Legal Aid Opposes Special Plan For Southern District Civil Rights Cases Involving The NYPD
MONDAY, JUNE 17, 2013

The Legal Aid Society has urged the federal judges in the Southern District not to adopt a plan involving the consideration of civil rights cases from the Bronx and Manhattan against the New York Police Department. At a public comment hearing last week on a pilot program put in place in 2011 to handle Bronx and Manhattan cases alleging excessive force, false arrest or malicious prosecution, The Legal Aid Society and private civil rights lawyers said that the pilot program's procedures tilt unfairly toward the City's Law Department and have done little to speed settlements.

The plan extends the City's obligation to answer a complaint from the normal 21 days to 80 days, and postpones most discovery until after the parties have appeared before a magistrate judge for settlement talks or asked to be exempt. Plaintiffs who elect not to appear before a magistrate judge or seek an exemption are sent straight into mediation. Concerns have been expressed about the requirement that plaintiffs in these cases against the NYPD must serve a release for medical records with complaints filed under 42 U.S.C. §1983 as a well as a release for sealed arrest records and a list of prior arrests without equally timely disclosure being required on the defendant police officer's history of disciplinary problems.

As reported in the New York Law Journal, at the hearing, The Legal Aid Society' Criminal Practice Special Litigation Unit Director, William Gibney, said that The Legal Aid Society objected to "one-sided rules" favoring the City, particularly "the suspension of most discovery." Gibney added that "[t]here is a fundamental presumption that the federal rules apply to everybody."

On behalf of the Society, Steven Banks, the Attorney-in-Chief, submitted extensive comments about problems with the Southern District's pilot plan. Banks noted that "The Legal Aid Society normally does not represent victims of police misconduct in the individual damages suits addressed by this plan. However, the Society and our clients have a substantial interest in maintaining adequate remedies for police misconduct, which our Criminal Defense Practice clients have experienced with dismaying frequency, and we do regularly bring class action and test case litigation about police practices. We also refer substantial individual complaints of police misconduct to the private bar, and we have frequent contact with private practitioners who represent police misconduct victims. Thus our perspective is that of informed observers." The Society's comments are attached below.

Last year, on behalf of the Society, Banks also submitted comments to an Eastern District committee that was considering a similar rule for Brooklyn, Queens, and Staten Island federal civil rights cases involving the NYPD. The Eastern District determined not to implement the rule. The Society's Eastern District comments are also attached below




New York Law Journal
Some Attorneys Fault Effort to Speed Deals in Cases Against NYPD
By Mark Hamblett
2013-06-13

Federal judges weighing whether to fully adopt a plan to streamline the settlement of civil rights cases against the New York City Police Department ran into opposition from some members of the plaintiffs' bar on Tuesday.

At a public comment hearing on a pilot program put in place in 2011 to handle cases alleging excessive force, false arrest or malicious prosecution, several civil rights lawyers told Southern District Judge Paul Crotty (See Profile) that the new measures tilt unfairly toward the city's Law Department and have done little to speed settlements.

But Crotty, chair of the district's Ad Hoc Subcommittee on Section 1983 Cases, told lawyers and judges at 500 Pearl St. that there were indications that the plan is working and has helped accelerate settlement of a class of cases that has frustrated judges with the length of time they take to litigate.

The plan extends the city's obligation to answer a complaint from the normal 21 days to 80 days, and postpones most discovery until after the parties have appeared before a magistrate judge for settlement talks or asked to be exempt. Plaintiffs who elect not to appear before a magistrate judge or seek exemption are sent straight into mediation.

Attorney Vik Pawar said the delay puts "plaintiffs in a disfavored bargaining position."

"We would scrap the plan," said Pawar, of the Pawar Law Group.

Plaintiffs lawyers bristled about the requirement that they must serve a release for medical records with complaints filed under 42 U.S.C. §1983 as a well as a release for sealed arrest records and a list of prior arrests without equally timely disclosure being required on the defendant police officer's history of disciplinary problems.

"The general feeling is there is not parity under the plan," said Ilann Maazel of Emery Celli Brinckerhoff & Abady.

Rebutting the claim that most civil rights lawyers were adamantly against the plan was Celeste Koeleveld, executive assistant corporation counsel for public safety at the Law Department, which has between 1,500 and 1,600 pending police misconduct cases.

"Our experience with the plan has been very positive, and the vast majority [of civil rights lawyers] are pleased," Koeleveld said. "They get the key documents they need early on."

She said that cases "do move faster on average under the plan" by avoiding "burdensome and costly litigation generating attorney fees that drive up the cost of settlement."

Attorney Joel Berger later took issue with Koeleveld, saying, "People don't just take discovery to roll up a bill for attorney fees."

Berger, a solo practitioner, also faulted the court for claiming there "was all this outreach" to the plaintiffs' bar in formulating the plan.

"The city has not come forward with this litany of plaintiffs lawyers who like the plan—because there aren't any," he said.

After the city answers the complaint, the parties have 14 days to hold a conference, then seven days to refer the matter for settlement talks or seek exemption, which the plaintiffs attorneys claim is routinely denied—or the case goes into mediation.

Initial disclosures are made within 21 days of the answer, with the city then having 28 days to turn over a history of disciplinary complaints against the officers. Plaintiffs have six weeks after the answer to file a settlement demand and the city has 14 days to respond. Three months after the answer, the parties must appear before a mediator or a magistrate judge for settlement talks at which the Law Department must have a lawyer present (or available by phone) who has the authority to settle the case.

Attorney Rose Weber called the plan "a complete failure" and said that "before the plan I settled almost all of my cases" but now she settles "only half."

Weber, a solo practitioner, said the "judges of the Southern District had decided to trim their dockets" without regard for poor litigants and that "instead of reforming" the NYPD, the city had "circled the wagons" and, "in doing so, they have clogged, not cleared the court's dockets" and had "hoodwinked the judges."

'Careful Attention'

Crotty, who served as corporation counsel from 1994 to 1997, took exception.

"I want to rebut the assertion that this plan was adopted at the behest of the city," Crotty said.

He said the problem of police misconduct cases crowding the docket "received careful attention" and the plan was "adopted only after long consideration by the board of judges."

Crotty said the judges were "trying to manage our docket" and "administer justice" in a way that was fair to all litigants.

Judge Denise Cote (See Profile), who also serves on the subcommittee, said the pilot plan was adopted after consultation with both sides of the bar, judges and magistrate judges and the district's mediation supervisor, Rebecca Price.

While there is a presumption that parties would go before a mediator, Cote said there "is no requirement that a case settle."

Christopher Dunn of the New York Civil Liberties Union called on the judges to release more details, including facts and figures on settlements.

He said the NYCLU usually sues the NYPD seeking institutional reform, such as the pending trial over its stop, question and frisk policies, cases that are unaffected by the plan. The NYCLU sometimes handles individual complaints of police misconduct, but not usually.

But Dunn had concerns about the plan, as did William Gibney, director of the special litigation unit of the Legal Aid Society's criminal practice.

Gibney objected to "one-sided rules" favoring the city, particularly "the suspension of most discovery."

"There is a fundamental presumption that the federal rules apply to everybody," Gibney said.

Dunn said the plan "takes away from plaintiffs the leverage they have to make things happen" and he agrees with Gibney on the federal rules of civil procedure.

But Crotty said the court has made several changes that deviate from the normal handling of cases under the federal rules, including the court's initiatives on automatically referring employment discrimination cases to mediation and its adoption of special rules for complex cases.

"What is it about 1983 cases that attracts your attention?" he asked Dunn.

Dunn's answer was that there "is a serious problem with police misconduct at the NYPD and, as imperfect as it is, litigation is one way of getting at that."

Some of the lawyers, particularly Berger, criticized the mediators as inexperienced in handling police misconduct cases.

But Koeleveld said "mediation is working quite well" and the Law Department has found that, contrary to expectations, mediators do not require such experience in order to be effective.

Koeleveld mentioned a Law Department initiative to take more cases to trial and force the hand of plaintiffs lawyers who think settlement inevitable. But she said it's still only a small number that go to trial—an increase of from 10 to 15 cases a year to about 30 all told in the Eastern and Southern districts.

"We are still settling the vast majority" of §1983 cases, she said, and the plan "has been and continues to be an extraordinary case management tool."

Crotty told Dunn the plan is still being debated by judges and some "don't like the plan, but I think it's working better than you suggest."