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Breyer Balks

There are many situations in which the wisdom of mothers permeates our adult life. Perhaps it’s because that wisdom is simple (“Wear your galoshes”) or scientifically sound (“Brush your teeth.”) But for whatever reason, these epigrams follow us for life, oftimes in the very voice of our mothers, floating in our memories. The soundest advice of mothers, however, is that which is proven true by time and validated by our own experiences. Advice like “play nice.”

No branch of our government operates within that truism more effectively than the Supreme Court. Its nine members, serving for life, have consistently demonstrated that collegiality results in the best product of an agile mind. This doesn’t mean that Supreme Court justices all think alike or that they agree on everything every time. It only means that they each recognize that this is a hard and often lonely job in which the respect of fellow justices results in a palpable benefit to the citizens they serve. For that reason, the Supreme Court has, at least in our frame of mind, always meant more about the “we” than the “me”; more about Justice Scalia sitting at the opera with Justice Ginsburg than Justice McReynolds refusing to sit next to Justice Brandeis.

Submitted for your consideration in the light of these musings is Dunn v. Price, 587 U.S. ___ (2019) [No. 18A1053, April 12, 2019]. Defendant Price, a useless individual who killed an Alabama minister in his home in 1991 utilizing a sword and dagger to do so, sought a stay of his execution, claiming that he had not been given adequate time in which to exercise his right under Alabama law to choose nitrogen hypoxia asphyxiation rather than a three-drug cocktail as the means of his death. Price claimed in his 11th hour petition for a stay (filed at 9 p.m. on Thursday, April 11th) that there were justifiable reasons he missed that 30-day window of choice. Writing for the 5-4 majority, Justice Gorsuch said, in essence, “who cares?” Gorsuch warned that society should carefully guard against inmates who use such challenges as “tools for unjustified delay.” Price had delayed his execution for years on end with such “tools.”

Justice Breyer, together with Justices Ginsburg, Sotomayor and Kagan, dissented from the decision to vacate the stay of execution. In an unusual and searing dissent, Breyer explained that it was 3:00 a.m., the Court would meet for its traditional Friday conference in a matter of hours, and he saw no reason that a simple request of the dissenting justices for the opportunity to discuss the stay application at conference with their fellow justices, in the light of day, should not be granted. Though the dissent discusses some of the merits of the stay application, those are of little import to us this morning. This was a stay application on an execution. There is no greater or more final an application before the Court. This is why, in Brooklyn terms, they get paid the big bucks, occupy the fancy courthouse, and get to sit in the front of the plane. The respect Americans have for their Supreme Court is based on the principle they learned from their mothers - - “play nice.” That makes for good and fair judging. Anything less is, well, less. Justice Breyer: “To proceed in this matter in the middle of the night without giving all Member of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”

Those of us in the plaintiff’s bar have seen the systematic erosion of plaintiff’s rights in the misuse of the motion for summary judgment by defendants and a complicit judiciary. After all, the MSJ is a sexy thing. It gives the defendant a rapid victory without the necessity of a trial and allows the court to clear its calendar, elevating its statistical ranking. Everyone is happy, except of course the plaintiff, who is left with the cold legalisms of all inferences being decided in his favor, all questions of fact being roadblocks to summary relief, and the assurance that, in this state, we prefer a trial on the merits. So, how did we lose, he asks, to which we either honestly stand dumb or try to explain how the court determined that his sworn affidavit was “self-serving,” which in New York legalese merely means, “favorable to the plaintiff.”

Perhaps that’s why Fobbs v. Shore, 2019 NY Slip Op 02683 [2d Dep’t, April 10, 2019] caught our eye last week. There is truly nothing remarkable about its fact pattern. Plaintiff was jogging when he was struck by a Mercedes-Benz at an intersection in Brooklyn. The vehicle never stopped, but plaintiff did get the car’s license plate number. Defendant owned a vehicle whose description matched the one described by plaintiff and bore a license plate whose number matched the one plaintiff remembered. Defendant moved for summary judgment, alleging that neither she nor the vehicle were involved in the accident which injured plaintiff and Supreme Court [Baily-Schiffman, J.] denied the motion.

On this appeal, the Second Department affirms, reminding that, while at trial the plaintiff will bear the burden of demonstrating his entitlement to judgment, the opposite it true here. Defendant’s affidavit and deposition testimony claiming that on the day in question both she and her Mercedes were at home, four blocks from the site of the accident, and were never involved in an accident, establishes facts which are dead-on by plaintiff. Plaintiff’s deposition testimony alleges that he saw the vehicle and operator that hit him and took down the car’s license plate number on his cellphone. “That testimony was sufficient to raise a triable issue of fact as to whether [defendant] and her vehicle were involved in the accident.”

What? No “self-serving” penalty assessed against plaintiff? Is this all there is? If so, what’s the message? We recall the story told by a beloved torts professor at Flatbush Law. As a young lawyer, he once sat down with his mother. She had a question for him. If his negligence cases were all based on one man’s word against another, how does the court decide who’s telling the truth? Aha!

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Jay Breakstone
Jay L. T. Breakstone is one of the foremost appellate attorneys in the country in the field of personal injury. With over 30 years’ experience as a practicing attorney.

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Parker Waichman
Parker Waichman LLP has been fighting for the rights of victims for over two decades. Parker Waichman LLP is one of the preeminent personal injury law firms in the US.
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