By Kevin Wong | Managing Editor
CDOLR Staff Member, Kevin Wong, met with Justice Jeffrey Oing of the Commercial Division on a sunny February afternoon. Kevin was able to gain a perspective into the daily life and thought process of a Commercial Division justice and the practices of the Commercial Division. Additionally, Justice Oing shared his wisdom on how young attorneys can become successful Commercial litigators.
1) Can you tell me your background before coming to the bench in the Commercial Division?
First thing, I clerked for Chief Justice Robert N. Wilentz of the Supreme Court of New Jersey. This clerkship was my first in a series of experiences working for a judge and the court system, which gave me the opportunity to understand the importance of the judicial process. The Supreme Court of New Jersey is the highest state court in New Jersey. While I clerked there, the Court handled many personal issues such as various criminal law issues and specifically the right to life cases. One of the major decisions that I worked on was Abbott v. Burke, an education funding case in which the Court held that New Jersey’s education funding formula was unconstitutional because it denied poorer urban school districts a “thorough and efficient” education as mandated by the state’s constitution.
After the clerkship, I went into private practice and practiced litigation for a couple of years. You either like or do not like litigation and having done a clerkship, I knew I wanted to go back into the court system. I found my way to the Law Department in the New York Supreme Court, New York County, 60 Center Street, which is a pool of attorneys who help judges draft decisions. I worked there for two years and I realized that I wanted to pursue a career in the judiciary. Judge Marilyn G. Diamond hired me to be her Principal Law Clerk. While clerking for Justice Diamond, I worked on a major decision dealing with the 42nd Street re-development and the removal of the adult entertainment stores in that area of New York City. Justice Diamond was instrumental in upholding the rezoning, which ultimately ended up before the Supreme Court of the United States and got affirmed. Following my clerkship with Justice Diamond, I had the opportunity to work in the Appellate Division, First Department, which also has a pool of attorneys who prepare bench memos for the panel of judges. That allowed me to expand my horizons to include criminal appeals. I worked there for a couple years and then I went back to 60 Center Street to clerk for Judge Walter Tolub. After two years, I wanted to try something different. I then joined the General Counsel’s Office for the City Council as the Deputy General Counsel to then-City Council Speaker Gifford Miller, where I served for a couple of years.
In 2003, I was blessed, in a sense, to have been elected to the Civil Court for New York County. I started out at the Civil Court located at 111 Center Street in lower Manhattan. A few years later, I became the Supervising Judge. In 2010, I was elected to New York State Supreme Court and in April of 2011, I was assigned to the Commercial Division. That is how I found my way to the bench in the Commercial Division.
I did many different things that helped me get to where I am. Every point in my path was instrumental to how I handle my cases now.
2) What are your most favorite and least favorite aspects of being a Commercial Division judge?
There are no least favorite aspects, only favorites. Being a judge is great; it is like nothing else in this world. Being a Commercial Division judge is like putting the cherry on top of the sundae. It is an incredible experience and I have learned so much. There are always new aspects of the law and arguments that lawyers put in front of me. A small change in the facts can totally change how I render a ruling. No two cases are the same. It is also interesting when an attorney submits a case to support a motion to dismiss and contends it is exactly on point, but when I read the submitted case, I ask the lawyer about the procedural posture of the case – if it was a motion for summary judgment, the parties passed the pleading stage, which does not help the case at issue. The little things need to be focused on – like the procedure, words, and any other happenings. Another favorite aspect of being a Commercial Division judge is picking up the fine points in a decision, and listening to the arguments and what the lawyers have to say. I love all the motions because they include oral arguments. It is interesting to see sometimes when a lawyer trips himself or herself up during oral argument and the other side uses it immediately to his or her advantage.
3) What advice would you give to young attorneys appearing in the Commercial Division?
One piece of advice for young attorneys appearing in the Commercial Division is that you need to know your case. You have to know your facts, know your clients, and know everything backwards and forwards about your case. Do not get caught with a question where you have to answer, “I do not know.” Do not use the response, “Well the other side did not use that argument” – this is not a good response. You have to know the answers. I am always surprised with the number of times that lawyers are stunned by the questions that I ask them. They are the ones that have to live with the case and they will say, “No judge has ever asked me that question” and I would respond, “Then is my question off-base?” The attorneys would respond, “It is not.” Just because it was not asked does not mean it can’t be asked. It happened several times where I asked a hard question and the attorneys would respond, “We didn’t think of it” or “the other side did not raise that argument.” It does not matter that the other side did not raise the issue – I can read for myself. As the trial court, my role is to flesh out everything. At the end of the day, they ask for more time, but that is not how the court system works.
I tell young attorneys all the time – the key is to understand the contracts because there is so much information in it that could either help or hurt your case. So many times, lawyers do not read the entire contract and they usually only read a specific provision. These contracts have the same format and lawyers need to understand and read the language of the contract.
4) What is the difference between a good lawyer and a great lawyer?
A good lawyer is someone who can respond. A great lawyer is someone who can think on his or her feet and can change positions quickly. I had one of those attorneys, and he knew his case, knew his facts, and responded fast. Even though he did not prevail, he was able to muster a good argument to almost convince me. A great lawyer can shift gears relatively quickly. If you can’t do that then you do not know your case well enough.
5) Since there are many different jurisdictions that attorneys can bring their cases, can you share some of your experiences with cases that should or should not be brought in the Commercial Division?
Commercial Division has its own rules of what cases we can hear. There is also a $500,000 threshold. There are certain cases that we do not hear. It is not often that I refer cases out of the Commercial Division. If they are here, they usually belong here.
6) Can you give advice to students or young attorneys that are looking into clerking for the Commercial Division and what advice would you give them? What do you look for when hiring a clerk for your chambers?
That is a hard one. Here in state courts, our law clerks are permanent with the exception of the rotating clerk. For the most part, my Principal Law Clerk has been with me since 2004. My second law clerk is for either a one-year or two-year term. If you are interested, the best approach is to send a letter of intent to the Commercial Division Justice.
7) To follow-up on the previous question – What do you look for when you want to hire someone for the rotating clerk position?
I look for someone with writing skills. I want someone with the ability to look at something and write well because all my law clerks participate in conferences. I understand that if you are in law school you will not be able to oversee discovery conferences but you will be surprised that I have had law clerks that can handle discovery conferences right out of law school. I also look for someone who can play poker; that’s the way I would look at it. In a conference, you have to keep a straight face and not let the attorneys know that you are unsure. I want someone with confidence, someone that can hold their ground, and someone with a good presence.
8) What part of law school prepared you most of the judgeship?
To be perfectly frank, law school was a different animal. What you learn in law school is nowhere near what you need to do and learn out of law school. Law school taught me how to think like a lawyer and read cases and take cases apart. Law school taught me how to read between the lines and to understand what the courts are trying to say. All the different classes teach you how to read the case and pick it apart. When you get into the real world, you rely on mentors, other lawyers, and your own ability to be curious. If you are curious, then you will go very far. An example of this was when I was a young associate back in the day; I would get my marked up memos from the senior associates. At that point, I could have given the marked up memos to my secretary to make the changes. However, I did it myself. I looked at all the edits and I was teaching myself how to write better, and learn the thought process of the senior associate. It was a fantastic experience to learn how they write, think, and analyze different things. I tell people do not think of editing as grunt work, it can unlock many things that you do not realize.
9) Was there ever a situation where you had to support a certain legal position that conflicted with your personal beliefs? If so, can you tell us how you handled it?
Not really. I keep my personal beliefs out of the courtroom. For example, I recently had a case involving an employment issue that involved a restrictive covenant and enforcement against the employee. The defense attorney said, “Judge, the two women whom the employer is enforcing the non-compete against are mothers with kids and a livelihood.” I responded, “I am not unsympathetic to that but you have to understand a contract is a contract.” At the end of the day, the restrictive covenants were so tight that there were no wiggle room so I had to grant the injunction. However, on the flip side, I said to the defense counsel that the employer has to continue to pay them to sit on the sidelines or pay them to do something else. The minute they cannot do that or terminate their contract, I directed the plaintiff to start paying them their old salary. At the end of the day, that is what the appellate courts are for; they weigh in if they think I did something wrong. I am more than happy to have the Appellate Division tell me if I am wrong and provide guidance.
10) What was one of the most difficult complex cases that you handled in the Commercial Division?
I think it has to be the Macy’s case – Macy’s v. Martha Stewart and JCPenney. That was the toughest case because the decision that I wrote in the end took a while to get on paper. There was a lot going on and, Macy’s settled with Martha Stewart but not with JCPenney. Ultimately, I found in favor of Macy’s against JCPenney for tortious interference of contract. The case is still pending; there are a number of issues that remain unresolved so I cannot talk too much about the case.