Costello & Mains Supports S-676: The "Hand and Foot Bill

Kevin Costello and Deborah Mains are thrilled to announce that Krista A. Schmid, a talented lawyer in her 7th year of practice, has joined the firm as an employment and civil rights litigator and trial lawyer. “I’ve always harbored a desire to do plaintiffs side employment and civil rights”, says Krista, “and I'm thrilled to join what I think is one of the most advocative and active employment trial practices in the State.” Kevin and Deborah are equally thrilled to be able to continue to service and expand the firm’s growing client group in all areas of employment and civil rights litigation.

New Jersey Civil Rights Attorney Opposes Christie's Remarks About Judge Feinberg

If You Can't Say Something Nice...

I'm a big boy now. I understand that politics is a dirty business no matter whom you happen to support. I get that our governor has his fans, fans who will excuse anything he does because, having drank the kool-aid, there's nothing he could do that isn't "necessary." This is an extreme view. I'm hoping that even those extremists might have a place in their view for reason. Take a deep breath and consider: Governor Christie has made some mistakes, since he's been in office.

One of those was removing Judge John Wallace from the Supreme Court, in a move unprecedented in our state and which now opens the door to "tampering" with our judiciary. Removing Judge Wallace was one way of tampering. Recently, Governor Christie revealed yet another arrow in his quiver of "judicial modification through intimidation:" outright disrespect and conduct unbecoming an attorney in bashing a judge who applies the law.

Governor Christie was a licensed attorney when he practiced. That means that, whether he took it seriously or not, he swore an oath to abide our rules of professional conduct. This is an oath not lightly set aside, and certainly one that should never be set aside for the sake of political grandstanding. Some prices are simply too steep to pay to sacrifice one's personal honor as an attorney. Governor Christie did not violate his obligation to the rules of professional conduct when he removed Judge Wallace from the bench - though it was a dirty, disrespectful move that weakens our government for everyone - but I believe that he has in personally castigating and belittling a sitting judge of the State of New Jersey, Judge Linda Feinberg, for her decision in the matter of DePascale v. State.

Judge Feinberg ruled last Monday that the Pension and Healthcare Benefit Act, enacted in June, is unconstitutional as applied to judges.

Governor Christie didn't like the decision. Why he didn't like the decision is not germane to my point. That he didn't like the decision could have been made evident in a hundred ways, any of which, while "on the boarder" of good taste, would not have violated the code of conduct that governs licensed attorneys. That code of conduct speaks to many aspects of an attorney's conduct. Because we are the servants of the law, we must protect it and encourage respect for it by not acting in a way which denigrates it or the people who serve in it. Judges are certainly included in that latter group. Specifically, Rule of Professional Conduct (RPC) 8.4 says that it is professional misconduct for a lawyer to "...engage in conduct that is prejudicial to the administration of justice."

This RPC is a "catchall" portion of the RPCs which has been used to discipline attorneys who, for example, have publicly embarrassed themselves and their profession by publicly castigating a judge. By the way, judges have their own code of judicial conduct in addition to being governed by the RPCs; judges may not publicly castigate lawyers either. Even when judges are unhappy with what a lawyer does, they must be respectful and even-tempered just as lawyers must be respectful when addressing the court, whether they agree or disagree with what the court has said.

Governor Christie used words like "elitist" and "self-interested" to describe a decision which correctly applies the law the way a judge should; regardless of whether or not their decision would please those who hold purse strings or who make judicial appointments. The president of the State Bar Association said it best; "Governor Chris Christie's comments today are yet another attempt to intimidate the courts and unduly influence the judicial process." She also said that the Governor's continued attack on the judiciary "denigrates the separation of powers and the independence of the judiciary as a separate branch of government."

I get that Governor Christie has larger aspirations when his term as governor ends than returning to the private practice of law. I'm also just as certain that if he chooses to do so, the bar will almost certainly elect not to attempt discipline for this conduct. Yet I do believe that Governor Christie has misconducted himself, not as Governor who became a Governor after a career in some other profession, but as a former attorney. Despite the underserved and unfairly negative impression that the public now has about attorneys, some of which has no doubt been created by attorneys themselves, attorneys are a profession that polices itself rather aggressively, certainly more than physicians or other professionals with whom I'm acquainted.

I believe that Governor Christie will certainly shrug aside anyone criticizing him for his remark and I'm certain that privately, he has no remorse whatsoever for it. I'm sure he considers it an appropriate political gambit and appropriate lip service to the right wing and conservative elements that support him and his attempts to cast any judicial activity that he doesn't like as "activist." What's far darker and even more concerning about these comments, however, is the fact that they're clearly being used to intimidate a branch of government that is supposed to be independent and not "worried" about what the other two branches of government might do to them if they don't please those other two branches of government.

I hope that some of you who are reading this who are huge fans of the Governor will be able to put aside your temporary relationship with him - he won't be in office forever - and think about the long haul for the State of New Jersey and for government in America generally. Are you comfortable with the idea that a chief executive officer of a state or of a nation from either party should have the right to essentially castrate the third branch of government? Don't you feel better knowing that the several centuries-old plan laid down for this country is being followed by an independent judiciary?

Remember, the worm turns. I'm a progressive. I don't like a number of judges on the United States Supreme Court, but I would be even more uncomfortable if, because of the nature of their decisions, which are clearly pro-corporate and against individual and civil rights, were a democratic president to simply remove them for cause. I'm sure you can appreciate why. My happiness would be temporary. In due time, a republican president would come along and then effectively castrate the next democratically appointed Supreme Court for the same reason. After a while, the judiciary would simply cease to have relevance; we'd be left with two branches of government and sham for the third, the third which is supposed to balance the first two. The system of checks and balances are served well. Governor Christie is a reasonably intelligent man and should have known better. Anyone taking a deep breath and looking at the situation should, I hope, know better, as well.

Allowing this Governor to set the precedence with regard to an independent judiciary that he has will create huge potholes on the road to the journey to justice.

The Occupation of New York City - What it Means to You

I had an opportunity to watch the news regarding the protest movement called "The Occupation of New York City." I also had an opportunity to review the "declaration" document of the group that sponsored the protest, the "Direct Democracy Occupation Group."

As I watched the coverage, and as I read the declaration, I recalled my younger years first as a high school student, then as a college student, as a law student, as a young lawyer, and finally, as an "aging" lawyer (though I am not quite ready to call myself an "old" lawyer yet).

At each of those stages, I "evolved" my thinking about what "freedom" meant to me and, by extension, my ideas on "fundamental human rights" and "civil rights." I don't know that everyone engages in this thought process, regardless of their educational background or level of cultural or professional sophistication. I'm reasonably certain that, along with the great majority of doctors, architects, and other formally educated people doing "other things," even lawyers who don't do civil rights work don't spend a great deal of time thinking about these notions.

Being a civil rights attorney, however, and writing as I do about the issues near and dear to my practice and, therefore, near and dear to me, I think a great deal about issues raised in this protest.

My personal philosophy is not strange to you if you've read even a minority of my blog entries. I'm very much comfortable with being an extreme progressive. I don't consider myself a "liberal" because frankly, that has become a pejorative term (and I never really knew what it meant in the first place). To me "liberality" simply means freedom, but only in the abstract. The idea, on the other hand, of being a "progressive," means that I embrace change and that I believe that change is not only the fundamental nature of the universe but also the best way to make things better. If things aren't the best that they can be, then we always ought to strive to make them better. Only a fool, however, thinks we can ever reach a state of perfection. Likewise, only a fool believes that by "standing pat," and by never changing except to retract or rescind, that we can make things better.

So I am a shameless progressive and I believe in equal rights for all. I believe in severe restriction on the right of religious organizations to politically lobby or to have a say in how a secular democracy runs. I believe in restrictions on the free market (because unrestricted freedom to build enormous wealth for an elite means suffering for the majority) and that corporations must be restrained from doing harm or they will do harm without restraint and without accountability. I believe that corporate leaders must be held personally responsible for what they have the corporation do. I believe that money corrupts and that money, neither in its possession nor in the quest for it, should be used as a justification to do wrong on any level and for any reason.

Yet, I also don't consider myself an anarchist. I'm not one to take to the streets and "march" because I just don't believe that that gets much attention unless it's negative. Protests and marches don't directly confront someone to change their mind in a peaceful way. As Phil Jackson says in his recent television campaign, "anger" is the enemy of instruction.

That having been said, protests do accomplish a lot now-a-days. They get people thinking and talking. I think that's really why protests happen now. I don't think the protestors are expecting that anyone is actually going to be physically present and emotionally moved by what the protestors have to say. I think the protestors hope that, through the press coverage, people will have dialogues and that through dialogues, perhaps hearts and minds can be changed and things can improve.

So I wouldn't have taken part in the Occupation of New York City. It's too hot, there's not enough access to bathrooms, and I get grumpy when I'm not fed. As well, there are things I can do which, I hope, better serve the aims of the protest. One of those things is to talk about why I empathize with the protest.

In the declaration document, I expected to find, as a 45 year old man, that most of the declarations made therein were too progressive, philosophical or unrealistic for my taste. I expected what I suppose would have amounted to a pseudo-socialist (or outright socialist) rant that I, obtained a degree in political science and having lived quite a while in the world of the law and civil rights, would have known instinctively was unattainable and, therefore, to be readily discarded.

Yet, nearly everything I found in the declaration resonated with me, not just as a civil rights lawyer but as an American and as a human being. More than that; it resonated with me as a husband to a wife, a son to two dead parents who had a vision of what they hoped the future might bring for their descendants, and as a father of an eight year old child. I found myself wanting very much to have the sort of world that the "occupiers" want.

And here's the thing; I bet that when I share their declarations through the filter of this blog (and hopefully you trust my perspective more than you might have trusted kids with shaggy hair and hacky sacks and signs), you'll come to see the simple wisdom in their position.

They start by saying that "the future of the human race requires the cooperation of its members." Well that's obvious enough, isn't it? Either we all pull in the same direction or we're going to lose the fight for our planetary and species survival and prosperity to war, religious ignorance (and the wars, hatred, overpopulation and starvation factuous religion inspires), to pollution, ecological ruin and disease. They also say that the "system must protect our rights, and upon corruption of that system, it is up to the individuals to protect their own rights and those of their neighbors." Also easy, and obvious, and frankly, this should resonate with any American; it's what the American revolution was all about. The right to "alter or abolish" tyranny is enshrined in our Declaration of Independence.

They go on to say that no true democracy is attainable when the process is determined by economic power. This, I'm not so sure I agree with, not because I don't want the world to work that way (I do) but because I can't see that it ever will as long as humans run things. Human nature being what is, greed is fundamental to the human condition. Those who "don't have" may speak loftily of their "ideals" in wishing to redistribute what they don't have, but give enough people that don't have something that something, and they'll grow possessive over it. The way to maintain a rational but better society than the one we have now is by allowing everyone freedom to acquire, but with practical limits that don't allow misery for the many as the price of privilege for the few.

Here are some of their other "planks" in their platform. Remember that the "they" of whom they speak are the same "they" of whom I speak in my other blogs and of whom we all speak when we complain about the greed, corruption and vanity of the elite corporate creatures who manipulate our politics, our laws, and our rights. The "they" is the tiny minority of the population that holds the reigns to controlling the vast majority of wealth (and thus power) in this country. Here are the planks which resonated with me:

"They" have taken bailouts from taxpayers with impunity, and continue to give Executives exorbitant bonuses;

"They" have perpetuated inequality and discrimination in the workplace...;

"They" have poisoned the food supply through negligence, and undermined the farming system through monopolization;

"They" have continuously sought to strip employees of the right to negotiate for better pay and safer working conditions;

"They" have held students hostage with tens of thousands of dollars of debt on education, which is itself [education] a "human right;"

"They" have consistently outsourced labor and used that outsourcing as leverage to cut workers' healthcare and pay;

"They" have influenced the courts to achieve the same rights as people, with none of the culpability or responsibility;

"They" have deliberately declined to recall faulty products endangering lives in pursuit of profit;

"They" determine economic policy, despite the catastrophic failures their policies have produce and continue to produce;

"They" have donated large sums of money to politicians supposed to be regulating them;

"They" continue to block alternate forms of energy to keep us dependent on oil;

"They" continue to block generic forms of medicine that could save lives in order to protect investments that have already turned a substantial profit.

There are other more general allegations that are not generally supported by fact although they certainly feel intuitively true. The ones in which I am interested, however, appear above. Now, if you're a rational, reasonable, hardworking, loyal and patriotic American whose loyalty and patriotism is to the ideal of what America should be rather than to a political party or a political pundit, then I'm guessing that you agree with most, if not all, of the above statements.

Which raises an interesting question: why aren't we all acting in accord with these beliefs? Why are we letting the relatively few and admittedly "protest" inclined "occupiers" of New York City do all the heavy lifting for us? Why am I?

My easy escape answer is, of course, that I don't. I try to redress some of these issues in the courts through my civil rights practice, but at the end of the day, I can really only redress a few, and only in my own way and as the present law allows. The law is administrated by judges who must follow what the legislature passes, and when the corporations effectively own most of the legislative process, the judges are hamstrung in delivering justice; discretion can only go so far.

Do any of us think that this country has not been largely subordinated to corporate power? Do any of us really think that there's anything approaching a fair chance for people who aren't part of the economic elite to achieve what the economic elite has already achieved and covetously guards? Plainly, many of you reading this blog may be, as most of us are, somewhere in that vast "middle class" from the lower to the middle to the upper. I'm guessing that no one reading this blog is part of the economic elite that throws seven figure sums around like they mean nothing. So it's to those putative readers I speak when I ask the above questions and when I ask these: does anyone think that the bailout doesn't make them sick to their stomach and that the money hasn't been misused? Does anybody really think that some of that bailout money wasn't used to increase already ridiculously bloated bonuses and perks for executives of the companies whose malfeasance necessitated the bailout in the first place? Does anybody think our food supply is safe despite the level of toxins still poured into that food supply? Does anybody really think that educational opportunities are fairly administered or that the pharmaceutical companies aren't being ridiculously greedy in hoarding cures or overcharging for remedies? Does anybody really think that educational debt is fair or that students have meaningful choices to do good work for less pay?

That last question, by the by, is pretty near and dear to me as a lawyer. In another blog, I've railed against the idea that law school is becoming more and more expensive and that only people with silver spoons in their mouths, or people willing to live hand-to-mouth, can afford to do work for "people" as opposed to "corporations" when they get out of school. Law students are faced with a ridiculous choice of either serving the corporate power structure for the kinds of salaries that allow them to support the increasing law school debt - work of which I am sure they don't feel particularly proud - or being poor (or ruining their credit score) and literally living on macaroni and cheese by accumulating that debt and yet trying to serve the interests of regular families (which isn't as nearly financially rewarding at the start of one's career).

My favorite line of all, however, is the fact that the corporations have influenced the law to the point where the corporations are treated as "people" with none of the accountability. I've railed against that in many of blogs before and I rail against it every day and I've said it to juries. It's insidious and disgusting and yet that idea is as enshrined in our law as many other principles as old as the law itself.

If I as a person do something wrong, then I as a person am responsible for it. But if a corporation, treated as a person when it comes to asserting its rights against others, does wrong, the corporation is held accountable but not the people that directed the corporation to do the bad thing.

That's nice. We hold a piece of paper creating the corporation responsible for injury, corruption, death. But not the people who hide behind the paper. We call that "the corporate veil" and it is one of the most shameful and unacceptable Faustian bargains our economy has made in order to be "successful."

We fight against that particular legal fiction every day with varied success. We fight against that fiction for you. We do that for individuals and people who don't realize how "evil" corporations really are until they're personally wronged by corporate arrogance and greed.

I found myself empathizing a great deal with the Occupation of New York City. I'm going to start supporting that group and I'm going to remember that when one person cries out for justice for himself, it is a good idea for other people to listen. Martin Luther King once said that "injustice anywhere is a threat to justice everywhere" and truer words were never spoken.

The Occupation of New York City and more importantly, the ideas that it was meant to represent and foster, are necessary way-stops on the journey to justice.

Costello & Mains Supports the Repeal of "Don't Ask, Don't Tell"

Costello & Mains proudly supports the repeal of "Don't Ask, Don't Tell," the policy which provided dubious protection to gay servicemen and women by suggesting that as long as they didn't declare who they were, they wouldn't be asked. The policy was a compromise of an otherwise responsible and successful Clinton presidency which has resulted in dismissals from service of otherwise honorable and courageous service people, dismissals not for failure to serve with honor or courage, but dismissals for being gay.

"We're proud of America and we're proud of our Constitutional tradition of fairness, liberty and justice," says partner Deborah Mains. "This policy is one of many that still make it 'okay' to bash and denigrate homosexual men and women simply for being who they are. As civil rights lawyers, we fight against that sort of prejudice every day, but we're hoping that the repeal of this policy will enable us to shine a light on a now national example of eliminating bigotry and hatred even in institutions where resistance to eliminating such bigotry is strong."

Partner Kevin Costello expresses gratitude on an even more personal level: "I have a wife and a son. Anyone who wants to risk their lives to protect their safety and their freedom is a hero to me," Kevin says, "and they should be treated as such. People who are born gay are simply gay people and as capable as straight people of courage, valor, honor and sacrifice. I'm glad that we as a people have finally recognized that."

Costello & Mains Partner Kevin Costello Serves on "Coming Out in the Workplace" Panel for State Bar

On September 27, 2011, Costello & Mains partner Kevin Costello served as a panelist on worker right for the State Bar Association's Legal Seminar called "Coming Out in the Workplace," a seminar for attorneys advising GLBT (gay, lesbian, transgender and bisexual) clients in workplace rights. Kevin has been serving as a panelist on many dozens of seminars for many years and always enjoys talking to other lawyers about his passion, civil and employment rights.

"It's so important for attorneys in other areas of the law, such as estate planning, family law and benefits law, to know how to spot and advise issues special to GLBT people when it concerns the workplace," Kevin says. "I'm honored to be asked to serve and it's always a pleasure to talk this area of law with colleagues." Kevin has been a chair or speaker for civil and employment rights panels and seminars for the majority of his career as an employment and civil rights lawyer.

Justice is About More Than Money

The attacks on the jury system in this country continue in their vociferousness, their ignorance, their dishonesty and their hatred. The corporate, banking, insurance and financial worlds have all combined, since the early 1980's, in a very clever campaign to besmirch our justice system and undermine the intellectual neutrality of juries.

As a trial lawyer, I know this instinctively every time I pick a jury. Every jury selection for the past ten or even fifteen years has involved having to try to get around the poison that's been spewed into the ears and hearts of New Jersey citizens and citizens across the fifty states. Yet, armed with the ability to at least ask questions to potential jurors, we do sometimes find out which jurors are most unsuitable and most unable to be neutral. We have, at least, that ability. Yet, nearly every juror, I suppose fortunately in terms of truthfully, answers, "Yes," when they are asked whether or not they think there are too many lawsuits.

In fact, there aren't too many lawsuits. In further fact, the rate at which lawsuits have been filed in our country has actually gone down per capita over the last twenty years, but of course, the people that are trying to poison the jury system don't admit that and don't spread that information. Corporations are filing more lawsuits than ever, of course, but as far as they're concerned, they own the court system, just like they own everything else. They can seek justice as often as the like. Just not you.

They've been largely successful, but I recently had an experience which continues to restore my faith in the community of jurors called upon to deliver justice.

I took to trial a sexual harassment case in which my client was inappropriately spoken to on several occasions and inappropriately touched on another. On no occasion was there a witness to any of these acts and her employer, a solo practitioner doctor, seemed very satisfied that he would be able to convince a jury that the conduct had never taken place or that, even if it had, it wouldn't matter.

In addition, the doctor trotted several witnesses in to represent that, although my client had told those witnesses what the doctor had done, that my my client had not done so.

Yet the jury saw through those defenses and delivered substantial justice. Here's why the case was such a pleasure, however, to try.

During the direct examination, my client, very honestly and earnestly, and certainly without having rehearsed it, turned to the jury and told them that she wasn't even concerned about money, she was only concerned about making sure that the doctor was found responsible for what he did. It's not something that I was particularly concerned about one way or the other, because it was sincere and truthful. She did only care that the doctor be found responsible. In fact, she'd been waiting for her trial date for a number of years specifically and essentially only for that reason.

Happily, our Law Against Discrimination rewards people for such perseverance and for such courage, and also for such selflessness. In the end, even though the jury did award a moderate amount in damages, which certainly satisfied my client, it truly wasn't why we were there.

What feels so good is that this jury of people from the community listened attentively, listened carefully, paid attention, and then patiently sorted through the evidence to reach a substantial and just verdict. It validated the process, it validated the Law Against Discrimination, and such verdicts as this always renew my faith, not only in my practice, but also in the jury system.

It works. Never forget it and never let anyone tell you differently.

Partner Deborah L. Mains named to Co-Chairmanship of Women Litigators Committee for the Board of Governors of The New Jersey Association for Justice

Costello & Mains is pleased and proud to announce that Partner Deborah L. Mains has been asked to serve as Co-Chair for the Women Litigators' Committee for the Board of Governors of the New Jersey Association for Justice. NJAJ is a Trial Lawyers' organization exclusively dedicated to advancing and protecting the rights of working men and women in New Jersey and of their families. "Women are forming an increasingly larger percentage of the total population of lawyers and of trial attorneys, specifically," Deborah says. "I am of course proud to be a woman in this field and I am especially proud to be able to advance the interests of the growing number of women lending their voices and their courage to protecting the rights of working men and women. I will give everything I have to the Board of Governors and everything I have to the Women Litigators' Committee for my term of service."