Bork sues the Yale Club

by Ted Frank on June 7, 2007

Before someone accuses us of playing this down, let me be out front and say that I find Judge Bork’s slip and fall suit against the Yale Club embarrassingly silly. The Wall Street Journal has the complaint. Judge Bork, speaking at the Yale Club, attempted to climb a raised dais that had no stairs or handrail; the 79-year-old failed to do so, and fell back, and hurt himself severely. I sympathize with Judge Bork’s serious injuries, but it’s beyond me what his lawyers are thinking in asking for punitive damages. And if any danger is open and obvious such that there is an assumption of the risk, surely the absence of stairs to reach a lectern on a dais is—especially if the dais is of the “unreasonable” height that the complaint alleges it to be.

(Bork used to be a fellow at AEI; and Walter and I have dined at the Yale Club.)

Update: Bloomberg has some relevant (and some not-so-relevant) quotes from Bork.

Update: More from David Bernstein. (The “Olson” quoted is Ted Olson, not Walter.)

{ 23 comments }

1 Jake 06.07.07 at 10:13 pm

While I wholeheartedly support this blog and its message, you may be a little too quick to throw the 80-year-old Judge Bork under the bus. It’s only a 6-page complaint, a very plain and simple statement of the cause of action.

This very blog has chronicled many baseless civil suits with 50, or 60, or 70 page complaints that search for a legally redressable wrong. You should give Judge Bork the benefit of the doubt.

If Judge Bork seeks $1 million, that most likely is a function of what it costs to retain counsel nowadays. A more appropriate invitation for commentary would ask whether Gibson Dunn would have anything to do with this civil action, but for the fact that Judge Bork is the plaintiff.

2 Jake 06.07.07 at 10:20 pm

Walter and Ted:

Let me add that your insinuation that Judge Bork has capitulated to negative forces in the practice of law, to which he has vocally and persuasively combatted for years, is an unacceptable cheap shot at a great man.

This sort of thoughtless commentary can be had at MSN.com, USAToday, or any other of the “news sources” that feed pap to idiots.

You know better.

3 Ted 06.07.07 at 10:43 pm

Walter has said nothing publicly, and I don’t know his position on the case. We are not conjoined twins, so he may or may not share my views.

I am perfectly willing to give Judge Bork the benefit of the doubt, but the complaint provides more than enough facts to rebut that presumption. Bork is not claiming that he involuntarily slipped on stairs that were poorly maintained, he is not claiming that the dais was deceptively placed such that he didn’t realize there was a large drop; Bork is claiming that he made a conscious decision to try to climb onto a dais and fell. I’d scoff if Judge Reinhardt made that claim, and feel obligated to do the same even though it is Judge Bork.

The New Criterion perhaps has a breach of contract action against the Yale Club for failing to provide appropriate facilities; it’s conceivable that there might be an ADA claim of some sort; the amount of damages claimed might even be reasonable were there liability, as I do not know what Bork’s medical expenses and lost wages were.

But punitive damages? Really now.

I don’t know Bork’s financial situation. Years ago, he sold his name to Netscape in a questionable antitrust claim against Microsoft. Perhaps this unfortunate injury puts him in a situation where he feels he needs to take advantage of aspects of the civil justice system he has previously criticized. I hope it’s not a Rosa Parks-type situation. Regardless, there is legitimate criticism of the suit to be made.

If it costs Bork $1 million to retain counsel, that would reflect that a contingent-fee attorney felt the case unworthwhile. Gibson Dunn is more likely doing it pro bono than charging Bork full fare, though I hasten to add that I have no knowledge one way or the other.

4 Jake 06.07.07 at 10:49 pm

Or to put it another way, Walter and Ted — would you care to be treated as an object of amusement at Judge Bork’s age, after many years of loyal service to the conservative cause?

I think not.

5 Ted 06.07.07 at 10:58 pm

I don’t find Bork or Bork’s suit a subject of amusement. I find it sad. The injury is sad, the betrayal of values Bork once stood for is sad, and the fact that I find myself in a position where I need to criticize the actions of Bork and a law firm I respect greatly is sad.

6 Jake 06.08.07 at 12:10 am

Well stated, Ted. I wish you a fond farewell.

One day you may be devoured by the faithless, like Judge Bork. Perhaps your view will change.

7 jb 06.08.07 at 2:09 am

Jake: May I never belong to any movement so completely that I cannot bring myself to criticize my fellow members for acting in opposition to the movement’s principles, or in general stupidly.

As Ted says, there may be a claim here but the one Bork is making isn’t it. The willingness to give fellow conservatives a pass on unconservative/dishonest/stupid actions (not saying Bork’s suit is any particular one of these, just making a larger point) is the single most important factor in the parlous state of the Republican Party today, and I cannot excuse it.

8 Tom T. 06.08.07 at 8:23 am

Jake, I’ll join in to say that I think you’re off base here. I disagree with Ted quite often here (if only because arguing with someone as smart as Ted is useful mental exercise), but I can’t fault him for placing principle over personal admiration.

9 Eric @ New York Personal Injury Law Blog 06.08.07 at 9:34 am

Punitive damages is not the only excess that Bork has claimed. He also wants attorneys fees and pre-judgment interest that he is not entitled to:

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages

–ET

10 Robert H. Bork, Jr. 06.08.07 at 10:26 am

Ted, I always find that when I have firsthand knowledge of something it looks somewhat different than it might from afar. Keeping that in mind I will ignore some of your comments on Overlawyered. However, your “betrayal of values” comments and your charge that he “sold his name to Netscape,” is insulting, ill-informed, and unfair. You do not know the man if you believe those comments true. His career is filled with examples of principle over profit. You might disagree with him, but those accusations are unworthy of you. — Bob

11 Eric @ New York Personal Injury Law Blog 06.08.07 at 11:33 am

If Judge Bork seeks $1 million, that most likely is a function of what it costs to retain counsel nowadays.

Not even close. The complaint, while obviously not drafted by counsel experienced in such matters, appears to be a garden variety negligence action. Which is to say, the fees would be contingent on recovery.

–ET

12 Ted 06.08.07 at 11:54 am

Bob,

You are absolutely correct that Judge Bork has had many admirable instances of principle before profit. His career certainly (and unjustly) suffered for it.

I have no objection to Judge Bork acting as a personal injury plaintiff qua plaintiff; there are many scenarios where Judge Bork would have a valid personal injury claim that would draw no objection and even a fervent defense from me. But Gibson Dunn is one of the top law firms in the nation. They know how this lawsuit would be perceived and the importance of a complaint telling a story. Mere compliance with FRCP 8 disserves the client here; more is needed. It is hard for me to fathom why, if Judge Bork has a better case than what is described in the complaint, a better case for Judge Bork as plaintiff is not described in the complaint. Which is why I find this suit so shocking and disappointing.

This claim in this suit seems to go against Bork’s previously stated values. If that is because the complaint is poorly drafted, and there is a better story to be told, I will be the first to apologize.

But we’ll have to agree to disagree whether Bork’s support of Netscape is consistent with his wise words in The Antitrust Paradox.

I wish you both well, and am looking forward to the Federalist Society tribute later this month,

Ted

13 Robert H. Bork, Jr. 06.08.07 at 12:27 pm

Ted, You can agree to disagree. But saying things like he “sold his name to Netscape,” is outrageous and deserves an apology. And why would you attend a tribute for someone you believe “sold his name?” Disagree with his interpretation of his work, but don’t be insulting.

As for whether this suit goes against his previously stated values, I can only add that as an ardent advocate of tort reform I’ve never said (nor has my father) that injured persons shouldn’t sue if their injuries are real. Let me assure you, his injuries are very real. So the real question is whether it was his fault (which you seem to believe) or the Yale Club’s fault (which is his claim.) Bottomline: this is a complaint about real injuries(not phony or frivolous) that have an objectively identifiable cause (no junk science) and a dispute about who’s responsible. This is one that ought to go to a jury and doesn’t betray anyone’s values. — Bob

14 Robert H. Bork, Jr. 06.08.07 at 12:41 pm

Oh, btw, Microsoft tried to hire my father, too. That’s not something that is widely known. He took the side of the party he believed was correct.

15 Eric @ New York Personal Injury Law Blog 06.08.07 at 12:52 pm

Bottomline: this is a complaint about real injuries(not phony or frivolous)

Well, the part about punitive damages might be frivolous, and the parts about pre-judgment interest and attorneys fees certainly are. There is no basis for that in New York law.

That is probably just sloppiness, but the Complaint — with multiple allegations in each paragraph, a failure to explicitly allege ownership and control of the prremises by the Yale Club and a second cause of action for recklessness — was clearly not drafted by someone with PI experience. This stuff isn’t fatal given the liberal pleading rules, but a former SCOTUS nominee is not just any litigant, and it should have been done by someone who has done this many times before.

–ET

16 William Nuesslein 06.08.07 at 1:16 pm

Why didn’t somebody lend a hand to the judge. That often is done when older folks are negotiating steps. Justice Douglas climbed mountains in his late sixties, but Judge Bork is no Justice Douglas.

17 Beldar 06.08.07 at 1:57 pm

Where I practice (Houston), a name partner in a major law firm would be in hot water for including a claim for attorneys’ fees that is obviously, unequivocally not recoverable based on the cause of action pleaded. Even if that was boilerplate from some other sort of complaint that didn’t get deleted as part of a cut-and-paste, that’s awfully sloppy — to the point that in Texas, anyway, it would be viewed as an indication that the practitioner lacked much personal injury law experience.

This may be one of the rare cases in which a well-heeled or influential personal injury plaintiff choses to hire an attorney on something other than a contingent fee basis. Perhaps Judge Bork’s counsel is indeed representing him for free; or perhaps Judge Bork can afford to pay by the hour and has made a conscious decision that the value of his case and the likely amount of legal work necessary to realize that value make it more advantageous to him not to give up as much of his claim on a contingent basis as is typically charged by lawyers who regularly work on a contingent fee basis.

It strikes me as inconceivable, given the identity of the parties, the nature of his injuries, and the straightforward nature of his case, that no competent contingent fee lawyer would at least offer to take his case. In other words, I think it almost certain that that (fairly traditional and common) type of fee arrangement was available to him.

It’s interesting to me that he invoked diversity jurisdiction to file in federal court. Is Judge Bork the classic out-of-state plaintiff who fears that the hometown Yale Club would have an advantage in the New York state courts? Maybe so; I just don’t know how “clubby” (pun intended and inevitable) the New York state courts are compared to the federal district courts who sit in New York these days. It sort of smacks of showboating to me, though, and I would not want to be on the receiving end of the inevitable semi-hostile stare from a federal district judge asking, “Why is it exactly that you need to be in my court?” (That is to say, the hometown courts would need to be pretty damned clubby indeed before I’d have filed this in federal court, just as a tactical preference.)

Although I don’t know the particular details of New York state law on standards of care, I am less troubled that Ted Frank about the request for punitive damages. If it’s a relatively straightforward “recklessness” standard, then I don’t have a problem with including the allegation, at least as far as meeting Fed. R. Civ. P. 11 requirements (in contrast to the attorneys’ fee claim). Ted’s point may be that it’s just a philosophical incongruity, rather than a Rule 11-type problem. Even then, I’m less struck than he may be. Including it in the original complaint doesn’t necessarily mean it will be seriously argued throughout the litigation. And how silly or serious it looks may very well depend on how the state of mind evidence develops, e.g., during depositions of the decision-makers from the Yale Club who had responsibility for the design of the dais arrangement. Maybe Ted would argue that in a close case, Judge Bork’s historical philosophy should incline him and his lawyers to leave it out of an original pleading and seek leave to amend to add a punitive damages claim later if that evidence does indeed firm up.

18 Brian King 06.08.07 at 2:24 pm

Making judgments about the merits of a personal injury case based on the Complaint is akin to Bill Frith “diagnosing” Terri Schaivo via video-tape. These things are inherently fact sensitive. The Complaint, no matter how detailed, is simply not going to convey anything more than a rough idea of the merits, of lack, of any particular PI case.

19 Ted 06.08.07 at 2:47 pm

Brian King’s statement is absolutely false. A complaint can make allegations that demonstrate a “far-fetched legal theory.” If Bork had asked for a billion dollars in damages, we could be confident that that portion of the complaint was meritless.

I disagree with the position Judge Bork took on behalf of Netscape, and believe that the Judge Bork of thirty years ago would have acerbically disagreed as well. But attorneys are entitled to represent clients they disagree with and expected to take positions they disagree with, and there is no reason to hold Judge Bork to a higher standard. And regardless, Judge Bork’s position in the Microsoft case isn’t any more correct or incorrect if his motives for taking that position were pure or impure, sincere or cynical. Thus, my 10:43 PM comment gratuitously and unnecessarily, and quite possibly falsely, impugned Judge Bork’s motive for representing Netscape, and for this I apologize.

20 Brian P. 06.08.07 at 6:25 pm

Good comments by both Bob and Ted here, but I must take issue with Bob’s statement that the injuries must have resulted from the fault of either Judge Bork or the Yale Club’s fault. I think that in the mind of the general public, res ipsa loquitur is the standard, rather than the exception, and admittedly I do not know the law of the jurisdiction; but I’m not sure what it is about a slip and fall from a dais that should invoke the doctrine.

21 ken 06.08.07 at 9:31 pm

I think this discussion is a silly application of tort reform principles. It’s a traditional common law personal injury case of the sort that goes back to the founding of the Republic. I am not a negligence specialist so I defer to experts on how well drafted the pleading is, but it’s sole purpose is to put the defendant on notice of the claim. It does so. Complaints routinely request measures of recovery not warranted by the law, because it is better to be safe (see need for tort reform on attorney malpractice) than sorry. If he had sued for negligent infliction of emotional distress or RICO it would be on thing, but negligence and gross negligence, for a matter involving physical injury to an OLD MAN, is hardly controversial. I would be very surprised if Bork even read the complaint, and if he did, whether he would feel comfortable second-guessing practicing litigators from that jurisdiction.
Unless Gibson Dunn is perverse, the case is not being done pro bono. I suspect it is being done within the standard range for contingeny rates for this kind of work, with the firm seeing it as an opportunity to give practical experience to junior attorneys. The most interesting thing to me is the choice of venue. I would expect a personal injury case to be filed in state court, with allegations that on their face neither pleaded or allowed on obvious inference of damages over $75,000, then dare the defendant to try to remove to federal court. Maybe the delay to trial is much greater in NY County than SDNY, a crucial consideration for a client of that age.
Although there are no doubt many distinguished lawyers among the members of the Yale Club, I assume the matter will be tendered to the insurance carrier, which will put off settlement until the eve of trial. (Room for reform there.)

22 wavemaker 06.08.07 at 11:06 pm

Brian, I don’t think that the general public has any idea what “res ipsa loquitur,” as a legal principle, is –but I think it could be argued (with a straight face) to apply in this case. Unless losing one’s balance at 80 climbing a set of stairs unaided is considered “negligent,” it can be argued all three elements are present.

I wouldn’t hold Judge Bork, the injured octagenarian, to the responsibility of proof-reading the work product of his counsel, so I do not blame him for inclusion of the punitive damages claim or other aspects of the pleading that Eric mentions. Shame on the pre-eminent law firm for entering into a matter it is apparently not sufficiently familiar with — it wouldn’t be the first white shoe firm to over-estimated its competence in a practice area far-flug from its comfort zone.

Finally, even as an advocate of tort reform, I am not uncomfortable with the cause of action. Could it not be deemed reasonably forseeable that an octagenarian might need assistance climbing a set of stairs that lack a handrail, and isn’t that assistance easily extended at no cost?

23 Ted 06.09.07 at 8:40 am

1) It’s not a set of stairs. It’s a foot-high dais.

2) There are many issues in tort reform, such as junk science; excessive noneconomic damages; and bogus claims of injury. No one is accusing Judge Bork of any of these.

On the other hand, he is seeking punitive damages for a case of what is at best comparative negligence, and the plaintiff here is seeking to blame the defendant for an incident where the plaintiff’s actions are an intervening cause. Judge Bork is not so addled that the possibilities of accident from a 79-year-old climbing a dais are not at least as foreseeable to him as to the defendant, who is less aware of Bork’s physical capabilities. New York law may well entitle Bork to such rights, but if so, it’s a problem with New York law. So when one says “But he’s really injured,” it misses the point of the criticism, and leads to charges of hypocrisy. Stella Liebeck was really injured, but that does not mean she should recover for spilling coffee on herself.

3) I don’t see why it would be “perverse” for Gibson Dunn to take the case pro bono, any more than the typical law firm pro bono docket. Even if it is taking the case on contingency, the opportunity cost in doing so, unless they expect the case to settle immediately, would cost it money, so there would still be some pro bono element to the case. One hopes that Judge Bork isn’t paying $300-$800/hour for this.

4) I’m closing comments because of the volume of hit-and-run trolling or indecent comments I’ve had to delete. I appreciate those that contributed to the serious discussion, and will publish additional comments from the Bork camp or the Yale Club camp (or if any eyewitnesses wish to write in) if they wish to email to me.

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