“All of a sudden everyone thinks your jokes are funny.” This is just one of the benefits that Judge Robert Smith told me come from being appointed to the New York Court of Appeals. Another is that you no longer have clients, adversaries and judges yelling at you. After eleven years on the bench, Judge Smith retired from the Court of Appeals at the end of 2014. He had no choice in the matter. The state has a mandatory age 70 retirement for judges. The next day he joined New York City’s Friedman, Kaplan, Seiler & Adelman, LLP as a partner and head of the firm’s appellate practice. He is concerned that the yelling may start again.
Judge Smith was kind enough to speak to me about the Court, his time on the bench, insurance cases – including his much talked about recent decisions in K2 – what lies ahead and whether he played any pranks on his last day.
By way of brief background, Judge Smith graduated from Stanford in 1965 and Columbia Law School in 1968. He was appointed to the New York Court of Appeals at age 59 by then Governor George Pataki. Prior to that he spent 35 years with New York’s Paul, Weiss, Rifkind, Wharton & Garrison where he had an extensive trial and appellate practice. He has taught at Columbia Law School and currently teaches a class at Cardozo Law School. He has argued two death penalty appeals before the United States Supreme Court. In one of the cases his client was eventually executed – notwithstanding appeals by Pope John Paul II and Mother Teresa. [Those are some heavy hitters for co-counsel.]
The New York Court of Appeals is the state’s highest court. Of course it is necessary to add that qualifier since New York does not call its highest court the Supreme Court. In New York, the Supreme Court is the trial and mid-level appellate court. So that means that trial judges are called Justices and the highest judicial officers in the state are Judges. By the time you are done explaining all of this to someone unfamiliar with the system it resembles an Abbott and Costello routine. I asked Judge Smith if he finds this whole New York system “annoying.” He wouldn’t call it that, he told me. Rather, after 50 years, he is just resigned to the fact that it is necessary to go through the “routine” when meeting someone unfamiliar with it.
Friedman, Kaplan’s announcement of Judge Smith joining the firm describes him as a fully active litigation partner handling trials and appeals. The Judge’s decision to join a law firm, after leaving the bench, may seem surprising when you consider the route that so many other retired judge’s take. And especially so in his case. A retired New York high court judge, well-respected, with an affable nature and good sense of humor, would no doubt have lawyers lined up to serve as a mediator. And that seems like an attractive gig. You walk from room to room -- stopping off for a granola bar now and then at the ADR center’s well-stocked kitchen -- working through legal, factual, procedural, strategic, personal and every other issue that must be addressed when trying to bring together seemingly intractable parties. And unlike the practice of law, where cases can drag on for so long, you’ll leave the office many days with a feeling of accomplishment. And the next day you are back at it with a fresh cast of characters and entirely different facts and issues.
Judge Smith told me that he would not turn down requests to serve as a mediator or working in other ADR capacities. And I have no doubt that those requests will be coming. But there is a simple reason why he did not go the mediator route. He very much wants to get back into court – now facing the bench as a trial and appellate lawyer. He could even find himself facing some former colleagues in Albany – something he can do after two years. I warned His Honor that he may now regret having taken that last Diet Coke from the machine. It could be payback time.
If Judge Smith is so anxious to get back into court, then the logical question is whether he would have retired from the Court of Appeals even if the age 70 rule did not require him to so do. His answer was immediate and unambiguous. No. He would have stayed if they let him. He called it a great job. Perhaps a little “isolating” he told me, and when you see friends you can’t tell them what you did yesterday. But he wasn’t going anywhere if the New York Constitution hadn’t shown him the door.
Of course I had to turn my attention to Judge Smith’s insurance coverage decisions. The bulk of my discussion of this subject is set out in a separate article that follows – “You Can’t Judge A Judge By His Coverage.” My conclusion, following an examination of 20 of Judge Smith’s insurance-related decisions: I could not tell you how he would rule in the 21st. As I see it, neither side in a coverage dispute could have counted on his vote before seeing the opinion.
Judge Smith described his take on coverage cases to me this way. When an innocent person is injured there is a temptation to want to see them get money from an insurance company. But, he explained: “It was part of my job to resist that. And to say look, the insurance company has to make a living, and it can’t do that unless it pays off only on the risks that it really did insure and not the ones you wished you had insured later on.”
While the article that follows looks at Judge Smith’s insurance record in detail, I address one such case here -- K2 Investment Group v. American Guarantee and Liability Insurance Co. In 2014, Judge Smith wrote the Court of Appeals’s decision that an insurer that breaches its duty to defend does not forfeit the right to apply otherwise applicable coverage defenses to any determination of its duty to indemnify. This 2014 decision in K2 was a do-over of Judge Smith’s 2013 decision in K2 that held otherwise.
The court reached its 2014 “no forfeiture” decision on the basis that this was already the law in New York under its 1985 decision in Servidone Construction Corp. v. Security Ins. Co. of Hartford. Simply put, Servidone was overlooked by the Court in its first decision. Now, acknowledging Servidone, and the weight of stare decisis, the court concluded that an insurer that breaches its duty to defend does not forfeit the right to apply otherwise applicable coverage defenses to any determination of its duty to indemnify. The court also addressed the substance of the no forfeiture rule, noting that there is “much to be said” for it, several states follow it and the court was not presented with “any indication that the Servidone rule has proved unworkable, or caused significant injustice or hardship, since it was adopted in 1985.” The 2013 decision in K2 was vacated.
Judge Smith’s explanation of how K2 played out is simple: “We missed the governing case. I don’t really enjoy saying it but that’s what happened. . . . We should have followed Servidone the first time and we didn’t.” As I see it, Judge Smith deserves a lot of credit for acknowledging that K2-I was flawed and vacating it. I can imagine that not all judges would have done the same. Surely some judges, those who even agreed to re-hear the case, would have done some gymnastics to come up with an explanation how Servidone and K2 were compatible. Rather than resemble a Cirque de Soleil performer, Judge Smith just fixed it.
How about those really brief New York Court of Appeals decisions? What’s the story with that? I’ve had shopping lists longer than some Court of Appeals decisions. Judge Smith called the New York high court’s brevity in its opinions a “point of pride.” That’s always been the Court’s tradition and he tried to observe it. The Court also takes pride, he told me, in issuing its opinions quickly -- and it’s harder to do that if writing tomes. He explained that when he first came on the bench his opinions were relatively long and they got a lot better as they became shorter.
As my call with Judge Smith was coming to an end I had to find out one last thing. Did he play any pranks on his last day on the bench? He said he joked about things that he was going to do on his way out the door. I suggested overruling Palsgraf. He laughed. No, he didn’t consider that. Cardozo can rest easy.
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