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The Book On Bourke’s Judge

Last week we said Judge Shira Scheindlin’s preliminary rulings would protect Frederic Bourke’s right to a fair trial. That, it turns out, is something she’s already known for. Another defendant, John “Junior” Gotti, the alleged New York City mobster, has had three trials in her courtroom since 2005. The charges related to an alleged plot to kidnap Curtis Sliwa, founder of the Guardian Angels, after he slammed the Gotti family on his radio show. All three trials ended in hung juries.

After Junior’s third mistrial in 2006, his sister — celebrity writer and former reality show star Victoria Gotti — told the New York Daily News, “I will thank our good fortune every day for a judge like Shira Scheindlin. She is the difference between a fair trial and a railroad job. God bless her.”

Who is Judge Scheindlin? She was born in 1946 in Washington, D.C. She’s been on the U.S. District Court for the Southern District of New York since 1994, when Bill Clinton nominated her to a seat vacated by Louis Freeh, who left to head the FBI. She’s a Michigan alum, BA 1967, Columbia MA 1969, and Cornell Law School JD 1975. The Almanac of the Federal Judiciary says: “Scheindlin is known for her intellectual acumen, demanding courtroom demeanor, aggressive interpretations of the law, and expertise in mass torts, electronic discovery, and complex litigation.”

She once ruled that the NFL draft violated federal anti-trust law and unjustly blocked players from pursuing their careers. But in April 2004, Supreme Court-nominee Sonia Sotomayor at the Second U.S. Circuit Court of Appeals stayed her decision. Last month Judge Scheindlin decided that claims in a case called In Re South African Apartheid Litigation can proceed, despite objections from the State Department. Companies such as Ford, General Motors and IBM, she said, cannot be held liable for “breadth of harms” committed under apartheid. But claims can be tried where the aider and abettor knows that its actions “will substantially assist the perpetrator in the commission of a crime or tort in violation of the law of nations.”

Her best-known decision is Zubulake v. UBS Warburg, a 2003 case that defined a party’s obligations to produce electronically stored information. It was partly her whimsical prose that transformed what she called a “relatively routine employment discrimination dispute” into an e-discovery landmark. Here’s how her opinion began:

Commenting on the importance of speaking clearly and listening closely, Phillip Roth memorably quipped, “The English language is a form of communication! . . . Words aren’t only bombs and bullets — no, they’re little gifts, containing meanings!” What is true in love is equally true at law: Lawyers and their clients need to communicate clearly and effectively with one another to ensure that litigation proceeds efficiently. When communication between counsel and client breaks down, conversation becomes “just crossfire,” and there are usually casualties.

We don’t know how Frederic Bourke will feel at the end of his trial. But there’s no doubt about how Junior Gotti felt when he learned last December that Judge Scheindlin would be hearing his case for a fourth time. The headline in the Daily News said: Junior Gotti giddy over ‘fair’ trial judge.

Read all posts about U.S. v. Kozeny and the prosecution of Frederic Bourke here.

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