Academic journal article Albany Law Review


Academic journal article Albany Law Review


Article excerpt

Suppose three law clerks were asked to write a dedication for retiring Judge Robert S. Smith of the New York Court of Appeals, a jurist famous for the hypotheticals he poses at oral argument. (And don't say, "That's not this case." As the judge would reply, "It's a hypothetical, and this is the Court of Appeals. We do those here.") So the question is, what would they write?

They could, of course, describe the distinguished legal career that brought him to the court. A native New Yorker raised in New England, in 1968 Judge Smith received an L.L.B, magna cum laude, from Columbia Law School, where he graduated first in his class and was the editor-in-chief of the Columbia Law Review. He practiced law at the New York City firm of Paul, Weiss, Rifkind, Wharton & Garrison from 1968 through 2003, becoming a partner in 1976, and also served as a lecturer-in-law and visiting professor at Columbia Law School. His tenure as individual practitioner and Special Counsel to the firm of Kornstein Veisz Wexler & Pollard was cut short when Governor George E. Pataki nominated him to the Court of Appeals in November 2003. The State Senate confirmed his appointment in January 2004, and he has served with great distinction since then.

During his more than thirty years in private practice before taking the bench, Judge Smith handled a wide variety of complex commercial cases for clients ranging from an insurance industry trade association that objected to the State's diversion of assets from a special fund to cover a budget shortfall, (1) to an airline pilots union that challenged anti-takeover provisions inserted into a collective bargaining agreement as violative of federal law. (2) He tried numerous cases and argued some forty appeals before more than a dozen courts, including the U.S. Supreme Court, six different federal courts of appeals, and the appellate courts of several states, including the court on which he later served.

Although commercial litigation was the focus of Judge Smith's practice, he also volunteered for a community law center and took on numerous pro bono cases, with a focus on death penalty appeals. He won accolades for his handling of two death penalty cases that reached the U.S. Supreme Court. (3) In one of those cases, Penry v. Johnson, he succeeded in overturning a death sentence for a mentally retarded man, arguing that the jury had not been properly instructed to consider evidence regarding the defendant's mental condition. (4) His decades of litigation experience have helped him to serve on the court with great distinction for the past eleven years.

The judge's clerks might also offer their (humble) observations of Judge Smith as a jurist. First, there is the extraordinary amount of preparation he devoted to each and every case the court heard during his tenure. Judge Smith is every bit as interested in the facts as the law and often seemed to have read every page of the record on appeal. No matter how thoroughly a clerk might have read the same record and how exhaustive his or her "bench memo" might have been, the judge invariably picked up on something--part of a witness's testimony, a clause in a contract--that was missed. During an especially busy session, Judge Smith would sometimes joke that he would "take the bench 'cold,' just this once." But he never did--each case was too important to him.

At oral argument, Judge Smith's legendary "hypos" confounded even experienced oral advocates. For example, in one case, the respondent insurer argued that a construction company's excavation on a neighboring lot that undermined a house was not within the policy's coverage for "vandalism" because the company had not acted with malice against the insured homeowner. (5) In response, Judge Smith posed the following hypo:

JUDGE SMITH: Suppose ... suppose a kid digs a hole in your front yard because he likes to dig holes and he knows it might cause your building to cave in, but he doesn't care. …

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