Stop Inconveniencing Me!

To my valued client (you know who you are):

I appreciate that you are (usually) current in paying your bills.  And I do appreciate that you always cooperate with me when I handle your legal affairs.

This time, however, you have let me down.  The package you sent me via international mail caused me lots of grief today.  You knew that the original 300+ page document is filed in the courthouse, and that I already have been e-mailed a pdf scan of it by the opposing attorney.  I do not need a the hard copy you sent me.

By sending me the COPY that was served upon you, and by sending it in a postal modality that required my signature, I had to drive all the way to the other side of town to the postal unit that handles the Israeli version of Registered Mail (I tried going yesterday, but the office was closed in the afternoons, and my commitments for the morning precluded me going when during yesterday's office hours).  Then I had to find parking; the best I could do was about 3 blocks away.  And because my name on my relevant Israeli ID documents is in Hebrew, and the package was addressed in English, the postal bureaucrat got into a shouting match with me over whether I was the real intended recipient.  (Did I mention that it took them about 15 minutes to locate the package?).

Bottom line:  What would, in the USA, amount to a 20-minute excursion at worst, took me over two hours total.

Next time, please don't send unnecessary documents in modes that require my signature!

In order to ensure that you understand the inconvenience you are causing me, my time for this (mis)adventure will be reflected on your next bill.

Working For -- and Against -- Someone's Foolish Client

We all cannot have designer clients.  Some clients are an absolute pleasure to work with, and some you sometimes wish to strangle, and would readily do so were it not violative of the lawyer-client relationship.  I just got finished meeting with a client (actually, a non-client -- more on that shortly) who has attributes of both.

There obviously will be circumspection on the details and particulars, and I shall refrain from commenting on the stupidity and disingenuity of some of the arguments made by the plaintiffs (plural).  But it goes something like this:

This person has been a good friend since we moved to Long Island 20+ years ago.  He is brilliant, has an analytical mind, has run successful business ventures and, though he is not an attorney, he has successfully taken on more than one large corporation or government agency by suing pro se in the courts.  He occasionally has retained my professional services for various matters as appropriate.  Unfortunately, he and his wife have fallen on some hard times, though not nearly as hard as many others in the community. 

This time around, he is the defendant.  He and his small business corporation are being sued for, well, it really doesn't matter what for.  He is now defending himself pro se, and has been asking me and another lawyer from our congregation for some informal legal advice, which I don't particularly mind giving, in light of all he has done for me over the years.

The problem is that while he can defend himself pro se in the courts, his corporation must appear in court by an attorney who is duly admitted and in good standing.  So I am now stuck with defending the corporation of which he is CEO, Chairman of the Board, top technical wonk and a significant shareholder (albeit not quite a majority shareholder).

I now need to walk a thin line.  I need to zealously represent the interests of the corporation, and confer with him in doing so.  I need to avoid, to the greatest extent possible, conflicts between the corporation's interests and my non-client's personal interests (when he first called me, it took a while for me to explain why I would not represent both him and his corporation).  And I really do not wish to see such a good friendship get strained, particularly in light of the fact that my wife is very friendly with his wife.

I expect to mail out the answering papers for the corporation in the next day or two.  My non-client is drafting his own, but needs some pointers here and there as to why some of the arguments and assertions I am making on behalf of the corporation are not applicable or appropriate to him personally, and vice versa.

The time I expect to spend on this one will, on a per-hour basis, bring me paltry compensation for the aggravation.  And, given his personal finances, it will be a while before I see the really significant billings (though historically, this individual has paid his bills to me, even if a year and a half late, and other professionals I know (lawyers, accountants, architects) have had similar experiences with him).

On the other hand, it is an interesting case.  There are some interesting legal questions which I would love to be resolved in published court decisions showing me as the winning attorney.  If things work out well, however, it will never come to that because the case will settle out of court.

But in order for that to happen, I will need to handle the case as though it will work its way all the way up the ranks to the U.S. Supreme Court.

Si vis pacem, pari bellum

Latest from the Kolokolo Bird:

I have enjoyed the works of Rudyard Kipling since before I could read.  I remember his "Just So Stories" being read to me and my nursery school classmates, just before nap time, by our teacher, Miss Suzy.  Since that time, I have read, and re-read, hundreds of his literary works over the years.

And, going through my father's papers and personal effects, I recently found that Dad had chosen a Kipling quotation for the epigraph on his college yearbook page.

Kipling was and is, in many ways, the antithesis of what today would be called the Liberal philosophy, and I have had, thus far, a few incidents of disapproval from some of my leftward-leaning colleagues at the University regarding my various invocations of Kipling quotations.

But I enjoy Kipling, and find him relevant in both the philosophical and literary sense.

The New York Times (which I will admit to reading on occasion, but which usually is put to better use as a birdcage liner) reports:

"15,000 Crocodiles Escape From South African Farm"

"About 15,000 crocodiles escaped from a South African reptile farm along the border with Botswana, a local newspaper reported Thursday."

"Driving rains forced the Limpopo River over its banks on Sunday morning near the Rakwena Crocodile Farm. The farm’s owners, fearing that the raging floodwaters would crush the walls of their house, opened the gates, springing the crocodiles, the report said. About half of the reptiles have been captured, with thousands still on the loose."

The Kipling angle on this one is quite obvious.  "The Elephant's Child" from his "Just So Stories!"

[For those of you raised on the late 1900's or early 2000's anti-Eurocentricity school curricula and thus deprived of Kipling's poetry and prose, the "Just So Stories" were composed by Kipling to answer (in a very nonscientific tall tale style) his very young daughter's questions as to how certain world phenomena came to be.  "The Elephant's Child" story explains how elephants came to have long trunks.

The overly-inquisitive Elephant's Child in Kipling's story wanted to know what crocodiles ate for dinner.  The kolokolo bird advised the Elephant's Child to "'Go to the banks of the great grey-green, greasy Limpopo River, all set about with fever-trees, and find out."  This was the set-up for the plot of the story.].

Well, now there are thousands crocodiles in the great grey-green, greasy Limpopo River!  What would the kolokolo bird say about that?

And, given the real life dangerous propensities of crocodiles, it would not be surprising in the least if the next species to go swarming out on the loose were to be lawyers.

Not alligators, but Litigators!

No Comfort for Nechama

Nineteen-year-old Nechama Rothberger was driving a car in Brooklyn when it collided with a moped driven by Tian Sheng Lin, who was making a delivery for the Chinese restaurant where he was employed. Mr. Lin was critically injured when he was thrown from his moped, and has been declared brain-dead by the medical experts. Ms. Rothberger, it seems, was texting on her cell phone at the time. Mr. Lin's family has retained David Sobiloff as counsel.

Ms. Rothberger now stands charged with some misdemeanor offenses in connection with the incident, but, in the event that Mr. Lin succumbs to his injuries, one can easily imagine a scenario where the charges are upgraded to manslaughter. Lee Kimmel, Esq. has apparently been retained to defend Ms. Rothberger on the criminal charges. It is not yet clear which attorney will go to bat for Ms. Rothberger and/or her family (if the car was owned by her parents) in the civil lawsuit that Sobiloff will no doubt institute.

Sobiloff's job, of course, is to squeeze as much money as possible out of the Rothbergers, with as little delay as possible. Kimmel's job is to minimize Nechama's criminal liability. And whichever attorney is retained to defend in the civil suit will be tasked with financial damage control. Because I am not involved in either the civil or criminal case, I can sit on the sidelines and make some comments, in no particular order:


1. First and foremost, my primary sympathies lie with the victim and his family.

2. Having posited Comment No. 1, I will note that some very strident comments are now being made regarding Nechama Rothberger. Based upon conversations this past holiday with people who have some familiarity with the Rothberger family, Nechama is, to be sure, a slightly sympathetic defendant. She is not an evil person. She does not seem to be pretentious or arrogant. She apparently is a good young lady who made a very, very stupid decision that has wrecked the lives of two families. As the father of a child not all that much older than she, I can easily identify with her parents.

3. More along these lines, note that the photo of her in the New York Post, as she leaves the precinct station after her mother posted the bail, depicts her wearing a "Kids of Courage" sweatshirt, which she presumably was wearing at the time of her arrest. Kids of Courage is a benevolent organization that helps very sick children. She apparently has some sort of connection with the organization, perhaps as a volunteer.

4. There should be some criminal consequences for Nechama. The upper limit was set earlier this month by the Brooklyn DA's office, when then NYPD officer Andrew Kelly, who, while driving under the influence, fatally struck a pedestrian, pleaded guilty to Vehicular Manslaughter in the Second Degree. Kelly gets 90 days in prison plus 5 years probation. Kimmel, unless he is also brain-dead, will no doubt argue his client should be held to a lesser standard than Kelly, who, as a NYPD officer, should have known far, far better.

5. Every dollar expended in Nechama's criminal defense is out of the picture when the civil suit comes along. The more serious the criminal consequences which are visited upon Nechama, the lesser her earning power in the workforce will be. A good word from Mr. Lin's family might convince the Brooklyn DA's office to go for a plea bargain involving probation without jail time, so that she can go forward, complete her education, and go earn some bucks to pay the Lin family.

6. Were Lin and his family legally in the country? Was Lin authorized to be employed? This should not affect the criminal aspects of the matter, but it might be relevant in the amount of damages the Rothberger family gets slapped with.

7. Ditto for whether Lin was wearing a helmet.

8. Ditto for whether Lin has properly discharged his income tax obligations.


This is a very tragic matter for all concerned. Two families have been devastated. Nechama -- whose name is derived from the Hebrew word for "comfort" -- has given everything but comfort on account of her lack of thoughtfulness.

Padlocking Unauthorized Immigration Law Practices

Whatever else might be said about New York Attorney General and gubernatorial wannabe Andrew Cuomo, he is doing a few things correctly, and on that score I applaud him.

Specifically, he has been on the rampage against various business entities that have been illegally providing legal services to aliens regarding their immigration status. Not oblivious to the need to give his name some positive spin, he has posted a news release on his official website to boast of his accomplishments. My partisan political sentiments in the upcoming gubernatorial election notwithstanding, I applaud this. Under the circumstances, I even applaud his posting of the Spanish version of the news release.

One of the 7 entrepreneurs that got pinched in Cuomo's latest outing was Oficina Legal Para Hispanos, P.C., owned by one Geoffrey S. Stewart, Esq. The settlement agreement (styled as an "Assurance of Discontinuance") between the AG's Office and OLPH/Stewart contains some interesting findings and terms. Specifically, Stewart was employing people not licensed to practice law to provide legal services to the "immigrants" (the correct terminology, in most cases, should be "illegal aliens").

The settlement terms include, but are not limited to: (A) Oficina Legal Para Hispanos, P.C will be dissolved, (B) Stewart will permanently cease and desist from practicing immigration law or providing "immigration-related services," and (C) OLPH and/or Stewart shall pay the AG's office $30,000 for their trouble (via wire transfer or certified check -- no personal checks accepted).

Giving credit where credit is due, I thank our AG.

[Geoffrey Stewart happens to be the son of another attorney (ex-attorney) who has gotten into trouble for the "legal services" she provided to aliens. His mom is Lynne Stewart.].

Lawyer Number 1676253

In 1964, Sir Alec Douglas-Home, the British Prime Minister, belatedly realized that he had forgotten to register to vote, and accordingly, could not participate in his own election. It was somewhat of a minor embarrassment at worst; all Sir Alec lost was one of the popular votes, which did not affect the outcome of the election. One need not actually vote in order to be Prime Minister of England.

Last week, the New York Law Journal published a 15-page listing of New York attorneys admitted in the First Department who were delinquent in their registration, along with notice to show that they are in compliance with the registration requirements (i.e., submit the registration form and pay the biennial fee). Apparently, all the lawyers there have not brought their registration status into compliance, despite several notifications sent out by the Office of Court Administration and/or the Disciplinary Committee. The next step, for any of the listed lawyers who fails to comply, is disbarment.

As an attorney admitted to practice in several jurisdictions, including New York, I take somewhat of a hard line view of this. It goes beyond being a week or a month late with getting in the papers and the check; it is now a complete disregard for their professional responsibilities. I can almost understand, and am predisposed to a somewhat more gracious view, with respect to those lawyers who practice out-of-state or out-of-country. And, of course, there invariably are a few who have gone deceased and, as such, are neither able nor qualified to bring their registrations into currency.

But as for the living and breathing New York lawyers, they begin to become a disgrace to the profession, and a cloud upon the integrity of those of us who do comply with the rules.

This Blog has made several postings regarding the Agudath Israel of America, an organization currently in a period of tribulation. Harry Maryles has likewise posted about Agudath Israel on his blog. I will not now go into the niceties of the Agudath Israel's leadership problems, other than to generally state that, unfortunately, it has problems in exercising effective leadership to fulfill what are supposed to be its core mission and values.

The most effective way to lead is by example. After a number of blunders during the past decade or two, AIA needs to set some positive examples for its constituency.

The last lawyer's name enumerated in the New York Law Journal's aforementioned listing is one David Zwiebel, who is none other than Chaim Dovid Zwiebel, the Agudath Israel of America's Executive Vice President. According to the New York State Unified Court System's website, Zwiebel (whose New York Attorney Registration Number is 1676253 is slated to reregister in December 2010, which means that his registration last lapsed (i.e., he didn't pay the biennial registration fee) in December 2008, about a year-and-a-half ago. And while Rabbi Zwiebel might arguably not have to practice law as such in his capacity as EVP of AIA, his continuing lapse into delinquent status detracts significantly from his credibility as a spokesperson for an organization that has taken and continues to take so many public stands with respect to so many cases in the courts, civil and criminal. In light of Zwiebel's risk of disbarment, this matter well exceeds the magnitude of ironic embarrassment inherent in Sir Alec Douglas-Home's neglecting to register to vote.

Zwiebel's registration (or lack thereof) may, in and of itself, pale in comparison to Agudath Israel of America's other problems and issues, but, as a poor public example, it is emblematic of AIA's leadership crisis.

Odds & Ends: Assuming Responsibility

The items in this posting all relate, directly or indirectly, to the issue of accepting responsibility for one's actions.


1. The Fort Hood Massacre:

According to a news brief I heard on the car radio en route home from shul this evening, friends and relatives of the shooter in the Fort Hood massacre (whose name will not be set forth in this posting) seem to be insinuating that the cause of his murderous rampage was that he had long been subjected to being taunted and discriminated against on account of his religion.

Hold it right there, buster!! I have been one of a single-digit minority of Jewish kids in a junior high school, and was taunted accordingly. I have worked for a civilian US Government activity where discrimination against Jewish people was blatantly practiced by people in top managerial positions. I have lost jobs under circumstances where anti-Semitism clearly played a role. Applying to the theory the friends and relatives of this murderer-traitor (remember the definition of "treason" in the U.S. Constitution, Article III, Section 3), I and lots of other Jewish people should now be indiscriminately shooting up people in their places of employment. But we don't see Jewish people doing these things! I'm not buying into the excuse!



2. Resigning from the Bar:

In New York (and other states), there are two types of cases where attorneys resign from the Bar. Firstly, there is the attorney who has moved out of state, has no plans to further practice in New York, and who really would rather not pay the biennial registration fee (currently $350, and likely to increase in the future).

But the term "resigning from the bar," as used in the parlance of legal circles, usually has a more negative connotation. What it amounts to is disbarment on consent, whereby the attorney saves the judicial system (and the taxpayers) the trouble of attending to the administrative matter of striking the attorney's name from the roll of attorneys in good standing to practice before the courts in the State. Attorneys who do so are accorded ever so slightly more favorable treatment when they apply for reinstatement (a minimum of 7 years later), for they then are better postured to say that they accepted responsibility for their transgressions.

But in order for such a resignation to be accepted, the resignor must acknowledge in writing, among other things, that they could not successfully defend themselves against the misconduct charges pending against them.

Howard L. Blau wants things both ways. He wants "to resign gracefully and with the dignity that should be allowed to a lawyer who spent almost 40 years of his life performing thousands of hours of pro bono work as an attorney," yet he refuses to acknowledge that there are charges pending against him which he cannot successfully negate. The Court has not accepted his resignation, but has disbarred him. But, given the fact that Blau has already practiced law while under suspension, it is entirely possible that he will once again practice law without the benefits and perquisites of admission to the Bar.



3. Vincent has Returned:

A year ago, spoiled trust fund brat Shea Rosen, with four car crashes and three traffic tickets under his belt, pills in his socks, and cannibis on his breath (I cannot make any statements regarding ethanol in his bloodstream because he refused to take the breathalyzer test), ran down two joggers, killing one and severely injuring the other. Not an exemplar of accepting responsibility for one's actions.

Yesterday, Vincent Saunders, the surviving jogger, ran and completed the 6-mile route in memory of his girlfriend and jogging companion, Amanda Malloy. [This was reported in Newsday, 7 November 2009, p. A8, but last week Newsday switched its website to a (mostly) pay for access, and raised the newsstand price of its print edition. It is not clear whether this will increase Newsday's profitability.].

Vincent had been on my personal list of people whose welfare I pray for. Just a few weeks ago, one of the people on the list, the mother of a good friend of mine (the friend also happened to be one of the single-digit minority of Jewish kids in my junior high school, as noted above) passed away, and so, I had to remove her name from the list. It is very heartening to be able to remove someone from the list because they have recovered, and not because they have passed on. Vincent Saunders is now off the list. Keep on running, Vincent!

[As for the defendant, Shea Rosen, his next court date is now 30 November 2009. Excellent, excellent chance that Vincent will be also walking into that courtroom.].

Orts & Ephemeris

Lots of things are going on now, so I am not postured to do any deep intellectual blogging -- at least for the next 24 hours. The following items and events have occurred, are occurring or are slated to occur:


A. A new law review article of mine has been published. Another article in a different law review is in its final editing stage and is slated for publication shortly. And a third article, not nearly as research-heavy as the two just mentioned, has been accepted for publication in a legal periodical, and is slated to appear within the next 2 months.


B. I have a court date tomorrow, and need to prep for that.


C. I have just completed administering my Final Exams. Well, almost. A greater than usual number of students didn't show up for the exams. Most of them contacted me in advance with their situations, and for these I have made or will make accommodation. Those who did not contact me in advance (and indeed, have yet to contact me) will receive a big, fat "zero" for their final exam grade. And they will go to the Department Chair and whine. But my Department Chair has almost always backed me up on this type of thing, and I would expect him to do likewise. After all, the syllabus handouts, distributed to everyone on the first day of class, explicitly lay down the rules about the need to contact the professor in advance if any accommodations are to be made for missed exams.

[This is a cultural value I picked up from my days with the Internal Revenue Service. Untimely tax returns are penalized, and extensions (at least the first one) are granted for the asking if requested before the due date. A similar world order is imposed upon my students.].

I think that the flu epidemic is playing at least some sort of role behind the higher numbers of absentees. But the rules are uneffected: Apprise the professor in advance that you are missing the exam, and reasonable accommodation can usually be made. Don't come to me after the next semester begins, as a few have been known to do, and for the first time tell me how sick you were! How long do you think you would last if you pulled that shtick with your gainful employment?

In any event, I am now grading the exams. I am going blazooey, so posting this is my much-needed break.


D. Speaking of Final Exams, our son has completed his, and is now moving his chattel goods from the dorms and back home. There goes the privacy my wife and I had enjoyed. Awshucks!!


E. Notwithstanding item D above, our son will be away with friends this coming Shabbat. Not to feel lonely, though. We have four houseguests slated to come over and visit, including our fatso friend, referred to as "He" in prior postings (here and here and here and here). As for the dining dynamic described more fully here, we will sort of be evenly matched: 3 fatsos and 3 non-fatsos (though the excessive adipose tissue on one of the guests counted in the "fatso" column has only been acquired relatively recently). We're looking forward to it.

The Wal-Mart Bargain

The 20 November 2008 Wal-Mart stampede in Valley Stream, New York has, of course, kept the legal profession quite occupied. Nassau County DA Kathleen Rice has reached a settlement agreement with Wal-Mart.

Thus far, I give Ms. Rice high marks on the deal. The public is getting much more from Wal-mart than would be possible under a successful criminal prosecution. Wal-Mart is increasing its safety policies and procedures, thereby raising the bar for all such retailers. Victims of the stampede can, if they so choose, be compensated without resorting to the courts.

It's a good deal, BUT …

The program is only as good as its gatekeepers. Specifically, Ms. Rice's office has placed ads such as the one in the 9 May 2009 Newsday (page A 38), addressing "Anyone Present at the Valley Stream Wal-Mart Store on November 29, 2008, between 2:30 - 6:00 A.M."

Query: How many of those who will respond to the advertisement were, in fact, actually at Wal-Mart at the time? And how many of those who were will exaggerate their losses?

Observation: To get a claimant's affidavit, DA's website provides that one can "Download PDF English" or "Descarga PDF Español."

Query: How many of those who will be claimants, bona fide and otherwise, should not have been in America in the first place, let alone at the Wal-Mart?

Sewer Service

After nearly a week, I now have internet access again. We had technical problems last Monday, and with the last two days of Passover on Wednesday & Thursday, coupled with some big time ineptitude on the part of the Best Buy and its Geek Squad, we were unable to get back up until this afternoon (Sunday). No thanks to the Geek Squad or Best Buy; we called in a local who, after several attempts (and one return of a new router to Staples), did in fact get us up and running. Tomorrow, my wife will cancel the Geek Squad appointment that had been set for this coming Wednesday (more than a week after the first call!), because their services are now unnecessary.

It has been very challenging to exist for a week without internet access (though 3 of those days, the last 2 days of Pesach and Shabbat, would not have been internet access days for us anyway). Almost as challenging as the 6 + days without internet access have been the 8 days of Passover without beer (but we did have an enjoyable holiday, and the Carmel 777 Brandy and Jelinek Slivovitz. sufficed quite well).


The big story now in LawyerLand is that a process serving company, American Legal Process, together with its president, has just been charged with various offenses in connection with falsified evidence of service. If these charges are proven (and there seems to be some rather strong and damning evidence in the AG's pocket to substantiate them), then many people had default judgments taken against them because they were never served with the papers.

This will have to play out in the courts. ALP's attorney, Corey Winograd, is, of course, zealously defending his client and insisting that ALP and its president, William Singler, did nothing wrong. This, of course, is what a defense attorney should be doing.

[Disclosure: A few years back, I had a case with Corey Winograd, and have no reason to impute his client's scumbag attributes to Corey personally.].

This subversion of the judicial system is a very disturbing matter. The process servers who falsify their affidavits and other documentation are no less a threat to American freedom than the terrorists and pirates.

And while I applaud Andy Cuomo, the New York Attorney General, for his proactive interest in the matter, the potential for political payback cannot be ignored.

I note that in Binghamton, some volunteer lawyers have taken on the task of aiding families of the victims of the recent shooting spree there. Reading between the lines, much of their work will effectively be aid to illegal aliens. These illegal alien enablers are being organized by the New York State Bar Association, an organization in which I allowed my membership to lapse quite a few years ago, a decision I do not regret.

My question: Will the NYSBA round up a cadre of volunteer attorneys to help out the real Americans and legally present aliens who were victimized by American Legal Process?

Trial By Jury

I was in court today, only this time it was to discharge my jury duty obligation. Since 1996, there have been no automatic exemptions from jury duty, which I think is a good thing. Everyone should be able to serve.

Inconveniences to my law practice and teaching notwithstanding (I don't go back to teaching for another 2 weeks anyway), I considered myself ready, willing and able to serve on a jury panel. I had been given a month's notice, and was able to arrange my law practice schedule accordingly.

This was the third time in my life I reported for jury duty (not counting some of the telephone standby years where I never actually had to show up). The first time, when I was in law school, all cases settled and they sent everyone home early. The second time, I knew one of the attorneys at voir dire, so we exchanged the pleasantries and I was sent back to the Central Jury room, where, about 2 hours later, everyone was sent home.

This time, the telephone message posted Friday evening (a few minutes before Shabbat) told me that a range of juror numbers in which mine fell was to show up today. I planned my schedule accordingly.

They now have an orientation video narrated by Ed Bradley from "60 Minutes," which showed a few clips from the old Perry Mason TV series I enjoyed when I was growing up. Bradley explains that these were overdramatizations of the real thing. But I liked them anyway. Much of the video consisted of various people, obscure and famous, telling us all how great the jury system is (which was the main purpose of this "orientation"). And then, the HDTV monitor in the Central Jury room shifted to the CNN News (the big story today, of course, was Bernie the Goniff Madoff). Interestingly, there were several commercials for law firms. I wonder what the implications of this would be if one of those law firms were actually involved in one of the cases heard by a jury that day.

They finally called us, so a Court Officer escorted us to the courtroom on the 5th floor (I walked the stairs, and beat most of the people taking the elevators). Looking at the judge's calendar outside the courtroom, I realized that this was a criminal case.

One of the jurors was an Assistant DA (who also seemed to know the defense attorney), so she was immediately excused. After some general discussion of the case by the Judge (criminal misdemeanor leaving the scene of an accident case, trial scheduled 2 - 5 PM, estimated trial time 5 days), His Honor asked if anyone would be unable to serve. Several people came forward (child care, self-employed tradesman, etc.), most of whom were excused.

Then the first 15 jurors on the list, myself included, were called up for individual voir dire. His Honor asked the usual questions, such as whether we were able to decide the case objectively; whether, if the evidence were sufficient, we could vote to convict without regard to the sentence to be imposed; whether we were willing to consider all of the evidence; whether we could attach no significance to the fact that the defendant doesn't testify if she so elects; et cetera.

Then came the question of whether we would be able to apply the law as instructed by the judge. So I raised my hand and said, in substance, the following:

"Your Honor, I have been admitted to the bar for more than 20 years. My practice does not entail criminal law, so I don't have too many preconceived notions as to what the law is here. However, Your Honor, in what I believe to be the unlikely event that Your Honor were to give a legal instruction that differed from my understanding of what the law is, then, Your Honor, I would have significant problems with that!"

One of the Court Officers seemed to suppress a grin, while His Honor took a second or two to compose himself. The Judge then asked me (and not without a tinge of anger) "Are you saying that you would not apply the law as I instruct you if you disagree with me?"

"Your Honor," I replied, "I stress that I consider such an eventuality quite unlikely. But if Your Honor's instruction as to the law in New York were, perchance, to differ from my understanding of it, then I at least would want to know the legal authority, and look up the legal citation, for such an instruction. On account of my training and experience."

I could almost detect little wisps of smoke emerging from His Honor's ears. He called the ADA and Defense Counsel to the bench, and, after about 10 seconds, glared at me and said, "You are excused!"

I can empathize with His Honor. He was damned if he did, and damned if he didn't. On one hand, he had asked, nay, put us all under oath, to be honest and candid. I was honest and candid. And judges are not infallible; indeed, on any given business day, a trial judge who misapplied the law is overturned by an appellate tribunal in the State of New York. If he were to chew me out, then none of the other prospective jurors would have been honest and candid.

[Also playing into the equation, I suspect, was the fact that I have been admitted to the bar about 9 years longer than His Honor (and, apparently, longer than either the ADA or the defense attorney). I have had 9 more years than His Honor has had to develop an understanding of the law.]

On the other hand, if he were to excuse me (which he did), then wouldn't such a precedent effectively serve to reinstate the automatic exclusion of attorneys from jury duty (remember, the other attorney in the jury pool had been excused, right before everyone's eyes, just a few minutes earlier)?

Note that if the Judge did not wish to make a wholesale practice of excusing attorneys, I did give His Honor an out. I stated and restated that I considered the odds of a conflict between His Honor's instructions and my understanding of the law to be rather long. His Honor could, with the agreement of counsel, gone ahead with me anyway. And, His Honor could have seated me, and instructed me to pass him a note if my understanding of the law differed from his instructions, so that he could apprise me of the legal authority for his instructions.

And, perhaps, there may have been the fear of a kingpin juror (though my personality is definitely not that of a kingpin juror).

And so, I am not subject to jury summons for another 6 years.

While it's good to get my schedule back, I'm a little bit disappointed. A major part of me does want the experience of serving on a jury panel.

We'll see what happens when I get called up the next time.


Ironic Postscript: En route back home from the courthouse, I stopped at a nursing rehab facility to visit a member of our congregation who incurred a nasty foot fracture. Other than his depressed mood, he's doing fine medically. And he is a retired physician (with a daughter who has been admitted to the bar a few years longer than I have been). It kind of made his day that there he was, doctor in the patient's bed, was being visited by a lawyer who sat in the jury box.