8f2 Share a Moment with the Adjunct Faculty - Spring 1998 Cardozo Life 1000

Members of the Adjunct Faculty Share A Moment

Cardozo is extremely proud of its adjunct faculty. Working on the front lines in a variety of areas of the law, members of the adjunct faculty bring expertise to the classroom that benefits students and faculty alike. Cardozo Life invited several members of the adjunct faculty to tell a story of an event or case that made a difference in their careers: to share a celebrated moment.

 

Prosecutorial Discretion: Yea or Nay?

Baruch Weiss, Assistant US Attorney, US Attorney's Office for the Southern District of New York

World Trade Center, Don King, Latin Kings, Wall Street insider trading, Manila Air bombing; these are the types of cases that come to mind when one thinks about serving as a prosecutor at the United States Attorney's office. Having spent over 13 years with the office, I've enjoyed working on my share of some of the office's high-publicity cases.

Baruch Weiss

One of the more meaningful experiences I had, however, was not a high-profile felony case, but the only misdemeanor case I have tried while at the office. A case that I lost. Yet it was this case -- maybe more than any other case in the office -- that made me proud to be an Assistant United States Attorney.

Make no mistake. Despite the jury's verdict, the guy did it. I believed it then and I believe it now. He stood as a lookout while his cousin sold a relatively small amount of counterfeit money to a willing buyer. Unfortunately for the two of them, the buyer turned out to be an undercover Secret Service agent. The cousin, who actually made the hand-to-hand sale, had little choice and eventually pleaded guilty. The defendant, however, had simply stood at a distance. Because he was only the lookout, he had had no contact with the agent and had not been tape-recorded. The case against him was a difficult one to prove.

Still, we knew the details of the defendant's involvement from his cousin's confession after the arrest. His cousin told us that he was late for his rendezvous with the buyer and hailed a gypsy cab. Purely by chance, the defendant, a neighborhood gypsy-cab driver, turned out to be the cab driver. The defendant learned of the impending sale while driving his cousin to the sale, and, when his cousin asked if he would stand watch, he agreed.

The defendant was arrested for aiding and abetting the sale of counterfeit US currency. During plea discussions, his legal-aid lawyer requested a deferred prosecution, i.e., dismissal of the charges after a year if the defendant stayed out of trouble. I countered with an offer of a misdemeanor. Not that I knew of an appropriate misdemeanor; virtually all the counterfeit statutes are felonies. But I figured that, after all, he was not the primary player, and the sum of money was not large. We would find some applicable provision.

The defendant refused the offer. I told his lawyer that his refusal meant the defendant would be prosecuted for a felony. I was sure that the added pressure would ensure a deal. To my surprise, the defendant again refused. Now I was in a quandary. Even though he had refused to plead guilty, in my view he didn't really deserve a felony. But I had threatened him with the felony in order to get the misdemeanor plea that I thought was appropriate. I had to make good on the threat.

I couldn't do it. He had no record and deserved a misdemeanor, not a felony. So I swallowed my pride and advised his somewhat surprised attorney that we would go to trial on a misdemeanor if she could find an appropriate one. That wasn't easy. She found nothing. I eventually charged him under an obscure, seldom-used statute, which seemed designed more for vending- mac 1000 hine slugs than for counterfeit money. In exchange for proceeding on the misdemeanor, his attorney informally assured me that she would not challenge the statute's applicability on appeal if the defendant were convicted.

So we went to trial. The jury, of course, was not told whether the charge was a felony or misdemeanor. Ironically, I think the jurors assumed that the charge -- this was federal court, after all -- was a felony, and acquitted him, at least in part, because they felt, as I did, that a felony was too harsh.

It didn't matter. Prosecutorial discretion, so often criticized by the defense bar, had yielded the right charging decision when the law might have led to a more uncompromising result. A guilty defendant was acquitted, and I felt pretty good about the whole thing. It was a good day to be a prosecutor.

"Employees Shall Have the Right to..."

Daniel Silverman, Regional Director, New York Office, National Labor Relations Board

My 30 years with the National Labor Relations Board, the last 17 as regional director of its New York office, have had some exciting moments. The massive publicity surrounding our suit for the injunction that ended the baseball strike as well as our decisions in the election case brought by Michael Jordan, Patrick Ewing, and others to decertify the union in basketball demonstrated the continuing relevance of labor law to our society. But perhaps my most rewarding experience occurred many years ago when I was a young lawyer assigned to the Pittsburgh regional office of the Labor Board.

Daniel Silverman

Returning to counsel's table after finishing my cross-examination of a production-line supervisor of a pants factory in a small town in West Virginia, I felt things had gone reasonably well. Confirmation came when one of the employees involved leaned over and whispered in a manner so as not to disturb the ongoing proceedings, "Mr. Silverman, it doesn't matter if we win or lose; what you did to that supervisor makes it all worthwhile."

Here I was, four years out of law school, representing the General Counsel of the National Labor Relations Board in trying to discredit the supervisor's denials of threats of retaliation against employees for expressing support for a union. I was able to establish that she considered herself a supportive supervisor and friend to the employees, had worked regularly with them for eight hours a day over the past several years, and paid close attention to everything that happened at her station. Although there was an active union campaign going on all around her, she testified on cross-examination that she never heard anything about the union and never discussed the union with any employee or other supervisor or manager. Her demeanor clearly showed that she was very uncomfortable with her testimony and wanted, more than anything else in the world at that moment, just to get off that stand. When she stepped down, the company lawyer argued that even if her denials of statements of dire consequences of unionization were not credited, the threats reflected her personal opinion and should not be attributed to higher management.

I recall feeling at the time that after years of studying labor law, I was finally beginning to understand Senator Robert F. Wagner and President Franklin D. Roosevelt's vision expressed in the National Labor Relations Act. These employees, earning a minimum wage with virtually no benefits, were being provided a lawyer, without cost, to defend their right to select a labor organization to represent their collective interests with their employer. I was there with the power and force of the United States government to tell that supervisor that what she did was wrong, that she had no business interfering with the employees' choice of a union. I could appreciate why Professor Eric F 1000 . Goldman in The Liberal Hour quoted a worker in South Carolina as saying that President Roosevelt was the "first President we ever had that knew that my boss was an SOB."

I had met the employees many times before the trial. I had visited their homes, met their families, sat around their kitchen tables drinking Kool-Aid and eating egg-salad sandwiches. One employee asked me to assist him with a tax problem, another with a divorce proceeding. I was the perceived expert -- the government lawyer coming from the big city with a New York accent and a Jewish name -- and they welcomed me with warmth and respect. What a country, I thought. This kid from Jersey City was being paid by public funds to have such a good time. And, although I was barely out of law school and not yet 30, I knew that I had found work that I hoped to do for many years. I thought, as Harry Golden said, "Only in America."

Over the years, as I was gradually assigned more administrative responsibilities, the distance from those production workers in West Virginia became greater and greater. That is perhaps why I sometimes return to a book mailed to me by my law school the summer before my first year. The basic message of the book fit remarkably well into my then vague and unarticulated views of the law. The author, Edmond Kahn, said one should adopt essentially a consumer approach to legal analysis. It is important to retain, he said, an understanding of how these great principles of law we espouse or adopt actually work. As I have come to understand and apply it, this view is not meant to depreciate the evaluation and meaningful consideration of institutional interests. Rather, it focuses on the need to see the law from the bottom up.

For one practicing in the labor area, this view is particularly relevant. There are labor and management interests that must be fully understood and considered in fashioning applicable principles of law. I see an almost daily slugfest between labor and management, bitterly serious arm wrestling with gains to one viewed as losses by the other. Often lost in the dialogue of argument is the core section of the National Labor Relations Act. That provision, Section 7, which gives the Act its essential meaning, begins, "Employees shall have the right toÉ." Thus, the statutory rights are vested not with unions or employers, but with employees, or, to use Kahn's term, the consumer. While those employees in West Virginia may never have heard of Senator Wagner, he knew they were there.

It is tempting to get caught up with the subtle nuances of the law and with the glamour of big-publicity cases. It is easy to view labor relations as an intellectual or political game. As a lawyer and an administrator of the National Labor Relations Act, however, I find it humbling, inspiring, and, ultimately, quite grounding to remember why the statute was written and whom we are really charged to protect. The reality of those West Virginia pants-factory employees, so committed, so willing to sacrifice personal interests, helps me remember.

History Marks a Voyage

Rosalind Lichter '82, Law Firm of Rosalind Lichter

When I was 18 years old, President Kennedy was assassinated. I was a university student, and, like most of my generation, I remember where I was at the moment when the news came east. It was a terrifying, life-changing event. Years later I was retained by Judge Jim Garrison, a major figure in the Kennedy assassination investigation, to represent him in the sale of his life rights to director Oliver Stone for the movie JFK. Jim Garrison was the district attorney in New Orleans and later a judge. Renowned for his conspiracy theories about the Kennedy assassination, he had written a book called On the Trail of the Assassins. The book was published by friends of mine who retained me to negotiate the sale of the book and life rights to Warner Brothers and Oliver Stone. It feels 1000 somewhat surreal to have been a part of this process, where a piece of my personal history became part of a "Hollywood" deal.

Rosalind Lichter

Two years ago, Elizabeth Swados, who has been a client of mine since 1989, wrote an opera called Missionaries. It is the story of three nuns and one lay person killed in El Salvador and the assassination of Archbishop Romero. When the events actually happened, I was a third-year law student. I still remember the terror in El Salvador and the frustration of knowing that the killers were supported by the United States government -- a government whose constitution I would soon take an oath to abide by. With Missionaries, I worked with the poets, authors, and members of the families of the slain women to secure rights to their words, which Ms. Swados used in her opera.

Last year I was retained to sell the movie rights to the book Buried Alive. Written by Myra Friedman, it is the definitive biography of Janis Joplin, one of the great rock stars of the twentieth century. Myra was with Janis during all of the fun and desperate times. I was a passionate Janis fan. Her style reflected the rebelliousness and recklessness of the post-Kennedy years. Here was the anti-establishment voice that mourned Kennedy -- Janis in psychedelic dress, who was later mourned for her excesses. I negotiated the agreement with Lakeshore/ Paramount, and the project is now in development at Paramount Pictures.

Looking back at my 16-year practice in entertainment law, I marvel at having engaged in business transactions that have involved important historical events -- events that have illuminated and marked my personal voyage.

There is much more to come -- stay tuned.

 

Gorillas on Campus

Burton Lipshie, Managing Attorney, Stroock & Stroock & Lavan

I often have the feeling that I live simultaneously in two different worlds. My many connections with Cardozo make my adjunct professor role far more than just a hobby. I not only teach two classes -- New York Practice and Legal Writing -- but I am often asked to help coach trial or moot court teams, and to participate in the Goods and Services Auction, the Law Revue show, and the "Sneak Preview" for admitted students. My colleagues at Stroock & Stroock & Lavan are used to my rushing off early on Thursday afternoons, as I announce that I am leaving "to fill young minds with CPLR." And they are also used to the days when my time is filled with 1Ls coming into the office for conferences on their latest law-office memos or moot court briefs.

Burton Lipshie

So when I was asked to write something about a significant event, or part of my practice, for Cardozo Life, it was impossible to limit myself to an event connected to my life at Stroock. I needed one from each of the two centers of my legal career.

I suppose the single most significant matter I have worked on in the last few years, in my capacity as a Stroock litigator, was one in which I and the firm were asked to join the team of lawyers representing the then Chief Judge of the State of New York in his lawsuit against the Governor of the state. This constitutional crisis began in the early '90s, when the state, fallen upon hard financial times (how wonderfully speedily the cycles change!), needed to trim the budget. The Governor's ax fell particularly heavily upon the judiciary. The Chief Judge's proposed budget was cut to the bone -- indeed, well into the bone. Those old enough will remember the results. There were massive layoffs of court personnel. Trials were unobtainable, because the trial parts could not function without court clerks and court officers. The w 1000 ell-regarded arbitration program for smaller Civil Court matters had to be closed down. The entire system was on the verge of collapse.

When the political process failed, the Chief Judge decided that the only remedy was to commence a lawsuit against the Governor, claiming that the political branches of government could not destroy the judiciary by their power over the budget. While other counsel were busily preparing for depositions and other discovery activities, my firm was asked to prepare the brief in opposition to the Governor's prompt motion to dismiss the action.

The Governor claimed that the lawsuit should be dismissed because the court lacked subject-matter jurisdiction over the political question of the budget-making process. The Constitution, he claimed, placed the budgetary authority in the executive and legislative branches, and the courts lacked power to interfere. In the frantic week that followed, the Stroock team researched a number of hoary authorities (dust was everywhere) on the state constitution. I even got to cite Marbury v. Madison in a real case. We argued that the doctrine of separation of powers acted to limit the political branches' power over the budget. They could not, we urged, prevent the judiciary from performing its constitutional function by reducing it to penury. Would the Constitution permit the executive and legislature to budget $1 for the judiciary? If the answer to that question was no, as we urged it should be, then the "political question" argument was wrong, and the remaining issue was the factual one: whether the amount in fact budgeted was constitutionally adequate.

We prepared the opposition papers, and served and filed them. But before the court was called upon to act, cooler heads prevailed. Representatives of the Governor and the Chief Judge were able to work out a compromise, and the constitutional crisis was resolved. I, of course, have always believed that it was the power of our argument, and the executive branch's fear of bad precedent, that helped bring about that settlement. It's probably not true. But being part of that significant litigation was a highlight for many of the lawyers on both sides.

My most significant moment as an adjunct professor at Cardozo is much less important, but one of the most personally satisfying. In the spring of 1992, an earlier cancellation of my New York Practice class required that -- in order to give my students all the CPLR they had paid for -- I add 45 minutes to the end of two classes. When I announced the schedule, I was greeted by a chorus of loud groans. I told the class that I wasn't happy with it either, but if I could stay late on the night of my birthday, etc., etc.

And so the night of the extra-long class came. I remember noting that the room was unusually crowded. I found out why about midway through. The back door of the room opened, and in walked a gorilla (O.K., a person in a gorilla suit), carrying "happy birthday" balloons, a bunch of bananas, and a birthday card. He came up to the podium, led the class in a boisterous rendition of "Happy Birthday," read a poem appropriate to the occasion, and left me with the balloons (and the bananas). Three of the students had arranged for the event, but apparently, everyone was in on it.

I got my revenge, however. With the assistance of the husband of one of the guilty trio, I arranged for a "gorilla" to descend upon their graduation gathering two months later. He cavorted with them for a while, then gestured to the three to come closer, for a private message. He then whispered to them, "Sauce for the goose is sauce for the gander," and removed his gorilla head. It was, of course, me.

I have had many uplifting moments during the 13 years I have taught at Cardozo: intellectually stimulating conversations about knotty legal issues, moments of great feelings of accomplishment with a bright 1L who suddenly "gets it," moments of joy at graduations. But nothing has ever 1000 matched, or is likely to match, the great gorilla episode.

Mediation in the Mainstream

Sally Ganong Pope, Mediation Office of Sally Pope

A recent committee meeting at the Association of the Bar of the City of New York inspired some reflection on my career as a mediator. There I was, a member of the newly created committee on ADR, meeting with other mediators and lawyers to discuss such matters as confidentiality in mediation, pilot projects for mediation in the courts, and an upcoming mediation training, one of a number sponsored by the Association for hundreds of lawyers and others each year. It was striking to see myself sitting within those walls of the legal establishment as an active member of a committee discussing mediation.

Sally Ganong Pope

I began my professional life as a Wall Street lawyer and thought I was leaving the practice 20 years ago, when I decided to become a lawyer-mediator. Although accomplished at what I did as a lawyer and fascinated with working on the inside of a number of interesting businesses, I knew I had significant skills that were not being used. I felt skilled at working with people in trouble and had even considered becoming a divorce lawyer. When friends and colleagues commented that this area of practice was "so messy," I was actually intrigued by that fact. But traditional divorce practice as a lawyer was not for me.

In 1980 I read about the new field of divorce mediation and the "lightbulb" went on. I had found my calling.

Dramatic things happen in this field every day. People who don't know how to accomplish their goals, or even what their goals might be, feel stronger and start to see choices. People who feel locked in a battle, perhaps for years, may start to see some of the good things they once appreciated about the other. Few actually reconcile as a result of divorce mediation -- this is not the goal -- but many have better feelings and respect for the other at the conclusion of the mediation. I often hear comments such as "We haven't been able to talk like this for years" or "I feel I'll have a better relationship with my son as a result of this mediation."

My practice as a mediator and the field have grown simultaneously. In the first year, I had 4 cases: now I work on 100 cases each year. Some of these cases are outside the area of divorce: family conflicts, such as estates and intergenerational disputes; cooperative apartment conflicts; partnership breakups; and other conflicts in work groups and organizations.

I have also participated in the growth of the field by helping to write ethical standards, training other mediators, serving on the board of the National Academy of Family Mediators (I will become its president in July), and teaching at Cardozo in the divorce mediation seminar -- one of many courses in mediation and ADR available at Cardozo, making the Law School a leader in this area.

Meanwhile, the use of mediation has rapidly moved into other areas of practice and into such settings as the federal courts, the National Association of Securities Dealers, and Volunteer Lawyers for the Arts. The development of the standing committee at the City Bar Association is an indication of a sea change in the use of mediation and its recognition by the legal profession.

Now many corporations and governmental agencies are adopting conflict-resolution programs. The United States Postal Service, the largest employer in the US, is instituting a nationwide program to provide mediation for equal-employment-opportunity complaints. This commitment to a process that has transformative potential to open opportunities for people in conflict to understand each other in new ways and to become able to make decisions about how they want to resolve a conflictual situation 1000 is the new wave of mediation activity.

My practice provides me with immensely satisfying work. I believe that mediators have the potential to have an impact on all of society, one conflict at a time.

Representing Lawyers: A High-Stakes Venture

Michael Ross, LaRossa, Mitchell & Ross

In 1981, after eight years as a state and federal prosecutor, I joined a small boutique criminal law firm to do what I had always wanted to do -- handle criminal cases in the trenches of the courtroom. Over the last 10 years, my law practice has evolved into a hybrid. I still handle some criminal cases, but for the most part, my clients are lawyers, some of whom have been accused of committing crimes in law practices, but most have been accused of stepping over that fuzzy gray line, which, for lack of a better term, the ethics scholars call "zealous advocacy."

Michael Ross

Ten years ago, my partner Jim LaRossa and I were retained to represent one of New York's most successful personal-injury attorneys. The attorney was respected as a fierce, "never-back-down-from-a-fight" advocate by the plaintiffs' personal injury bar and was feared and despised by the City of New York, which he repeatedly and successfully sued for millions, and by the major insurance companies that paid on the jury verdicts he obtained. The attorney was indicted for having met with a potential witness whom he wanted his adversary to call to the witness stand. The witness was in a position to bolster the lawyer's case, and he offered to compensate the witness for his time.

In a strategic move to trick his adversary into calling his own witness, he asked the witness to lie to the other side's lawyer, who was "prepping" him, and not mention that the lawyer had agreed to pay him for his time as a witness, which, of course, is entirely legal. The witness, however, was wearing a secret tape recorder, and the lawyer was indicted for suborning perjury. The key issue in the criminal trial was whether the witness was being asked to lie just to the lawyer, or to lie on the stand as well.

The criminal trial that followed had a very high emotional pitch. The defendant was one of the city's top trial lawyers, who had won numerous multimillion-dollar, high-profile verdicts and had argued before the US Supreme Court. The lawyer's wife was a well-respected State Supreme Court judge, and she and colleagues often occupied the front row of the courtroom. The rest of the courtroom was filled each day by the city's top lawyers -- the plaintiffs' personal injury bar, which rooted for the defense, and the civil-defense bar, which rooted for the prosecution.

For me, it was the trial of a lifetime. I had a just cause, an esteemed client, and I was fighting for the principle of not allowing the criminal process to chill the advocacy of lawyers who sue the City and large defense carriers. At the end of the intense, month-long trial, the jury acquitted the lawyer in 20 minutes and actually asked for an investigation of the prosecutors.

The irony of the case, which helped shape my thinking about the law, involved the trial's aftermath. Immediately after the resounding acquittal, the local disciplinary committee initiated an investigation concerning the same facts -- double jeopardy does not apply in such cases -- and after two ferocious years of conflicting testimony, with essentially the same set of facts that had resulted in the lawyer's acquittal, a Special Referee appointed to hear the case disagreed with the criminal jury's verdict and found against the lawyer, ultimately causing his disbarment.

I, of course, believed that the lawyer would be exonerated again, and when he was instead disbarred, my attitude toward the law and the clients I represent fundamentally changed. I appreciated for the fir 3a8 st time the pillars of glass upon which careers and lives are built. I appreciated fully what I had only known on a subconscious level: trials are mortal combat, and it takes only a single loss to destroy a life. I learned that although scholars can debate such esoteric questions as "where do you draw the line for zealous advocacy?" representing lawyers is a big-stakes proposition where justice is an elusive goal.

I now recognize that, in many ways, lawyers are called upon to justify their tactical decisions, and are judged by people who are certainly not their peers, and who do not know that it is impractical for most lawyers to focus constantly on whether everything they do might be misconstrued after the fact. Success for the client is not measured by how many legal skirmishes you win in a case, but rather, whether you and your client are left standing after all is said and done.

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