GET READY ‘CAUSE HERE I COME: Brooklyn lawyers prep as city decides to try more cases

February 27, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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Seven-hundred and thirty-five million dollars. This is the amount New York City estimates it will spend on judgments and settlements in cases against the city for negligence, police abuse, and other claims that may come its way. The line item in the Fiscal Year 2013 Executive Budget may now be judiciously used.

The City’s Law Department, as of 2011, has instituted a new initiative to bring more cases to trial, in an effort to reduce the number — and theoretically the amount — of case settlements. As reported in the New York Times, the city has instructed its lawyers to identify civil rights claims against the city that are vulnerable, either on the law or due to weak evidence. These cases, the city will no longer settle to expeditiously move caseload.

Michael Cardozo, the city’s corporation counsel, believes that the old policy may encourage lawyers to sue the city even if they have a weak case, in the hopes of getting a quick settlement. “You’re sort of feeding the monster, if you will,” Cardozo told the Times. “So we started saying to ourselves, ‘Let’s be more aggressive here.’”

“The way I see it, the city may be targeting cases involving particular lawyers,” said Brooklyn civil rights attorney Edward Friedman. “The city may be looking at attorneys and law firms that have a large amount of cases filed against the city and are looking to discourage frivolous claims.”

But this aggressive tactic does not sit well with many of Brooklyn’s plaintiff attorneys. “Many of the cases that the city is choosing to take to trial over settlement offers involve unrepresented plaintiffs,” noted Brooklyn attorney Richard Cardinale. “When an attorney is representing the plaintiff, then the city is more apt to settle the case.”

Sometimes but, not always. Cardinale, a former attorney with the city’s Law Department, was introduced to the new policy when one of his cases was rejected for settlement. The case involved a man accused of serving as a lookout for a drug dealer. Cardinale’s client asserted that he did not commit the crime and that the police did not have probable cause to search him. The client turned down an initial $9,000 offer by the city to settle the civil rights case. The case went to trial, and a jury ruled for the police.

“Globally speaking, the city’s new policy is a mistake for the legal system,” said attorney Bruce Baron. “ The city just does not have the resources, and neither does the court system.”

The Brooklyn courts are purportedly one of the busiest court systems in the city. “In a time where resources are thin, I do not think court counsel is prepared to handle the increased caseload and potential backlog the city’s policy may bring,” Baron said.

Attorney David Hernandez, who often tries cases against the city, noted “there are only a certain amount of judges. This is not a commentary on the work that Brooklyn judges do, but the fact remains that due to cutbacks, there are only a certain number of judges on the bench to handle these trials.”

Brooklyn Supreme Court Justice Kenneth Sherman said the impact of this new policy on the Brooklyn court system “is too early at this point to determine.”

Friedman has yet to see the impact as well. “I have not noticed any increased delays because of the city’s effort,” he said. “There may be more cases in general but, not enough that a clear backlog is noticeable.”

The city’s policy of bringing cases to trial in an attempt to curb settlements may not always be the best budget decision. “Under the civil rights laws, if the city loses a case it not only has to pay the judgment amount, but it is also required to pay the opposing counsel’s attorney’s fees,” Cardinale counseled. Attorney’s fees are generally higher in Manhattan than Brooklyn due to cost-of-living expenses.

In its report, the Times mentions a case in which the jury awarded the plaintiff $600 in damages, while the judge ordered the city to reimburse the plaintiff’s counsel $78,000 in legal fees.

“The city may very well end up paying more in attorney’s fees if it takes what it deems as marginal cases to trial when they could have settled for a smaller amount,” Cardinale said.

The effect on the policy on Brooklyn’s plaintiff’s bar is yet to be seen, but attorneys are weighing its pros and cons.

“I am sure the city’s initiative will have an effect on some attorney’s decision to take on certain cases,” said Hernandez. “I already careful in the cases that I choose to take on,” addec Friedman. “I generally take on cases that have merit.”

“The downside for the city cases presented for trial may result in high jury awards and high attorney’s fees,” said Hernandez. “The downside for the plaintiff’s bar is that with a higher caseload, there will be significant delay as to when cases actually get to trial.” But “policy changes do occur,” Hernandez reminded us.