Category Archives: Litigation

The Process of Enforcing Restrictive Covenants

So, what happens when an employer decides to enforce a restrictive covenant against an employee ? Continue reading The Process of Enforcing Restrictive Covenants

Who’s The Judge?

You have started a lawsuit.  Your curious: How and when does the court assign a judge?  The answer to this questions depends on the court.

In federal court, when a plaintiff files the complaint starting a lawsuit, the court automatically assigns a judge to the case.  In some federal districts, such as the Eastern District of New York, the court will also assign a magistrate judge to the case.  When a magistrate is assigned, the task assigned to the magistrate is usually to oversee the process of discovery.

In a federal lawsuit, the clerk will inform you of the identity of the assigned judge or judges by writing the names of the judges on the issued summons, and on the complaint returned to the plaintiff on filing.  The assignment of judges in federal court is random.  However, the residence of the parties is taken into account.  For example, if the plaintiff and defendant both reside in Long Island, the case filed by the plaintiff will usually be assigned to a judge having chambers at the Central Islip courthouse, even if the complaint is physically filed in Brooklyn.

With New York State courts, things are a little bit more complicated.

New York State Supreme Court has an individual assignment system (“IAS”).  However, no judge is assigned to your case on filing.  You don’t get a judge until you have filed a Request for Judicial Intervention (“RJI”).  You are not suppose to file an RJI until the case is ready for trial, or unless a dispute, likely involving discovery, has arisen,  Once the RJI has been filed, a judge is basically assigned randomly.

The idea behind the IAS is to have a judge intimately involved in the case.  The judge is supposed to supervise the case from the time it enters the system through the completion of trial.  The degree to which an IAS judge is actually involved in the case depends on the county in which the case is pending, and might depend on the type of case.  Certain cases are assigned to Commercial Parts.  In these cases, judges might be more involved in the case.

When the IAS judge has little involvement in a case, the case might be treated in much the same way a civil case is treated in a lower state court.  In lower state courts, cases are more apt to be assigned to specialized parts, more or less a specific courtroom where certain types of cases at a certain stage of development are heard.  Sometimes, a particular judge may preside over a specific part for a long time.  In these cases, the judge may effectively function like an IAS judge, at least during that stage of a case’s development, but lower court judges generally have much larger numbers of cases assigned to them, so that the lower court judge may have little recollection of your case when it re-appears on the court’s calendar..

Starting a Lawsuit: The Filing of a Summons and Complaint

In practical terms, the starting of a lawsuit is an easy step. The plaintiff or someone on behalf of the plaintiff, takes the original, and an appropriate number of copies of the summons and complaint to the clerk of the court, and presents these documents and the filing fee. The clerk’s office takes Continue reading Starting a Lawsuit: The Filing of a Summons and Complaint

Notice to the Other Party: Service of the Summons and Complaint

The next step in litigation after starting the lawsuit is to give notice to the party being sued, the defendant, of the lawsuit.  In broad terms, this would seem to be a simple step. After all, in serving the summons and complaint, the plaintiff is only delivering a copy of those documents to the defendant. However, there are elaborate rules governing this step, and this step Continue reading Notice to the Other Party: Service of the Summons and Complaint

The Defendant’s Response: A Motion to Dismiss

Although there are those who would have you believe otherwise, the law simply does not provide a remedy for every type of grievance that can arise when there are enough people interacting with one another. However, that does not prevent people from starting lawsuits based on the most ludicrous set of facts. The fact is that you can start a lawsuit at anytime for anything, but that does not mean you will win that lawsuit. The first point at which a defendant can challenge the adequacy of a lawsuit is Continue reading The Defendant’s Response: A Motion to Dismiss