The Law Clerk Dilemma

Award: Unspecified

Case Synopsis

Case Type:





Albany County Supreme Court Law Clerk

case length
Length of Case:

1 year

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What makes this case unique:

Compromising position of having to sue a law clerk who could have influence on our future cases.

I received a call from a very polished gentleman who was, at the time of the incident, in his 70s. He was retired and spent a fair amount of time during the day walking around the neighborhood. He did this for a change of pace and scenery, as well as for health reasons.

This client had a chronic ailment that required him to be fed on a PICC line. This is a soft, thin catheter that is attached to a person through a major artery. A person with severe enough gastrointestinal problems, such as my client, may need this to receive food or medicine.

One of his neighbors was a law clerk to a Supreme Court judge in Albany County. This neighbor had a pretty sizable Rottweiler. As my client was traversing the neighborhood, the dog came up from behind him. The dog didn’t bite my client but it did run into him. The impact knocked him over.

For most people this would have been nothing. But my client was somewhat fragile. He was probably about 6 feet tall and weighed only about 150 pounds. In addition, his health struggles combined with his advanced age made this fall very serious.

On the plus side, he suffered no fractures. However, the bruising caused a major setback for him. He ended up being bedridden for a while, which further exacerbated his health issues. There was no specific injury that we could make a claim for. We simply argued that the incident further debilitated him.

Who do you sue in a situation like this? Believe it or not, this kind of claim is usually covered by a homeowner’s insurance policy. Many of these policies will cover members of the household who hurt a person through a deliberate act but have no intention of causing harm. For example, if you are teeing off at a golf course and hit a person with your club, that may be covered by your homeowner’s insurance policy. A person whose child injures another child in school may be covered by the policy as well.

When it comes to pets, these too are often covered as “members of the family.” The dog clearly intended to ram my client but did not intend to harm him. One could reasonably guess the dog was being playful.

We tried hard to get the insurance company to settle. This was not a case that we wanted to take to trial. Understand that we were in a rather compromising position. If we couldn’t settle with the insurance company, then we needed to litigate against a Supreme Court judge’s law clerk. In addition to the political pitfalls of angering a law clerk, the risk of getting a judge who was not empathetic to our case was high.

The law clerk is a very important position. When an attorney asks a judge for a ruling or files motions, the law clerks have a great deal of influence. The law clerk often does the initial research and may write the first draft of the judge’s opinion. In some cases, the law clerk’s original decision may be the final decision.

The person we were suing would rightly feel that he had some position of power and influence over us, and would not take kindly to us taking action against him.

Our concern was born out. My partner, George, encountered the clerk in the elevator of the courthouse one day. To say the least, this was an unhappy encounter. He tore into my partner (verbally). When I saw him later that day, George said he was no longer up to pressing the case.

But I was undaunted. “That’s okay,” I said. “I’ll take over.”

We continued to pursue the case through filings. As things progressed, the tables began to turn. The insurance company soon decided that it was they who were in a compromising position; if they didn’t settle soon, they risked being on the wrong side of a Supreme Court law clerk. They, too, must have worried about the risk to future cases if they allowed a jury to award a verdict against the clerk.

As such, about a year after filing the lawsuit, we settled the case for several hundred thousand dollars…a great ending to a very ticklish matter for all concerned.