May It Please the Court!
From Auto Accidents to Agent Orange:
Building a Storefront Law Practice into
America's Largest Suburban Law Firm
Leonard Rivkin
with Jeffrey Silberfeld
Carolina Academic Press
Durham, North Carolina
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Crossing the Street: Representing Defendants
Early in 1968, as far as my law practice was concerned, things were definitely looking up.
Invigorated by my victory in the Court of Appeals, I could hardly wait to arrive at the office each morning. I was usually the last to go home at night.
Fortunately, there was plenty for me to do. Not withstanding the negative press I received during the Judicial Inquiry, new cases were teeming into the office at a faster rate than ever before. I have no explanation as to why this was happening, except to suggest that the people who knew me, both personally and professionally, must have had faith in me.
As thrilled as I was about how busy we were. I was even more excited about the changing nature of our practice and client base. Although I was still best known as a plaintiffs personal injury attorney, I was now doing defense work on a regular basis in automobile accident cases assigned to me by Allstate, Fireman's Fund, and other insurance companies which had traditionally been my adversaries but had recently become my clients.
I acquired my insurance company clients partly by luck and partly by design. Little did I realize at the time where my budding relationship with the insurance industry would lead. It would expand my practice far beyond my wildest expectations and place me front and center in the arena of big time civil litigation.
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Early Defense Work
Early in my career, beginning in the late 1950's, I did a small amount of defense work in cases referred to me by the New York State Medical Society. This was an association of doctors that was similar in structure and function to the New York State Bar Association. It lobbied, sponsored seminars, and published a professional journal It also recommended defense attorneys to its member physicians sued for malpractice and also to the insurance companies which provided malpractice coverage.
My father, a member of the Society, had a long-standing friendship with its Executive Director, whom I had met on numerous occasions. After I had been in practice in Freeport for 10 years, the Executive Director introduced me to Dick Byrnes, the Society's General Counsel. Dick and I hit it off quite well, and after a while he began to recommend me for malpractice defense work. I did not receive a lot of cases as a result of Dick's recommendations, but there was a steady flow.
I had taken and was continuing to take continuing legal education courses focusing on the medical aspects of personal injury litigation, and the malpractice work was a perfect fit. In fact, I enjoyed defending doctors so much that I usually did all of the work on each case myself, even the paperwork. The typical malpractice case ordinarily required me to closely review my client's diagnosis and treatment and to explore the question of causation, that is, did my client's treatment (or lack of treatment) cause the plaintiffs injuries. I held lengthy meetings with my client as well as with other physicians who acted as expert witnesses. I became familiar with the leading medical texts and treatises on whatever aspect of medicine the particular case involved. Although I never became the doctor that my father envisioned, at least I reached the point, thanks to my malpractice defense work, where I could discuss various medical topics with my father on a reasonably intelligent basis.
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The MVAIC
In the early 1960's, I began receiving automobile accident defense work from the Motor Vehicle Accident Indemnification Corporation ("MVAIC").
The MVAIC was a government corporation funded by insurance companies and run by present and former insurance company executives and employees. Created by the legislature in 1959, its purpose was to provide a mechanism for compensating the many victims of automobile accidents caused by hit-and-run or uninsured drivers.t
And there were many such victims. hit-and-run accidents were an every day occurrence. And even though New York State required its residents to carry automobile insurance,2 so, too, were accidents involving uninsured drivers.
How could the driver have no insurance if the law required it? In some cases, the policy had lapsed. In others, the insurance company disclaimed or denied coverage on the ground that the defendant failed to provide timely notice of the accident, or because the defendant was driving a stolen car or was otherwise driving the car without the consent of its owner. In still others, the defendant resided in a state that did not require its citizens to have automobile insurance.
At any rate, the MVAIC afforded the possibility of compensation to accident victims who otherwise had no viable remedy. Prior to 1959, a person injured by an uninsured driver could sue the driver but was not likely to recover anything, since an uninsured driver probably didn't have the financial resources to pay an adverse judgment. A person injured in a hit-and-run accident didn't even have anybody he could sue.
The compensation available from the MVAIC was minimal, but it was better than nothing. The maximum recovery under the statute was $10,000.00 per person and $20,000.00 per accident.3
The statutory scheme establishing the procedures for making a claim against the MVAIC was somewhat complex. For present purposes, I willover generalizee for the sake of clarity and simplicity. The MVAIC created two categories of eligible claimants. An "insured" claimant, for the most part, was the driver or any occupant of an insured car involved in an accident caused by an uninsured or hit-and-run motorist. His sole remedy under the statute was an arbitration claim against the MVAIC. A "qualified" claimant, for the most part, was a pedestrian with no automobile insurance applicable to the accident who was injured by an uninsured or hit-and-run motorist. His remedy against the MVAIC was a lawsuit.4
When the MVAIC was first formed, I represented a fair number of "insured" claimants in arbitration proceedings against the MVAIC and got some very good results. It was unusual to recover the MVAIC's full statutory limit of liability in any one case, but I recall doing so two or three times.
How did I go from making claims against the MVAIC to defending it'? Pure happenstance. I was in court one morning in Manhattan for a conference. We finished before 11:00 a.m. In the elevator, I wondered if there was something else I could get done in the city before heading back to Freeport. Then I remembered that I had an arbitration claim pending against the MVAIC which I had been trying to settle. Their office was nearby, so I hopped into a cab. Luckily, the supervisor in charge of the claim was free and agreed to meet with me. As we were discussing the matter, Tom O'Boyle, the head of the MYAIC's New York City office, just happened to stop at the supervisor's desk with a question. Tom was a good looking, heavyset Irish-American who knew everybody in politics and the insurance industry. Over the years he had worked for several insurance companies and was appointed to the MVAIC by the Governor. The supervisor introduced us, saying, "Tom, this is Len Rivkin, the lawyer from Freeport who nailed us a couple of times this year." At my suggestion, the three of us ended up going out to lunch.
At lunch, Tom remarked that the MVAIC had been assigning all of its work, even cases in Nassau and Suffolk, to attorneys in New York City, and that he had been looking for Long Island counsel. I told him I would be very interested in representing the MVAIC and reminded him that I was more than qualified to do so, in light of my recent success representing claimants against the MVAIC. He agreed, we shook hands, and that very month I received my first MVAIC files.
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I personally handled the first few arbitration files we received from the MVAIC. But the typical case was not that complicated and did not require the hands-on attention of a senior trial attorney, so I soon began to assign the work to Stu Sherman and the junior associates in the office. They got some good results, and the number of cases I was receiving gradually started to increase.
As this was happening, I grew to appreciate one particular aspect of working for the MVAIC: the matter of our legal fees. The practice of law is a profession, but it is also a business. At the time, the firm was located at 16 West Sunrise Highway. Our rent had nearly doubled. I had four lawyers working for me, six secretaries, and an occasional law clerk. Representing plaintiffs, we worked on a contingent fee basis. We received nothing unless and until our client won a judgment or settlement. This made for a very uneven cash flow. Some months we did very well and could easily meet our expenses; others we earned nothing at all. In contrast, the MVAIC paid us every month. We earned a flat fee for each arbitration file they sent us and an hourly fee if we had to go to court. This was a new experience for me. Cash flow was becoming less of a problem. With enough MVAIC business, I could eliminate that problem altogether.
For that reason, I began to explore whether there was something I could do to increase my MVAIC business. Then I remembered a person from my past who may have been in a position to help. Back in the 1940's, I dated a girl who had a ubiquitous little brother. It got to the point where I had to pay him 25 cents to leave the room so I could be alone with his sister after coming back from a date. The little brother ultimately went to law school and opted for a career in politics. His name was Philip Weinberg, and in the early 1960's he was working for Governor Rockefeller as his Appointments Secretary. Although I hadn't seen either Phil or his sister in almost twenty years, I called Phil in Albany. He was surprised and delighted to hear from me. We had a long conversation reminiscing about old times. Then I mentioned my relationship with the MVAIC and interest in expanding that relationship.
Sure enough, Phil knew Tom O'Boyle, so he called Tom to make some inquiries. Tom gave my office good reviews and, as a result of his conversation with Phil~ began to send me upwards of 10 to 15 cases per month.
Incidentally, Phil and I renewed our friendship as a result of my phone call to him. After serving as Governor Rockefeller's Appointments Secretary, he held the same position under Governor Malcolm Wilson. When the Democrats finally managed to elect a democratic Governor in 1974, and Phil found himself out of a job, I offered him a partnership, which he accepted. He was instrumental in the firm's growth throughout the 1970's and 8 0's, opening many doors, in particular in the banking and real estate fields. Phil ultimately served as managing partner of the firm at a time when we had more than 200 lawyers.
But as much as I valued Phil professionally, I valued him personally even more. Here was a man who wielded an enormous amount of political power when he worked in the Governor's office, and afterward the extent of his contacts never ceased to amaze me, but there was not an ounce of pretension about him. He never had an unkind word for anyone. He treated everyone he met with the same dignity and respect.
Phil's untimely death, in 1988, was a shock to us all and a great personal and professional loss.
to chapter 6....
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