By Adam Leitman Bailey
The call came in from the client. I listened to the facts and peppered the potential client with questions. They wanted the impossible accomplished and I responded that if the stars aligned then there would be a small possibility we could achieve some of what was asked.
I put together the legal team at our law firm. We needed a deep bench and attorneys that could clear their docket to spend many hours on the case. Everyone started looking for ways to find flaws in the contract. As I delved deeper and deeper into the facts and the legal documents, I knew we had a winner as far as meeting our client’s goals.
We prepared a formidable set of legal papers and I was confident that we would at last accomplish the most important of her goals.
The adversary blatantly disregarded the Attorney General’s requirements when selling condominiums to the public. Amazingly and with obnoxious audacity, the adversary even filed live building plans cutting away a good part of our client’s condominium unit. And when filing the new building permit, the adversary failed to file an amendment to the offering plan as required by the law that governs condominiums—the Martin Act. At the same time, the time of the essence notice sent to our client was illegal as the adversary was required to send such a notice months before and now had missed the date to do so. As important, the apartment was not finished when sending the closing notice requiring our client to buy the unit.
We gave the judge 8 different reasons to grant our application for a temporary restraining order.
And we were assigned to a very good judge who had always been a terrific listener and always sought to provide justice.
Very quickly after I walked into the courtroom, I realized that, at least in the mind of the judge, our case had already decided. The judge made clear that he would not be assisting our wealthy client in postponing the closing of her apartment. The judge also had little interest in all of the technicalities and violations of the law. In his view, our purpose was not noble and he was not going to let the finer points of the law to stop the closing.
Despite his proclivities, the judge could not see how to rule against us when the adversary failed to finish building the unit at the time of the court hearing.
The judge pushed the adversary into withdrawing the court notice.
Although we lived for another day, we knew that the unit would be finished and another closing note would be coming soon and this judge was not allowing our client to play games with the closing of the unit.
We did not have to wait long—less than a week after our minor victory, the notice came and instead of taking on our arguments of law, our adversary simply quoted the judge in oral argument and his reasons not to rule in our favor. I have always had an enormous respect for the work the larger law firms produce—some of the best lawyering on paper I have seen in my time. Amazingly, this law firm did not protect itself for a potential appeal. It did not put in any law that contradicted our arguments.
At oral argument, the big firm attorneys failed to be persuasive and when questioned, they simply reverted to quoting the judge’s past statements. Unable to understand the reasoning, this lawyering worked and the judge found the second closing notice valid and required our client to close.
As if the stakes were not high enough, now we had to go into the next round—our hearing for a preliminary injunction—knowing that if we did not win, our client would lose her down payment and the case.
Our adversary also reminded us that we would we be paying his attorney fees when we lost the case. Our adversary was so confident that he would win the case that he sent the following email, calling our case and our arguments “an embarrassment.”
Date: November 24, 2017 at 3:10:23 PM EST
To: William Geller
Cc: Adam Leitman Bailey
I would add that, candidly, your firm’s prior contacts with the Court in this case pushing frivolous positions have been an embarrassment.
Sometimes, even the most aggressive lawyers have a duty to say “no” to their clients — no matter how wealthy or insistent they might be. I submit to you that this is one of those times and, quite frankly, has been in this case from the outset.
Even during our darkest hour, we never became deterred. We knew we were right on the facts and the law. I knew we needed to dig deeper to educate this former housing court judge on the rules of condominiums. This time, we needed concrete examples to show the judge how obvious it was – at least to me – why we should win the injunction.
I decided that since I had lost the last round of court, Jeff Metz, one of the winningest litigators in court history, should take the lead. But that did not last long. The judge made it very clear which way he was leaning and I could see the decision paper in front of the judge as he began to write on it. He was going to dismiss the case.
I stood up and asked to address a point. I no longer was myself—I started to speak fast and with a brazen passion that I am sure did not help our case. 40 minutes later something happened. Something got through to the judge. When I finished arguing, he asked for a brief recess. I was ashamed at my digression. I was a whirlwind. But I also knew we were in the fourth quarter and we were out of time. Appearing before this judge for almost two decades, I knew his knowledge base and his sense of justice and I demonstrated why the adversary could not win; taking apart each argument, I presented real life examples and cited case law.
The judge’s court attorney came out to the court room and asked to speak to me and my adversary. My plea had worked. The court attorney explained that the judge wanted my arguments briefed and certain questions answered by both sides. We had 10 days to get this done and another oral argument would take place the day after the papers were due. Knowing I was not my best I realized we were very lucky or very good – or both – to receive a third chance to win the case.
At this point the questions favored our client. We knew we were finally in the game and had a chance of winning it. But we also knew the judge’s proclivities against our client and that he was intent in his mind not to let our the wealthy client take advantage of the system based on technicalities. Being the underdog, we worked and worked to perfect the oral argument and presentation. A loss would mean the loss of several million dollars and the payment of a larger firm’s attorney fees.
On the subway my co-counsel realized that I was listening to Man of La Mancha on my ear phones to get inspired for the Quixotesque battle ahead. He started laughing. I smiled back and explained to him that nothing made sense in the case thus far and something had to happen – maybe the challenge to push ourselves to be better than we had ever been before, or that the quest and thirst and need to win and strive for victory. Either way, The Impossible Dream from Man of La Mancha worked that day: “To fight the unbeatable foe; to bear with unbearable sorrow, to run where the brave dare not go. To right the unrightable wrong, to try when your arms are too weary.”
Right from the start of oral argument we saw that the judge was prepared. He had read the papers and calmly started asking questions to both sides. I decided to skip the basics and go right into the heart of the matter.
I opened the offering plan—a condominium’s constitution. This time speaking slowly, methodically, and like a statesman, I demonstrated that every time others in the building had combined apartments or changed a layout, the sponsor filed an amendment to the offering plan explaining the change. Every unit that had a change had an amendment except one—our client’s. Upon questioning, our adversary’s only response was to quote from the prior proceedings.
We then submitted case law from the Environmental Control Board, the agency that enforces violations from the Department of Buildings. I started quoting dozens of cases all recognizing live building plans as the only plans that can and must be acted on, defeating the argument that our adversary could file building plans to take a part of our client’s unit but only have them for a later date if circumstances changed.
Argument after argument, the world had turned right side up and we were in unison with the judge.
We won the injunction and our client received the option of buying the unit or receiving its money back without the threat of losing her down payment or paying the adversary’s attorney’s fees.
I have been in court thousands of times. But rarely had I battled so hard and put so much into a case, losing every round but knowing I was right and in the final day of argument—the only one that actually counted—we turned the judge to our side with sweat and passion and evidence. The feeling was liberating. We had won against all of the odds, including the judge letting us know early on that he was not buying our arguments. Rarely in my career have I pumped my fists when winning a case as I always remained humble in victory, so I waited until I was alone in my office until letting go – and it felt good.
More than ever before, I understood why someone would give more effort than he thought existed within himself, fight windmills and work so hard for something so small in the large scheme of events. We really did “reach for the unreachable star.” And sometimes, when you care enough and work hard enough and keep digging for success, you just may, with your last ounce of courage, win the case you were supposed to lose.