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By Bill Altreuter

I was in an upstate city to argue a motion Friday. Neither my adversary nor I are from this city, and in fact both of us traveled just about the same distance to get there, from different directions. It was a discovery motion. I'd set up an IME, the plaintiff's attorney had an objection, they blew off the exam, and I moved. They cross-moved for a protective order.

I was pretty clearly in the right on this one, and I argued hard that I should get sanctions. I didn't, but I got pretty much everything else I wanted, and although I was miffed about not getting sanctions the truth is that judges that sanction lawyers over discovery disputes are, for the most part, pretty terrible judges. My original thought for this post was to ask rhetorically, "What do you have to do to get sanctions?" Although you hear about sanctions, and everyone is careful to avoid the circumstances which might result in their imposition, the reality is that sanctions are pretty rare. I can't think of a time we've had them awarded, and we have seen some pretty egregious situations. If our practice focused more on federal court litigation perhaps we'd see sanctions or costs more, but probably not. Good judges control things better than that, I think, and bad judges need to remind everyone that they have this power. Good judges get the respect that makes voicing threats, or acting on them, unnecessary.

The judge we were before Friday is pretty plainly a good judge. We have had only limited contact with him during this case, but what I saw Friday confirmed my impression. He was hearing motions at 1:00 on a Friday, for example. What that tells me is that he uses his time efficiently. I expect that 9:30 to noon is time he spends on the bench trying cases, and that he probably had some sort of hearing for later in the afternoon, or possibly some sort of settlement conference or conferences. He was completely prepared. He'd read the papers in our case, and in the matters that he'd had on before ours was called. He had notes, and questions he wanted answered. He kept his cool, and as a result everyone else kept their powder dry too. Respect breeds respect. He was obviously trying to be fair, and he was at apins to explain why he was making the rulings he was making. And finally, from what I saw it looked like he was getting it right on the law.

One of the things that is entertaining about the work that is done by the NYSBA's CPLR Committee is that we get to see how difficult it is to craft rules that will work as well in Greene County as they will in Queens. The city I was in Friday is well-served by this judge, who follows the CPLR and works hard at his job. I'd imagine the way we do things in Buffalo would look strange to a practitioner who was familiar with that routine, and NYC practice would seem completely disfunctional. Some of that is a function of caseload, of course, and some of it is probably due to the fact that being a New York State Supreme Court Justice is a better gig in some places than it is in others.

Full post as published by Outside Counsel on December 14, 2009 (boomark / email).