February 2021 Millar's JurisDiction - The Mighty Pen

by Richard W. Millar, Jr.

In 1839, which is more and more beginning to feel like just yesterday, an English playwright, Edward Bulwer-Lytton, wrote a play about Cardinal Richelieu in which he coined a phrase that has long outlived the play itself: “[T]he pen is mightier than the sword.” Indeed, several years later, a critic wrote that Mr. Bulwer-Lytton “had the good fortune to do, what few men can hope to do; he wrote a line that is likely to live for ages.”

He did and it has.

As lawyers, we write frequently but, speaking for myself, we rarely, if ever, write anything of lasting quality with so much wisdom packed into so few words.

Mr. Bulwer-Lytton is no longer around, so we can’t ask him, but it wouldn’t surprise me if he thought that other lines he wrote were more significant and this was more or less a throw-away that sounded good at the time.

Well, most of us know what is meant by the saying, but, of course, there is an exception for which I am thankful as my column deadline is upon me.

A lawyer named Jeffrey Rothman and his pen has made at least temporal history in the form of an Opinion from the United States District Court, Southern District of New York.

Mr. Rothman went to One Police Plaza to serve a summons and complaint. It was after four in the afternoon and the office for receipt of summons was closed. He was “treated rudely by the officer at the reception desk” (which most visitors to New York would not find surprising), who refused to accept service. When Mr. Rothman attempted to write down the officer’s name and badge number, the officer, one Andrew Wunsch according to the opinion, grabbed Mr. Rothman’s pen.

Mr. Rothman filed a complaint against Mr. Wunsch and another officer with the Civilian Complaint Review Board. Mr. Wunsch was disciplined by the issuance of something called “a command training instruction,” and no discipline was recommended against the other officer.

Still dissatisfied, Mr. Rothman made a federal case out of it by suing in federal court on a panoply of federal and state claims, asserting that his pen was “seized” in violation of the United States’ and New York State’s constitutions. He also named all kinds of other people including a couple of commissioners as well as the City of New York.

The case “predictably, did not settle,” and a jury trial ensued and Mr. Rothman won a verdict for:


While he had argued to the jury that the case involved “principle” not “principal,” he subsequently asked the court for attorney’s fees, compelling a couple of foreseeable responses.

The first was in the opinion’s opening statement: “Once upon a time we urged people not to make much of real but petty grievances by saying, ‘Don’t make a federal case of that.’ This lawsuit was a violation of that principle writ large.”

Secondly, when it came to attorney’s fees, the court observed that, “[N]ow, proving that the case was not really about ‘principle’ but about ‘principal,’ Rothman moves for an award . . . of attorney’s fees in the amount of $44,800 . . . .”

Unsurprisingly, the court found that Mr. Rothman did not achieve a significant victory (whether for him or the public at large), and that he “pressed a great many claims that he lost throughout,” all the while consuming court resources that “would have been better utilized in the service of litigants who had far more serious claims to pursue.”

The court described the facts—“a pen seized by a police officer in a fit of pique, then returned within moments” as “just too trivial.” Nevertheless, the court did determine that he was entitled to an attorney’s fee award that was reasonable under the circumstances:


All of this proves Millar’s Corollary #27:

While the pen may be mightier than the sword, you can’t buy a sword anywhere for just two bucks.


Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.