Civil Justice Playbook: This Court Means Business

Tuesday, May 10, 2016 - 22:35

In this column, we talk a great deal about reform of the civil justice system. It was a topic near and dear to the heart of MCC’s founder, Al Driver, who as former General Counsel of JCPenney had a very special interest in the subject. Search the archives of MCC on our website and you’ll find no shortage of articles on the topic since the publication’s launch in 1993.

Al also had a special interest in the Commercial Division of the New York state courts, another topic that frequently found its way into MCC’s pages during Al’s stewardship. (Al retired two years ago.) Various authors, including Robert Haig, a partner with Kelley Drye & Warren and chair of the Commercial Division Advisory Council, and Timothy S. Driscoll, a Justice of the Nassau County Commercial Division, continue the tradition.

An outside observer – say, from Venus – wouldn’t necessarily see the connection between civil justice reform and a state court system – especially a system in the nation’s biggest city by a factor of two. Take a look at our January issue. We wrote here about a recent study and survey by the National Center for State Courts that painted a shocking picture of our state courts as dismal dead-end venues delivering a lopsided brand of justice that is feeding a “disturbingly pervasive belief in an unequal justice system.” The courts – not all of them, but many, particularly in our biggest cities – are driving litigants out of the system. This in turn has spawned efforts to redress the mess before it’s too late.

Rebecca Love Kourlis, founder of the Institute for the Advancement of the American Legal System and a former justice of the Colorado Supreme Court, put it this way: “There is a national movement to make the courts more efficient, navigable and affordable,” she said. “The customers are demanding it. They are choosing to go elsewhere when they have a choice.”

Which leads us to Judith S. Kaye. Judge Kaye, retired chief justice of the New York State Appellate Court, died in January. Her greatness as a jurist and a court administrator did not go unnoticed. Indeed, a memorial service at Lincoln Center’s David H. Koch Theater drew a who’s who of mourners, with former mayor Michael Bloomberg leading the way.

“This elegant, classy, graceful debonair woman was a revolutionary,” Bloomberg said. “And the revolution she ignited has helped countless Americans get their lives back on track and stay out of jail and has spared countless more people from being victims of crime.”

The many tributes to Kaye focused, rightfully so, on her tireless efforts to keep criminals out of the courts – and to treat them with fairness and dignity when they were there. They also laser in on her status as the first woman to serve as New York’s chief judge, and her 206 dissenting opinion in Hernandez v. Robles, the New York same-sex marriage case that helped pave the way for the judicial sea change to come when she declared that “the long duration of a constitutional wrong cannot justify its perpetuation.”

Amid the homages from lawyers, judges and politicians was an article in the Red Hook Star-Revue, the community newspaper of South Brooklyn, that we suspect would have especially pleased Judge Kaye. It’s about the mean streets of New York in the late 1980s when both Red Hook and Times Square were suffering from savage crime levels. Starting on Broadway and continuing in South Brooklyn, some enterprising New Yorkers, including Judge Kaye, got behind an idea to improve public safety with community courts geared to solving underlying problems rather than slapping petty criminals in jail. The Long Acre Theatre on 54th Street, donated by the Shubert Organization, became the city’s first community court, and the Red Hook Community Justice Center soon followed.

Not only did Judge Kaye put the full weight of her office behind the idea, she showed up, as the article recounts, in jeans to help whitewash the walls in preparation for the opening of the midtown court. Alex Calabrese, RHCJC’s presiding judge, describes the transformation.

“Downtown,” he told the Star-Revue, referring to his previous courtroom, “I only had two tools: jail and out of jail. Here I have a whole clinic.”

One aspect of Judge Kaye’s career, however, received far less notice in the swell of tributes that followed her death. That’s her ability to work the same magic with the state courts’ handling of commercial cases as she did with the community courts. New York City was at a low point as people and businesses fled. Lawyers and their business clients also were voting with their feet and turning to the federal courts whenever possible for commercial matters. The reason is that commercial cases were loaded onto the same general dockets as all types of other matters, including personal injury and negligence cases, choked the system. The courts were slow and poorly equipped. The business community was up in arms.

Haig of the Commercial Division Advisory Council sums up the frustration: “In 1995, when the Commercial Division first started, the prevailing attitudes in the New York state courts were that there were too many cases in the court system and not enough money, and that nothing could be done about it.”

Judge Kaye jumped in. “The reluctance of major companies to come into the state courts was related to the utterly overwhelming drowning dockets,” she said. In 1993, she formed four “commercial parts” in New York county dedicated to business cases. She populated them with judicial volunteers with special interest and expertise in such matters, and she transferred pending cases to the newly formed parts. Within two years, it was clear the experiment was succeeding. She formalized the model by establishing a state court division, and various counties upstate and downstate bought in. With that, the Commercial Division was up and rolling. Looking back, the audacity of the ambition surrounding the project is breathtaking.

“What we envisioned 20 years ago,” says Judge Kaye, “was staying apace of world change.”

“We’re the commercial center of the world,” adds Jonathan Lippman, retired New York state chief judge, “and our court should be not only world class, but a place where everyone understands that they can come and see . . . the right way to resolve a commercial dispute.”

The above comments are drawn from a video released, fittingly enough, around the time of Judge Kaye’s death. A joint production of the Historical Society of the New York Courts and the Commercial Division Advisory Council, it features a series of over-the-moon testimonials from a who’s who of bench, bar and business. While Martin Scorsese has nothing to fear cinematically, the video is worth a watch. It includes short statements about the Commercial Division from a string of legal legends, including Martin Lipton of Wachtell, David Boies of Boies Schiller and James Quinn of Weil, among many others. Of special interest to MCC readers are the many GCs who chime in – a group not exactly known for their love of the courtroom. They include Stephen Cutler of JPMorgan Chase, Douglas Lankler of Pfizer, and Michele Mayes of the New York Public Library. Have a listen:

“We’ve certainly lost our fair share of cases in the Commercial Division,” says David Ellen, General Counsel of Cablevision, “but nothing in any of those losses changes our view about the impressive characteristics of the Commercial Division – its open-mindedness, its conscientiousness and its integrity.”

“It was comforting to know that we had a court system that was familiar with the kinds of disputes that companies are involved with,” echoes Michael Fricklas, General Counsel of Viacom. “They understand economics. They have experience with complicated contractual language. They understand the importance of getting it right and following the rule of law.”

Gregory Palm, General Counsel of Goldman Sachs, adds an exclamation point: “I’d say the true mark of a successful specialized court is that both sides select the court as their preferred forum, and at least in our experience, that’s been the case.”

The Commercial Division continues to evolve, with the Advisory Council leading the way in carrying out Kaye’s vision of a future-focused court. In what likely was one of her last public acts, Judge Kaye appears in the video. Her sense of pride and accomplishment is palpable.

“New York law is so stable, so predictable, so sound and logical,” she says. “It’s the courts that make it that way.”