Daniel J. Kornstein

Daniel J. Kornstein

dkornstein@ecbalaw.com
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Dan Kornstein is a skilled, experienced, and successful trial lawyer and appellate advocate, with an exciting and varied civil litigation practice. He has conducted over 100 trial-type proceedings (including 20 jury trials) and argued more than 70 appeals.  To each case he brings a creative, energetic, and aggressive approach.  Mr. Kornstein’s clients range from individuals (including Pulitzer Prize-winning authors, Academy Award winning actors, publishing executives, and rising entrepreneurs) to large corporations and financial institutions. He has litigated several notable First Amendment cases, as well as substantial antitrust, securities, commercial, employment, product liability, family law, and international matters.

“Mr. Kornstein is a man of high principle, great compassion and profound intelligence who has elevated the practice of law to the level of moral statement.  He has the personal integrity to stand up for people, books and causes he believes in, even when others do not.” Joe McGinniss, Acknowledgment in Blind Faith (1989).

Mr. Kornstein was selected as a New York Super Lawyer for the past eight years and named in “The Top 100” in the 2010 New York Super Lawyers Metro Edition. For 28 consecutive years, Mr. Kornstein has been listed in the Best Lawyers in America in the Business Litigation category, and for 2017 is listed once again in five litigation practice areas: Commercial Litigation, Banking & Finance, First Amendment, Securities, and Trusts & Estates. He was the subject of a feature article (“Dan’s Law”) in the New York Metro 2012 Super Lawyers Magazine.

Before joining the firm in 2015, Mr. Kornstein was a founding partner of  what the New York Law Journal referred to as the prominent “powerhouse” litigation boutique Kornstein Veisz Wexler & Pollard, LLP, where he practiced for 35 years.

“Dan is a complete lawyer, a lawyer not only as a master of technique, but also a lawyer as philosopher, as historian, as humanist.” Jack Fuller, Pulitzer Prize winner and former editor-in-chief and president of the Chicago Tribune (Super Lawyers Magazine New York Metro 2012)

A past president of the Law & Humanities Institute, Mr. Kornstein has coupled a busy law practice with frequent writing and speaking about the law. He has published eight non-fiction law-related books, eighteen law review articles, and hundreds of essays and book reviews (many in the New York Law Journal). His work has also appeared in the New York Times, Wall Street Journal, Chicago Tribune, Baltimore Sun, and Boston Globe, and has been cited by a number of courts, including the U.S. Supreme Court.

In 2015, Mr. Kornstein gave a keynote address on “Creative Lawyering” – one of his signature topics – to the Federation of Defense and Corporate Counsel.  In 2012, the New York Court of Appeals invited Mr. Kornstein to deliver a public lecture at the Court on “Shakespeare and the Law.”  In 2002, Mr. Kornstein received the Prix du Palais Littéraire from the Law & Literature Society of France.

Drafted into the Army after one year of law school during the Vietnam era, Mr. Kornstein served for two years (1969-71) in the First Armored Division and the First Cavalry Division. He was a legal clerk on the prosecution team in the 1970 My Lai Massacre court-martial of one of Lt. Calley’s platoon sergeants. Mr. Kornstein was awarded the Army Commendation Medal for “exceptionally meritorious service.”

Representative Cases:

  • Filed amicus brief in November 2016 on behalf of Asian Americans Advancing Justice/AAJC and other civil rights and advocacy groups in Lee v. Tam in the U.S. Supreme Court concerning the right to trademark derogatory terms such as “Slants” for an Asian -American band.
  • Won discovery in 2016 under 28 U.S.C. § 1782 in aid of foreign proceedings on behalf of victims of alleged large art fraud.  Case is now on appeal to the Second Circuit.  In re Accent Delight International Ltd. and Xitrans Finance Ltd. (S.D.N.Y. Furman, J.)
  • Won an appeal dismissing a $300 million defamation suit. El Jamal v. Weil, 116 A.D. 3rd 732, 988 N.Y.S.2d 146 (2d Dep’t 2014).
  • Won dismissal for 44 former partners of Dewey Ballantine LLP of suit brought by former landlord seeking personal liability for $220 million of unpaid rent. 1301 Properties v. Abelson, et al. (Sup. Ct. N.Y. Cnty. Apr. 1, 2016).
  • Currently represents political and cultural commentator Mark Steyn as a defendant in a libel suit brought by a climate change scientist. Mann v. National Review, et al. (Super. Ct. D.C.).
  • Currently represents defendants in on-going “clawback” suit brought by trustee of Madoff estate. Picard v. American Securities Mgmt, L.P.
  • Litigated a landmark case about (1) client gifts to lawyers, (2) the “continuous representation” doctrine, and (3) unconscionability standards for contingency fee agreements. Lawrence v. Graubard Miller, 106 A.D.3d 607, 965 N.Y.S. 2d 495 (1st Dep’t 2013), rev’d, 24 N.Y.3d 320 (2014).
  • Won an arbitration award for regional bank making $23 million in home equity lines of credit subject to repurchase because they violated underwriting guidelines or were marred by fraud. Also won $3 million in legal fees and $445,000 in discovery sanctions. M&T Bank v. First Tennessee Bank.
  • Obtained a $55 million settlement for regional bank in suit against several defendants for misrepresentations concerning collateralized debt obligations.  M&T Bank Corp. v. Gemstone CDO VII Ltd., et al. (Sup. Ct. Erie Co. 2008).
  • Litigated the leading “libel tourism” case, which the Financial Times called “perhaps the highest profile case of the past few years.” Ehrenfeld v. Mahfouz, 489 F.3d 542 (2d Cir. 2007).  Dan represented American author Rachel Ehrenfeld suing in federal court here to declare an English default libel judgment unenforceable under U.S. law. Although the New York Court of Appeals, answering a certified question, denied personal jurisdiction based on the language of New York’s long-arm statute, it invited the state legislature to change the law. 9 N.Y.3d 501, 851 N.Y.S.2d 381 (2007). The legislature promptly responded in April 2008 by unanimously passing the Libel Terrorism Protection Act to provide such personal jurisdiction in CPLR 302(d), and to make a foreign defamation judgment unenforceable if the foreign proceeding did not provide “at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions.” CPLR 5304(b)(8). The Ehrenfeld case prompted similar legislation in other states and at the federal level.  In 2010, Congress passed and President Obama signed into law the federal SPEECH Act modeled on the New York statute. 28 U.S.C. §§ 4101-05.  The New York Times called the federal law “a victory for writing.”
  • Was co-trial counsel in a patent contract case resulting in a jury verdict for $25 million in damages and $10 million in interest.  DePuy Inc. v. Biomedical Engineering Trust (D.N.J. 2000).
  • Won an $8.2 million judgment for a limited partner after a two-week trial against the general partner of a real estate limited partnership.  Burstin Investors, Inc. v. K.N. Investors, Ltd., 239 A.D.2d 376, 657 N.Y. 743 (2d Dep’t 1997).
  • Represented Joe McGinniss, author of the true crime classic Fatal Vision, in a controversial suit brought by triple murderer Jeffrey MacDonald. This case, called “one of the most extraordinary civil actions in American legal history” (Edward Knappman, ed., Great American Trials [1994]), was the subject of Janet Malcolm’s influential book The Journalist and The Murderer. A seven-week trial resulted in a hung jury, and the case was later settled for the same sum offered to MacDonald before trial by the publisher’s insurer. According to a 1988 article in the American Lawyer about the trial, “Kornstein, an experienced trial lawyer, was not about to let MacDonald elicit unwarranted sympathy from the jury. In an incisive and at times devastating cross-examination, [Kornstein] would pick apart MacDonald’s complaints about the book.” MacDonald v. McGinniss (C.D. Cal. 1987).
  • Represented a famous actress whose contract engagement was canceled by the Boston Symphony Orchestra because of her political views. A highly publicized three-week jury trial resulted in substantial damages for breach of contract. Controversial appeals interpreted the scope of the Massachusetts civil rights law. Vanessa Redgrave v. Boston Symphony Orchestra, Inc., 557 F. Supp. 230 (D. Mass. 1983) (denying motion to dismiss); 602 F. Supp. 1189 (D. Mass. 1985) (ruling on post-trial motion); 855 F.2d 888 (1st Cir. 1988); 399 Mass. 93, 502 N.E.2d 1375 (1987) (answering certified question).
  • Represented a Hollywood star in breach of contract case arising out of the actor’s role as a corporate spokesman. Case settled at trial.  Kirk Douglas v. Unisys (S.D.N.Y. 1989).
  • Won early dismissal of a suit by the Romanian government against the former ruler of Romania alleging wrongful taking of $500 million in national art work. State of Romania v. Former King Michael (Sup. Ct. N.Y. Co. 1994), aff’d, 212 A.D.2d 422, 622 N.Y.S.2d 704 (1st Dep’t 1995).  In 2013, in recognition of his legal services, King Michael knighted Dan by naming him an officer of the Order of the Crown of Romania.

Publications:

Books

Loose Sallies: Essays (Author House, 2014)

  • A “rich work . . . exquisitely focused, eloquently written, coherent discussion of some of the most important aspects of American exceptionalism and the practical role that seminal U.S. Supreme Court decisions play in the vitality of the American democratic experiment . . . . a love story — a highly personal story of the author’s unabashed affection and admiration for the law and the fundamental values of American exceptionalism: freedom of expression, religious liberty and the right to privacy . . . . demonstrates that good legal writing doesn’t have to be boring, dense or hard to follow . . . legal writing at its very best . . . legal writing as literature . . . Kornstein’s essays inspire us”  New York Law Journal

Something Else: More Shakespeare and the Law (Author House2012)

Unlikely Muse: Legal Thinking and Artistic Imagination (Author House, 2010)

  • “fascinating,”  “a thought-provoking study of the influence that law may have on the creative process,”  “an important addition to the expanding study of law and literature by one of its foremost proponents” — New York Law Journal

Partial Verdicts: Essays on Law and Life (Author House, 2008)

The Elsinore Appeal: People v. Hamlet (St. Martin’s Press, 1996) (co-author)

  • “An offbeat intellectual pleasure” — New York Law Journal

Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton University Press, 1994)

  • “excellent . . . the distinctive voice of an American lawyer [who] speaks to our era in the polished cadences of an experienced advocate, who is as much at home in the courtroom as in the world of Shakespeare” — Yale Journal of Law and Humanities
  • “A testimonial to cultural literacy at its best.  To have a [book] as carefully researched and gracefully written as this emerge from a literate lawyer’s pen is modestly reassuring about the future of culture itself.”  — Choice (1994)
  • “one of the liveliest and most original books on Shakespeare” — Theodore Ziolkowski, The Mirrors of Justice (1997)

Thinking Under Fire: Great Courtroom Lawyers and Their Impact on American History (Dodd Mead, 1987)

The Music of the Laws (Everest House, 1982)

  • “a book that deftly and lovingly discusses the law and those who build their careers on it” — Wall Street Journal

Entries on Arthur Liman and Lloyd Paul Styker in The Yale Biographical Dictionary of American Law (2009)

Entry on “Literature and Crime” in Encyclopedia of Crime & Justice (2002)

Chapter 38A on “Impeachment of Partial Verdicts” in Criminal Defense Techniques (Matthew Bender 1982)

Law Review Articles

“The Myths of Thane Rosenbaum,” 4 Cardozo Public Law, Policy and Ethics Journal 33 (2006)

“Does Love of Literature Promote International Law?” 12 ILSA Journal of International and Comparative Law 491 (2006)

“Mark Twain’s Evidence,” 72 Tennessee Law Review 1 (2005) (on the Shakespeare authorship debate)

“A Comment on Prof. Halper’s Reading of Measure for Measure,” 13 Cardozo Studies in Law and Literature 265 (2001)

“He Knew More: Balzac and the Law,” 21 Pace Law Review #301 (2000)

“A Practicing Lawyer Looks Back on Law and Literature,” 10 Cardozo Studies in Law and Literature 117 (1998)

“The Byronic Hero Meets the Law and Literature Movement,” 46 Emory Law Journal 1615 (1997)

“The Double Life of Wallace Stevens: Is Law Ever the ‘Necessary Angel’ of Creative Art?” 41 New York Law School Law Review 1187 (1997)

“Fie Upon Your Law!” 5 Cardozo Studies in Law and Literature 35 (1993)

“Twisted Vision: Janet Malcolm’s Upside Down View of the Fatal Vision Case,” 1 Cardozo Studies in Law and Literature 127 (1989)

“The Case Against Lillian Hellman: A Literary/Legal Defense,” 57 Fordham Law Review 683 (1989)

“The Success of the Word: The Literary Critic as Constitutional Theorist,” 4 Cardozo Arts & Entertainment Law Journal 277 (1985)

“Inheritance: A Constitutional Right?” 36 Rutgers Law Review 41 (1984). Cited in Klauser v. Babbitt, 918 F. Supp. 274 (W.D. Wis. 1996).

“Impeachment of Partial Verdicts,” 54 St. John’s Law Review 663 (1980). Cited in State v. Shomo, 129 N.J. 248 (1992).

“A Bayesian Model of Harmless Error,” 5 Journal of Legal Studies 121 (1976). Cited in U.S. ex rel. Bilyew v. Franzen, 686 F.2d 1238 (7th Cir. 1982); McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir. 1985).

“Taps for the Real Catch-22,” 81 Yale Law Journal 1518 (1972). Cited by Justice Potter Stewart in Parker v. Levy, 417 U.S. 733 (1974) (dissenting opinion); 478 F.2d 772 (3d Cir. 1973); Stolte v. Laird, 353 F. Supp. 1392 (D.D.C. 1972).

“A Defendant’s Right to Inspect Pretrial Congressional Testimony of Government Witnesses,” 80 Yale Law Journal 1388 (1971). Cited in Calley v. Callaway, 519 F.2d 185 (5th Cir. 1975) (Bell, J., dissenting); 382 F. Supp. 650 (M.D. Ga. 1974).

“Insurance Mergers and the Clayton Act,” 78 Yale Law Journal 1404 (1969). Cited by the Federal Trade Commission in 1972 Trade Reg. Rep. (vol. 3) 20,163 at 22, 148 n.8 (FTC decision).

Attorney News

Education

Yale Law School, J.D., 1973

Note and Comment Editor, Yale Law Journal

City College of New York, B.S., 1968

Phi Beta Kappa
Felix Cohen Prize in Legal Philosophy

Admissions

U.S. Supreme Court
U.S. Tax Court
U.S. Court of Appeals, First, Second and Third Circuits
U.S. District Court, Southern, Eastern and Western Districts of New York
New York

Memberships

American Bar Association
New York State Bar Association
Board of Editors, New York State Bar Association Journal
Federal Bar Council
Supreme Court Historical Society
New York City Bar Association
New York County Lawyers’ Association
.