Order in the Court (Appointments)

For the record, I’m not a big fan of Justice Antonin Scalia. But he certainly is provocative, as the Wall Street Journal Law Blog pointed out recently.

According to the Journal post, Justice Scalia is concerned that there aren’t more people with varying professional backgrounds being nominated to the Supreme Court. At the time of his nomination, there were three justices with no prior judicial experience. Today there are none. An AP story quotes Justice Scalia as saying, “Every aspect of your career broadens your outlook and gives insights that you wouldn’t have in some other aspect of the legal practice.”

The Justice raises a good question: should the judges of the highest courts (he talks about US Supreme but the question could apply to the highest state court) be exclusively judges, or should there be a mix of backgrounds?

Ironically, in the debate over the last Supreme Court appointment (Justice Sonia Sotomayor) there seemed to be a big issue over whether the law should be followed closely or informed by the judge’s background. Many seemed to be against the application of non-legal insights into a legal decision. Now, none other than Justice Scalia implies that background matters.

Here’s my take: In principle, a variety of backgrounds would be best. But, the highest courts almost exclusively decide questions of law, not questions of fact. Thus, if the role of the justices is to tell us “what the law is,” should that be done by a non-lawyer of any background? Also, wouldn’t a non-lawyer become even more dependent on his or her law clerks (lawyers) than the lawyer-judges already are?


David & Goliath: the Underdog in Court

Attorney Rush Nigut was inspired to write in his blog about Y.E. Yang’s recent victory over Tiger Woods in the PGA Championship. Nigut compared the sporting match to a trial, correctly stating that in both cases, there is no guaranteed outcome.

He makes an excellent point; one with which we are familiar in our own practice, for many of our clients are considered the “underdog.” We, too, are often underrated by our opposition, but are often motivated even more by these situations. (And we make it a practice never to underrate our opposition.)

In 2007 the University of South Florida did a comprehensive study on “The Appeal of the Underdog.” The researchers found that for various reasons, most people do, in fact, sympathize with the perceived underdog.

As trial lawyers, it’s very important for us to keep that in mind.

However, there is a flip side, too. While it takes courage to confront a case when you’re the underdog, because of the inherent uncertainty of trials, we encourage reasonable settlements whenever we can.  Regardless of preparation or perception, in uncontrolled circumstances (courses or courts), you never know which way the ball is going to roll. 


Photo:  Tiger Woods, courtesy Wikimedia


Connecticut Probate Court Consolidation

We’ve mentioned before that the Probate Court system in Connecticut faces severe financial problems. To avoid facing the possibility of a $5 million deficit in 2011, the state has passed a law reducing the number of probate courts in Connecticut from 117 to 50 or fewer.

According to the Ridgefield Press, Ridgefield’s probate court will likely be joined with those of Redding, Bethel and Newtown, serving about 78,000 people.

What does this mean for local residents and attorneys? A lot more driving. Since we also practice in New York, we’re accustomed to this. We currently have active cases in New York (downtown Manhattan), Queens (Jamaica), Rockland (New Town) and Westchester (White Plains) Counties, not to mention the Towns of Ridgefield, Madison, and Westbrook in CT.

However, we recognize that many Probate cases are small, and that individuals may be handling them without attorneys. It makes sense to locate regional courts so that getting to them does not become a burden.  The Ridgefield Press reports that Ridgefield Probate Judge Joseph Egan and Ridgefield First Selectman Rudy Marconi are concerned that Newtown is pushing to host the court offices for the four towns.  Yet Danbury and Bethel are possible contenders for the site, too. 

In his Connecticut Law Blog, Ryan McKeen brings up some interesting questions, including the issue of whether or not new facilities will have to be built.

We'll buckle our seatbelts and prepare for a bumpy ride.

Order In The Court Rules

There is no lack of dizzying rules in our court system. Of course, these time-honored regulations serve a great and effective purpose, but nevertheless, sometimes it’s fun to point some of them out.

Today, we will pick on the Connecticut Superior Court and discuss its rules about “venue” for civil cases. Venue refers to the specific court location where your case is to be heard. Civil means “not criminal.”

Suppose you are sued and your adversary selected the wrong location (i.e., they are making you go to Stamford but the correct location is Danbury). A rule says that you have a limited period of time to make a motion to dismiss. The rule seems drastic since “dismissed” seems pretty final. Actually, court decisions have firmly established that the case is never to be dismissed; it is simply moved to the correct venue. Got that? You make a motion to dismiss but never expect the case to be dismissed.

And, what if you don’t make your motion in time? No problem. A different rule gives the court discretion to move the case anyway. So, just ask. However, when you ask, refer to a different rule and don’t make a motion to dismiss. Got that? A motion to dismiss is required… but not really.

Oh and by the way, “dismissed” may not be all that final. Some dismissals are “without prejudice” which means you can take another shot.

However, there is a serious underlying policy behind these rules. Our courts (and this applies to just about any jurisdiction, not just Connecticut) prefer to resolve cases on their merits, whenever possible, and not on procedural issues, like the choice of location. For example, in Connecticut, the stated policy is that the rules of venue for civil cases are intended to provide convenience to the parties

For the lawyers who may want to check me out, send an e-mail or use the Comments facility of this blog and I’ll provide a few citations.

Image: From Wikipedia Commons, State Superior Courthouse, built 1784, at head of State Street, New London, CT.

Continue Reading...