Thursday, February 15, 2007


I learned a lot about TAP (Trial Assignment Part) when I first started doing my per-diem business. At that time, Justice Alfred Lerner presided in the Queens TAP part. When I started getting assignments to appear in the TAP, other lawyers warned me about Judge Lerner. The sentiment in the courthouse was "He's not going to like what you're doing, covering all these cases for other people and asking for adjournments".
The reality for me was, at first, he didn't seem so bad. Even better, the reality that counted was that virtually every lawyer in the City thought he was tough, and they didn't want to appear before him. From my perspective, he seemed dedicated and hard working, and singularly focused: he wanted to move the calendar and settle the cases. It was inevitable we would clash, since as my business grew, lawyers were constantly calling me to "get one more adjournment in TAP". I tried, but then it started to happen, Queens per-diem justice courtesy of his honor. A few examples: making me come to court all day every day for six weeks waiting to pick a jury, and then assigning me to pick on two cases at once; making me pick a jury immediately, in his courtroom, in front of all the other lawyers; or assigning the same hostile trial Judge every time, after we refused his settlement recommendations.
He did these things to everybody. The technique I actually admired most, was how he solved problems with trial ready cases. First, he insisted on hearing in detail what the case was about and what the settlement positions were. After this, he would hear about who wasn't ready, or who had a problem with a witness or some evidence, or some other motion that needed to be decided. At that point, he would dispense hints about his potential rulings, based on where the settlement discussions were. He tried not to commit, but made the lawyers make painful concessions. If one stood up to this pressure, he would surely be losing on the rulings in question. Of course, these techniques did tend to make the cases settle, or as we say in court, the cases were "disposed" or "folded" or "went away". Having the Judge's techniques used on me, as I covered for others, was bad for business and bad for healthy living. I decided on a radical plan and told a few of the courthouse regulars of my intentions. I decided to figure out Judge Lerner’s motivations, then make an appointment and tell him about my per diem business. I would be honest, ask him what he would permit me to do and not do, and if he could not bless it, ask him at least not to destroy it.

I made an appointment and met with him in chambers one afternoon. I told him I respected what he was doing with the calendar, and that I had started this per diem business that led to a lot of lawyers asking me to appear in his part, that I wanted to be able to effectively appear, but I understood that he wanted the part run a certain way....a way that maximized resolving cases. I also made clear that I did not expect special treatment, nor would I permit any perception that I was getting special treatment.

He thought about it and said, "I have no problem with you or anyone else appearing in my part, and making a living. I don't think much of some of the firms that ask you to do their dirty work, or for lawyers who are lazy or disrespectful to the court. When you appear in my part, know the case and be prepared to talk about it and settle it. Have someone you can call for more authority when we negotiate. If the case has a problem, be up front about it. Sometimes, if there are lawyers you should not appear for, or requests you should not make, you will have to know these situations, and turn down THAT work. In the end, that will help you, wherever you appear."

What he told me is what I adopted as the way to appear in a TAP part. In Judge Lerner's part I had a standard operating procedure. When the lawyers would come in and sit down with him, I made sure I was the one who answered his first question "What is this case about?". I did it directly and with just the right amount of detail. I then summed up the settlement positions as I understood them, BEFORE he asked. This got the action going quickly, brought any problems to the fore, and got me in and out of there quickly. The WORST thing another lawyer could do was go in there, and talk about the case like he was the Tin Man talking to the wizard...."Well you see, we were walking down the yellow brick road, when....". whereupon Judge Lerner would bellow "SILENCE!!!!!" Then he would ask ME what the case was about. If you do per diem work, and appear in TAP parts, I advise the following:

1. If your instructions are "please adjourn", call and get better instructions. 2. Have someone to call from court if necessary. I make firms give me someone's cell phone. Otherwise, invariably when you are in trouble and call, "all the lawyers are in court". If the staff says that, ask them to get someone on a cell phone. 3. Protect your reputation in the TAP part. Be candid about what you do, show that you are prepared, and if you get caught short....apologize. 4. Maintain a good relationship with the clerks and court attorneys. 5. If there is a TAP appearance you know you should not make....turn it down.

Judge Lerner had it right

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