08 April 2013

Eddie Costikyan Memorial

About a month after Eddie’s death, Pinks and I were at a friend’s house for dinner where I met a retired CEO of a major US corporation. When I told him I was a retired Paul Weiss partner, he recounted the following decades-old incident:

His company was in a litigation adverse to a Paul, Weiss client and he was being deposed by a Paul Weiss lawyer, whom he described as “fairly young, not yet a partner.”  He said the lawyer was “rude, sarcastic, and overbearing.”  Though this happened thirty plus years ago and although I had no idea who the lawyer was, --other than for sure it was not me--I was nevertheless humiliated, and offered up my profuse apologies.  The retired CEO said it wasn’t as bad as it could have been, because he insisted on a break in the deposition, approached the young lawyer in the corridor, and said to him, “I am old enough to be your father and you have no right to speak to me that way. I insist you show me the proper respect. This a lawsuit designed to reach a financial conclusion based on the merits, and your rudeness is uncalled for and unproductive. If it does not stop immediately, I will leave.”  The young Paul Weiss lawyer was taken aback, apologized profusely, and the deposition was then completed respectfully and without further incident.

When I heard this story at that dinner table, I had two immediate reactions:

First, as I said, I was embarrassed for my law firm, and

Second, I knew this young lawyer had not ever worked for  Eddie Costikyan.  Eddie railed against this kind of behavior. He was a leader in teaching lawyers under his wing that good manners count, and in the end, respectful and courteous behavior is more productive with adversaries, witnesses, and courts.  It was not only good manners, it was good lawyering. I have seen and heard him give that lecture to many young Paul Weiss associates, and, believe it or not, on occasion even to adversaries. Those who knew Eddie will not be surprised to learn that when he gave that lecture, he did so gently, and with a Costikyan twinkle in his eye.  While I am not sure how effective he was with adversaries, I assure you he had a great influence on the generations of Paul Weiss lawyers who were fortunate enough to work with him and learn from him.

His course in Civility 101 was not taught exclusively tor associates.  He also instructed his partners:

I recall being on the firm’s Committee on Committees when Eddie was doing a tour of duty as Chairman.  At one meeting, the group was dealing with a particularly vexatious issue and tempers were fraying. While I cannot recall the subject matter of this particular dispute, I can report that the discussions of that august body sometimes reminded me of the great Lilliputian war over whether one should eat a boiled egg by starting at the narrow end of the egg or the broad end of the egg.

At this particular meeting, there came a time in the discussion when things became super-heated.  Voices were raised, speakers were interrupted, and Chairman Eddie calmly rose from his chair, walked to the door, turned to his now-stilled partners, and said in a conversational tone, “This is not the way to run a Democracy” and left the room. The chastened partners were silenced, and the meeting dissolved. At the opening of next week’s meeting, Eddie uttered the sentence that I have come to call the “Costikyan Credo”.  He said to his partners, “Fellas, it is my firm belief that advocacy and democracy are most productive if done with courtesy and respect for opposing views.” Wow. I suggest that’s not only a good way to run a law firm, it’s a good way to run a country, too. The Congress of the United States of America has a lot to learn from Edward N. Costikyan.

Eddie was not only a superior lawyer, he was a font of common sense and practicality that his partners did not always immediately recognize. I cite this example:

The year I became a partner, the firm removed its offices from 575 Madison Ave to a new building at 345 Park Ave.  That meant we had to decorate and furnish two full floors of office space-- a huge undertaking at that time.  You may not know this, but in 1969 there were no interior decorators in New York City. None. I am morally certain that is true because I can think of no other reason for the firm leadership to have selected as its interior designer a woman from Texas, a pitiable lady who had obviously never before worked for an organization consisting of 35 partners, most of whom, it appeared, had taken advanced courses in interior design while in law school and therefore professed to know more about her craft than she did.  And not only did she undertake to design the furnishings in the common spaces, she did some partners’ offices as well. The result was eminently foreseeable:  Half way through the project, the poor woman was carted off to a psychiatric hospital in Dallas. This is a true story.

Now I was a plebe, and there was no way I was going to get underfoot of the Generals who ran the firm, or the Colonels who were in charge of the decor program.  So I was but a percipient witness to a major debate that
I recall especially because of Eddie’s involvement in the issue.  Prior to her institutionalization, the harried interior designer had prescribed a light tan carpeting for the several acres of hallways and reception rooms. The walls, on the other hand, were to be covered in a dark brown velvety fabric that some of us came to call “mouse fur.”  As you can imagine, there was a great debate about this color scheme.   Eddie laid no claim to interior design credentials, but the Costikyan clan knew something about rugs and carpets, and I recall him trying to persuade his partners that inasmuch as the soles of our street shoes came into contact with the floor and not the walls,  the carpeting should be dark and the walls light, not the reverse.  He lost that battle, at least for a while.  

In time, when the light tan carpets developed undifferentiated metastatic dark blotches that no amount of shampooing could control, the Generals and Colonels retreated, the tan carpeting was ripped up and replaced by a dark brown substitute.  Eddie laughed.  He was so good-natured he never once said to his partners,“I told you so.”  At least he did not say it in public.  Over martinis in his office--that’s another story.  

In my years as his associate and then his partner, I was lucky enough to work and play with Eddie often.  We worked on cases together as mentor and mentee, and as equal colleagues.  There are innumerable Costikyan work anecdotes, and I will spare you all but two.

When I was an associate, I worked on a case for Eddie that was a typical London-Costikyan collaboration: I did all the work, wrote the motions, took the depositions, and one day Eddie walked into my office, which was adjacent to his on the 29th floor of 345 Park Ave, and said “”Ok, Marty, trial is in two weeks, give me the file and I’ll try this case.”  It is a measure  of my perception of Eddie’s geniality that I had the courage to say, “Are you kidding me?  Not a chance.  I am not giving you the file until we have a negotiation about who is taking which witness. You are not trying this without me.”  

Of course, I said all that with a smile on my face, ready to surrender abjectly at the first sign of resistance. But I knew my customer.  Eddie laughed, said “Okay, Marty, fair enough, your’s is a better idea,” and we whacked up the case.  

At the trial, I got in trouble. The adversary lawyer had no document management skills whatsoever.  When looking for an exhibit, he would simply page through a tall stack of completely disorganized papers. Finding an exhibit took forever. After a number of such episodes, a co-counsel from another firm started to chuckle and I joined in. The increasingly frustrated opposing lawyer then made an objection that I had never before or thereafter experienced:  “Your Honor,” he said “I object! They are laughing at me!”  Fair enough. We were. Not only that, my boss was Mr. Nice Guy.  The judge adopted a faux serious demeanor, and ruled, “Sustained, counsel should not laugh at Mr. Ryan.”  At the luncheon  break I asked Eddie if I was in trouble.  He laughed and said, “Well, in this case, Ryan deserved it, but cut it out.”

The other Costikyan incident that stands out in my mind was this:  In 1968, some of you may recall,  a Wisconsin Senator by the name of Eugene McCarthy mounted a campaign to win the Democratic nomination in the Presidential election that year. Hubert Humphrey won the New York Democratic primary, but McCarthy announced he would run for President as an independent, and a slate of electors pledged to him obtained a line on the New York State ballot. The Humphrey people perceived this as a serious problem because it threatened to split the Democratic vote and cost Humphrey the State in the general election.  

About a month before Election Day, McCarthy announced he was abandoning his quest for the Presidency.  But Senator McCarthy was an enigma.  While he said he was no longer running for President, he nevertheless refused to sign the document necessary to remove his name from the New York ballot, and the electors that were pledged to him were every bit as stubborn as he was:  They stood fast and refused to surrender their ballot line.

Eddie and I and a lawyer from another firm were retained by Senator Humphrey to get the courts to strike McCarthy’s name from the ballot. I wrote a brilliant 60 page brief, which, surprise, surprise, Eddie cut down to 18 pages. We won below and the case was fast-tracked to the New York Court of Appeals.  

The client said he wanted this crucial case in New York’s highest court to be argued by our celebrated new partner, Arthur Goldberg.

What drama!  Not only was this a case of great national political importance, it was the first court appearance of the distinguished former Secretary of Labor, Supreme Court Justice, and Ambassador to the United Nations.

Following Rifkind/Costikyan teachings, on the day of the argument, Eddie and I drove to Albany in the pre-dawn dark and arrived three hours before the 10 ayem calendar call. We had a leisurely breakfast across the street from the courthouse, and signed in when the court opened for business. The courtroom quickly filled to overflowing. The Court officials even permitted audience members to stand against the walls on the sides and rear of the courtroom.

But while our new Washington partner Arthur Goldberg had a lot of titles, he could not lay claim to one of the most important for this assignment: he was not a Paul- Weiss-Trained-Lawyer.  And so he accepted a wealthy Humphrey supporter’s invitation to use the latter’s private  jet to fly up from Washington D.C. to Albany for the argument.  He was scheduled to touch down at the Albany airport an hour before the calendar call.  But there was a fog that morning, his jet was delayed, and the former Justice of the United States Supreme Court violated Rule One for all litigators:  Be in the courtroom when your case starts!

At 10 sharp, the Chief Judge called the calendar.  We were first on the list and upon hearing our case title announced, Eddie chuckled, poked me in the ribs, and said “Hey, Marty, you handle this.” He was enjoying himself.  I approached the lectern, offered the Court an apology for the tardiness of our champion, and moved to have our case argued at the bottom of the calendar.  Motion granted! I was on a roll, so while the other cases were being argued, Eddie and I had a whispered conversation about what to do if Goldberg did not show.  Overcoming my shy, retiring nature, I offered to take the argument.  Eddie laughed and said, “I am not negotiating with you this time, London. This one is mine.”  And then he sat there with a totally calm demeanor while other lawyers argued their cases.  I think he was actually listening to them!  Me, I would have been frantically scratching out an outline of my argument.  Eddie never put pen to paper. He just sat there and relaxed wearing a confident smile.  

Midway through the morning, a severely rumpled Arthur Goldberg arrived, and when our case was called the second time, he read his argument from what appeared to be some notes he jotted down with a broad felt tipped marker on several pieces of Kleenex.  But Eddie's brief triumphed and we won. Clearly the award for the star turn of the day belonged to Costikyan.

An historical footnote here: Humphrey then failed to appoint Eddie to run his national campaign, so while the Senator won New York, he lost the general election by one percent of the popular vote, and we had one and a half terms of Richard Nixon.

As all of you know by now, Eddie was a part-time local politician, and for a while was head of the New York County Democratic Party.  Boss Eddie, as some of us called him, even once ran for Mayor in the primaries.  He joined the considerable list of Paul Weiss partners who lost or abandoned contests for such elective posts as Mayor, United States Senator, and Governor.  I always voted for all my partners, but I confess the candidates fell into two categories: those whom I selfishly hoped would lose, and therefore remain my partners, and then there was category two.  I am pleased to report that Eddie was in the first category.

His lack of an official government role did not prevent him from proposing legislative solutions to intractable social problems.  The one I remember best was during the tempestuous 60”s, when flag-burning was a serious legal and social issue. While Eddie always smiled when discussing his proposal, I could never be sure whether he was serious or not.  I suspect he did not know either.  

His idea was simple:   With due deference to both Constitutional requirements and patriotic fervor, Eddie proposed that the New York Legislature amend its Penal Code so that in any prosecution for misdemeanor assault, the accused would have available as an affirmative defense that the punch in the nose that was the gravamen of the criminal charge occurred while the victim was in the process of burning an American flag.

Eddie and I were personal friends. We took our children skiing together --(Greg and Emily, I am not sure you remember this...it was in Aspen, and my children Jesse and Liz were your roommates.)  Later that year, Eddie offered me (and I accepted for a brief period of time) a bedroom in his East Side townhouse when there continued to be a confluence of our hiatuses between wives. I am not sure either of us did much to solve the other’s problems, but the company was a balm.

By the way, did you know that Eddie, for many years, had a July 4th party at his summer home in Bridgehampton? Aside from the excellent food and drink, he fostered the practice of each partygoer reading aloud a sentence or two from the Declaration of Independence.  The round robin continued until the entire document was read.  For some time I adopted that practice at our July Fourth family dinner table. I recommend it to you.

How to sum up Eddie’s life and career?

Eddie was the consummate professional. He had intelligence, skill, and charm.  He was somebody you wanted to work with and to have a drink with.  Happily for me, I had the opportunity to do both.

This son of an Armenian rug merchant typified what we have come to call the Greatest Generation:  A list of Costikyan descriptors might include:

Political Leader

He had a lasting influence on this City, this firm, and on me.  All of us who knew him are his beneficiaries.

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