath), the parties asked the court to decide the dispute. Rather than resolve the matter, on June 6, 2006, the court directed the attorneys to employ a rather unorthodox decision-making alternative: the game of "rock, paper, scissors."

In sum and substance, Judge Presnell required the advocates to meet on June 30, 2006, at 4:00 PM, at a "neutral site agreeable to both parties." Once assembled, the attorneys are to engage in one game of "rock, paper, scissors," with the victor entitled to select the deposition's location.

Just in case it's been a while since you've last played the game, here are ground rules:

Rock wins against Scissors.

Scissors wins against Paper.

Paper wins against Rock.

In response to Judge Presnell's Order, a representative of the USA Rock Paper Scissors League commented, "When someone uses rock, paper, scissors to adjudicate any kind of dispute that is a positive moment for the world."

We don't agree. With the mounting public dissatisfaction with trial judges, attorneys, and the escalating costs and increasing delays that have become part and parcel of litigation, it serves no legitimate purpose to make a mockery of the process or its participants. To say nothing of the ethically questionable nature of the judge's conduct.

All federal court judges are expected to comply with a "Code of Conduct," which provides that judges must "uphold the integrity and independence of the judiciary," and, "avoid impropriety and the appearance of impropriety." These high standards were promulgated to instill and preserve public confidence in the judiciary. We don't believe those goals were furthered by Judge Presnell's June 6, 2006 Order in any meaningful or positive way.

Yes, some lawyers can be stubborn, if not downright annoying, but there are an array of remedies and procedures in place (like monetary penalties or "sanctions") that can be used to reign them in. Relegating the practice of law and the role of the judiciary to "child's play," is an affront to us all.

For a copy of Judge Presnell's Order, please click on the following link:
Avista Management, Inc. v. Wausau Underwriters Insurance Company

For a copy of the Code of Conduct for United States Judges, please click on the following link:
http://www.uscourts.gov/guide/vol2/ch1.html

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (4)