By Andrea Bonilla | Staff Writer
Richard Friedman, Esq., an Employment/Business Litigator and Trial Lawyer, shared valuable information regarding the Commercial Division with CDOLR Staff Member Andrea Bonilla. They discussed his experiences with the Commercial Division and he offered great advice for those interested in commercial litigation.
Mr. Friedman is both accomplished and experienced in commercial litigation. During law school, he started as a summer associate at Weil, Gotshal & Manges, LLP and rotated through its various departments, finding litigation the most exciting. Upon graduation, Mr. Friedman joined Weil’s litigation department. Two years later, he was one of nine associates who were asked to join three partners in forming a business and securities litigation department. Mr. Friedman has been practicing business litigation for several decades. In recent years, he has handled some very noteworthy employment-related litigation matters involving allegations of employee misconduct, breaches of fiduciary duty, and the faithless servant doctrine.
New York County Commercial Division Advisory Committee
Former Chief Administrative Judge Sherry Klein Heitler appointed Mr. Friedman to the New York County Commercial Division’s Advisory Committee. The members of the committee meet periodically with the nine judges of that court who sometimes seek to enlist the support of the practitioner members for legislative proposals. For example, the committee was instrumental in having the minimum jurisdictional amount in the New York County Commercial Division increased from $150,000 to $500,000 because the members were persuaded that the judges were being overwhelmed by cases in the interim range and that many of those cases could be capably handled in the general court parts.
Advantages to Practicing in the Commercial Division
Mr. Friedman discussed the advantages to practicing in the Commercial Division. He said that the same judge is assigned to a case until it is resolved unless the judge leaves the court. Thus, the judge will quickly learn if either side is playing games in the litigation. According to Mr. Friedman, “one of the deficiencies in the old system was that every time you went to court you had a different judge, so not only did the judge not know what the case was about, attorneys were not held accountable for their prior representations to the court.” He further explained that it was a slow, inefficient, and unjust system, and cases were much more likely to get delayed because some attorneys regularly adjourned conferences without any negative consequences.
Mediation in the Commercial Division
Mr. Friedman also discussed how mediation has become very common in the Commercial Division. The New York County Commercial Division now has a mandatory program under which one out of every five cases is submitted for mediation earl in the life of the case. Mr. Friedman noted the timing of a mediation session is very important. For instance, he was recently in court for a conference in the Commercial Division. When the subject of mediation arose, the plaintiff’s attorney did not want to consider it because his client had not experienced sufficient pain to be willing to mediate.
Mandatory E-filing in the Commercial Division
Mr. Friedman is an advocate of mandatory e-filing so long as there is an exception for lawyers who are handicapped and unable to have someone else effectuate the filing for them. He said there are already some exceptions in place.
Since the production of quality case summaries is the main goal of the Commercial Division Online Law Report, Andrea asked Mr. Friedman how important it is for a lawyer to have a skill such as being able to summarize complex commercial cases. According to Mr. Friedman, such a skill is vitally important in dealing with clients and with the trier of fact because lawyers need to be able to explain things simply whether the trier of fact is a judge or a jury. Mr. Friedman stressed that such a skill is critical to success in court and in writing.
Alternative Fee Arrangements
Andrea asked Mr. Friedman about an article that he co-authored entitled “Ethical Issues and Alternative Fee Arrangements: What To Do and What Not To Do.” Mr. Friedman explained that most clients hate the unpredictability of litigation fees. He explained that legal departments are called upon to do a budget each year and the general counsel is often evaluated based at least in part on whether the department comes within the budget in terms of its annual expenditures. According to Mr. Friedman, one advantage of a non-hourly rate fee arrangement is that it provides greater or total predictability, depending on the fee arrangement. He went on to state that there are other advantages as well as some disadvantages to so-called alternative fee arrangements.
Law school prepared Mr. Friedman for a career in commercial litigation by making him think differently, think more skeptically, and become much more analytical. According to Mr. Friedman, those skills are very helpful in evaluating disputes. Mr. Friedman said, “It helps to have a curious mind, which law school helps form.”
Advice to Current Law Students
Mr. Friedman advises students who are interested in practicing in the Commercial Division to work in a state court litigation practice and/or seek a clerkship in the Commercial Division to learn and understand the Commercial Division.