Thursday, February 28, 2013

Weekly Writing Tip

To produce a mighty book, you must choose a mighty theme. - Herman Melville

Take it from a pro.  Theme: it's the glue that holds your arguments together. Without a theme, or an understandable theory of the case, your argument is little more than a mish mosh of statutes and cases.  Themes excite the reader, and compel the judge to believe that an injustice has been done to your client.  As I always say, a lawsuit, by definition, is a conflict, and conflict is the necessary ingredient for any drama.  The issue may be dry, but there is a story to be told.  Dig deep into the record and identify what the case is really about.  Make that theme permeate your argument.  Tell your client's story.      

Monday, February 25, 2013

People v. Pealer: Time for a Second Look at Pretextual Stops?

As any criminal defense attorney and prosecutor knows, in determining the legality of a stop, a police officer's motivation in stopping the vehicle is irrelevant.  The stop will pass muster, and the evidence yielded therefrom will not be suppressed, so long as the officer can articulate an objectively reasonable basis for stopping the vehicle.  See Whren v. United States, 517 U.S. 806 (1996); People v. Robinson, 97 N.Y.2d 341 (2001).  

From the court's standpoint, the difficulty of applying a subjective standard for assessing the legality of a vehicle stop is obvious, as it would burden the  lower courts with the task of finding, as matter of fact, the officer's real motivation in stopping the vehicle.  By contrast, an objective standard is very easy to apply.  A broken taillight, an excessively tinted window, an illegal turn, or a failure to signal, among the other countless violations that sit on the books, all constitute objective - and, hence, legitimate - reasons to stop a vehicle.  Suffice it to say that an objective standard has benefited police officers.  With little more than a hunch that a vehicle contained contraband, police officers could stop the vehicle for the most minor of infractions, and the evidence yielded from the stop could be admitted into evidence. 

Since then, however, the courts, and the greater public, have begun to scrutinize police stops from both a legal and policy matter.  The NYPD's liberal use of stop and frisks, and its aggressive enforcement of the Clean Halls program, the system by which private landlords formally grant access to the police department so they may root out suspected drug activity, have angered the public, especially those living in the poorer areas of the city.  

In this environment, it was only a matter of time before one police officer pushed the outer boundaries of Whren and Robinson, and a judge would do more than raise his eyebrow. In People v. Pealer, a case the Court of Appeals decided just last week, the police officer pulled over the defendant's vehicle after noticing a Finger Lakes Community College sticker in the rear window, a violation of Vehicle and Traffic Law 375(1)(b)(i), which provides that "[t]he use or placing of posters or stickers on windshields or rear windows of motor vehicles other than those authorized by the commissioner, is hereby prohibited."

The legality of the stop was not at issue since the Court addressed the question of whether, under Crawford v. Washington, the admission of the calibration reports, which measure the accuracy of the breathalyzer instrument, could be admitted into evidence in the without the in-court testimony of the technician who created the records.  The court held in the affirmative, but what caught my eye was Judge Pigott's dissent in which he wrote that the stop failed to pass muster under Whren and Robinson because the display of the window sticker constituted only a de minimis violation of the Vehicle and Traffic Law.  Judge Pigott pointed out that the statute is rarely, if ever, enforced, as evidenced by the untold number of vehicles that currently travel on the road each day and which display a school sticker on the read window as a show of school spirit and pride.  

This, in turn, prompted Judge Smith to write separately to explain that, while he agreed that the reason for the stop was "as transparent as the sticker," "under Whren and Robinson that does not matter." Judge Smith argued that the Court cannot avoid the more unpleasant effects of Whren and Robinson by characterizing certain violations of the Vehicle and Traffic Law as de minimis.  In Judge Smith's view, Whren and Robinson bestow on trial courts a measure of predictability, which will be lost if courts are burdened with the task of deciding whether an officer exercised good judgment in enforcing the Vehicle and Traffic Law.

Will this exchange foreshadow change in the area of pretextual stops?  Perhaps it is too early to tell.  One thing, though, is for sure: in New York, where police stops have come under greater scrutiny, the environment is ripe for the Court to reexamine its precedents on pretextual stops.  

Tuesday, February 12, 2013

Specializing in Appellate Practice

Next month I will be attending a round-table discussion at my local bar association where the topic will be the pros and cons of specializing in appellate practice.  I am very much looking forward to the discussion since the issue is one that has not garnered much attention among legal professionals.  Below are my general thoughts on the issue.  

I can easily rattle off the psychic benefits of appellate practice, namely the intellectual challenge, longer deadlines, and greater predictability in the day to day schedule.  We don't have to do discovery, or haggle over pennies on the dollar with opposing counsel.  And, occasionally, we get a case with a novel issue that presents us with the rare opportunity to shape the law.  In other words, the benefits are exactly what we signed up for when we decided to attend law school.

For the sole practitioner, the barriers to entry are very low.  Unless you are dealing with a sophisticated corporate clientele, you can work from home with the support of a virtual office, which, taken together with your research subscription and malpractice insurance, is your only source of overhead.  This, in turn, gives you greater flexibility in setting your fee.  Moreover, since a fixed fee is the predominant fee structure, you can free yourself from the drudgery of tracking your time in six minute increments.     

So, what are the drawbacks?  First, most clients already have an attorney at the trial level.  That attorney, if he/she does not agree to handle the appeal, may refer the matter to a specialist.  Given this reality, the appellate practitioner must spend more time than the average attorney developing relationships with trial counsel.  This is good news for those who enjoy networking, and even better news for the cost-conscious  who don't want to undertake an expensive marketing campaign.  The bad news is this: building a viable network takes time and patience, and is not a strategy that results in an immediate return on investment.

Another obvious drawback: cost.  Though appeals are not merely a second trial, they very much are in the sense that they can cost the client thousands - sometimes tens of thousands - of dollars in fees.  The problem is one of sunk costs.  The client - or the attorney working on contingency - has already expended thousands of dollars in a losing effort, and is acutely aware that the money may not be recovered.  Clients are understandably wary of shelling out even more money, just so they can lose all over again.   

There are ways to mitigate the minimize the "cons" of appellate work.  With appeals being so expensive, dispositive motion practice at the trial level becomes all the more important.  Appellate specialists can bring value by handling the motion work of busy trial attorneys.  There is also the opportunity for receiving assigned counsel work.  Though the rates are half of what would be considered the standard market rate, the work (depending on the panel) is steady, and can give you a modest source of income while you hit the pavement developing a more lucrative referral base.   

These are just my two cents, and I'm curious to hear what others have to say on the issue.     

Wednesday, February 6, 2013

E-filing: Are We There Yet?

The legal profession is an industry built on paperwork.  I say this in jest, but it's true.  Records and trial transcripts can span thousands of pages with the appellate court requiring the appellant to file dozens of copies. This results in appellate work becoming a very expensive enterprise.  

An example: I am handling an appeal involving the threshold issue of whether my client suffered a "serious physical injury" under New York's no-fault law.  Of all the appeals an appellate court decides in a given year, the issue involved here is fairly elementary and straightforward.  The record amounts to no more than 400 pages, and my brief will probably be no more than 30.  Yet, the Second Department requires the appellant to file 9 copies of both the record and brief to serve two copies to each adversary.  The end result is a printing job of more than 5,000 pages!  If the attorney uses an appellate printer - and many do - the client will face a minimum of $2,500 in costs (inclusive of filing fees, taxes, postage, printing, and paralegal time).  This figure is, of course, on top of the attorney's fee, which is never cheap.  And, again, this is just for a so-called "simple" appeal.  Lord help you if you wish to appeal an unfavorable verdict from a two-week jury trial.  At that point, the printing costs can easily exceed $10,000 or more.    

The Appellate Division, First Department began instituting an e-filing system a few years ago.  All the attorney needs is an Adobe Acrobat platform that can assemble a table of contents, and, of course, email.  Unfortunately, though, e-filing in the First Department is supplementary; the Court still requires the parties to file boatloads of hard copies.  Meanwhile, the Second Department has not instituted any e-filing system whatsoever, and apparently has no plans to do so.

So, why the reluctance to embrace technology?  I hear more and more about how judges and clerks are reading briefs on their computers and tablets.  I also hear about how many middle class individuals are unable to afford legal services, resulting in a justice gap whereby the poor secure pro bono or assigned counsel representation and the rich retain white shoe service.  E-filing seems like such an easy step toward reducing the costs of litigation (though I suppose some may find the high variable costs being a useful barrier to entry)?  I know that other government agencies have made the leap into the twenty first century.  Unemployment benefits can be obtained online.  The federal government fills its ranks through an online system called USA Jobs, and just recently the New York Court of Appeals has begun uploading court documents to a public database (though it too has been unwilling to shed its fondness for hard copies). 

So, I ask again: aside from the usual explanation that "government is slow to change," why the hesitation to transition exclusively to e-filing?  Thoughts?