Q&A: Daniel Wiig and Rosa Castello

, Commercial Litigation Insider

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Law schools may offer a host of legal skills courses, but one devoted solely to practicing in New York's Commercial Division? Not so much—until this year, when St. John’s University School of Law introduced a new, upper-level, one-credit course called, “Litigation in New York’s Commercial Division.”

The first of its kind among New York-area law schools, the class is co-taught by Rosa Castello, a former litigation associate at Debevoise & Plimpton who is now a St. John’s Law faculty member, and Daniel Wiig, in-house counsel for Muncipal Credit Union who clerked for Justices Richard Lowe III and Eileen Bransten.

The course is designed to prepare students to practice in the Commercial Division, familiarize them with its rules and give them the opportunity to meet judges and practitioners. It currently enrolls 11 students and will be offered again in spring 2015.

Wiig, a graduate of St. John’s University, Fordham University Graduate School of Business Administration and Brooklyn Law School, and Castello, a graduate of Boston University and St. John’s Law, met through their mutual involvement in The Commercial Division Law Report, a now-discontinued quarterly compendium of decision summaries published by the Office of Court Administration. As former co-editor of the Law Report, Wiig wanted to enlist law students as contributors; he was directed to St. John’s Law School, where he and Castello, an assistant professor of Legal Writing, teamed up.

CLI spoke with Wiig and Castello about their experience teaching the course this year.

Q: What was the genesis behind the course, “Litigation in New York's Commercial Division?”

Castello: The idea for the class started with The Commercial Division Law Report. The students were given this incredible opportunity to write case summaries for the Law Report. I was overseeing this process and thought that the cases were so interesting and that the students were learning a lot. But I got to wondering how much the students knew about commercial litigation and the Commercial Division in particular. Many of our students are interested in commercial litigation and I thought that a course that could teach them more about commercial litigation and the Commercial Division in particular would enhance what they were already doing with the Law Report and give them an opportunity to learn more and possibly meet practitioners and judges.

And so I spoke to Dan and here we are.

Q: Have practitioners and judges come to speak to the class?

Wiig: Yes. Former [New York State Bar Association] Commercial & Federal Litigation Section chair Jonathan Lupkin, a founding partner of Rakower Lupkin, has guest lectured on commercial trials. Trials in commercial cases are rare, but Jon has a wealth of experience and shared it with the class. In addition, Ignatius Grande, who spearheads the e-discovery practice at Hughes Hubbard & Reed and co-chairs the Social Media Committee of the Commercial & Federal Litigation Section, spoke about the bourgeoning issue of e-discovery.

We are hoping to soon schedule a "class trip" to 60 Centre Street and have the students observe oral argument on a motion.

Q: What do you want students to take away from this course?

Castello: The importance of consulting the Commercial Division rules; the differences when litigating in the Commercial Division; and an appreciation for some of the current major issues, like e-discovery. I also hope they learned a bit more about writing so their writing skills continue to improve.

Q: What was the most challenging thing to teach about the Commercial Division?

Castello: For me, it was about the nuances and the current issues. I've been out of practice for a while, so this is why collaborating with Dan, a current practitioner and former clerk, was so great. I think the students really benefited from that.

Wiig: I believe students sometimes have an incorrect view of what litigation is actually about, derived in no small part from cinema portrayals. For example, in some television shows, adversaries are portrayed as hostile to one another, in a personal sense. In reality, attorneys on opposite sides are usually cordial, if not friendly, to one another. Hopefully, we were able to ground them a bit on the realities of practice.

Q: Is there a key capstone project?

Wiig: Each student will participate in an in-class simulation of a proceeding that would occur in the Commercial Division, e.g., an application for a temporary restraining order, oral argument on a motion for summary judgment, or a discovery dispute. The students will argue against one another, and Rosa and I will serve as the judges. As Rosa mentioned earlier, this is designed to give the students practical experiences as they embark on their legal careers.

Q: How are the cases selected?

Wiig: Rosa and I select the cases. We tend to look for those with complex issues, so the students can really utilize their research skills and analysis training. The cases are not necessarily already disposed.

Q: Dan, how has serving as a former law clerk to Justice Lowe and Justice Bransten helped you in this role?

Wiig: I was truly fortunate to clerk for Justices Lowe and Bransten. Both were great role models and created a wonderful family-like environment for their respective staff.

Beginning my legal career in the court system enabled me to fully apprehend what the court expects from practitioners, which I can convey to my students. For example, one of the students suggested that a good strategy in crafting a complaint or brief is to use inflammatory language to get the court's attention. The student painted an over-the-top picture of a high-level employee "victimized" by a purported breach of an employment agreement. I could just see the court rolling its eyes at such a description! I responded that the court really does not appreciate posturing, and prefers attorneys to focus on articulating, in as concise a manner as possible, the reasons that the law, based on the facts, is in her or his client's favor.

Q: Any observations about the Commercial Division you care to share as a former law clerk?

Wiig: Practitioners sometimes do not fully appreciate the volume and complexity of the justices' dockets. At any given moment, the justices and their staff are deliberating on a litany of motions, fielding calls from adversaries feuding over discovery issues, hearing arguments, and presiding over conferences. It is a heavy workload, even for those justices who have three court attorneys on staff.

The clerks' involvement in crafting decisions is particular to each justice. More often than not, the clerks will sit in on oral argument.

Q: How much has the Commercial Division evolved so far as you can tell?

Wiig: There has been a near-complete turnover of justices in New York County, with only Justices Ramos and Bransten remaining, since I was involved (Wiig was a law clerk from 2006 to 2008). The individual rules and practices of the justices have changed, increased and evolved, notably those regarding e-discovery.

Q: What new developments do you look forward to seeing?

Wiig: Justice Oing is piloting an e-discovery preliminary conference order, similar to a program in the Southern District. Also, I am particularly interested in the ramifications of increasing the monetary threshold to $500,000 in New York County. During my tenure, it was "only" $125,000. The new threshold will obviously lead to a smaller docket in the Commercial Division. But where will those cases go? Will the federal dockets increase, to the extent that federal court has jurisdiction over the cases? Or will these cases end up in general IAS parts? That’s something I am interested to find out.

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