So Now You Want My Help
By Scott H. Greenfield
Posted 05-04-07
Introducing LexPosition: This is the first in an occasional series of personal essays by experienced players and close observers of the bench (specifically) and the legal system (generally). This week, a veteran criminal defense attorney stipulates that members of the judiciary deserve a raise. Now he'd like those Solomons to stop treating him and his colleagues like reusable parts.
The struggle over judicial pay raises is like a bizarre hybrid of General Hospital (with a somewhat less attractive cast) and a Sunday morning talk show. Yet with so much to commend it, I am constrained to ask, why should I care?
Make no mistake about it. The state of judicial salaries is a disgrace, particularly when juxtaposed with the compensation levels of first-year associates at major law firms who sneer at judges’ unfashionable shoes. To add insult to injury, law clerks at big firms are now getting $50-grand bonuses while judges get hosed. I am not against judges getting a substantial raise.
So the bar is now inundated with speeches and articles describing in excruciating yet tactful detail the daily travails of our judges and their difficulties in keeping up the car payments. And this matters to me why?
Are we suddenly “on the same team?” Is the independence of the judiciary really at stake? Or do the men and women who serve as judges have to pay the dinner tab just like the rest of us, and would frankly like a little more money so they can splurge on an occasional cappuccino and crème brulee?
Try as I might, I’m having a hard time remembering the last time a judge told a defense lawyer on the eve of trial, “You’re relieved because your client stiffed you on the fee.” I similarly can’t think of too many judges who proclaim, “I don’t care if the People don’t have a file, the defense lawyer has been sitting there for an hour, and he has other things to do besides wait all day for his case to be called.” These are the things that impact my bread and butter, and yet my “teammates” have always been a little less than interested in my fiscal status. Now I’m supposed to care about theirs?
Without much strain, I could probably list a dozen pocketbook issues that could be cured in seconds by a judiciary that gave the minimum consideration to how their actions affect lawyers. For instance, has anyone considered the cost of a hundred lawyers sitting around for a calendar call in Civil Supreme on contingent fee cases, only to be told “submitted” when they are finally called up after hours cooling their heels?
Our Chief Judge has made quite a show about how the system treats jurors, sometimes stretching the limits when it affects non-sequestered jury deliberations or compels lawyers to show for duty with full knowledge of everyone in the room that they will never be allowed to sit. It certainly gives the appearance of fairness, if not downright submission, but the price of the show is paid by the lawyers.
And then there are the decisions, such as In re Cooperman, in which the Court of Appeals banned non-refundable fee arrangements. The decision undermined the basic way in which honest, hard-working lawyers could charge in criminal cases — based upon some ivory tower vision of the law, coupled with the obvious bias of “when in doubt, burn the lawyer.” Nice to see law professors, who get a salary check whether anyone learns from them or not, dismissing the ability of a lawyer to be paid for his efforts under the guise of ethics. Is it ethical that lawyers are the only people in America for whom the right to contract has been abrogated? What happened to being “on the same team” when our livelihood was threatened?
When the lawyers of the Legal Aid Society were treated as pariahs, they took to the streets to stand up for their mutual self-interest in the time-honored American tradition of a strike. When America’s Mayor-cum-Presidential Hopeful (and two-time family values failure) Rudolph Giuliani crushed them under his heel, did the bench arise in unison to protest this most foul treatment? The silence was deafening, especially if you were a kid whose next meal depended on that lawyer’s salary.
There’s an old song that keeps playing in my head: “Work your fingers to the bone / What do you get?… Bony fingers.”
To characterize the judicial salary issue as one that affects “all of us” should be criminalized as Abuse of Platitude in the Third Degree. If we pay judges more, we’ll get higher paid judges. Not that there’s anything wrong with that, but I have a hard time believing that any judge is going to be a little fairer because he got a raise. And I have a hard time accepting the premise that any lawyer wants to be a judge for the money. If that were true, then they would really, really want to be a first-year associate at a big law firm. I have never heard of a problem filling judicial vacancies, which tells me that there are still more lawyers who want to wear black than lawyers who want to eat well. While black robes may be trimming, I have to believe that there’s some other force driving lawyers into the abyss.
When was the last time a judge asked you how your practice was doing? Never? Well then, when was the last time a judge showed some real concern for the demands on your time that were convenient for her but a very costly, very difficult problem for you? Not that either? It’s not surprising. As every lawyer who whiles away the hours in a courtroom knows only too well, we are the pawns in the game and exist to serve the needs of the system. We can live with that, as that’s the system that feeds our families, whether or not it feeds them very well. But do not expect me to put aside the multitudinous ways in which our earnings suffer because we are unworthy of the common consideration shown just about everyone else in the courthouse and start beating the drum for the downtrodden judges.
If a poll taker asks me, I’ll say that I think judges should get a raise. But until I get that call, I’m too busy trying to earn a living for my own family — struggling through the daily grind of demanding clients, even more demanding judges, and a system that refuses to care whether lawyers can make a living or not — to care. I hope judges get their raise, but it’s just not on my front burner.
The writer is a Manhattan-based criminal defense lawyer with 25 years of experience in the trenches. He is a former Vice-President and Director of the New York State Association of Criminal Defense Lawyers.
Comments
I don't know any government lawyers, ADAs, Asst. Corp Counsels, agency asst. counsels or AAGs, who make $136,700, no matter how much more experienced, competent and effective they may be than the average JSC. Indeed, statistically, the govt. lawyers appear to be more HONEST; I can't remember the last time one was indicted. Unfortunately, this means govt. lawyers have to support raises for both judges and legislators. But I also wonder, what percentage of grads get those high-paying entry-level jobs that we hear so much about? My first job as a litigation associate paid $16,500.
Posted by: Jackie Najalack | May 4, 2007 07:03 AM
Bravo, Mr. Greenfield. I think you've articulated the case well. I, too, have no problem with Judges getting a raise. I think they deserve it; however, I also think that the increase should be conditioned on some reforms that can be made on the administrative level.
For example, one of my pet peeves is requiring a personal appearance where a TRO or other injunctive relief is NOT requested. Why not simply have such matters submitted? Instead, after waiting for interminably long first and sometimes second calendar calls, counsel is given about 5 minutes to argue the merits of a matter that probably has been fully briefed. What's the point of that? Nothing, IMHO, except to increase the cost of legal representation.
Now that the issue of judicial salaries is in the forefront of discussion, the powers that be should attempt to extract some reasonable reforms from, well, the powers that be.
Posted by: Randy L. Braun | May 4, 2007 03:26 PM
I am not really in the mood to hear Js whining about their salaries. These are the same people who look for any possible reason to cut our 18b vouchers, especially when we beat the DA. Why are they entitled to an inflation increase when we are not? Why are they entitled to get the same as fed Js (that's apparently what they were looking for on Law Day), but we are not entitled to CJA pay? Both Js and 18b are paid out of the public pot; why are they entitled to a larger share than us? I could do just fine on what they are currently making; I'd like to see them try it on what I am making.
Posted by: Tina Kansas | May 5, 2007 08:02 PM
While the state of judicial salaries remains deplorable, the things that Greenfield points out as judicial "faults" don't really address the issue. All that is done from the bench in the name of keeping the "system" moving is a necessary element of rational administration. Someone has to control the calendar, and judges are in the logical position to do it. That some in robes lack the tact or courtesy to make life more pleasant for the lawyers who appear before them, is not open for argument. Admittedly, some judges are needlessly mean spirited in going about their tasks. But, even the nicest judges still have to lean on practitioners to make progress in handling their growing calendars.
Bettering the plight of practicing lawyers is not the answer here. Simply put, judges deserve raises in order to keep pace with our present economy, which has become much inflated since judicial salaries were last adjusted some nine years ago. The issue of the need for lawyers to more efficiently turn their time into earning power, is a totally different thing. You will not address that inequity by continuing to deal inequitably with judges' pay. Nor, for that matter, will you better the life of the bar by giving judges raises.
Lectures and seminars are given to members of the bench on such diverse issues as sensitivity toward jurors, females, persons of color, court personnel, etc., but the overall "arrogance of power" is never addressed. Whether a judge ascended from an institutional (D.A.'s office, LAS, etc.) practice or a private firm should not matter. Just as they are exposed to information and training aimed at other predjudices and overreaching, they all should hear about how, what they do on behalf of"judicial economy," does to the bottom-line of those who appear before them.
Personally, I am not affected by all of this. My pension was set based on my last 3 years' salary, and whatever is given to the bench after that is not figured in. Still, it would be nice to see an injustice remedied by giving them raises, and taking the issue out of the hands of the Assembly.
Posted by: Sheldon Greenberg, Acting JSC (Ret) | May 6, 2007 09:13 PM
First, I thank Judge Greenberg for caring enough about lawyers to address the issue. Granted, some sitting judges may want to respond, but are constrained to remain silent. If only our clients were so inclined. But Judge Greenberg brings the judicial mindset to the discussion, and we can all stand to learn a little more about how the other half lives.
It states the obvious to note that there is no causal connection between judicial salary increases and the financial impact of judicial actions on lawyers in the trenches. But that’s not the point here. When the judiciary enlists the aid of the bar to support its cause, they open the door to our issues which would not otherwise get an airing. You asked.
But I must take issue with Judge Greenberg’s sweeping the problem under the judicial carpet under the guise of “calendar control.” Of course, moving a calendar along is part of the court’s job. But it’s not the fact that it’s done. It’s the way that it’s done.
Similarly, I don’t see this as a matter of judicial temperament. I’ve experienced judges so adept at telling lawyers to sit down and shut up that you want to thank them gushingly for the honor. Judges can be inordinately polite and yet have no recognition that they are needlessly eating up hours of lawyers’ time for no reason. It’s a matter of mutual respect.
Perhaps Judge Greenberg cannot feel the pain (since he came out of the DA's office in his former life) that a private lawyer experiences when he is cooling his heels instead of working for a living. Since so many judges come from service to the government onto the bench, their lack of recognition stems not from malice, or even benign neglect, but a simple lack of recognition of how private lawyers earn a living. Should they be trained in the care and feeding of lawyers, like other downtrodden minorities?
The bottom line is that this is one of the few instances in memory where lawyers have an opportunity to let the judiciary know about their financial impact. This is not because the issues are intrinsically related, but because the judges want our support. A little more mutual respect, and a two-way street when it comes to making a living, would serve the interests of all players in the justice system.
Posted by: Scott H. Greenfield | May 7, 2007 11:14 AM