2) There are many issues in tort reform, such as junk science; excessive noneconomic damages; and bogus claims of injury. No one is accusing Judge Bork of any of these.

On the other hand, he is seeking punitive damages for a case of what is at best comparative negligence, and the plaintiff here is seeking to blame the defendant for an incident where the plaintiff’s actions are an intervening cause. Judge Bork is not so addled that the possibilities of accident from a 79-year-old climbing a dais are not at least as foreseeable to him as to the defendant, who is less aware of Bork’s physical capabilities. New York law may well entitle Bork to such rights, but if so, it’s a problem with New York law. So when one says “But he’s really injured,” it misses the point of the criticism, and leads to charges of hypocrisy. Stella Liebeck was really injured, but that does not mean she should recover for spilling coffee on herself.

3) I don’t see why it would be “perverse” for Gibson Dunn to take the case pro bono, any more than the typical law firm pro bono docket. Even if it is taking the case on contingency, the opportunity cost in doing so, unless they expect the case to settle immediately, would cost it money, so there would still be some pro bono element to the case. One hopes that Judge Bork isn’t paying $300-$800/hour for this.

4) I’m closing comments because of the volume of hit-and-run trolling or indecent comments I’ve had to delete. I appreciate those that contributed to the serious discussion, and will publish additional comments from the Bork camp or the Yale Club camp (or if any eyewitnesses wish to write in) if they wish to email to me.

I wouldn’t hold Judge Bork, the injured octagenarian, to the responsibility of proof-reading the work product of his counsel, so I do not blame him for inclusion of the punitive damages claim or other aspects of the pleading that Eric mentions. Shame on the pre-eminent law firm for entering into a matter it is apparently not sufficiently familiar with — it wouldn’t be the first white shoe firm to over-estimated its competence in a practice area far-flug from its comfort zone.

Finally, even as an advocate of tort reform, I am not uncomfortable with the cause of action. Could it not be deemed reasonably forseeable that an octagenarian might need assistance climbing a set of stairs that lack a handrail, and isn’t that assistance easily extended at no cost?

I disagree with the position Judge Bork took on behalf of Netscape, and believe that the Judge Bork of thirty years ago would have acerbically disagreed as well. But attorneys are entitled to represent clients they disagree with and expected to take positions they disagree with, and there is no reason to hold Judge Bork to a higher standard. And regardless, Judge Bork’s position in the Microsoft case isn’t any more correct or incorrect if his motives for taking that position were pure or impure, sincere or cynical. Thus, my 10:43 PM comment gratuitously and unnecessarily, and quite possibly falsely, impugned Judge Bork’s motive for representing Netscape, and for this I apologize.

This may be one of the rare cases in which a well-heeled or influential personal injury plaintiff choses to hire an attorney on something other than a contingent fee basis. Perhaps Judge Bork’s counsel is indeed representing him for free; or perhaps Judge Bork can afford to pay by the hour and has made a conscious decision that the value of his case and the likely amount of legal work necessary to realize that value make it more advantageous to him not to give up as much of his claim on a contingent basis as is typically charged by lawyers who regularly work on a contingent fee basis.

It strikes me as inconceivable, given the identity of the parties, the nature of his injuries, and the straightforward nature of his case, that no competent contingent fee lawyer would at least offer to take his case. In other words, I think it almost certain that that (fairly traditional and common) type of fee arrangement was available to him.

It’s interesting to me that he invoked diversity jurisdiction to file in federal court. Is Judge Bork the classic out-of-state plaintiff who fears that the hometown Yale Club would have an advantage in the New York state courts? Maybe so; I just don’t know how “clubby” (pun intended and inevitable) the New York state courts are compared to the federal district courts who sit in New York these days. It sort of smacks of showboating to me, though, and I would not want to be on the receiving end of the inevitable semi-hostile stare from a federal district judge asking, “Why is it exactly that you need to be in my court?” (That is to say, the hometown courts would need to be pretty damned clubby indeed before I’d have filed this in federal court, just as a tactical preference.)

Although I don’t know the particular details of New York state law on standards of care, I am less troubled that Ted Frank about the request for punitive damages. If it’s a relatively straightforward “recklessness” standard, then I don’t have a problem with including the allegation, at least as far as meeting Fed. R. Civ. P. 11 requirements (in contrast to the attorneys’ fee claim). Ted’s point may be that it’s just a philosophical incongruity, rather than a Rule 11-type problem. Even then, I’m less struck than he may be. Including it in the original complaint doesn’t necessarily mean it will be seriously argued throughout the litigation. And how silly or serious it looks may very well depend on how the state of mind evidence develops, e.g., during depositions of the decision-makers from the Yale Club who had responsibility for the design of the dais arrangement. Maybe Ted would argue that in a close case, Judge Bork’s historical philosophy should incline him and his lawyers to leave it out of an original pleading and seek leave to amend to add a punitive damages claim later if that evidence does indeed firm up.

Well, the part about punitive damages might be frivolous, and the parts about pre-judgment interest and attorneys fees certainly are. There is no basis for that in New York law.

That is probably just sloppiness, but the Complaint — with multiple allegations in each paragraph, a failure to explicitly allege ownership and control of the prremises by the Yale Club and a second cause of action for recklessness — was clearly not drafted by someone with PI experience. This stuff isn’t fatal given the liberal pleading rules, but a former SCOTUS nominee is not just any litigant, and it should have been done by someone who has done this many times before.

–ET