Monday, September 24, 2012

Bad is Good (Per Diem Basics)

Bad is good. That's the philosophy behind a big part of my law practice. One might call it a "niche" practice. I don't feel so lofty about it, so I call it what it is, "Queens Court Appearances". It works because of a basic business truth: Success can be as simple as finding and filling a demand in the marketplace. Put another way, making court appearances in Queens is so bad that lawyers pay me to do it for them.

Essentially, I make court appearances for other lawyers on any kind of civil case in Queens County. "Civil" is a word to distinguish these cases from "criminal", another beast altogether. There is not much civil about them, just an endless stream of car accidents, malpractices, fall downs, and other schemata to transfer money from insurance companies to thousands of plaintiffs and their counsel.

There are so many cases that it takes many months to get a trial date once you are "on the calendar". However, before a case can even go on the calendar, all "discovery" must be completed. Discovery means each party learns about their opponents case, through depositions, physical exams, expert reports, and many other techniques, all designed to keep discovery fair. Of course, someone in the sandbox is always yelling "no fair". The legal way to yell "no fair" is to "make a motion" (yelling on papers) or "demand a conference" (yelling in person). One of the things Judges do is resolve sandbox skirmishes by deciding the motions and supervising conferences. There are so many motions and conferences that each Judge (there are 20 such Judges just in Queens County) has a "motion day" and "preliminary conference day". A typical motion day calls for 50-75 motions, all scheduled at the same time. All these matters, great and small, require lawyers to appear in court. All this yelling may be legally necessary, but for plaintiffs lawyers especially, it's bad business. All the plaintiffs lawyers are on a contingency fee: they get paid a percentage of any settlement, later........ at the end. They want to spend as little time as possible now........ in the beginning. Civil defense lawyers get paid by insurance companies, by the hour. They love to yell, its good business.

And these are only the preliminaries! Many months and many appearances later, all this legal jousting ends and the case goes on the calendar, heading towards its eventual end, the cholesterol of the court system, a civil jury trial. Trials take up too much Judge time and court personnel, yet the litigants and lawyers want them. The plaintiff lawyers want a trial so they can convince a jury to award their client big money (or settle the case because the insurance company fears the jury is about to make an award), and the defense lawyers want a trial so they can keep getting paid.

There are not enough Judges to preside at all these trials, and if the Judges tried cases all the time, how would all the motions and conferences get done? All these cases on the calendar wind up in the Trial Scheduling Part (TSP). It used to be called the Trial Assignment Part (TAP), and most lawyers in the City call this a "TAP part". It sounds cool....."Meet me in TAP. Who's sitting in TAP. Can I get an adjournment in TAP? Tap me if I fall asleep in TAP."

The TAP Judge's job is to handle the onslaught of trial ready cases in the TAP part. This is not like being a regular Judge. Appearing in TAP is not like making other appearances. Even in the "Queens Court Appearances" business, it's a different kind of business......

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