A conversation with Justice Barbara Kapnick

By Evan Jaffe | Staff Writer

On April 22, 2015, I spoke with Justice Barbara Kapnick of the Appellate Division, First Department. We discussed her career on the bench, beginning with her time as a law clerk for two Supreme Court judges through her own experience as a judge in the Commercial Division.

Justice Kapnick found her calling in public service early on. While at Boston University Law School, she networked and met with a civil court judge about starting her career as a law clerk. This led to her first position as a law clerk for the Honorable Ethel B. Danzig, first in the Civil Court and then in Supreme Court, New York County and an opportunity to build her own platform for a career as a judge. Justice Danzig encouraged her to be active, talk with lawyers, and be up front in the court room. “The experience of a law clerk and judge is very personal, very one-on-one,” said Justice Kapnick. Because Justice Danzig had a very busy part, Justice Kapnick had countless opportunities to work on research and writing; in addition, frequent interaction with lawyers gave her standing and credibility within the legal community. In fact, when Justice Danzig was sick and often unable to be in court every day, parties on one of her cases asked if Justice Kapnick could try the matter. “Obviously I couldn’t do that,” remarked Justice Kapnick, “but it was flattering nonetheless. I took care of all the other matters within the case.”

Nine years with Justice Danzig provided a strong foundation for her next assignment: a two-year clerkship with the Honorable Michael J. Dontzin. “The position opened up because his law clerk was leaving to become a judge. So, he knew I was basically a free agent due to the passing of Judge Danzig,” said Justice Kapnick. This turned out to be a great next step as Justice Dontzin was very hands-on in her transition. Again, Justice Kapnick was encouraged to be very active in his courtroom, especially since he had a busy part of medical malpractice and complex litigation. After two years, Justice Kapnick was eligible to run for civil court and was elected in 1991.

Her first day as a Judge was interesting.   “[I remember] I called the chief clerk to see what I should do and he said there was an introductory program for the new judges, but in the meantime he suggested I watch other judges and see how they ran their parts,” said Justice Kapnick. Almost immediately things changed: “the clerk called back moments later and said ‘the judge that sits in the motion part called in sick today, so can you handle the part?’” And when Justice Kapnick took the bench for her first day, the clerk said “all rise,” looked over at Justice Kapnick and remarked “who are you?” It was a comedic start. But, similar to her prior position with Justice Dontzin, she went right to work, cementing a career as a dedicated, hard-working, active judge for years to come.

Following 16 years as a judge in the various civil parts, including election as a Supreme Court justice in 2001, Justice Kapnick joined the Commercial Division in 2008, just as the financial crisis gripped the nation. For the next five and a half years, Justice Kapnick presided over two of the most complicated cases in the Commercial Division: the MBIA Article 78 Proceeding and the Bank of America Article 77 Proceeding. In describing the challenges for each action, Justice Kapnick noted “each case had little precedent so we mostly had to establish the precedent. What helped was the incredible coordination among the lawyers and my staff to make sure this collaborative process ran smoothly.” Justice Kapnick acknowledged the incredible amount of preparation for each action, thinking not just about each step in the case but how the strategy and dynamic of the matter would unfold.   And even as these two cases occupied so much of her five and a half years in the Commercial Division, she still maintained a docket with a diverse set of issues and subjects, providing a strong platform for her next stop at the First Department.

Although still relatively new to the First Department, it has been an exciting experience for Justice Kapnick. She stated that there are “many different types of cases so it’s a great opportunity to learn.” “[T]here’s more time at the First Department to reflect on issues as compared to when I was at the trial level, where you’re thinking about what the First Department is going to do with the case,” said Justice Kapnick. Although she misses the hectic daily routine of the Commercial Division, the new experience is a great one as she spends time negotiating with fellow justices and feeding off their experience on matters, while providing her individual expertise to the various cases.

Fittingly, we finished our discussion speaking about successful qualities for a law clerk. Justice Kapnick owes a great deal of her success to her 11 years of hard work as a law clerk to two wonderful Supreme Court justices. “You have to like the person because it’s a very close relationship, the judge and law clerk. You rely on each other and there’s a lot of trust and loyalty that comes with the position; it’s basically a family,” noted Justice Kapnick. Justice Kapnick has been scrupulous in her hiring and has had long-serving clerks over her distinguished career on the bench. Justice Kapnick advised that strong research and writing skills are a must; but beyond that the clerk must have a robust sense of the issues, both in a micro and macro sense. Similar to her work as a clerk, Justice Kapnick wants her law clerks to speak up and feel comfortable dealing with the attorneys because, in essence, the clerk is an extension of her as a judge.

 

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