MARCH/APRIL 2005 VOL. 77 | NO. 3 JournalNEW YORK STATE BAR ASSOCIATION
Court of Dreams An improbable victory in the national Also in this Issue pastime, high drama in the executive More on Daubert branch, and passing notes behind the The Third Series: A Review high court bench. Determining Legislative Skip Card Intent Mortgage Satisfaction Create a Case Chronology BESTSELLERS FROM THE NYSBA BOOKSTORE
March-April 2005
Business, Corporate, Tax New York Lawyer’s Formbook, Second Edition NEW! Limited Liability Companies Updated with 2004 Supplement Updated for 2004, this practical guide, written by The Formbook is a companion volume to the Michele A. Santucci, enables the practitioner to CIVIL ADVOCACY AND LITIGATION NY Lawyer's Deskbook and includes 21 sections, navigate the Limited Liability Company Law with each covering a different area of practice. ease and confidence. Depositions: Practice and PN: 4155 / Member $225 / List $275 / PN: 41244 / Member $72 / List $80 / 336 pages 3,060 pages Procedure in Federal Civil Advocacy and Litigation and New York State Courts Real Estate This detailed text covers all aspects of depositions. Preparing For and Trying the Civil Real Estate Transactions — Topics include pre-trial discovery schedules, Lawsuit, Second Edition appropriate and inappropriate behavior at This loose-leaf volume updates and expands the Residential Property depositions, and motions for protective orders. first edition by adding five new chapters. Over 30 This monograph is a practical, step-by-step PN: 4074 / Member $50 / List $65 / experts reveal the techniques and tactics they have guide for representing residential real estate 450 pages found most effective when trying a civil lawsuit. purchasers or sellers. Topics include sales of resale homes, newly constructed homes, PN: 41953 / Member $175 / List $225 / FAMILY AND MATRIMONIAL LAW 1,302 pages condominium units and cooperative apartments. PN: 42144 / Member $72 / List $80 / Adoption Law: Practice and 400 pages Forms Debt Collection and Judgment Procedure in the 21st Century on CD Enforcement with Forms on CD-ROM This book offers guidance on the basics of debt Real Estate Transactions — collection from evaluating the claim and debtor, Commercial Property This new reference completely updates and to demand upon the debtor and payment agree- This monograph provides an overview of the expands Adoption Law in New York, adding ments, to alternatives to litigation. major issues in representing a commercial real new chapters and including over 250 pages PN: 42384 / Member $72 / List $80 / estate client and suggests some practical of forms. 132 pages approaches to solving problems that may arise. PN: 40204C / Member $165 / List $200 / PN: 40374 / Member $72 / List $80 / includes 942-page book Entertainment 296 pages GENERAL PRACTICE Entertainment Law, Third Edition Trust and Estates/Elder Law This new edition contains a new chapter covering Municipal Law Formbook — Forms “Entertainment on the Internet—The Evolution of Elder Law and Will Drafting on CD Entertainment Production, Distribution, Ownership Elder Law and Will Drafting provides a clear 2004 Forms on CD-ROM and Control in the Digital Age.” overview for attorneys in this practice and Access more than 800 forms for use PN: 40863 / Member $125 / List $150 / includes a sample will and representation when representing a municipality—including 782 pages letters, numerous checklists, forms and exhibits. planning, zoning, building permits PN: 40824 / Member $72 / List $80 / and numerous forms that can be used in other Family and Matrimonial Law 250 pages areas of practice. Matrimonial Law PN: 51603C / Member $120 / List $150/ This book provides a step-by-step overview for Probate and Administration of includes 2,200-page book the practitioner handling a basic matrimonial case. Attorneys will benefit from the clear, basic review of Decedents’ Estates This book provides a step-by-step guide for REAL ESTATE the fundamentals and numerous “Practice Guides.” handling a basic probate proceeding and for Forms PN: 41214 / Member $72 / List $80 / Commercial Leasing with on CD completing the appropriate tax-related forms. 256 pages PN: 41964 / Member $72 / List $80 / Forms on CD-ROM General Practice 184 pages This book examines in detail situations that arise during lease negotiations and numerous New York Lawyer’s Deskbook, issues critical to both the tenant and the Second Edition landlord. Especially useful are the sample Updated with 2004 Supplement model leases that cover conditions favorable WINNER OF THE ABA’S CONSTABAR AWARD to both the landlord and the tenant. The Second Edition consists of 25 chapters, each PN: 4041C / Members $155 / List $200 / covering a different area of practice. includes 1,344-page book PN: 4150 / Member $225 / List $275 / 1,942 pages Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION
1.800.582.2452 www.nysba.org/pubs Mention Code: CL2527 NEW YORK STATE BAR ASSOCIATION NEW YORK STATE BAR ASSOCIATION Journal
BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Rose Mary Bailly www.nysba.org Albany Willard H. DaSilva Garden City Louis P. DiLorenzo Syracuse Philip H. Dixon Albany • Fresh new look for 2005 Lesley Friedman Rosenthal New York City Judith S. Kaye • Easier to navigate New York City John B. Nesbitt Lyons • More resources right on your Eugene E. Peckham Binghamton home page Sanford J. Schlesinger New York City Richard N. Winfield • One-click access to the resources New York City EDITOR EMERITUS you need Eugene C. Gerhart Binghamton • Unique substantive legal MANAGING EDITOR Daniel J. McMahon Albany content at your fingertips e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside
PUBLISHER Patricia K. Bucklin Executive Director
NYSBA PRODUCTION STAFF PRODUCTION COORDINATOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org
ADVERTISING REPRESENTATIVE Network Publications Sheri Fuller Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected]
Visit the newly redesigned www.nysba.org. CONTENTS MARCH/APRIL 2005
Court of Dreams An improbable victory in the national pastime, high drama in the executive branch, and passing notes behind the high court bench. BY SKIP CARD 10
24 The Daubert Debacle Lessons in a momentous, but dyslexic, decision. BY HENRY G. MILLER 30 The Third Series A Review New Third Series of Official Reports improves DEPARTMENTS utility and makes research easier. BY GERALD LEBOVITS 5 President’s Message 40 Law Practice Management 8 CLE Seminar Schedule Case Chronologies Create Litigation Efficiencies 18 Burden of Proof BY DAVID PAUL HOROWITZ BY GREG KREHEL 51 Language Tips 43 If It’s Out There BY GERTRUDE BLOCK Researching Legislative Intent in New York 52 Attorney Professionalism Forum Techniques for tackling legislative purpose. 54 Editor’s Mailbox BY WILLIAM H. MANZ 55 New Members Welcomed 47 Paying Off a Mortgage 61 Classified Notices A (Surprisingly) Convoluted Story 61 Index to Advertisers A variety of issues may complicate the seem- 63 2004-2005 Officers ingly simple act of satisfying a mortgage. 64 The Legal Writer BY BRUCE J. BERGMAN BY GERALD LEBOVITS
CARTOON © CARTOONRESOURCE.COM COVER PHOTO COURTESY OF THE CINCINNATI REDS
The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2005 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $18. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.
Journal | March/April 2005 | 3 PRESIDENT’S MESSAGE BY KENNETH G. STANDARD
A Matter of Justice
“While it is easy enough to agree that gated to handle all cases which are for adequate funding for the judicial independence is essential in order filed, and must do so effectively. The Commission on Judicial Discipline. to uphold the rule of law, more challenging 2005 budget request, in our view, is The Commission has experienced no by far is the task of putting these precepts reasonable and necessary in light of growth in funding in the past 25 years into practice.” these challenges. and, as a result, has suffered a signifi- – Supreme Court Justice Sandra Day The importance of the Bar’s efforts cant and debilitating reduction in staff O’Connor in support of the judiciary involves as its caseload has more than doubled. Between unpacking from our very more than the number of case filings The work of the Commission in main- successful Annual Meeting week in and more than the dollars needed to taining the integrity of the judiciary is New York and repacking to attend the fund the courts. It is a matter of doing fundamental. That work needs to be National Conference of Bar Presidents justice and a matter of fostering public supported with adequate funds for the and the American Bar Association trust and confidence in our legal Commission to fulfill its mandate and House of Delegates meetings in Salt process. That is the message I also con- its role in promoting public trust and Lake City, I took two important trips to veyed at the budget hearing. In a free confidence in the legal system. Albany. I testified on behalf of the society, the public, peaceful resolution Working for the balance of judicial Association in support of the judiciary of disputes ensures that all, including independence and accountability also budget at a legislative hearing. On a the weak, the poor and the unpopular was the objective when our Associa- subsequent afternoon, I attended the among us, receive fair justice. The rule tion promoted the creation of judicial Chief Judge’s address on the State of of law and a vibrant, open judicial sys- campaign monitoring committees in the Judiciary. tem are how we assure that occurs. To coordination with local bars, and It is incumbent upon us as lawyers be fair and effective, judicial decision developed a guide for conducting such to take every opportunity to advocate making and judicial administration campaigns. It was with this view also for the funding and other resources must be simultaneously independent that the Association submitted an needed to enable the third branch of of outside influences and considera- amicus curiae brief to the U.S. Court of government to meet today’s needs in tions and yet accountable in their Appeals for the Second Circuit in 2003 our justice system. New York’s court observance of the rule of law. For our in Spargo v. New York State Commission system is one of the busiest in the democracy to work, our three branches on Judicial Conduct, in which we nation and, indeed, in the world, with of government must respect and main- contended that the political activity almost four million civil and criminal tain their separate but co-equal roles provisions of the New York Code of case filings in 2003. As I told lawmak- and they must have the resources to Judicial Conduct serve a compelling ers in my testimony, we all rely on our do so. state interest. justice system for the prompt, fair and It was with these considerations in The budget process and sound pro- effective resolution of critical criminal mind that I also spoke at the budget visions for judicial conduct are not the and civil matters. The courts are obli- hearing about the Association’s support State Bar’s only concerns in this critical
Journal | March/April 2005 | 5 PRESIDENT’S MESSAGE balancing act. Another is the setting of ers, impaired public trust in our gov- the lawyers? Are members of our pro- judicial salaries. Our Association has a ernment and failed to effectively deal fession engaged in the protection of long-standing position calling for a with drug kingpins and the drug trade. our judicial system?” The advocate regularized method for reviewing and We were pleased when, last year, the reported that he found little positive adjusting judicial salaries, rather than legislature took a number of construc- response across the country, while not- relying on ad hoc actions. This need tive steps for reform, including ing some exceptions, including the also was discussed by Chief Judge decreasing sentences for nonviolent voices of judges and lawyers in New Kaye in her State of the Judiciary mes- drug offenders, reducing the number York. sage, in observing that while many of years required to be served in each The position of the New York State New York State judicial salaries were of the mandatory sentencing cate- Bar Association can be simply stated: adjusted six years ago to achieve pari- gories, and providing for earlier prison We will continue to speak out for the ty with the U.S. district court bench, no release times and merit time for partic- preservation of our justice system and New York State judicial salaries have ipation in treatment programs. We will the careful balancing of responsibilities been raised since and they all now lag continue to seek further action to pro- so critical to the due administration far behind federal levels. Unmistak- vide for judicial discretion in sentenc- of justice. Whether opposing FDR’s ably, judicial compensation is an indi- ing and funding for treatment pro- court-packing plan in the 1930s, pro- cator of the respect of society for our grams. posing a framework for reform of the third branch of government. While In a similar vein, U.S. Supreme Rockefeller drug laws today, or offer- mindful of today’s fiscal constraints, Court Justice Sandra Day O’Connor ing concrete recommendations on pro- certainly, the process of setting sala- observed in a recent speech, “Judicial cedures for judicial selection, compen- ries should be designed to foster judi- independence is not an end in itself, sation, the Code of Judicial Conduct, cial competence and independence but a means to an end. It is the kernel sentencing legislation or other meas- through a regular system of review of the rule of law, giving the citizenry ures, we will be there. We will use our and adjustment. confidence that the laws will be fairly strongest assets – the knowledge, the We, as lawyers, also must be atten- and equally applied. Nowhere is this experience, the minds and the courage tive to the impact of legislative propos- interest more keenly exposed than in of our members – to work to preserve als on judicial independence. I read the judicial protection of human the rule of law, to develop constructive with interest Chief Justice Rehnquist’s rights.” measures to improve the administra- comments in his 2004 Year-End Report History, here in New York and tion of justice, and to advocate for on the Federal Judiciary: “Although nationally, is replete with examples, these actions. Ours is a group effort, arguments over the federal judiciary such as Brown v. Board of Education, requiring statewide and grassroots have always been with us, criticism of where courts withstood public and action, as we deliver our message in judges, including charges of activism, political pressures directed against discussions with lawmakers, with have in the eyes of some taken a new what were considered unpopular deci- community leaders, and in the media. turn in recent years.” Among his con- sions, but today are considered to be It is the lesson that we teach in promot- cerns, he noted legislation introduced landmarks of justice. Celebrations of ing public understanding of these prin- in Congress “that would limit the juris- such milestone decisions, such as the ciples through our youth education diction of federal courts to decide con- events last year marking the 50th initiatives and in other public forums. stitutional challenges to certain kinds anniversary of Brown, provide us with Ensuring that these concepts are main- of government action.” the opportunity to educate Americans tained and strengthened is not an easy In recent years, in New York, in about the importance of judicial inde- mission, but it’s the right and only other states and nationally, the enact- pendence – in the past, today and in thing to do. ■ ment of legislation imposing mandato- the future – in confronting issues of ry sentencing and other measures have individual rights and liberties and KENNETH G. STANDARD can be reached eroded the ability of courts to take into societal safety. At this time when peo- by e-mail at [email protected]. account the individual circumstances ple are especially frightened of terror- of the cases and the defendants before ism, it is particularly important for us them. Our Association often has been to speak up for the rule of law, for the at the forefront in advocating for presumption of innocence and the preservation of judicial discretion. One right of those accused to counsel and a example of these efforts is our inten- prompt, public and fair trial. It is again sive work for reform of New York’s a time when we must speak up for drug laws, which, for the past 30 years, judicial independence. have resulted in unduly harsh sen- In remarks a few months ago, a tences for low-level nonviolent offend- judicial advocate asked, “What about
6 | Journal | March/April 2005 NYSBACLE Tentative Schedule of Spring Programs (Subject to Change)
The New York State Bar Association Has Been Certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.
Using the Internet for Legal Research Senior Housing Industry: An Evolving Business w/ Leigh Webber April 22 Albany Fulfills NY MCLE requirement for all attorneys (6.5): May 13 New York City 1.0 in ethics and professionalism; 5.5 in skills March 31 New York City Basic Securities Law for the Business Practitioner April 1 Smithtown, LI April 28 New York City April 27 Rochester April 28 Albany †Closing or Selling a Law Practice (half-day program) †Benefits, Health Care and the Workplace Fulfills NY MCLE requirement (4.0): 1.0 in ethics and profes- April 5 Rochester sionalism; 3.0 in practice management and/or areas of profes- April 13 Albany sional practice April 20 New York City April 29 New York City May 20 Melville, LI Maintaining Ethics and Civility in Litigation: June 17 Rochester What Every Lawyer Needs to Know (half-day program) Three Hot Topics in Criminal Law Fulfills NY MCLE requirement for all attorneys (4.0): 4.0 in (half-day program) ethics and professionalism Fulfills NY MCLE requirement for all attorneys (4.0): 2.0 in April 8 New York City; Rochester ethics and professionalism; .5 in skills; and 1.5 in practice April 15 Albany; Uniondale, LI management and professional practice April 29 Rochester Practical Skills: Family Court Practice – Custody, May 6 Albany Child Protective Proceedings and Ethics May 19 Uniondale, LI Fulfills NY MCLE requirement for all attorneys (7.5): May 20 New York City 2.0 in ethics and professionalism; 3.0 in skills and 2.5 in practice management and/or professional practice What Immigration Law Practitioners Must Know April 12 Albany; Buffalo; Melville, LI; About the New Labor Certification Regulations New York City; Rochester; May 4 New York City Syracuse; Westchester DWI: The Big Apple V 2005 Insurance Coverage Update – Personal Lines, (one-and-one-half-day program) Bad Faith and Other Developing Topics Note: CLE Seminar coupons and complimentary passes cannot Fulfills NY MCLE requirement for all attorneys (7.0): be used for this program .5 in ethics and professionalism; 3.0 in skills and 3.5 in practice May 5–6 New York City management and/or professional practice April 15 New York City Attorney Trust Accounts: Handling Clients’ Funds April 29 Melville, LI; Syracuse in New York May 6 Albany; Buffalo (half-day program) Live Presentations: Federal Civil Practice: A Primer May 5 Rochester Fulfills NY MCLE requirement for all attorneys (7.0): May 26 New York City 1.0 in ethics and professionalism; 2.5 in skills and 3.5 in June 2 Albany practice management and/or professional practice Live Video Conference Presentations: April 22 New York City June 2 Buffalo; Syracuse April 29 Albany May 6 Melville, LI; Rochester
† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. Proving and Defending Damages at Trial: Practical Skills: How to Commence a Civil Lawsuit Effective Trial Techniques for Plaintiff’s and Fulfills NY MCLE requirement for all attorneys (6.5): 1.0 in Defendant’s Counsel ethics and professionalism; 2.0 in skills and 3.5 in practice man- Fulfills NY MCLE requirement for all attorneys (6.5): 3.5 in agement and/or professional practice skills; and 3.0 in practice management and/or professional May 24 Albany; Buffalo; New York practice City; Rochester; Syracuse; May 6 New York City Uniondale, LI; Westchester May 13 Buffalo; Melville, LI May 20 Syracuse Emerging Environmental Topics for Corporate Lawyers Employment Law for the Corporate Counselor and June 1 New York City General Practitioner June 8 Melville, LI May 6 New York City June 10 Rochester; Tarrytown May 11 Albany June 13 Albany May 20 Rochester Women on the Move III The Nuts and Bolts of the Administration and (half-day program; reception to follow) Enforcement of Land Use Laws and Regulations June 2 New York City May 12 Syracuse June 3 Albany; Buffalo; Tarrytown The Heart of the Case w/ James McElhaney June 9 Uniondale, LI Fulfills NY MCLE requirement for all attorneys (7.0): 7.0 in skills Note: CLE Seminar coupons and complimentary passes cannot be Successfully Handling an Equitable Distribution used for this program Case from Start to Settlement June 2 Syracuse June 3 New York City May 13 Albany; Smithtown, LI May 20 New York City June 3 Rochester; Westchester †Advanced Document Drafting June 2 Tarrytown Practical Skills: Basic Elder Law Practice June 7 Buffalo June 9 New York City Fulfills NY MCLE requirement for all attorneys (6.5): 1.0 June 13 Syracuse in ethics and professionalism; 0.5 in skills and 5.0 in practice June 14 Uniondale, LI management and/or professional practice June 15 Albany May 16 Melville, LI; Rochester; Syracuse; Westchester May 18 Albany; New York City Practical Skills: Collections and the Enforcement of Money Judgments Estate Planning and Will Drafting Fulfills NY MCLE requirement for all attorneys (7.5): May 19 Tarrytown 1.0 in ethics and professionalism; 1.5 in skills and 3.5 in May 25 Albany; Melville, LI practice management and/or professional practice June 1 Binghamton June 6 Albany; Buffalo; Melville, LI; June 2 Buffalo New York City; Syracuse; June 7 Syracuse Westchester June 8 New York City; Rochester Recent Developments in Shareholder Litigation and Enforcement Initiatives June 10 New York City
To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 http://www.nysba.org/CLE/spring2005 (Note: As a NYSBA member, you’ll receive a substantial discount)
Manhattan freelance writer SKIP CARD
The personal papers of Justice Harry A. Blackmun add up to more than half a million notes and letters collected over a lifetime that included 24 years on the U.S.
Supreme Court. But one small memo stands out.
Mets infielder Felix Millan avoids the tag by Reds catcher Johnny Bench in the ninth inning of Game 2. The Mets scored four runs in their final at-bat to cap a 5-0 win and even the series at 1-1. Photo courtesy of the Cincinnati Reds.
Journal | March/April 2005 | 11 and a full-time Reds fan. During baseball season, he sub- scribed to Cincinnati newspapers to better track his team. He kept in his wallet a folded sheet of baseball’s statisti- cal probabilities, such as how likely a runner would be to score if he reached third base with no one out. While the 58-year-old Stewart listened to that after- noon’s oral arguments, his three clerks – Terry Perris, Andy Hurwitz and Fred Davis – were, at his request, monitoring the action at Shea Stadium on a small black- and-white television in the justice’s chambers. “He had asked us to keep tabs of the score of the Reds- Mets game while he was on the bench and we were at our desks doing our work, and to send into him via one of the pages half-inning reports of the score of the game. We did that throughout the playoffs while the Court was in ses- sion,” recalled Perris, now a partner and tax law attorney with the Cleveland office of Squire Sanders & Dempsey. Perris keeps Stewart’s handwritten request for ballgame scores under glass atop his credenza, a memento of his time with the justice. Photo by Avie Schneider, NPR. Stewart’s sympathies were clearly with the Reds, but his powers of observation and language often draw com- It is written on palm-size notepad stationery topped parisons with Yogi Berra, the former Yankee catcher who with “Supreme Court of the United States Memoran- in 1973 was managing the Mets. (The Court-watching dum” in black italics. It is unsigned, but it was passed to Web site
12 | Journal | March/April 2005 The Cincinnati Reds were in their Big Red Machine heyday and had finished the 1973 regular season atop the National League West with 99 wins and 63 losses. Pete Rose won the Most Valuable Player Award that year after finishing the season with a league-best .338 batting aver- age and 230 hits. Reds pitcher Jack Billingham recorded a league-best seven shutouts. The New York Mets, on the other hand, were upstart contenders. In last place in the National League East as late as August 10, the Mets vaulted to first place on September 21 and held on to capture the division title with an 82–79 win-loss record. (That record would have On August 8, 1973, Vice President Agnew refuted allegations put them in fourth place had the Mets played in the that he was involved in political payoffs, saying "absolutely National League West.) The Mets’ bright spot was pitch- not" when asked if he was giving any thought to resigning. er Tom Seaver, who led the league with a 2.08 earned-run Photo from AP/Wide World Photos. average, 251 strikeouts and 18 complete games – good enough to win that year’s Cy Young Award. But the best-of-five series became an unexpectedly The updates sent by Stewart’s clerks were at times tough contest. On October 8, in Game 3, Rose ignited a rather elaborate, particularly when the Reds were at bat. fifth-inning brawl by punching Mets shortstop Buddy The first game memo, forwarded from Stewart down the Harrelson. The next day, Rose hit a 12th-inning home run bench to Blackmun and preserved in Blackmun’s to tie the series at 2–2. For Game 5, the Mets sent Seaver archives, is written in the crimped handwriting of Fred to pitch on three days’ rest. The Reds put Billingham on Davis, now a litigation partner in the office of Shearman the mound. & Sterling in Manhattan. It gives a batter-by-batter
Journal | March/April 2005 | 13 description of the first half of the first inning, when legally in the United Seaver had yet to find his rhythm: States and the wife of Rose grounded to 2nd. a naturalized U.S. cit- Morgan walked. izen, had been denied Driessen singled and Morgan took 3rd. a job as a seamstress Driessen took 2nd on WP. at the Farah plant in Perez struck out swinging. San Antonio, Texas. Bench walked intentionally. Farah, which blos- Griffey flied to center w/ bases loaded. somed as a clothing NO SCORE. manufacturer by sup- Justice Potter Stewart. The Mets scored two runs in the bottom half of the plying khaki fatigues (Courtesy of the U.S. first. As the inning wrapped up, NBC broke the news of to the U.S. military in Supreme Court) Agnew’s resignation. The Vice President’s no-contest plea World War II, forbade ended 65 days of defiantly claiming innocence of charges employment to anyone who was not a U.S. citizen. that he failed to report $29,500 of income received in 1967 Farah’s San Antonio plant was hardly a hotbed of racism; while he was governor of Maryland. Agnew was fined up to 96% of its employees were Mexican-Americans, and $10,000 but spared a prison term on the condition he Farah itself had been started by two Lebanese immigrants leave office. who learned the shirt-making trade in New York City. “The Vice President had resigned. It was pretty cata- Still, Espinoza sued on the grounds that Farah’s rule con- clysmic news,” recalled Davis. That summer, congres- stituted discrimination based on her national origin and sional hearings into the Watergate break-in had cast a therefore violated Title VII of the 1964 Civil Rights Act. cloud over President Richard Nixon, and critics were call- Arguing for the plaintiff was George Cooper, who had ing for impeachment. Washington had become a city of been one of Davis’s tax law professors at Colum-bia news junkies, and each day seemed to bring dramatic University. Cooper argued that national origin and citi- surprises. zenship were inescapably linked, and a citizenship “That year, all of us would spend an hour or two a day requirement imposed a burden on ethnic groups at the reading the paper,” Davis said. lowest rung of U.S. society. Resident aliens of Mexican Court clerk Andy Hurwitz grabbed a felt pen and a ancestry living in Texas were simply the latest new Supreme Court memo pad and scribbled down the news arrivals to face discrimination, Cooper told the Court. out of both Baltimore and Queens. Observing proper Some justices seemed impatient with Cooper’s history Washington decorum, Hurwitz gave Agnew’s announce- lesson. The audiotape of the proceedings kept in the ment priority over the baseball score. For gravity, he National Archives in Washington reveals a testy exchange added two exclamation points. A photograph of the note with Justice Thurgood Marshall: was featured in the New York Times when Blackmun’s papers were released in 2004. Cooper: “The ethnic group which is most harshly “The handwriting on the note is definitely mine,” affected by a citizenship requirement is the ethnic group recalled Hurwitz, now a justice on the Arizona Supreme at a particular time and place that is most heavily made Court. “My son rec- up of recent immigrants. In Boston in 1850, the ethnic ognized it in the group . . .” Times, and once I saw it, so did I.” Marshall: “We’re not talking about 1850. We’re talking Hurwitz folded about now.” the note, addressed it to “Stewart, J.” and Cooper: “Now, in . . .” handed it to a Court page. The news Marshall: “What is your ethnic group that you’re talk- reached the bench as ing about now?” the nine justices were hearing arguments in Cooper: “Yes, your honor. Now . . .” the fourth and final case of the day, Marshall: “We’re talking about foreign people who Espinoza v. Farah haven’t been naturalized.” Justice Harry Blackmun. Manufacturing Co.1 (Courtesy of the U.S. Cecilia Espinoza, a Cooper: “Your honor, in . . .” Supreme Court) Mexican citizen living
14 | Journal | March/April 2005 Marshall. “As opposed to foreign people who have Unknown justice, in a whisper: “The Vice President been naturalized. And you’re going to break those up into has resigned.” two separate groups?” Cooper: “. . . to the extent that the citizenship require- Cooper: “No, your honor. No, your honor.” ment is unlawful because of its discriminatory impact, discriminatory effects. We don’t say that it’s per se unlaw- Marshall: “I hope you don’t try.” ful. We say rather that it’s unlawful . . .”
When the note announcing Agnew’s resignation Unknown justice: “The Vice President has resigned.” arrived on the bench, 13 minutes into Cooper’s oral argu- ment, shocked whispers picked up by the Court’s open Cooper: “. . . unless . . .” microphones can clearly be heard on the transcript tape. Davis, aware the note would cause a stir while his former Unknown justice: “What?” professor was arguing his case, crept into the courtroom to watch the scene unfold and see how it affected Cooper argues onward, but murmuring and whisper- Cooper’s delivery. ing continue. Cooper begins to sound like a frustrated “He noticed that they weren’t paying attention,” schoolteacher dealing with distracted schoolboys. He Davis recalled. pauses, then slows his speech to a crawl, hoping to regain The note arrived as Cooper was explaining how the Court’s attention. Espinoza was unable to pass a citizenship test because she didn’t speak English. Cooper: “In terms, in terms of ethnic . . . discrimina- tion . . . again . . . the point is, your honors . . . that in each Cooper: “The mere fact that you can’t speak English case the effect of the citizenship requirement will be to doesn’t necessarily preclude you from being a citizen, discriminate against a particular group which predomi- unless you were born abroad. And it doesn’t have any- nates in the alien population at the time.” thing to do with this job. That of course is crucial . . .”
Journal | March/April 2005 | 15 Judicial Holdings
Few rules restrict what a Supreme Court justice And from November 1, 1992: “Harry: I think can keep in his personal library, and Harry your hearing aid is emitting quite a high pitched Blackmun’s files in the Library of Congress are full sound. Can it be adjusted? Sandra.” of scraps of curious correspondence. Container Baseball notes between Blackmun and Potter 116, which includes folders of notes exchanged Stewart continue through the 1980 season. On between justices during proceedings, makes for April 14, 1980, Stewart wrote: particularly good reading if you’re a fan of court- Harry, room apocrypha. The Cincinnati Reds are off to a surpris- Many memos addressed to Blackmun bear a ingly impressive start: 4 straight wins, scrawled signature that looks like “Will” or “W” including 3 shutouts – and Seaver hasn’t and likely came from Justice William O. Douglas. pitched yet. It’s been my observation that One scrap from November 16, 1971, reads, “Note in the Western Division of the N.L. the ‘blond’ in second row center. She is here almost team that gets off to a fast start is hard to daily – at least since you came!” beat – e.g. the Los Angeles Dodgers 2 Another is dated December 16, 1974: “We years ago. should not give this guy many points in his argu- P.S. ment. But so far as his jacket is concerned, he Yet, the prize for the oddest item in any jus- comes out way above the average.” tice’s library probably goes to Lewis Powell, whose Chief Justice Warren Burger often sent notes papers and effects are kept at Washington and to his childhood friend, Harry Blackmun. Lee University’s School of Law. In an attempt to March 4, 1974: “HAB, How would you like my debunk what seemed a likely urban myth, an job? WEB.” e-mail was sent to archivist John N. Jacob to December 2, 1974: “Harry, Here’s Bill’s script. inquire whether the Powell archives indeed con- For me, it is as flat as a Swedish pancake. Not bad, tained the justice’s old college jockstrap. Jacob just plain dull! Am I way off? WEB.” replied: Several are curious keepsakes. One might won- “While I haven’t conducted DNA tests, I have der why Blackmun preserved a note dated every reason to believe that we do, indeed, hold (I December 8, 1971, written by the cleaning use the term advisedly) this item. (I attempted to woman: “Mr. Justice, I am so sorry that I left the send you a photo, but it was too big for your trash in your chair. I had to leave in a hurry. My e-mail box – the photo, not the garment.) mother had a heart attack 5:45 yesterday morn- “Powell, you may know, chose W&L because he ing. Another girl took over my job. Please for give was recruited for baseball (1st base). Alas, he was [sic] me.” cut from the team and served as its manager.”
Perris remembered the moment. Rights Act, a subcommittee chairman had plainly stated “He completely lost the attention of the bench as the that “national origin” meant a person’s country of birth justices talked among themselves about the contents of or the country from which his ancestors came. Besides, the note – certainly not the game score but the Agnew res- Carr said, even the federal government required its ignation,” Perris said. employees to be citizens, another indication of legislative It’s not certain Hurwitz’s note to Stewart started the intent. whispering. When the resignation was announced on tel- The Court sided with Farah. In an 8–1 decision evision, Chief Justice Burger’s clerk Joe Zengerle, a West announced November 19, Marshall wrote for the majori- Point graduate who had studied law at the University of ty, “Certainly it would be unlawful for an employer to Michigan, sent Burger a note reading, “Chief: NBC News discriminate against aliens because of race, color, religion, just said Agnew just resigned.” It’s possible the notes sex, or national origin. . . . [B]ut nothing in the Act makes reached Stewart and Burger about the same time, and the it illegal to discriminate on the basis of citizenship.”2 news started spreading along the bench from two But Marshall’s decision included a caveat: The Equal sources. Both notes wound up in the hands of Blackmun, Employment Opportunity Commission could still charge and both survive among his personal papers. an employer with discrimination if a citizenship require- The whispers had stopped by the time Farah’s attor- ment was “but one part of a wider scheme of unlawful ney, Kenneth R. Carr, stepped up to speak. Carr’s chief national-origin discrimination.”3 That caveat deflected point was that, during congressional debate on the Civil the main thrust of the ruling. Today, the EEOC Web site
16 | Journal | March/April 2005 points to Espinoza v. Farah as proof that non-citizens are entitled to federal protection against discrimination, and that a citizenship requirement is illegal in most cases if it is discrimination in disguise. The Farah Manufacturing Co. changed over the decades, too. The clothing firm stubbornly kept produc- tion in the United States until 1987, when it opened two plants in Mexico. In 1998, the struggling Farah label was acquired by Tropical Sportswear International (TSI) and merged with Savane. TSI’s production plants are outside the United States. Today, if you want a job sewing Farah slacks, being a U.S. citizen is clearly a disadvantage. While Farah became a footnote, the Watergate scandal rewrote U.S. history. Two days after Agnew’s 1973 resig- nation, President Nixon named Congressman Gerald Agnew emerges from federal court on October 10, 1973, Ford, the House of Representatives’ minority leader, to be after pleading no contest to a charge of tax evasion and his new Vice President. Ford assumed the presidency on resigning from the Vice Presidency. August 9, 1974, when Nixon resigned amid charges of a Photo from AP/Wide World Photos. cover-up. Agnew died on September 17, 1996, at age 77, still bitter at the idea he had been fed to the wolves to divert attention from the scandal surrounding the reads: “Dear Harry, Many thanks. It was a great Series, President. and the Reds were darn lucky to win. P.S.” Attorney George Cooper married writer Judy Blume Also in Blackmun’s archives from that time is what in 1987. Blume, one of America’s most successful authors appears to be marker for a friendly Series wager: of books for children and young adults, claims to be a Winner of World Series: Mets fan. Red Sox H.A.B $2.50 Baseball endured. But on October 10, 1973, Reds fans Reds P.S. $4.00 had their hearts broken. Mets ace Tom “Terrific” Seaver pitched 8 1/3 innings Stewart retired from the Supreme Court in July 1981, and gave up just seven hits and one earned run. Reds amid a baseball labor strike. He died in 1985. starting pitcher Billingham, roughed up for five earned Blackmun retired from the Supreme Court in 1994, runs in four innings (including three runs in the fifth and later gave his personal papers to the Library of before he could record an out), took the loss. The final Congress. The vast collection includes six folders of score was Mets 7, Reds 2. Potter Stewart probably drove newsletters from the Emil Verban Memorial Society, a home in time to see the final innings. group of dedicated Chicago Cubs fans. (Verban, the Cubs’ “Everybody felt, including Stewart, that the better hardworking second baseman from 1948 to 1950, is still team lost,” Davis said. very much alive, which tells you something about the The 7–2 victory sent Mets fans into a frenzy. Jubilant society.) Blackmun, member No. 47 in the Washington, New Yorkers, who had paid $3 for general admission D.C., chapter, preserved each issue of the newsletter from seats (twice Shea Stadium’s normal $1.50 price), poured 1982 to 1998. One of the final scraps of correspondence in onto the field in a riotous celebration after the last out. his archives indicates that illness prevented Blackmun Hundreds of grassy chunks were ripped from the Shea from attending the society’s luncheon meeting. turf as souvenirs. Some of those bits of sod still grow in Blackmun died March 4, 1999. As he requested, his New York lawns, small shrines to an improbable victory. personal papers were released five years later. His legacy The Mets went to the World Series in 1973 but lost in consists of 530,800 items in 1,585 containers. One tiny seven games to the Oakland A’s. The New York team later note from October 10, 1973, rests among them. tanked, finishing at the bottom of the National League You can look it up. ■ East in 1977, 1978, 1979, 1982 and 1983. The Cincinnati Reds rebounded. The Reds won the 1. 414 U.S. 86 (1973). World Series in 1975 and 1976, much to the delight of 2. Id. at 95. Potter Stewart, who continued to trade baseball notes 3. Id. at 92. with Blackmun. Several are preserved in Blackmun’s files. One, dated October 23, 1975, after the Cincinnati Reds defeated the Boston Red Sox for the championship,
Journal | March/April 2005 | 17 BURDEN OF PROOF BY DAVID PAUL HOROWITZ
DAVID PAUL HOROWITZ
long with graying hair and ruin a legal career. Nothing is further dred, a witness comes into a dep- creaky knees, ageing brings from the truth. Your parents were right osition already believing you are Awith it the realization that all along, so keep the following points smarter. This advantage is yours your parents were very smart people. in mind: to lose. Long before you read To Kill a • Outside of the people attending • When it is absolutely necessary to Mockingbird, or saw your first episode the deposition, no one will ever fight with the witness, remember, of “L.A. Law,” your parents knew you know if you are nice (although there is a record being made. would one day be a lawyer. The proof? the court reporter will remember, Know when you are on and off the They told you nearly everything you and may gloss over some of your record, and, when on the record, need to know in order to conduct mistakes, and correct some of keep your words neutral (making effective depositions (omitting only a your malapropisms, when pro- faces and rude gestures will not few gems such as, “Move to strike as ducing the transcript). appear in the transcript, but can non-responsive”). Sadly, several years • Relaxing the witness is a good still come back to haunt you). of law school and countless hours thing; engaging the witness in a spent with “more experienced” attor- conversation, on the record, is “Don’t Take No for an Answer” neys convinced you that lawyers are even better. Almost everyone is Actually, your parents meant to say, different from other people (“we teach more giving and forthcoming “Don’t take ‘I don’t know’ for an you to think like a lawyer”), and, when relaxed. Other than answer.” While some witnesses believe therefore, should speak and act differ- lawyers, everyone else in the that saying, “I don’t know” makes ently from other people. You listened world engages in conversations, them appear stupid and, consequently, to them, and ignored what your par- not rapid-fire questions and will not answer that way (even when ents told you. Big mistake. If you keep answers (forget how you try to they truly don’t know), many other in mind what your parents told you, converse with your spouse or sig- witnesses fall into a gentle patter of and follow their advice, your deposi- nificant other). answering many questions that way. tion skills will rise to new heights. • Fighting with the witness breaks Never, never accept this as the wit- For those of you who have forgot- the flow of your examination. It is ness’s “final answer.” There are count- ten, here is what your parents told you: difficult enough to remember to less follow-up questions you can ask to ask necessary questions, and elicit meaningful information: “You Catch More Flies With Honey remember to follow up on new, • If you don’t know the informa- Than Vinegar” relevant, areas of inquiry, without tion now, did you once know it? This is an oldie, but a goodie, and the getting involved in jousting con- • If you don’t know, who would one most often forgotten. Witnesses tests with the witness. Remember, know? either believe that they are there to it is your examination: organized, • If you don’t know the name of a “tell the truth, the whole truth, and well-thought-out, and clear depo- person who would know, is there a nothing but the truth,” or believe that sition questions that elicit a series person with a particular job title or you, as opposing counsel, are Satan’s of non-responsive answers will responsibility who would know? representative on earth. Whichever of hurt the witness at trial. • Is there a record that has that the two categories of witness you are • If your goal is to prove that you information? facing, being nasty and unpleasant will are smarter than the witness, you • If you don’t know of a record, not help you. Many attorneys believe, will lose an important advantage. who would know if there is a wrongly, that being a nice person can Ninety-nine times out of a hun- record that has that information?
18 | Journal | March/April 2005 Keep in mind that all
“A Job Worth Doing Is Worth • Review the file and, when you the time in the Doing Well” find what is missing (and there is While a mediocre deposition may not always something missing), world would not take as long as a superb one, once you attempt to fill in whatever gaps salvage a deposition factor in the travel time to and from the exist before the deposition com- deposition, the fact that your fixed mences and, if the missing materi- for which you are overhead for the deposition is the same al is crucial and cannot be (laundered shirt, shined shoes, two obtained or replicated, adjourn not prepared. tokens, and hairspray), and the fact the deposition. that you risk losing your job if the boss • Have all necessary exhibits organ- day of the deposition. If you ask finds out you went shopping at Macy’s ized (pre-marking them with the relevant, well-thought-out ques- for an hour and a half after the deposi- court reporter is a nice timesaver) tions, following up where neces- tion was completed (because a compe- and lay a proper foundation for sary, you will have a wonderful, tent deposition would have taken at the exhibit, on the record, so that written record of the deposition. least that much additional time), what the exhibit can go into evidence at If you need more time, or an have you really saved? And keep in time of trial. additional day, no reasonable mind that all the time in the world • Follow up on new areas of court will refuse you, so take would not salvage a deposition for inquiry that become apparent at your time and control the pacing which you are not prepared. Still not the deposition. This is especially of the deposition. convinced? Try these reasons on for important if you have a script to • Learn as much as you can before size: follow: know when to deviate. the deposition commences. Don’t • An organized, focused deposition • Don’t worry about finishing at a limit yourself to the material in invariably proceeds faster than particular time, or even on the your file. If there are technical one that is not. • With an organized deposition, you will have the exhibits you need at trial already identified and ready to be admitted into evi- dence. • The witness will not resent your wasting her or his time and will be more likely to be forthcoming because you will appear to be in command of the relevant material. • Opposing counsel will tread more carefully with you for the remain- der of the case (and any other case you have together). • If you do a shoddy job, your boss (or a trial judge, someday) may actually read the transcript and realize you are a moron.
“The Devil Is in the Details” Washing behind your ears, tucking in the corners of your bed sheets, and buttoning all of the buttons on you shirt were a real drag as a kid, but aren’t you now glad you learned to do them? Depositions are the same. There are any number of mundane, boring things you should do at a deposition that will contribute to its being a resounding success. Among these are the following:
Journal | March/April 2005 | 19 tion. What chance do you have if you are exhausted? Often, being refreshed and alert plays a major role in any suc- cessful deposition. Some suggestions: • Prepare ahead of time. Even if you are in bed for the proscribed time, knowing an important dep- osition is on the next morning, for which you are woefully unpre- pared, will make for a lousy night in bed. • You will daydream during a dep- osition: everyone does. The trick is to realize you are doing it and issues, have an idea of the terms the job. If the witness is a retiree, stop. Have the reporter read back and concepts involved. While you ask about what the witness does the last question and answer to will learn a lot from your witness with his or her time. Let witnesses give you time to re-group and re- during the deposition, and often a present themselves as a three- focus. witness will want to teach you, dimensional persons. You can bet • If you are tired or just bored, take having a solid foundation before the attorney preparing the wit- a break. Take a quick walk out- the deposition will be of invalu- ness did not let the witness talk side or splash some water on able help. about this, and the witness will be your face. appreciative and, perhaps, more • Arrive on time (early is better). If “It’s Not All About You” forthcoming. you need to go into a second day, While we all think we are hot stuff, the • Let the witness teach you. While you are far more likely to get a deposition room is not a courtroom (or you may know as much as or second day, over objection, if the theater) for you to star in. The witness more than the witness does about record reflects that you started should be the focus. Strut your stuff the machine involved in the case the deposition on time, not an somewhere else. or the surgery the doctor per- hour and a half after the sched- • Consider wearing something formed, showing off for the wit- uled time. other than your Armani suit and ness will usually make the wit- • Be attuned to the others in the killer shoes. Try the Mr. Rogers- ness less forthcoming. Hold back room. If opposing counsel is like approach, especially with an for a while and see what the wit- asleep, fine. If the witness is older or less educated witness. ness tells you. Of course, there is drowsy or punchy, ascertain if this Wear a sweater (patches at the nothing wrong with, every once is helping you (getting the witness elbow help) and use a pen that in a while, letting slip to the wit- to lower her or his guard) or hurt- cost less than $500. Not only will ness that you know something ing you (answers are unresponsive the witness relax, you will feel about the matter at hand. or make no sense). If it is hurting more comfortable and not have to • We all have bad days. If you are you, confer with your opponent kick yourself after the deposition having one, look for another outside of the hearing of the wit- for losing your Mont Blanc. attorney to take up the question- ness and suggest a break. The • Let the witness talk. You are not ing to give you a chance to re- most dangerous thing is if the there to testify, and there is no group. Ask another attorney who court reporter is asleep. You will jury there to hear what you say is present if you forgot some- have an incomplete or incorrect and confuse what you say with thing, or if there is something else transcript (both are terrible). testimony. Let there be a dis- you should go into. On rare occa- cernible pause after the witness sions, an opponent will give you “Beware of Strangers has given an answer. You will be some assistance (and remember, a Bearing Gifts” surprised how often the witness good record can serve your oppo- We are all susceptible to the narcotic will then resume talking, and give nent’s interests as well as yours). effect of sumptuous offices, free coffee answers you would never have and Danish, and generous doses of elicited by direct questioning. “Early to Bed, Early to Rise . . .” flattery. Graciously accept opposing • Show interest in what the witness Perhaps nothing can put a group of counsel’s hospitality and pleasant does and who the witness is. If inquisitive, intelligent, and well-rested chatter, but don’t forget that you are in the witness has a job, ask about people to sleep faster than a deposi- unfriendly territory.
20 | Journal | March/April 2005 • Beware the jolly, friendly, and the refinement of skills and the benefit will give the witness an opportu- outgoing witness. This person is of meaningful experience, an attor- nity to weasel out of the previous not your friend, nor is he or she ney’s questioning will focus like a laser good answer. likely to be after the deposition. on the crucial areas of a case, moving • Keep pedigree/biographical Your transcript will be full of from one element of a cause of action questioning to a bare minimum unresponsive answers and mean- (or element of damages) to another. (unless necessary for your case). ingless chatter. Such a deposition can take surprising- What the witness studied in jun- • Beware the jolly, friendly, and ly little time, while having an extreme- ior high school cannot possibly outgoing opponent. This person ly satisfying result. help your case. When, at 4:30 PM, is not your friend, nor is he or she • Understand what you have to you realize you still have to ques- likely to be after the deposition prove or find out from the wit- tion the witness about how the You will read with amazement a ness before you start the deposi- accident happened, you will real- transcript of the deposition where tion. Usually, a witness will serve ly be under the gun. most of the answers to your ques- to provide testimony for one or • If co-counsel, or another opposing tions come from the attorney, not more elements of a cause of action party, has the primary interest in the witness. (or item of damages), and your proving a particular element of a • Beware the flirtatious and sensu- focus should be on obtaining this case, consider deferring to that ous court reporter. This person is testimony. attorney for questioning in that probably not your friend, nor is • Know when you have gotten a area. You can always ask any nec- he or she likely to date you after good answer and move on imme- essary follow-up questions after the deposition. Lord knows what diately to something else. In the other attorney has questioned will be in your transcript. attempting to gild the lily, you the witness. • Beware the overly helpful wit- ness, especially the overly helpful expert witness (truly an oxy- moron). You will read a transcript wherein you were skillfully diverted from your focus of inquiry to something benign or, worse, helpful to opposing coun- sel. • Beware the questions your oppo- nent suggests after objecting “to form.” You will be amazed when you read the transcript to find subtle shifts in the question that lead the questioning down a fork in the road to nowhere.
“Less Is More” Over a lawyer’s career, the length of that lawyer’s depositions, all things being equal, will often graph out as a standard bell curve. At first, like a deer caught in the headlights of an oncom- ing car, a new attorney wants to get out of the deposition room as quickly as possible, and depositions tend to be over almost before they start. Next, after having observed other, “more experienced” attorneys, and having been exposed to numerous areas and lines of (often irrelevant) questioning, an attorney’s depositions balloon out, filling days and weeks. Finally, with
Journal | March/April 2005 | 21 It must be made clear that you are not going to conclude the deposition until the witness gives you the answers and information to which you are entitled.
• When you have obtained the tes- “Because I’m the Parent, ous attorney will temper her or timony you need, stop. That’s Why” his remarks when a record is Continued questioning will afford This is more a statement of fact than a being made. the witness the opportunity to helpful tip. While your parents were • Don’t be afraid to take a break muddy the waters and, with patient, and would explain things over from the deposition to obtain skilled coaching by opposing and over again, there would invariably authority for the position you are counsel, recant beneficial testimo- come a time when you, the apple of advocating, either by calling ny previously (and perhaps their eye, just didn’t or wouldn’t get it. someone for information (for painstakingly) obtained. Often there comes such a time (or those of you who don’t yet have times) during a deposition. It is now the entire N.Y.S.2d on your Palm “Be Prepared” time to mothball Tip No. 1 and let the Pilot) or looking it up during Your parents, not to mention the Boy witness and/or opposing counsel lunch or a break. Scouts of America, were right. There is know that you are in charge. It must be • Never call the judge unless you no doubt that, once you have a couple made clear that you are not going to absolutely have to, and never fail of depositions under your belt, you can conclude the deposition until the wit- to call the judge when you wing a deposition. It happens every ness gives you the answers and infor- absolutely have to. Very often, the day. Sometimes you get lucky. More mation to which you are entitled. A ogre who has been tormenting often, you don’t. Unless you and lady few ways to do this without making you for the last hour and a half at luck have an ironclad agreement, don’t your child, I mean the witness, hate the deposition will turn concilia- wing it. Benefits of being prepared you: tory and explain what a big mis- include: a good night’s sleep both the • Acknowledge the witness’s incor- take it all was when you actually night before and the night after the rect/non-responsive answer, and call the judge (as opposed to deposition, the respect of all in atten- ask the witness to listen carefully whining that you are going to call dance, and steady employment. A few as you repeat the question (better the judge). I don’t think there is a examples should suffice: yet, have the court reporter read single judge who relishes taking • Visit the scene of the occurrence, back your question so that the these calls but, when called upon if necessary (yes, leave the sancti- witness doesn’t think you to do so, most listen patiently and ty of your office). changed the question) so the wit- make a ruling. Note that the deci- • Have case citations at the ready ness can give a responsive sions are not always correct, and for issues on privilege and scope answer. you are in a bit of a bind when of the examination that are likely • Read back, verbatim from your the judge orders you to do, or to arise. notes, the prior answer given by stop doing, something that you • Know the applicable rules gov- the witness that you are now must do, or not do, to successful- erning the deposition, not forget- referring to and, when the wit- ly complete your deposition. ting to look at the particular ness or attorney disputes it, have Having “charted your course,” orders and stipulations applicable the court reporter read it back. you are now obligated to follow in your case. You will be surprised to find you it. • Familiarize yourself with terms of need to do this only once or twice art and concepts involved in your before the witness and the attor- “Someday You’ll Thank Me” case that are outside your experi- ney believe anything you say With age comes experience, and ence. about the witness’s prior testimo- maybe even wisdom. You’ve devel- • Anticipate evidentiary problems ny. oped enviable deposition skills. Your likely to arise at trial, and attempt • Don’t make the mistake of going parents were right – so give them a to deal with them at the deposi- off the record when the going gets call. ■ tion. tough. Even the most obstreper-
22 | Journal | March/April 2005 The Daubert Debacle By Henry G. Miller
aubert v. Merrell Dow Pharmaceuticals, Inc.1 is con- superseded by the adoption of the Federal Rules of sidered by some to be a dyslexic decision. It rules Evidence. Specifically, he held Rule 702 does not incorpo- Done way but goes the other way. rate the general acceptance standard and such a require- Justice Blackmun, writing for the Supreme Court, ment would be “at odds” with the “liberal thrust” of the found the 1923 decision Frye v. United States2 too restric- Federal Rules and their “general approach of relaxing the tive. Frye, decided by the Court of Appeals for the District traditional barriers to ‘opinion testimony.’”4 Judge Jack of Columbia, had long been the Rosetta stone of decipher- Weinstein, a prolific and highly regarded thinker on the ing whether expert opinion was admissible or not. A subject, is quoted by the Court: “The Rules were designed remarkably short case free of citations, Frye had been to depend primarily upon lawyer-adversaries and sensi- cited over and over throughout the country. It upheld the ble triers of fact to evaluate conflicts.”5 Justice Blackmun exclusion of expert testimony on a new procedure called further referred to the “permissive backdrop” of the the systolic blood pressure deception test. Since the test Rules. If Justice Blackmun had stopped there, there prob- lacked “general acceptance,” it was inadmissible. Frye ably would be no Daubert controversy. concluded that “courts will go a long way in admitting However, Justice Blackmun did continue to write. expert testimony deduced from a well-recognized scien- What we now have, depending on your viewpoint, is the tific principle . . . [however] the thing from which the Daubert Disaster or the Daubert Delight. In either case, deduction is made must be sufficiently established to it’s a . . . have gained general acceptance.”3 Thus, general accept- ance was the decisive element for 70 years. Revolution Then along came Daubert. The children-plaintiffs sued Justice Blackmun went on to say the Court’s ruling does the makers of Bendectin, an anti-nausea drug, for birth not mean there are no limits on the admissibility of scien- defects they allegedly sustained as a result of their moth- tific evidence. Judges must ensure that scientific evidence ers’ ingestion of that product. The District Court for the
Southern District of California granted the company’s HENRY G. MILLER is a partner at Clark, Gagliardi & Miller, P.C., in White motion for summary judgment and the Court of Appeals Plains. He is the author of On Trial: Lessons From a Life in the affirmed. The standard of admissibility used by the lower Courtroom, ALM Publishing, New York, and a past president of the New courts was Frye’s “general acceptance.” York State Bar Association. He is a graduate of St. John’s University and The Supreme Court reversed, holding that “general attended Columbia University and New York University. acceptance” is not a necessary precondition to the admis- This article first appeared, in a slightly different form, in the NYSBA’s sibility of scientific evidence under the Federal Rules of Torts, Insurance and Compensation Law Section’s Summer 2003 Journal. Evidence. Justice Blackmun wrote that the Frye test was
24 | Journal | March/April 2005 There are at least 50 different is not only “relevant,” but “reliable” as well. He added, hurdles that various “Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist.”6 He then went courts have directed experts on to list four considerations which bear on the admissi- bility of opinion evidence based on a scientific theory or to surmount. technique: (1) whether the theory or technique has been tested; (2) whether it has been subjected to peer review Institute is urging defense lawyers to file Daubert motions and publication; (3) whether it gives rise to a significant whenever possible. rate of error; and (4) amazingly, whether it has general The factors on the checklist in Daubert have been acceptance. Back to Frye we go. Thus, in a ruling designed increasing. By one count, there are at least 50 different to liberalize Frye, the Court actually added factors over hurdles that various courts have directed experts to sur- and above general acceptance. mount, this according to Ned Miltenberg, speaking at the The Court added that Rule 702 is a flexible one. Courts ATLA Annual Convention in 2000. Not happy about this should focus on methodology, not conclusions. The Court trend, he titled his paper “Out of the Fryeing Pan and Into further cited Rule 403, which states that relevant evidence the Fire.” may be excluded if its probative value is outweighed by unfair prejudice. The Joiner Juggernaut Those representing the manufacturer were concerned The benevolent gate keeping of Daubert turned into what that the abandonment of “general acceptance” would one commentator called, less kindly, “Checkpoint result in a free-for-all in which befuddled juries would be Charley.” Opponents of Daubert have argued that gate confounded by absurd pseudo-scientific assertions. keeping is a euphemism for industry safekeeping. No Those representing the children worried that such a matter what view is espoused, four years after Daubert, a screening role for the judge would allow for the exclusion stricter interpretation of judicial gate keeping followed. of too much evidence, creating a stifling and repressive In General Electric Co. v. Joiner,11 the Supreme Court atmosphere inimical to the search for truth. addressed the Daubert issue once again. The main holding Justice Blackmun anticipated that a balance would be is bland enough. Much delegation of authority to the struck by the “gate keeping role” of the judge. He argued, lower courts is given. The District Court will only be “Vigorous cross-examination, presentation of contrary reversed for admitting or excluding expert opinion when evidence, and careful instruction on the burden of proof it abuses its discretion. are the traditional and appropriate means of attacking In Joiner, an electrician suffering from lung cancer shaky but admissible evidence.”7 In addition, he pointed sued the manufacturers of PCBs and other products. out that the courts remain free to direct a judgment or Defendants removed the case to federal court. The grant summary judgment in weak cases. Justice District Court excluded the testimony of the electrician’s Blackmun concluded, “These conventional devices rather experts and granted defendant’s motion for summary than wholesale exclusion under an uncompromising judgment. The Eleventh Circuit Court of Appeals ‘general acceptance’ test are the appropriate safeguards reversed, holding that such a wholesale exclusion was where the basis of scientific testimony meets the stan- dards of rule 702.”8
The Aftermath Which view, plaintiffs’ or defendants’, was most prophet- ic? Those representing the children turned out to be pre- scient. The lawyers for the injured children won the bat- tle but lost the war. In the first 50 years after Frye was decided, it was cited in only 96 cases, according to Michael J. Saks.9 In the six years after Daubert, federal courts published 1,065 opin- ions on expert admissibility, 871 of which involved civil cases, according to D. Michael Risinger.10 Risinger points out that civil defendants won nearly 70% of the time. Some believe this trend favoring defendants will become even more pronounced. They note that corpo- rate-funded reform groups are on the attack about what they claim to be junk science. The Defense Research
Journal | March/April 2005 | 25 contrary to the liberal policies of admissibility that had proof are the traditional means of attacking shaky but long been the guiding principle of the federal courts. The admissible evidence.”12 Thus, it is Joiner that truly Circuit Court said there is a preference for admissibility endorses the revolution that Daubert most likely never under the Federal Rules of Evidence. There should be a intended to initiate. more stringent standard of review, particularly when evi- dence is excluded, said the court, adding it is wiser to The Kumho Coup leave to the jury the correctness of competing expert opin- In Kumho Tire Co., Ltd. v. Carmichael,13 plaintiff sued the ions. manufacturer of a tire for injuries brought about when the The Supreme Court differed. It held that while the right rear tire failed. The District Court granted the defen- austere Frye standard of general acceptance is not carried dant summary judgment. The Eleventh Circuit reversed. over, a trial judge is not disabled from screening such evi- The Supreme Court reversed and held that Daubert’s gate dence. It was not an abuse of discretion to exclude plain- keeping obligation requires an inquiry not only into sci- tiff’s evidence. entific testimony but into all expert testimony, including How reliable was plaintiff’s evidence? Plaintiff had “technical” testimony. identified relevant animal studies showing a link to can- This case, unexceptional on its face and in its main rul- cer and directed the court’s attention to four epidemio- ing, is of greater import when one looks closely at the logical studies on which the experts had relied. In short, facts. That close look suggests a few questions. Are judges there was a production of considerable evidence that deciding questions of fact? Are they invading the some judges might find relevant and reliable. province of the jury? Has there been a coup to diminish the role of jurors and advocates in favor of a more power- ful judiciary? Are there special interests that would favor that transfer of power? Are judges deciding In Kumho, plaintiff’s expert testimony seemed shaky. Justice Breyer carefully analyzed the facts in great detail questions of fact? Are they before sustaining the exclusion of that expert’s testimony. Plaintiff’s expert had a master’s degree in mechanical invading the province engineering, worked for 10 years at Michelin America, and had testified many times as a tire-failure consultant. of the jury? But his testimony was weak. Justice Breyer noted that plaintiff’s expert testified that the tire was bald, should have been taken out of serv- One such jurist was Justice Stevens, who concurred ice, had its punctures repaired inadequately, and showed with the holding about using the abuse of discretion stan- evidence of over-deflection. Justice Breyer noted that dard but dissented on the question of whether abuse had plaintiff’s expert concluded that the depth of the tire taken place. He felt it was not something the Supreme tread was 3/32 inch, while the opposing expert’s meas- Court could decide without a closer review of the record. urements indicated the depth ranged from 5/32 to 4/32 Justice Stevens pointed out that plaintiff’s experts relied inch. Justice Breyer dug deeply into the minutiae of the on the studies of at least 13 different researchers who many facts before sustaining the conclusion that the jury referred to several reports of the World Health should not hear the testimony. Organization that addressed the question of whether In the pre-Daubert era, this expert testimony most like- PCBs cause cancer. This was hardly junk science. ly would have been admissible. There would have been a In any event, Justice Stevens, in a footnote, stated this cross-examiner to attack these shaky opinions. There was not the kind of junk science that should be excluded would have been a jury to resolve the dispute. There as unreliable. As an example of junk science, he cited the would have been a judge to evaluate the result. case of a phrenologist who would prove a defendant’s This apparent invasion of the factual province of the future dangerousness based on the contours of that jury has continued apace. It seems to have reached a level defendant’s skull. That was hardly this case. Stevens of acceptance perhaps only because it is denominated as asked quite pointedly: When qualified experts have a necessary Daubert-type analysis as to the reliability of reached relevant conclusions on the basis of an acceptable expert opinions. methodology, why are their opinions inadmissible? He emphasized again that Daubert forbids trial judges from The Codification assessing the strength of an expert’s conclusions. That is The Daubert Revolution resulted in its being codified in a matter for the jury. In a footnote, he again cites Justice Rule 702 as of December 1, 2000. The Rule applies to all Blackmun: “vigorous cross-examination, presenting con- expert opinion. To be admitted, the testimony must be: trary evidence, and careful instruction on the burden of (1) based upon sufficient facts; (2) the product of reliable
26 | Journal | March/April 2005 methods; and (3) the methods must have been reliably rolled print of a particular person.”17 In short, fingerprint applied to the facts. identification of a particular person would not be Note the word “reliable” is used twice. It remains the allowed, despite decades of general acceptance of finger- key. It takes us back to Daubert. Needless to say, reliabili- print identification. ty is often in the eyes of the beholder. And the beholder in In a decision of some 25 pages, the court exhaustively the first instance is the judge. The issue of reliability has analyzed fingerprint evidence. It described in detail thus been largely shifted from jury to judge. many technical areas. It discussed the ACE-V process, an acronym standing for analysis, comparison, evaluation The Expanding Judicial Role and verification. It went into ridgeology, the study of In 1999, in In re TMI Litigation,14 the Third Circuit exclud- ridges. It dealt with Galton points, which are characteris- ed 11 of plaintiffs’ 12 experts. The court wrote a scholarly tics of the fingerprint ridges. opinion of more than 50 pages, with an in-depth analysis of multiple scientific disciplines. It determined that the testimony of a dose-exposure expert was unreliable Nothing quite prepared the because the expert violated an elementary principle of credible dose reconstruction in estimating dose exposure. legal community for the This seems to be the kind of factual analysis traditionally done by a jury. If it were truly junk science, would it have startling decision in taken 55 pages to reach that conclusion? In truth, the courts seem to be excluding more than junk science. United States v. Llera Plaza. In In re Hanford Nuclear Reservation Litigation,15 a case arising out of the Eastern District of Washington in 1995, the court excluded all but one of plaintiff’s 13 causation The court, as judicial gatekeeper, shut out the finger- and dose-exposure experts. This case involved 3,000 print evidence because it did not meet the requirements plaintiffs in a consolidated litigation, who claimed per- of Daubert. The court concluded that the ACE-V does not sonal injuries as a result of exposure to radioactive emis- meet Daubert’s testing and peer review criteria. Its rate of sions from the nuclear reservation in the state of error is in limbo and ultimately it is a subjective test. The Washington. It took the court 762 pages to render its sum- court, therefore, concluded the parties would only be able mary judgment opinion, finding the methodology on to present expert fingerprint testimony describing how which the experts relied unsound. To be blunt, has the the prints were obtained, placing the prints before the Daubert analysis, on occasion, gotten a little silly in its jury and pointing out observed similarities, but would depth and length? not be permitted to testify on whether the print is that of This deep involvement in factual issues not only con- a particular person, despite about a century of general stitutes an incursion into what was formerly decided by acceptance of fingerprint testimony by experts. jurors, but also threatens the very effi- ciency of our courts. Days are spent on hearings. How many hours are spent in writing opinions of 20 pages or more? Jurors, of necessity, decide quickly. Judges may spend months on a deci- sion. Those who argue that Daubert has reached levels of absurdity have found a recent case that, they submit, removes all doubt. It deals with . . .
Fingerprinting Nothing quite prepared the legal com- munity for the startling decision in United States v. Llera Plaza.16 A highly regarded federal jurist held, “[T]he par- ties will not be permitted to present tes- timony expressing an opinion of an expert witness that a particular latent print matches, or does not match, the
Journal | March/April 2005 | 27 Following a highly public reaction to that decision of Court has often endorsed and continues to apply the January 7th, the court held a hearing based on a motion well-recognized rule of Frye. This was even more recent- to reconsider. It was conducted on February 26 and 27, ly set forth in People v. Johnston,21 which indicates that the 2002. On March 13, 2002, in another extremely conscien- court continues to apply the “general acceptance test of tious and lengthy decision of over 20 pages, the court Frye.” reversed itself.18 The court again went into great factual detail. There For the Bench was even an historical note, describing Francis Galton, a Intending no presumption and with respect, there is a les- multi-talented English scientist who was a cousin of son for our judiciary. Those imbued with the traditional Darwin. The opinion goes on to discuss other great his- attitude of the Federal Rules of Evidence will favor the torical names in the fingerprinting field. more liberal introduction of evidence. They will let jurors The court, on reconsideration, concluded that the fin- decide the issue after vigorous advocacy on both sides. gerprint community’s general acceptance of ACE-V They will take to heart Justice Blackmun’s admonition should not be discounted. The judge also concluded there that vigorous cross-examination under the overview of was no evidence that the error rate was unacceptably the court and a basic trust in the jury are the way to go. high. The court further said that the subjectivity involved The ultimate issue is: Do we, or do we not, trust our in the process is not such as to render the evidence juries to resolve these factual issues? It would seem that excludable. Daubert has had consequences never intended by Justice As to general acceptance, the court pointed out that Blackmun. It was never intended to have judges with the first English appellate endorsement of fingerprint overloaded calendars expending untold effort holding identification came in 1906. The first American court to hearings and writing lengthy decisions on the details of consider the admissibility of such evidence was in Illinois expert evidence. Certainly, all agree that junk science in 1911, where it was accepted and a murder conviction should be excluded. The judges have always been the affirmed. gatekeepers. They should continue that role. The court cited Justice Felix Frankfurter: that wisdom However, it was never intended for judges to supplant too often never comes and so one ought not to reject it jurors. It was never intended for judges to write decisions merely because it comes late. In a remarkable expression of 20 or 50 or 100 pages to hold that it is clear that this of great modesty, the judge added, “On further reflection, opinion evidence is unreliable as a matter of law. In my I disagree with myself.”19 The court then denied the view, and it is, after all, only my view, correction is motion to preclude the government from introducing the urgently needed to achieve the balance that Justice fingerprint evidence which would allow the identifica- Blackmun envisioned. ■ tion of a particular person. The scholarly soundness and humility of the decision are exemplary and admirable. 1. 509 U.S. 579 (1993). However, there is a deeper question: Was all that effort 2. 293 F. 1013 (D.C. Cir. 1923). necessary? What lessons can we learn? 3. Id. at 1014. 4. 509 U.S. at 588 (citation omitted). Lessons for Bench and Bar 5. Id. at 589. For the Bar 6. Id. at 593. Much depends on which side of the issue a lawyer stands. 7. Id. at 596. Those representing corporate defendants accused of man- 8. Id. ufacturing dangerous products will, of course, try to go to federal court and make as many Daubert motions as they 9. 49 Hastings L.J. 1069, 1076 (1998). can. This is an enormous new weapon in the defendant’s 10. 64 Alb. L. Rev. 99 (2000). arsenal. It is, as they say, “outcome determinative.” In 11. 522 U.S. 136 (1997). short, one can win the case as a defendant with a success- 12. Id. at 155. ful Daubert motion. It must be remembered, however, that 13. 526 U.S. 137 (1999). Daubert is a weapon that further empowers the powerful. 14. 193 F.3d 613 (3d Cir. 1999). For those representing the injured consumers, it is a 15. No. CY-91-3015-AAM, 1998 WL 775340 (E.D. Wash. Aug. 21, 1998). much more difficult world. They will not want to be in 16. 179 F. Supp. 2d 492 (E.D. Pa. 2002). federal court. They will try to create non-diversity when- 17. Id. at 518. ever they can. They will be better off staying in state courts that still apply the supposedly stricter Frye rule 18. U.S. v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa. 2002). that, ironically, has proven to be more permissive. Such a 19. Id. at 570. state is New York. In People v. Wernick,20 Judge Bellacosa, 20. 89 N.Y.2d 111, 651 N.Y.S.2d 549 (1996). speaking for the state’s highest court, makes clear that the 21. 273 A.D.2d 514, 709 N.Y.S.2d 230 (3d Dep’t 2000).
28 | Journal | March/April 2005 GERALD LEBOVITS is a judge of the New York City Civil Court, Housing Part, in Manhattan, and an adjunct professor at New York Law School. He graduated from the Ottawa, Tulane, and New York University Law Schools. Judge Lebovits thanks court attorney Justin J. Campoli and New York Law School student Ryan O. Miller for their assistance.
The Third Series A Review
By Gerald Lebovits
hile the Boston Red Sox were preparing to Starting in 1804, the Legislature empowered the Court crush the New York Yankees on the way to for the Trial of Impeachments and the Correction of WBoston’s first World Series win in 86 years, a Errors, the state’s highest court, and the Supreme Court group of lawyers in Albany were preparing for what, to of Judicature to compile and publish nominative reports New York lawyers, will surely be a more fortunate and of decisions. Nominative reports were collections of deci- significant series: The Third Series. sions a reporter would collect, edit, and publish in vol- The year 2004 marked the Bicentennial of official New umes named after himself. George Caines published a York law reporting. The Official Reports have evolved over nominative report entitled Caines’ Reports from 1803 to the past 200 years: from 1804, when the first Official 1805, while serving as New York’s first reporter of deci- Reports were published, to 1847, when the First Series of sions. William Johnson, who succeeded Caines, pub- the current Official Reports was published, to 2004, when lished a nominative report entitled Johnson’s Reports, New York State’s Law Reporting Bureau (LRB) began to which were noted for their thoroughness and accuracy compile the Third Series of Official Law Reports. The Third and set a high standard for official reporting in New Series is the most comprehensive revision of New York’s York.7 Some reports still name the reporter on the bound Official Reports since the First Series was published. volume’s spine, and New York is an example. But nomi- native reports no longer exist. From Earliest Times In 1846, the Legislature abolished the Court for the Reporting cases is older than the common law,1 with a Trial of Impeachments and the Correction of Errors and history of twists and turns.2 While Moses may be consid- created the Court of Appeals.8 That same year, the ered the first reporter,3 Sir Edward Coke created the mod- Legislature also authorized the publication of officially ern case reporter.4 reported judicial opinions in the New York Reports Compiling and organizing New York’s case law before supervised by a reporter of decisions known as the State 1804 consisted of practitioners and judges relying on their Reporter, appointed by the Executive Branch.9 memory of case law.5 James Kent, best known as Since 1804, the reporter of decisions has overseen the Chancellor of New York’s Court of Chancery but who organization and publication of the state’s judicial work also served as Chief Justice of New York’s Supreme Court product. Twenty-five men have served as State of Judicature, began the push for judicial reporting. He Reporter.10 Many went on to other achievements. Some encouraged judges to transcribe their decisions and to became influential judges, including Hiram Denio rely on written decisions. Before 1804, judges rarely wrote (1845–48) (Chief Judge, Court of Appeals), George F. opinions. American and British judges delivered their Comstock (1847–51) (Chief Judge, Court of Appeals), judgments orally.6 Samuel Hand (1869–71) (Judge, Court of Appeals, and
30 | Journal | March/April 2005 father of Judge Learned Hand), and Edward J. Dimock from storing opinions on microfiche, to transferring them (1943–45) (U.S. District Court, S.D.N.Y.). Other State to CD-ROM technology, and finally to creating searchable Reporters held important government positions, includ- Internet databases. But the Second Series could not fully ing Francis Kernan (1854–56) (U.S. Senator for New York) integrate the new methods of legal research that practi- and Henry R. Seldon (1851–54) (Lieutenant Governor of tioners now use every day. The Court of Appeals there- New York). Still other State Reporters, like J. fore approved in April 2003 the publication Newton Fiero (1909–31) (New York State Bar of a Third Series to address advances in Association president), held leadership technology and changes in the law. The positions in the bar. LRB started publishing the Third Series in The Official Reports First Series served as January 2004. New York’s Official Reports from 1847 to In the federal system, the only official 1955 and consisted of 833 volumes. During reporter is the United States (U.S.) those 108 years, the courts and law report- Reports.14 The Thomson West Publishing ing experienced important innovations. In Company (West) publishes the Supreme 1894, the Fourth State Constitution created Court (S. Ct.) Reports and collects lower- the Appellate Division and the Appellate court opinions in unofficial reporters like Term. In response to these new courts, the the Federal Supplement 2d and the Federal Legislature introduced the Appellate Reporter 3d, respectively for District Court Division Reports and the Miscellaneous and Court of Appeals cases.15 In the state Reports to publish the new courts’ deci- system, 28 states and the territory of Puerto sions. The Miscellaneous Reports were Rico have official reporters of judicial opin- 16 also intended to include selected opinions of The Advance Sheets. ions. Rather than favor a particular unof- non-appellate courts. In 1894, the Legis- ficial reporter over another unofficial lature authorized the State Reporter to begin compiling reporter, eight states have adopted a “vendor neutral” or and distributing advance sheets to tell lawyers about “medium neutral” citation format for cases in the public decisions before a full, bound Official Reports volume domain.17 Mississippi’s public-domain format, adopted was published. for cases decided after July 1, 1997, is cited like this, In 1925, a New York constitutional amendment according to the Bluebook: Pro-Choice Miss. v. Fordice, allowed the Legislature to create the LRB. Yet, for 13 more 95-CA-00960-SCT (Miss. 1998).18 years, the responsibility to publish the Official Reports continued to be divided among the offices of the State Operation of the Law Reporting Bureau Reporter, the State Supreme Court Reporter, and the New York has long had an interest in officially reporting, Miscellaneous Reporter. In 1938 the Legislature finally publishing, and distributing its courts’ opinions, as the established the LRB,11 headed by a State Reporter Court of Appeals has noted.19 The LRB’s function is to appointed by the Court of Appeals.12 The LRB was and make this happen. continues to be charged with compiling, editing, and Since the Legislature authorized the LRB in 1925 and organizing for publication all decisions of the Court of funded it in 1938, the LRB has served as the liaison Appeals and the Appellate Division and selected opin- between New York’s judiciary and the public for New ions from other courts of record.13 York case law.20 Currently, the LRB operates under the direction and control of a State Reporter and is super- vised by the Court of Appeals, which has the power to The New York Official Law appoint and remove the State Reporter.21 After the Court Reports Third Series is the of Appeals or the Appellate Division issues an opinion, it is submitted to the LRB. Before the opinion is published most comprehensive revision in the Official Reports, the LRB’s editors perform a process that law review editors call cite-and-substance of New York’s Official Reports checking. They verify every citation to assure support for the cited proposition. They also assure that every quota- since the First Series was first tion is accurate, that grammar and style are proper and clear, and that the citations conform to the Official Edition published in 1847. New York Law Reports Style Manual (Tanbook), which governs the format of opinions published in the Official The Second Series survived for almost 50 years, from Reports.22 1956 to 2003, and consists of 605 volumes. The Second The LRB’s editors also check Court of Appeals and Series was published when legal research transformed Appellate Division opinions for factual errors and for dis-
Journal | March/April 2005 | 31 crepancies between the opinion and the record by com- LRB provides to practitioners to make research easier and paring the appellate record and briefs with the court’s to improve the Official Reports’ utility. opinion. They further verify the parties’ names and des- Print and electronic materials have been integrated by ignations as defendant, plaintiff, respondent, petitioner, including research references to online materials in the appellant, or respondent (New York’s appellee) and put print materials. This integration is important to maintain- the case titles in the proper form. The LRB corrects over ing the relevance of the Official Reports to this generation 16,000 substantive mistakes and countless grammar and of lawyers, who use electronic-research mediums in addi- style mistakes every year.23 If the LRB catches an error, it tion to the traditional print-research mediums. will notify the court or judge, which has the final say on whether to accept the suggestions. Significant Changes Judiciary Law § 433 requires the LRB to prepare and The modernization of the Third Series began with publish headnotes, tables, and indexes of every cause changes in the look of the volumes and the content of the determined in the Court of Appeals and the Appellate advance sheets. The general appearance of the Third Division. The name of the judge or justice who presided Series’ bound volumes has been updated by changing the at the hearing or trial in the court of original jurisdiction binding from a grey-green to a glossy, speckled green; must also be included in the Court of Appeals and State Reporter Spivey’s name remains on the spine. Appellate Division opinions.24 In addition to the opinion, Advance sheets now have greater detail, including the reports must contain as much of the facts, arguments abstracts of other courts’ opinions selected for online of counsel, decision, or any other matter the State publication. Abstracts are created in Third Series Reporter deems necessary.25 Miscellaneous Reports for Appellate Term and trial-level The LRB is also responsible for compiling, editing, and opinions selected for online publication only. contracting the Official Reports for publication. The LRB In 1804, George Caines, the first official reporter, assures publication of the Official Reports CD-ROM ver- included a Digest Index in the Official Reports to enable sion, the official version of New York opinions published researchers to find decisions by topic. That Digest Index online, and the Official Reports microfiche version.26 system is still used today. The LRB modernized the The LRB splits the printed Official Reports into three Official Reports by updating the language of the Digest separate volumes that represent the three levels of New Index for the Third Series. Modernization was necessary York State’s judiciary. The volumes are designated New because lawyers no longer use some of the archaic terms York Reports Third Series (N.Y.3d) for the Court of Ap- found in the Digest Index of the Second Series. For exam- peals, Appellate Division Reports Third Series (A.D.3d) ple, the LRB dropped the topic of “Master/Servant,” for the Appellate Division, the principle that employers are sometimes responsible and the Miscellaneous for their employees’ acts. The concept embodied by Reports Third Series (Misc. “Master/Servant” is now found within “Employment 3d) for the Appellate Term Relationships.” and the trial courts.27 Another research tool in the Official Reports Third Currently, the LRB staff Series is the Total Client Service Library (TCSL) includes State Reporter References. The LRB includes the TCSL References after Gary D. Spivey, Deputy the headnotes and before the appearances of counsel. The State Reporter Charles A. TCSL refers the researcher to encyclopedias, case Ashe, Assistant State reporters, statutes, finding aids, and practice guides. Reporter William J. Hooks, These resources are organized by topic to allow compre- Chief Legal Editor Michael hensive research. The LRB has expanded the TCSL S. Moran, and 31 others. References for the Third Series to include more secondary They edit and publish a sources like treatises, especially New York-centered mountain of judicial opin- New York State Reporter sources like David D. Siegel’s New York Practice. ions every year.28 Gary D. Spivey. The Third Series also ensures that practitioners will learn about mistakes found in the printed volumes. In the Why a Third Series? Second Series, the LRB issued corrections, sometimes by The LRB instituted the Third Series to modernize the issuing an entirely new, corrected volume. The LRB’s new Official Reports. The LRB’s goal was to integrate the print method of issuing corrections after an opinion is pub- version of the Third Series with the electronic databases, lished in the bound volume is more efficient. The Third new research methods, and changes to the law.29 For the Series has an “errata table,” an innovation that allows Third Series, the LRB enhanced the Second Series’ format users to discover mistakes found in an earlier volume of and arrangement of the additional research tables that the the Official Reports. The table contains corrections that
32 | Journal | March/April 2005 Pursuing justice.
That is our reason for being at the New York State Bar Association: to help make the system of justice fair, objective, and as close to perfect as possible.
Toward that end, the Association has continued upon ambitious programs to: • Help practitioners reaffirm their pride in the profession • Improve the law and the legal process • Educate the public • Ensure legal resources for all • Advocate on behalf of the profession
Our work for and with the profession continues to be multifaceted. It is our duty to ensure that our justice system can effectively meet today’s “complexities and to speak against measures that would erode the legal process and the independent judgment of attorneys and judges.”
– Kenneth G. Standard, President New York State Bar Association
New York State Bar Association 518.463.3200 www.nysba.org apply to bound versions of the previous volume’s opin- notes for Appellate Division memorandum decisions, ions. The opinions in the Official Reports Internet data- defined as brief, conclusory decisions that follow estab- base (NY-ORCS in Westlaw or through the State lished principles.31 In both the First and Second Series, Reporter’s Web site30) are also corrected and available to the headnotes for memorandum opinions appeared only users immediately after correction. With the inclusion of in the Digest Index. In the Third Series, the headnotes the errata table, the LRB provides print users with a serv- appear at the beginning of each memorandum opinion. ice comparable to that enjoyed by professionals who The LRB continues to apply to the Third Series opin- research on the Internet. ions a three-pronged approach to including headnotes for Another one of the LRB’s significant changes to the Appellate Division memorandum opinions. All other format of the print-published opinions in the Third Series opinions are fully headnoted. If the Appellate Division’s is the addition of sample queries that researchers can memorandum opinion contains enough material, it will plug into a Westlaw search to bring up the topic in be given a full headnote. If its memorandum opinion has Westlaw’s electronic database. The LRB’s addition of some relevant material but not enough to support a full sample queries, entitled “Find Similar Cases on headnote, the opinion is summarized and classified Westlaw,” allows researchers to find New York case law according to its topic. And no headnote will be included on related topics. Look up Bansbach v. Zinn, 1 N.Y.3d 1 and the memorandum opinion will not be classified if the (2003). The LRB has supplied lawyers with the query opinion is based on a specialized set of facts. “shareholder /4 derivative & 626 & ‘collateral estoppel’” and the Westlaw database in which to conduct a search: Changes Specific to Misc. 3d NY-ORCS. The sample queries are printed after the anno- The Miscellaneous volume of the Third Series contains tation reference section and before the points of counsel selected officially reported opinions of different lower in the New York Reports and before the appearances of courts of record. Misc. 3d includes selected opinions of counsel in Appellate Division and Miscellaneous Reports. the Appellate Terms — appellate courts that exist only in the first and second departments and hear appeals from Changes Specific to N.Y.3d the District Courts, City Courts, Town Courts, Village The New York (N.Y.) volume of the Third Series contains Courts, and the New York City Civil and Criminal the officially reported opinions of the Court of Appeals, Courts. New York State’s highest court. One notable change from Misc. 3d also includes selected opinions from all of the N.Y.2d is the LRB’s inclusion in N.Y.3d of a table of New York State’s other lower courts: Supreme Court, cases overruled, disapproved of, or otherwise limited by Court of Claims, Family Court, Surrogate’s Court, New the cases in that volume. The new criminal leave tables York City Criminal Court, New York City Civil Court, provide “opinion below” information citations to cases County Court, District Court, and 61 City Courts, 932
The Third Series includes sample queries that researchers can plug into a Westlaw search. reported below. The Second Series included only title, Town Justice Courts, and 552 Village Courts.32 Although disposition, and judge. The Third Series also prints the the LRB publishes all the opinions of the Court of official citation in the criminal tables. Appeals and the Appellate Division, the LRB is not The LRB has introduced an interim volume published required to publish all submitted Appellate Term and roughly every six months to reduce the number of trial-court opinions.33 The LRB publishes in the advance sheets that users must collect before publication Miscellaneous Reports only about 26% of judicial opin- of the bound volume. The interim volume is soft-bound ions submitted each year.34 and contains all the cases reported until that point. Reported cases in Misc. 3d are now arranged different- Subscribers can discard the interim volumes after the ly from the way they were in the earlier two series. The bound volume is distributed. LRB has included the Appellate Term opinions in the front half of the volume and trial-court cases in the back Changes Specific to A.D.3d half of the volume instead of mixing them together. Also The Appellate Division (A.D.) volume of the Third Series included in each half of Misc. 3d are the abstracts of opin- contains the officially reported opinions of the four ions selected for online publication. The abstracts provide departments of the Appellate Division, New York’s inter- the case name, authoring judge or justice name, decision mediate appellate court. The LRB now publishes head- date, classifications to the Official Reports Digest-Index
34 | Journal | March/April 2005 headings, and slip-opinion citation. A slip opinion is an online-only publication may not be published, except in opinion that exists before it is published in a bound the New York Law Journal.41 reporter. People send about 2400 opinions to the LRB for publi- Each opinion published in the electronic database is cation in the Miscellaneous Reports every year. Attorneys assigned a slip-opinion number and given page numbers may submit lower-court opinions for publication. The to allow users to cite the specific pinpoint (jump cite) LRB sometimes solicits from the authoring judge an inter- page. esting opinion it finds in the New York Law Journal or else- where. Judges themselves submit most of the lower-court Submission of Opinions opinions the LRB selects for publication.42 Judges may Under Judiciary Law § 432, every judge or justice of a themselves publish their decisions on the Web; some court of record must promptly deliver to the State judges even maintain their own non-court-approved Web Reporter a copy of every written opinion rendered, sites. But the decisions must contain the following two although no one complies with that rule. Judges submit to the LRB only those opinions they hope to publish. Under Judiciary Law § 431, the LRB is required to publish Since the Committee on Opinions all opinions and memoranda that the Court of Appeals began in 1963, judges have and the Appellate Division transmit to the LRB. Unlike some jurisdictions, New York has no court rule or statute appealed approximately 100 times that prohibits citing unpublished opinions.35 The LRB is authorized by Judiciary Law § 431 to pub- the Reporter’s decision not to lish select Appellate Term and trial-court opinions in the publish an opinion. No judge Miscellaneous Reports.36 The LRB takes into account numerous factors to determine whether to publish a has prevailed. lower-court opinion. Factors include precedential signifi- cance, novelty, public importance, practical significance, admonitions: (1) “This opinion is not available for publi- subject matter diversity, geographical diversity, author cation in any official or unofficial reports, except the New diversity, and literary quality.37 Opinions of interest only York Law Journal, without the approval of the State to the litigants or that contain primarily factual or discre- Reporter or the Committee on Opinions (22 N.Y.C.R.R. tionary matters or dicta are ineligible for publication.38 7300.1)” and (2) “This opinion is uncorrected and subject Judiciary Law § 431 limits publication of an Appellate to revision in the Official Reports.” Term or trial-court opinion to one that is “worthy of being Although judges are protected from liability for all reported because of its usefulness as a precedent or its acts done in the exercise of judicial functions, one state importance as a matter of public interest.” opinion has held that publishing opinions elsewhere than The Committee on Opinions was created in 1963 to in the Official Reports is not required by law and is there- hear appeals from the State Reporter’s refusal to include fore not an act performed in a judicial capacity,43 opinions submitted for publication in the Miscellaneous although some federal courts have taken a broader view volume of the Official Reports. The Committee is made of the immunity available to publishers of opinions.44 up of a rotating panel of Appellate Division justices. To request that an opinion be published, a practitioner Judges who believe that their opinions have been over- may send a letter with a copy of the opinion to the looked may appeal to the Committee. Since the Honorable Gary D. Spivey, State Reporter, One Committee began, judges have appealed approximately Commerce Plaza, 17th Floor, Suite 1750, Albany, New 100 times the State Reporter’s decision not to publish an York 12210. To submit an opinion, judges and their staffs opinion. No judge has prevailed.39 should attach the opinion in WordPerfect or Microsoft In 2003, the LRB published 148 Court of Appeals deci- Word (but not Microsoft Word 2002) to an e-mail to sions in N.Y.2d and 301 Appellate Division decisions in
Journal | March/April 2005 | 35 year publishing contract. sheets are included at no additional charge. Practitioners West won the current five- may subscribe only to the advance sheets, for $98.56 a year contract, covering year, effective January 1, 2005. 2001–2005. Interestingly, The space that these reporters take up on the sub- West competes against scribers’ bookshelves is a factor to consider. A subscriber itself as the major unoffi- to the Official Reports must have enough shelf space for cial publisher of decisions the three separate bound series (N.Y.3d, A.D.3d, and from the state and federal Misc. 3d), published each year. The N.Y.S.2d and the courts. N.E.2d are each in separate bound series. The N.E.2d is a West’s National Reporter good investment for those who practice in several (arbi- System dates to the 1880s trarily grouped) states in the Northeast, but for those and covers state cases in whose practice is in New York alone, buying the N.E.2d seven regional reporters. does not make economic sense. A lawyer practicing in These reporters are North New York will find it more economical to purchase only The Cumulative Tables and Index pamphlet. Eastern (N.E.2d), North the N.Y.S.2d, which contains decisions from the Court of Western (N.W.2d), Atlantic Appeals, the Appellate Division, and other selected (A.2d), Pacific (P.2d), South Eastern (S.E.2d), South Appellate Term and trial courts. Western (S.W.2d), and Southern (So. 2d). Also part of the The publication’s value correlates to the extra materi- National Reporter System is a separate sub-regional al that reporters add to their publications to make it easi- reporter for New York, West’s New York Supplement er to research a given legal topic. Judicial opinions enjoy (N.Y.S.2d). The New York Supplement began publication no federal copyright protection,49 although copyright in 1888. Decisions from New York are too numerous for protection, when available, extends to the reporter’s own the regional reporter, so New York’s lower-court cases are writings, including headnotes, statements of fact, state- excluded from the North Eastern Reporter, which pub- ments of arguments, syllabuses, case tables, and other lishes the decisions of the highest appellate courts of materials the reporter includes to create a more accessible Illinois, Indiana, Massachusetts, New York, and Ohio. and useful research tool.50 New York Court of Appeals opinions appear in the Official Reports, the North Eastern Reports, and the New Beware Corrections York Supplement. The prime reason to use the Official Reporter is that the LRB has scrutinized and edited the decisions it publishes. Content and Cost If a lower-court opinion is edited for length in the Official Numerous differences separate the Official Reports Third Reports, the authoring judge decides what material is cut Series from the N.E.2d and the N.Y.S.2d, the unofficial for publication. The unofficial reporters are not edited, or reports. In the New York Reports (N.Y.3d), a section at least not as comprehensively as the Official Reports. named “Points of Counsel” contains the attorneys’ argu- When cited in an opinion or a lawyer’s brief, therefore, ments. The section is separated into issues brought up by the version of the opinion in the unofficial reporter might the attorneys along with cases on which the attorneys not have been corrected, depending upon whether the relied for their arguments. The N.E.2d and N.Y.S.2d con- unofficial reporter has incorporated the corrections that tain the attorneys’ names for the parties involved, but the LRB makes available. The LRB gives unedited slip their arguments and the cases they cite are absent. opinions selected for official publication to West, which Another major difference between the Official Reports then publishes the unofficial reports.51 The unofficial Third Series and the N.E.2d and N.Y.S.2d is their cost. A reports might not contain the LRB’s corrections approved subscription to N.Y.3d, A.D.3d, and Misc. 3d costs less by the courts and included in the Official Reports, than a subscription to the unofficial reporter. The N.E.2d although the LRB makes corrections available to vendors, consists of 815 volumes and costs $11,307 for the entire and West and Lexis make every effort to incorporate the set.45 Individual volumes of the N.E.2d cost $150.75.46 corrections. Moreover, although the unofficial reporters The N.Y.S.2d consists of 780 volumes and costs $5000.47 publish unedited slip opinions, courts amend, clarify, Individual volumes of the N.Y.S.2d cost $97.50.48 vacate, and depublish slip opinions, occasionally without Subscription to the Third Series bound volumes is $19.67 the unofficial reporter’s knowledge.52 a volume plus tax and $10.00 plus tax for interim vol- Practitioners should, thus, always consult the Official umes, effective January 1, 2005. The LRB compiles Reports to verify a case citation. That advice applies to approximately 19 volumes (17 bound and 2 interim vol- online research as well: lawyers should always read and umes) each year for publication. A subscription to the cite the official version of New York case law. Although Official Reports for one year costs about $360 (17 bound West is reliable, West sometimes makes mistakes of sub- volumes and 2 interim volumes at $10 each). Advance stance.53 There is no reason not to rely on the Official
36 | Journal | March/April 2005 Reports. West makes citing the Official Reporter easy. West, and they are likely the only reports a judge will Although the Official Reports do not “star” page the have in chambers to refer to when reviewing an attor- unofficial reports, West star pages the Official Reporter. ney’s papers.58 Moreover, all judges are entitled to receive Practitioners should at least use the star-pagination tool the Official Reports, but most are not given the unofficial in the unofficial reporters to cite the Official Reporter cor- reporters. The court must separately pay for subscrip- rectly if they do not refer to the Official Reports directly.54 tions to unofficial reporters. Citing the unofficial reports In the past, an advantage to the unofficial reporters means forcing judges and their law clerks to convert the was that they were published more quickly than the citation to the Official Reports. Official Reporter. West was faster because the Official The Official Reports also make legal research easier Reporter was delayed by the official editing process. But than the unofficial reports. The LRB has integrated the subscribers to both the unofficial reports and the Official print and the electronic Official Reports and developed a Reports are offered advance sheets to keep them up to style of citation to tell readers where to find cases. All date. For some time now, the Official Reports have been cases published in the Official Reports are assigned a slip- as current as the unofficial reports; Court of Appeals opinion number. The decisions can then be found on opinions now come out faster in the Official Reports than the LRB’s Web site,
Journal | March/April 2005 | 37 Key Numbers to the point. The point of law gets a Key ity.62 The LRB editors write the Official Reports’ sum- Number. maries by adhering to the same goals of concision and The Official Reports’ headnotes refer researchers to precision they achieve when writing headnotes. West has specific points in an opinion that stand for the point of its own version of summaries. law the headnote addresses. The headnotes also contain a topic heading that allows a researcher to look up those The Big Picture topic headings in New York’s Official Reports Digest The LRB’s integration of the print and the electronic Index to find other case law with those same points of research mediums in the new Third Series is an important law. West’s Key Number system refers researchers to the innovation. The Third Series is a not just a new binding or legal points made in the case and to the West’s Digest a way to start volumes from one onward. It is a new way Index. The researcher can then look up the Key Number of using the Official Reports as the source of New York in the Digest Index and find the headnotes of cases that law for a new era in the practice of law. After doing so have the same points of law. When researching online, well for so long, the Yankees did not advance to the Key Numbers make it particularly easy for a researcher to World Series last season. But the LRB hit a home run with find cases from different jurisdictions that deal with sim- the Third Series. ■ ilar issues because the Key Number system is used for all the West’s reporters that cover every state and federal 1. See John Baker, The Common Law Tradition: Lawyers, Books, and the Law 133 (2000) (noting that during 600 years of law reporting, over one million court. sheep gave their skins so that opinions could be recorded). Important differences exist between the content of the 2. For example, the colleagues of one Pennsylvania justice once refused to headnotes and which topics are headnoted in the official allow him to publish a dissent in the Pennsylvania official reports. The justice brought a mandamus action against his colleagues — and lost in his own court. and unofficial reports. In the Official Reports, 29 Holding See Musmanno v. Eldredge, 1 Pa. D. & C.2d 535 (Common Pleas), aff’d per curiam, Corp. v. Diaz, 3 Misc. 3d 808 (Sup. Ct. Bronx County 2004), 382 Pa. 167, 114 A.2d 511 (1955). For an account of a conflict between the has two headnotes. The proposition that New York State Federal Justice Department and a publisher, see Stuart Taylor Jr., U.S. Obtains Curb on Judge’s Attack on Justice Dep’t, N.Y. Times, Jan. 22, 1984, at A1, which Supreme Court parts are not bound by Appellate Term describes how the Justice Department obtained a temporary order restraining precedent is included in the first headnote. The central West Publishing from printing a controversial opinion in the Federal holding of 29 Holding — that a residential landlord has a Supplement. The opinion was eventually published. See United States v. Kilpatrick, 575 F. Supp. 325 (D. Colo. 1983) (Winner, J.), appeal dismissed & man- duty to mitigate — is in the second headnote along with damus denied sub nom. Blondin v. Winner, 822 F.2d 969 (10th Cir. 1987), cert. the basic reasoning for the holding. In the unofficial denied, 484 U.S. 1006 (1988). report, 29 Holding (775 N.Y.S.2d 807) has five headnotes, 3. See Frederick Pollock, English Law Reporting, 19 L.Q. Rev. 541 (1903). the last two of which cover the same propositions as the 4. See Steve Sheppard, The Unpublished Opinion Opinion: How Richard Arnold’s Official Reports headnotes. The 29 Holding court noted in Anastasoff Opinion Is Saving America’s Courts from Themselves, [2002] Ark. L. Notes 85, 90. passing a point of law that is pure dictum, yet it is given 5. “But how are their decisions to be known?”: Celebrating 200 Years of New York a Key Number and included as a headnote in the unoffi- State Official Law Reporting 13 (2004) (hereinafter “Celebrating”), available at cial reports. A researcher looking for controlling or per-
38 | Journal | March/April 2005 Reports), and New York State Reporter Gary D. Spivey (“200 Years of Official (reciting belief that selectively publishing decisions provides a clearly defined Law Reporting in New York”). view of the law). 9. In re Williams Press, Inc. v. Flavin, 35 N.Y.2d. 499, 503, 323 N.E.2d 693, 37. See Selection of Opinions for Publication at
Journal | March/April 2005 | 39 LAW PRACTICE MANAGEMENT
GREG KREHEL
Case Chronologies Create Litigation Efficiencies By Greg Krehel
law practice's profitability often hinges on the ment index is useful in locating items of evidence, it hard- success of its practice management strategies. ly matches a well-prepared chronology of case facts. Still ASuch strategies can cover anything from office other trial teams focus on facts, not documents, and cre- operations to substantive practice techniques. Some cover ate chronologies with perhaps just two or three columns: a number of these areas. date, fact, and, sometimes, the source. These layouts are a For the litigation practice, fact chronologies can be start, but they fail to capture critical information about tremendous tools for creating greater efficiencies. They the facts, information that can make the chronology far help ensure that the attorney is well prepared, and, more more valuable. important, that fellow attorneys, paralegals, and other The following set of chronology “best practices” support staff will have the case knowledge they need, should result in better and more effective case chronolo- without duplicating each other's work. Yet, busy litigators gies. often overlook the substantial advantages of creating case fact chronologies. And the majority of chronologies fail to Don’t Wait live up to their full potential. You will likely obtain crucial knowledge about the prob- Chronologies are thinking tools. The very act of setting lem that led the individual or corporation to seek counsel discrete facts down on paper or in your computer clarifies from your first conversation with the prospective client. thinking and better reveals the story of the case. Begin creating the case chronology immediately. No mat- Chronologies help ensure complete discovery. Which ter how early in the case, and no matter how small it may facts require which forms of evidence that will be admis- seem, as soon as your client has given you an overview of sible in court? Not only do good chronologies make it the dispute, you have probably heard more facts than you easy for everyone on the litigation team to share case can easily memorize and manipulate in your head. Why knowledge, they are useful in preparing for depositions, even try? Memorization is a job for your software. when developing motions for summary judgment and Your chronology can be put to good use early in the pretrial motions, in settlement conferences, and during case. Take copies of the initial chronology to your second trial.Even so, many litigators who do manage to create a client meeting, and use it to clear up any misunderstand- full case chronology often end up with unsatisfactory ings. Do the facts listed accurately reflect the client’s results. Often, their chronologies are no more than lists of understanding of the case? Can your client supply miss- case documents that are sorted by date. While a docu- ing dates? Can your client indicate which documents and
40 | Journal | March/April 2005 potential documents might be sources of proof? Use the Show Issue Relations chronology also to focus your client on potentially serious Most cases involve multiple issues. Assessing the omissions. Is your client aware of any particularly favor- strength and weakness of your case is really an exercise in able or unfavorable facts that do not appear in the assessing your strength or weakness on each issue. The chronology? chronology provides an important aid in making this determination. Add another column to your chronology Define “Fact” Broadly and develop a list of case issues. Include any topic that Some chronologies omit facts that require sources of evi- might influence the thinking of the trier of fact. Name the dence that are yet to be developed. Others exclude facts issue or issues to which each fact is related. You can cap- that are in dispute. Both omissions are a mistake. If you ture issue relationships as you first enter the facts. don’t enter a fact into your chronology because it’s dis- Another alternative is to forgo entering this information puted or because you have yet to develop an admissible initially and work through the chronology at a later point, source of proof, you lack the resources to properly ana- focusing on analysis of issues. lyze and strategize, and consider alternative theories of Establishing relationships between facts and issues is liability or defense. The chronology becomes nothing a logical task to parse among members of the trial team more than a list. and create better efficiencies. Junior members of the team can cull facts from documents and depositions. Senior Complete Facts members can make links between facts and issues and When you enter a fact into your chronology, begin by develop global strategies. Creating the links between emptying your head of all knowledge about that fact. facts and issues makes it easy to print chronologies of just Your chronology should be a memory replacement, not a those facts that relate to a particular issue, which is valu- memory jogger. If you don’t get the complete fact into the able in analyzing your case and developing legal theories. chronology, you derail the communication efficiencies chronologies offer to the rest of the litigation team. If a Issue-Driven Approach critical part of the meaning of the fact is still hidden in As you develop your chronology, consider taking a “top- your head, others on the trial team won’t know about it down” or “issue-driven” approach to your case. As case when they read the chronology. preparation begins, and every so often thereafter, conduct Every time you enter a fact into your chronology, a brainstorming session in which you think about your pause and read it before you continue. Put yourself in the facts on an issue-by-issue basis. Prepare by printing for shoes of someone who doesn’t know the case, such as a each issue a mini-chronology of the facts that bear on it. new member of the trial team who may be reading the Begin the brainstorming session by reviewing the chronology for the first time. Does your entry in the chronology represent your total knowledge regarding the fact? If not, rewrite it. While you’re at it, ask yourself, “so Put yourself in the shoes of what?” Does your fact entry make the implications of that fact clear? If not, edit the fact again. If after careful consid- someone who doesn't know the eration you have no good response to “so what?”, decide whether the fact belongs in the chronology in the first case, such as a new place. member of the trial team who Indicate Disputed Items may be reading the It makes good sense to create a column that indicates whether a given fact is undisputed or disputed, and if so, chronology for the first time. by which party. Consider titling your column “Disputed Status” and using these values: “Disputed by Opposition,” “Disputed by Client,” “Undisputed,” chronology of facts related to the first issue in your issue “Undetermined.” Once the facts have been marked as list. Then set the list of facts aside, and consider other disputed or undisputed, your chronology becomes a facts of which you’re aware that are related to this issue. tremendous aid in the preparation of motions for summa- Enter these additional items into your chronology. Next, ry judgment and pretrial motions. For example, instead of think also about the facts you wish you had for this issue. creating a separate list of the facts to which your client is If you sense that such a fact may be developed through willing to stipulate, you can simply filter out everything further investigation, enter it in the chronology and note but the undisputed items. If you’ve begun preparing your its “wishful” status. List any potential sources of proof chronology early, you can use this information to organ- that come to mind. This exercise will help point you in the ize your examination of adverse witnesses. right direction.
Journal | March/April 2005 | 41 Put Your Chronology to Work during an opening statement and for illustrating your Your chronology should be more than a thinking tool. It arguments during closing. should be a practical aid in communicating about your Chronologies can also be used to expedite attorney case with your colleagues, your client, your adversary, training in case analysis. Assign young attorneys the task and the trier of fact. of developing a chronology for new cases. Critique the Use your chronology to communicate with your language used to describe each fact, their determination client. Send your client the chronology on a regular basis. of whether the fact is disputed or undisputed, their eval- If you are using database software that stamps each fact uation of the fact, and their analysis of the issues to which with the date it is entered into the chronology, ensure that the fact relates. the software marks with an icon each fact that was A case chronology can prove to be a tremendous aid in entered since the time you last sent your client the organizing and exploring case knowledge and in present- chronology. The report will give your client the complete ing your case in court. Moreover, case chronologies pro- story of the case, but it will also be easy for the client to vide strong and durable links among members of your focus on what is new. litigation team that promote practice efficiencies and Use your chronology to help present a powerful case in eliminate needless duplication of effort. ■ court. Chronologies are great tools for educating the jury
From the NYSBA Bookstore Depositions – Practice and Procedure in Federal and New York State Courts
Authors Honorable Harold Baer, Jr. District Court Judge Southern District of New York Robert C. Meade, Jr., Esq. Director, Commercial Division New York State Supreme Court
This publication details deposition rules and procedures and highlights the differences between federal and state practice in New York. Topics include pre-trial discovery schedules, rules regarding number and recording method of depositions, appropriate and inappropriate Book Prices conduct at depositions, objections, motions for protec- 2005 • PN: 4074 • 462 pp., tive orders, orders to compel and sanctions and others. softbound This book also contains over 40 forms used in federal $50/NYSBA Member and state deposition practice, which makes this a very $65/Non-member practical and informative publication.
Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: CL2423
42 | Journal | March/April 2005 If It’s Out There Researching Legislative Intent in New York
By William H. Manz
esearching the legislative intent of New York State Unfortunately, many of the bill jacket memoranda are statutes can be a frustrating experience. As one quite brief – often only a few lines – offering little more Rcommentator observed, “anyone accustomed to than a summary of the bill’s provisions. However unim- researching legislative intent on the Federal level will be pressive they may appear to a researcher who is accus- in for a massive shock when attempting the same thing tomed to the more extensive federal materials, the memos with New York State documents.”1 Those investigating are the legislative history documents most cited by the federal legislative history generally have easy access to New York courts.6 Although the courts cite all types of multiple bill versions, related bills, hearings, reports, bill jacket memos, those that are potentially most useful committee prints, and the text of debates as published in in determining intent are prepared by the sponsor the Congressional Record. Although New York legal because they are written before the bill is passed; they are research guides typically describe an extensive list of also the type of memoranda most likely to be available potential sources of legislative history,2 the courts usually because they are required by the Assembly and Senate have available only the contents of governor’s bill jack- rules.7 The courts also often refer to the bill jackets based ets.3 As Chief Judge Judith Kaye once noted, “the tonnage on the correspondence they contain. These letters, which is entirely on the federal side.”4 are available only in the bill jackets and have been cited more frequently in recent years,8 may be of value to the Getting Started researcher because the letters tend to focus on the key The search for legislative history will begin, in most cases, issues presented by the bill. with ascertaining the year and chapter number of a statute by consulting McKinney’s Consolidated Laws and The Alleged Paper Drive Consolidated Law Service (CLS), which then enables the Bill jackets exist for the year 1905 and then from 1921 researcher to locate the governor’s bill jacket.5 onward. There is no clear account of what happened to Governor’s bill jackets are packets of materials gathered the bill jackets created for the period from 1906 to 1920. by the governor’s counsel’s office when a bill has passed The most frequently offered explanation for the gap is the Senate and Assembly and is awaiting gubernatorial that they were destroyed by a fire, although it has also has action. Typically, a bill jacket may contain the governor’s been suggested that a flood or even a donation to a World approval memorandum, sponsor’s memorandum, state War II paper drive may be to blame. Comprehensive bill agency memoranda prepared by their legal counsel, and letters from constituents. It should be noted that the con- WILLIAM H. MANZ
Journal | March/April 2005 | 43 Cases Citing Legislative History Legislative Annual, but since the 1990s it has been greatly A Westlaw search of the NY-CS database expanded.11 The coverage of the Legislative Annual and found that the following legislative history mate- McKinney’s largely overlap for recent years, but they should rials were cited by the New York courts in 2004. both be checked because selected memos may appear in Cases citing such materials included 25 from the one but not the other. A final print source for memos is the Court of Appeals, 30 from the Appellate Division, annual CLS edition of the session laws, but here coverage is and 27 from other state courts. restricted to governor’s approval memoranda.
Documents Listed by Source Electronic Sources Bill Jackets 88 There are also options for those seeking electronic sources McKinney’s Session Laws 14 of memoranda and bill jackets. The brand new Westlaw Legislative Annual 8 NY-LH-BILLJACKET database currently contains the con- Miscellaneous 26 tents of bill jackets for the 219th Legislature through the Documents Listed by Type 224th Legislature (1996–2001). Since 1996, governor’s, leg- Memoranda islative, and judicial memoranda have been available on Legislative 45 Westlaw, in the NY-LEGIS and NY-LEGIS-OLD databases State Agency/Department 12 as part of the online version of McKinney’s Session Laws, Governor’s 13 but their presence was not readily apparent to the typical Attorney General’s 8 researcher. Since late 2004, they have also been provided Miscellaneous 8 in separate databases (NY-LH and NY-LH-REP), where Reports the back file starts with 1998. Legislative memoranda are Law Revision Commission 7 also available through the Bill Drafting Commission’s Budget Report on Bills 4 online subscription service, the Legislative Retrieval CPLR Advisory Committee 2 System, which has a 10-year back file. Legislative memos Temporary Commissions 2 are also available at the Commission’s public Web site Miscellaneous 7
44 | Journal | March/April 2005 There is a variety of sources that fication. No formal annual reports have been printed since 1994, although individual reports resumed in 2001.14 In may be relevant to the history addition to the bound documents compilation, which is of selected statutes. also available on microfilm, the annual reports are avail- able in separate volumes. They were also reprinted in McKinney’s Session Laws from 1951–1994, and are therefore from the Senate Office of Microfilm and Records and the available on Westlaw in the NY-LEGIS-OLD database. Assembly Office of Public Information. Legislative documents consisting of reports of the bod- Another source to which the courts may occasionally ies charged with revisions and recodifications can be quite refer is prior unenacted bills, because differences in lan- extensive, although they may only be relevant to selected guage may provide clues to legislative intent. Copies of parts of the Consolidated Laws. For example, during the old bills are available on microfiche and microfilm from process of replacing the old Civil Practice Act with the the State Library in Albany. Finally, official press releas- CPLR, the Advisory Committee on Practice and es18 and the legislative recommendations or reports pre- Procedure issued four substantial annual preliminary pared by major bar associations may shed some light on reports before submitting to the legislature in 1961 the legislative intent, although they are rarely cited.19 800-page Final Report. Another example is the Joint Fortunately, there are several methods to determine Legislative Committee to Study the Revision of whether a given statute has a legislative history that con- Corporation Laws, which published lengthy annual sists of more than bill jacket memos and letters. The New reports from 1957–1973. The annual reports of the Judicial York Legislative Service will add such items as commis- Council and its successor, the Judicial Conference, which sion reports, hearing transcripts, bar association memos, have been replaced by advisory committee reports, are and newspaper articles, if available, in the bill jackets also part of the legislative document series and a poten- they provide. The Legislative Service will also include tially relevant source in searching the history of laws relat- any relevant debate transcripts for a copying charge. The ing to civil, criminal, and family law practice. All three more recent volumes of the Service’s Legislative Annual types of reports are reprinted in McKinney’s Session Laws. will, along with the reprinted memos, note the existence A committee report on a bill of the type routinely pre- of additional material, particularly press releases and pared in Congress is, surprisingly, one type of document debate transcripts, and occasionally reports and public that is almost always unavailable for New York enact- hearings. The Annual also may note the existence of prior ments. Although both the Assembly and Senate do publish unenacted bills, as does the McKinney’s Session Laws col- reports, these are on general topics because their rules have lection of memoranda. If a statute was originally recom- not required reports on specific legislation. The Senate pro- mended by the Law Revision Commission, this will be duced no reports on 152 major pieces of legislation noted in the annotations in McKinney’s Consolidated Laws between 1997 and 2001, while the Assembly produced only and/or CLS.20 In addition, if the intent of a statute has two on the 181 bills for which the researchers had complete already been considered by the courts, the most relevant data, according to the Brennan Center for Justice at New materials on its legislative history may be found cited in York University School of Law.15 Similarly, the legislature the opinion and in the related briefs.21 Finally, if a law is holds hearings, but does so only rarely with regard to spe- the subject of one of the McKinney’s practice commen- cific legislation. Hence, the Brennan Center reports that taries, the author may cite and discuss key documents.22 between 1997 and 2001 both the Senate and Assembly held only one hearing each on major bills.16 Intent from Long Ago In some instances, the law for which some indication of If a Debate Is Never Recorded . . . legislative intent is being sought will turn out to be Researchers hoping for access to transcripts of debates as derived from a statute enacted in the 19th or early 20th found in the Congressional Record will also be disappointed. century. It is often impossible to research the intent of Unlike the Congressional Record, the New York State Senate early enactments because the comprehensive bill jacket and Assembly journals contain only summaries of the collection begins in 1921, and there are no early counter- daily transactions, and are therefore of little use when com- parts to the Legislative Annual or the McKinney’s Session piling a legislative history. There are no debates on most Laws reprints. However, there are exceptions. If a law was bills even though debates have been officially recorded in derived from the Revised Statutes of 1827–1828 (known the Senate since 1960, and in the Assembly since 1973. The as the “Butler and Duer Revision”), the notes of the revis- Brennan Center study indicates that between 1997 and ers may offer some information.23 2001 there was no “debate” in the usually recognized sense For example, last summer, the New York Law Institute of the term on 95.5% of major Assembly bills and 95.1% of received an inquiry concerning the history of section 5 of major Senate bills.17 However, if a debate transcript exists the Domestic Relations Law, which bars incestuous mar- it may be obtained for a fee from the Legislative Service or riages and derives from the Revised Statutes.24 The revis-
Journal | March/April 2005 | 45 ers’ notes indicate that for this section they relied on an 6. See the accompanying chart, p. 46. In 2000, 78.2% of the legislative materi- opinion by Chancellor Kent, in which he stated, als cited by the New York appellate courts in 2000 were memoranda. William H. Manz, New York Appellate Decisions Show Preference for Recent Cases, “Marriages among such near relations, would not only Commentaries and Bill Memos, N.Y. St. B.J., May 2002, at 14. lead to domestic licentiousness, but by blending in one 7. See, e.g., Senate Rule VI, § 1 (2005–2006); Assembly Rule III, § 1(f) object, duties and feelings incompatible with each other, (2005–2006). would perplex and confound the duties, habits and affec- 8. See, e.g., Excellus Health Plan, Inc. v. Serio, 2 N.Y.3d 166, 172, 777 N.Y.S.2d tions proceeding from the family state, impair the percep- 422 (2004) (citing letter from Superintendent of Insurance); Carney v. Philipone, 1 N.Y.3d 333, 341, 774 N.Y.S.2d 106 (2004) (citing letter from Onondaga County tion and corrupt the purity of moral taste, and do vio- Department of Law); Specialty Prods. & Insulation Co. v. St. Paul Fire & Marine lence to the moral sentiments of mankind.”25 Ins. Co., 99 N.Y.2d 459, 464–65, 758 N.Y.S.2d 255 (2003) (citing letter from Historical annotated codes, which tend to accumulate Association of Casualty and Surety Cos.); Gorsky v. Triou’s Custom Homes, Inc., 194 Misc. 2d 736, 755 N.Y.S.2d 197 (Sup. Ct., Wayne Co. 2002) (citing letter from dust and remain forgotten on many law library shelves New York State Builders Association). Bill jacket letters were cited by the Court may also provide clues to the basis for a statutory change or of Appeals only eight times between 1950 and 1979. Between 1980 and 1989, amendment. For example, White and Goldmark on Non-Stock they were cited 26 times, and between 1990 and 1999, 60 times. William H. Manz, The Citation Practices of the New York Court of Appeals: A Millennium Corporations explains that “[t]he legislative interest in enact- Update, 49 Buff. L. Rev. 1273, 1289 n.76 (2001). ing the provision authorizing the taking of property in trust 9. New York Legislative Service, Bill/Veto/Recall Jackets, at for the improvement and embellishment of cemetery prop-
46 | Journal | March/April 2005 Paying Off a Mortgage A (Surprisingly) Convoluted Story
By Bruce J. Bergman
erhaps because a mortgage is far more momentous mortgage (remitting past due sums to cure the default). and formal than a telephone bill or a grocery store That is a different subject with different rules.1 Pobligation, its satisfaction can become complicated. Many other endeavors are surely more intricate and Can It Be Paid? laden with nuance than the satisfaction of a mortgage, but Can the mortgage be paid off at all? This sounds like a paying off a mortgage is sufficiently problematic to raise foolish question. If a borrower has the wherewithal to pay a host of difficult, often unanticipated issues that occur off a mortgage, namely, all the money is in hand, it might for disparate reasons. So, uniting the concepts in one neat be assumed that a lender could not reject it. This is partic- place should be of service. ularly so when contemplating the sacred right to redeem Typically, the subject is addressed on one of two occa- (discussed later). sions. Property burdened by a mortgage is to be sold and But for those who recall the first time they were so a payoff letter is requested from the mortgage holder. involved in negotiating a mortgage, either the other side (The solicitation to satisfy might not be honored or, if insisted upon the right to prepay or, when representing favorably viewed, it may delineate categories of expense the borrower, your senior partner reminded you to be that are contentious.) Alternatively, the borrower is in sure to get that privilege for your client. And the reason default and a foreclosure action is either imminent or pending. Through sale of the premises, refinance, or res- BRUCE J. BERGMAN
Journal | March/April 2005 | 47 pursuit of that right was so important is the general rule tion, so that collection of a prepayment penalty is in New York that indeed, a mortgage may not be prepaid barred.13 But if the provision in the mortgage makes the unless the mortgage documents specifically so provide.2 sum payable notwithstanding an involuntary payment As a practical matter, this is understandable because pre- (or even in the event of acceleration and a foreclosure payment can impose untoward economic burdens upon a action), it will be enforced.14 mortgagee, such as loss of an expected rate of return, The compelling point remains: a prepayment penalty increased tax liability, and the costs attendant to reinvest- could comprise a portion of a mortgage payoff, and ing the principal, sometimes at a lower rate of return.3 searching for exceptions, if the payment demand is con- sidered untoward, is a difficult exercise. Charging interest on maturity, even where the rate would otherwise be usurious, is not deemed to violate usury statutes.
Statute plays a role here too. If a loan is secured prima- How Much Is Due? rily by either an owner-occupied one-to-six family resi- The amount due depends upon the particular case, but dence, or a co-op unit, the loan can be prepaid in whole or the crux of the determination lies in delineation of the cat- in part at any time.4 Additionally, lenders covered by egories of charge and expense that can be encompassed Banking Law Article IX or 12-D licensed lenders (typical- by the mortgage. Both principal and interest will usually ly home equity lenders who make junior loans on owner- be due, although upon natural maturity at the end of the occupied residences of one to four units) are barred from mortgage term, only interest might be due. Other charges employing a mortgage provision that would not allow that may form part of the debt may be less overt. prepayment.5 Included among those items are the following: Because there is considerably more nuance to this sub- ject than is reviewed here, exploring all the issues can Legal Fees become necessary on a case-by-case basis. Whatever the Because the American rule is that each party to an action breadth of the subject, it makes the point that the avail- bears its own counsel fees,15 the obligation to pay some- ability of prepayment can be a threshold question.6 one else’s legal cost is seldom encountered. But contrac- tual agreement (the mortgage) between the parties can The Prepayment Penalty alter the rule,16 something commonplace in the realm of Although far more common in commercial rather than mortgages. In the event of a foreclosure, the mortgagee’s residential mortgages, a penalty can be imposed by an reasonable legal expense, together with sundry costs, dis- appropriate mortgage provision upon a borrower seeking bursements, and allowances are most often a component to satisfy the obligation prior to its natural maturity date.7 of the debt. Even absent a foreclosure, the lender may Whether the right to collect a prepayment penalty exists, have incurred legal fees during the life of the mortgage – however, will depend upon the applicability of a number perhaps a title claim or the borrower’s bankruptcy filing of statutes and rules. For an owner-occupied one-to-six – and these could be added to the debt.17 family residence, no prepayment penalty is available if payment is made on or after one year from the date the Late Charges loan is made,8 although if made prior to that time the Mortgages generally have a grace period for submission penalty is permitted but only if a provision to that effect of periodic installments; 15 days is the most common. As is in the loan agreement.9 Then too, lenders licensed pur- is typical, a late charge may be imposed for tardy remit- suant to Article IX or 12-D of the Banking Law are pre- tances. For a one-to-six family dwelling, Real Property cluded from extracting a prepayment penalty.10 And the Law (RPL) § 254-b provides 2% as the maximum late further exceptions are extensive enough not to be eco- charge available. This limit does not apply, though, to nomically discussed here.11 loans insured by the federal housing commissioner, loans Where the prepayment is couched in terms of a yield insured or guaranteed pursuant to the Federal Service- maintenance provision (common in commercial mort- men’s Readjustment Act of 1944 or to federal savings gages), it is generally an enforceable liquidated damages associations.18 Similarly, the cap would not affect com- clause under New York law.12 mercial mortgages. A prepayment penalty encounters yet another twist A 2% charge each month can mount where a residen- when it intersects with acceleration of the debt followed tial mortgage has been regularly late over a period of by initiation of a foreclosure action. Prepayment is years. The total due may become very significant on deemed involuntary where default precipitates accelera- large, often commercial, mortgages, where the charge
48 | Journal | March/April 2005 could be 5% or 6%. Such sums are compensable in a mort- centage depending upon provision in the mortgage) will gage foreclosure action19 and therefore due upon a be due if the mortgage is to be satisfied. payoff. Like principles control sums due upon senior mort- gages or other encumbrances. If the mortgage upon Applicable Interest and Interest on Default which payment is contemplated is in a second or more Although much of the time the note rate controls the quan- junior position, if at any time during the existence of that tum of interest accrual, such a calculation is likely incom- mortgage there had been a default on a paramount mort- plete where there may have been a default. Some time after gage, the junior lender might be constrained to cure the a borrower may have defaulted, the lender will eventually default or satisfy the senior in full. After all, foreclosure of accelerate the debt and declare the entire balance due. a senior mortgage extinguishes a junior mortgage. So, Upon that acceleration, if the mortgage is silent as to the such amounts, with interest, as with insurance and taxes, rate of interest to apply, the judgment rate of 9% controls.20 will be due upon satisfaction. If the mortgage provides for a default rate to apply, and most well-drafted mortgages will, that rate will prevail.21 Redemption and a Payoff Statement If the foreclosure action proceeds to entry of judgment If a mortgage cannot be prepaid, as discussed earlier, then of foreclosure and sale, then the mortgage merges into the there is no issue of redemption. But if prepayment is not judgment so that interest reverts back to the judgment barred, or if the balance of the mortgage has been acceler- rate,22 except if the parties intended to avoid merger, in ated, then the mortgagor has the right to save the pledged which case the contract or default rate can still control so property, to pay the total sum due, to redeem, a right that long as the applicable mortgage provision is clear and is a rule of equity favored by the courts.28 Indeed, a bor- unequivocal.23 rower’s right of redemption cannot be waived or aban- The default rate can sometimes be quite high, for exam- doned by any stipulation of the parties at any time, even ple, up to 24%. Mindful that the legal rate of interest is if contained in the mortgage29 or expressed in open 16%,24 anything above that might appear usurious. But it is court.30 This absolute right to satisfy the mortgage contin- not so. Charging interest on maturity, typically by acceler- ues until the moment the hammer falls at a foreclosure ation, higher than the note rate is generally valid and auction sale.31 enforceable25 and even where the rate would otherwise be usurious it is not deemed to violate usury statutes.26 Usury can exist only where there is a loan or forbearance and interest upon maturity fits neither category. And yet there is further subtlety. Since a 2001 ruling of the Court of Appeals, the note rate of interest will accrue on both the principal and interest portion of all missed installments from the date each was due until accelera- tion is declared.27
Lender’s Advances and Interest Improved premises need to be insured, lest hazard dam- age to the structures diminish the value of the security. Whether the borrower was maintaining the insurance or the lender was paying through an escrow account, a lapse of insurance coverage is dangerous. Consequently, the mortgage will authorize the lender to advance sums nec- essary to keep insurance in force, a sum that will be added to the mortgage balance. Mortgages will also assess interest on such an advance, payable at the judg- ment rate of 9% if the mortgage is silent on the subject, or some higher default rate if the mortgage so provides. Similar concepts govern advances for real estate taxes. Failure to pay such taxes will eventually result in divest- ment of title and extinguishment of the mortgage. Therefore, the lender will at some point advance sums to cure tax defaults to protect the lien of the mortgage. These amounts, together with interest (9% or some higher per-
Journal | March/April 2005 | 49 In order to tender the proper satisfaction amount, the 20. See, inter alia, Metro. Sav. Bank v. Tuttle, 290 N.Y. 497, 49 N.E.2d 983, reh’g borrower needs a payoff statement from the lender. denied, 291 N.Y. 634, 50 N.E.2d 1018 (1943); Title Guar. & Trust Co. v. 2846 Briggs Ave., Inc., 283 N.Y. 512, 29 N.E.2d 66, reh’g denied, 284 N.Y. 685, 30 N.E.2d 725 Where the mortgaged property is an owner-occupied (1940); Ferris v. Hard, 135 N.Y. 354, 32 N.E. 129 (1892); Heimbinder v. Berkovitz, one-to-six family residential structure or residential con- 263 A.D.2d 466, 693 N.Y.S.2d 200 (2d Dep’t 1999); see also 1 Bergman on New dominium unit, statute requires the payoff letter to be York Mortgage Foreclosures § 1.11[1] (rev. 2005). sent within 30 days of request.32 21. See, inter alia, Heimbinder, 263 A.D.2d 466 (citing inter alia, Kaiser v. Fishman, Happily, there will be many occasions when a borrow- 187 A.D.2d 623, 590 N.Y.S.2d 230 (2d Dep’t 1992); Marine Mgmt. v. Seco Mgmt., 176 A.D.2d 252, 574 N.Y.S.2d 207 (2d Dep’t 1991), aff’d, 80 N.Y.S.2d 886, 587 er desiring to satisfy a mortgage contacts the lender and N.Y.S.2d 900 (1992); Ward v. Walkley, 143 A.D.2d 415, 532 N.Y.S.2d 426 (2d Dep’t promptly receives an uncomplicated statement reciting 1988)); see also Citibank, N.A. v. Liebowitz, 110 A.D.2d 615, 487 N.Y.S.2d 368 (2d principal and interest due. But as analyzed, it may not be Dep’t 1985); Levine v. State of New York, 106 A.D.2d 709, 484 N.Y.S.2d 678 (3d Dep’t 1984). that simple. There are numerous categories of calcula- 22. Taylor v. Wing, 84 N.Y. 471 (1881); Banque Nationale de Paris v. 1567 Broadway tions and fees (each with more detail than can be explored Ownership Assocs., 248 A.D.2d 154, 669 N.Y.S.2d 568 (1st Dep’t 1998). here) that can be part of the payoff formula. Even then, 23. Banque Nationale de Paris, 248 A.D.2d 154; Marine Mgmt., 176 A.D.2d 252. this excursion did not address other varieties of charges, 24. GOL § 5-501(1); Banking Law § 14-a(1). such as fees for ownership transfers, modifications, 25. See, inter alia, Bloom v. Trepaml Constr. Corp., 29 A.D.2d 951, 289 N.Y.S.2d 447 releases of lien, bounced check charges, among more than (2d Dep’t), aff’d, 23 N.Y.2d 730, 296 N.Y.S.2d 372 (1968). a few others, or the problems of redemption on the eve of 26. Klapper v. Integrated Agric. Mgmt. Co., Inc., 149 A.D.2d 765, 539 N.Y.S.2d 812 sale, or the ability to obtain an assignment of the mort- (3d Dep’t 1989). gage instead of a satisfaction. It is hoped, though, that 27. Spodek v. Park Prop. Dev. Assocs., 96 N.Y.2d 577, 733 N.Y.S.2d 674 (2001). ■ revealing some of the obscurities here will be helpful. 28. Goodell v. Silver Creek Nat’l Bank, 48 N.Y.S.2d 572 (Sup. Ct.), aff’d, 268 A.D. 1020, 53 N.Y.S.2d 529 (4th Dep’t 1944). 1. For a review of issues relating to reinstatement, see 1 Bergman on New York 29. Peugh v. Davis, 96 U.S. 332 (1877). Mortgage Foreclosures § 4.06 (rev. 2005). 30. Maher v. Alma Realty Co., Inc., 70 A.D.2d 931, 417 N.Y.S.2d 748 (2d Dep’t 2. See, inter alia, Russo Enters. v. Citibank, N.A., 266 A.D.2d 528, 699 N.Y.S.2d 1979). 437 (2d Dep’t 1999); Missouri, Kansas & Texas Ry. Co. v. Union Trust Co., 156 N.Y. 592, 51 N.E. 309 (1898); 1 Bergman on New York Mortgage Foreclosures § 1.16 (rev. 31. Nutt v. Cuming, 155 N.Y. 309, 49 N.E. 880 (1898). For an in-depth review of 2005). this subject, see 1 Bergman on New York Mortgage Foreclosures § 2.21[3] (rev. 2005). 3. See Arthur v. Burkich, 131 A.D.2d 105, 520 N.Y.S.2d 638 (3d Dep’t 1987). 32. RPL § 274-a(2). For a further discussion of the statute see 2 Bergman on New York Mortgage Foreclosures § 24.06[4] (rev. 2005). 4. General Obligations Law § 5-501(3)(b) (GOL). 5. 3 N.Y.C.R.R. § 80.9(e). 6. For further exploration of the subject, see 1 Bergman on New York Mortgage Foreclosures, § 1.16 (rev. 2005). 7. As to enforceability of the provision, see, inter alia, Criimi Mae Servs. Ltd. P’ship v. Nassau Bay Assocs., 283 A.D.2d 215, 724 N.Y.S.2d 735 (1st Dep’t 2001); Poughkeepsie Galleria Co. v. Aetna Life Ins. Co., 178 Misc. 2d 646, 680 N.Y.S.2d 420 (Sup. Ct., Dutchess Co. 1998). 8. GOL § 5-501(3)(b). 9. Id. 10. 3 N.Y.C.R.R. § 80.9(e). 11. See 1 Bergman on New York Mortgage Foreclosures, § 1.16[2][a] (rev. 2005). 12. In re Vanderveer Estates Holdings, 283 B.R. 122 (2002) (citing In re United Merchants & Mfrs., Inc., 674 F.2d 134 (2d Cir. 1982); Walter E. Heller & Co. v. Am. Flyers Airline Corp., 459 F.2d 896 (2d Cir. 1972)). 13. Kilpatrick v. Germania Life Ins. Co., 183 N.Y. 163, 75 N.E. 1124 (1905). 14. United Merchants & Mfrs., 674 F.2d 134; Eyde v. Empire of Am. Fed. Sav. Bank, 701 F. Supp. 126 (E.D. Mich. 1988). 15. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975); Baker v. Health Mgmt. Sys., 98 N.Y.2d 80, 745 N.Y.S.2d 741 (2002); see also 2 Bergman on New York Mortgage Foreclosures § 26.01 (rev. 2005). 16. Baker, 98 N.Y.2d 80; Chapel v. Mitchell, 84 N.Y.2d 345, 618 N.Y.S.2d 626 (1994). 17. Not surprisingly, the topic of legal fees pursuant to a mortgage is a much broader subject than reviewed here. Suggested guidance can be found at 2 Bergman on New York Mortgage Foreclosures Ch. 26 (rev. 2005). 18. RPL § 254-b(2). 19. Centerbank v. D’Assaro, 158 Misc. 2d 92, 600 N.Y.S.2d 1015 (Sup. Ct., Suffolk Co. 1993); Barrow v. Rocksprings Mgmt. Co., 169 A.D.2d 585, 564 N.Y.S.2d 437 (1st Dep’t 1991).
50 | Journal | March/April 2005 LANGUAGE TIPS BY GERTRUDE BLOCK
uestion: Some time ago, I find out.” (Emphasis added.) From against my client?” It’s hard to pin believe you wrote a column in that overload of negatives, Abbas down just what the speaker meant in Qwhich you stated that the should have removed at least one, to that statement. The same is true of the expression all . . . are not might be say instead: “I can’t say that Ariel statement by a lawyer for the defen- ambiguous. Would you explain that Sharon is a partner.” dant physician (who had removed statement again? What might take the prize for unin- an incompetent man’s kidney with- Answer: I can’t find the column to tended obfuscation caused at least out permission): “The removal of the which the questioner refers, but he partly by negatives is a paragraph kidney was not without benefit may have seen the discussion of that from a court holding: to him.” phrase in my book, Legal Writing Style, This rule [comparative negligence] Addendum: should not be construed so as to Foundation Press, fifth edition, 1992, at The following account appeared some entitle a person to recover for dam- page 91. time ago in Glimpse, a newsletter of The problem with all . . . are not is age in a case where the proof shows that the exercise of due care the International Society for General that while the person using it believes could not have prevented the Semantics. It seems relevant here: it expresses a negative, it does not. For injury, or where the defendant’s In an appeal heard at the Assize example, “All cats are gray,” expresses negligence was not a legal cause of Court in England, the Lord Justice an unequivocal affirmative. But “All the damage. Stated differently, was hearing a plea on behalf of a cats are not gray,” does not express an there can be no apportionment of man charged with an act of bestial- unequivocal negative. It merely means negligence where the negligence of ity with a duck. The defense called that some cats are gray; as does the the defendant is not directly a legal a Viennese psychiatrist whose evi- statement, “Not all cats are gray.” The cause of the result complained of dence went something like this: negative form of “All cats are gray” is by the plaintiff. Hoffman v. Jones, “I have known the prisoner, My “No cats are gray.” Fla. 280, So.2d 43. (Emphasis Lord, for a long time, and for many People get into trouble sometimes added.) years he has been a patient of because of the ambiguity of all . . . are Negatives are handy, however, mine, but now he is responding to treatment and is showing a not. A notice on the student bulletin when the speaker wants to hedge. marked improvement.” board recently announced, “All classes Speaking of a governmental official regularly scheduled for Monday will under indictment, then-President His Lordship asked: “By ‘showing a marked improvement,’ are you not be held.” The implication is that Reagan asserted, “Mr. ______is not a suggesting that he is about to grad- some classes will be held. To be clear dishonest man.” Or consider Alan Greenspan’s comment about the uate up through the animal and the notice should have said, “No bird kingdom until he gets to little Consumer Price Index: “I can’t say Monday classes will be held.” boys and girls?” with great confidence, but I can say As illustration of that point, a read- “Oh no, my Lord,” said the psychi- that what data we have does not sug- er submitted a comment made by a atrist, “he’ll always stick to ducks.” politician who was attempting to state gest that the April rise will not be that Newark had no responsibility in repeated in the month of May.” This anecdote confirms that there are other ways to get into trouble with society’s ills. He wrote, “All of soci- (Emphasis added.) language than by using negatives. ■ ety’s ills are not solely Newark’s To soften a negative statement, the responsibility.” Instead of denying that not . . . un construction is also useful. any of society’s ills were solely For example, an instructor might tell GERTRUDE BLOCK is lecturer emerita at the Newark’s responsibility, this comment an aspiring student, “This is not bad University of Florida College of Law. She is the admitted that some were – not at all writing.” Or, to soften a blow: “This is author of Effective Legal Writing (Foundation what he intended. not the worst situation you might have Press) and co-author of Judicial Opinion Writing Double (and sometimes triple) neg- encountered.” (American Bar Association). Her new book is atives also cause trouble. The New York The not . . . un negative is also con- Legal Writing Advice: Questions and Answers (W. S. Hein & Co., 2004). Times reported another unintended venient when you want to express comment when it quoted Mahmoud something between praise and criti- Abbas, then-front-runner in the cism. Consider the statement, “The Palestinian presidential race, as saying, plaintiff was not unhappy with the “Ariel Sharon is an elected leader and outcome.” Was the plaintiff happy? we will negotiate with him. I can’t say No. Was he unhappy? Well, no. And that Ariel Sharon is not a partner. But how about the disclaimer, “I was not whether or not he is serious, we will unaware of other possible arguments
Journal | March/April 2005 | 51 ATTORNEY PROFESSIONALISM FORUM
To the Forum: proceed notwithstanding my con- motivated solely by an intention to I am a new associate in the litigation cerns? harass or injure the defendant. department of a law firm. A senior Sincerely, First, your judgment about the case partner recently assigned a matter to An Attorney With a Thorny Issue must be communicated to your client. me concerning someone I shall call You know that Mrs. Privileged is a sig- Mrs. Privileged. Mrs. Privileged is the Dear Attorney With a nificant and longstanding client of the matriarch of the Privileged Family, Thorny Issue: firm, and prudence therefore would which owns and develops much of the It appears that you have more than dictate that you avoid characterizing real estate in our county, including one issue to deal with in this case; I her behavior. Instead, give her your shopping centers, office buildings and hope this response will give you some professional opinion as to what you residential complexes. For the past 10 direction. believe the outcome of the litigation years, the firm has handled all the At the outset, you should realize will be. As explained by EC 7-3, a commercial work for the Privileged that the Code of Professional Respon- lawyer may serve as both advocate Family, as well as personal matters for sibility itself can point you in the right and adviser, and, in the latter capacity, many of its members. direction. The preamble to the Code the lawyer “furthers the interest of the According to the senior partner, states, in part, as follows: “In fulfilling client by giving a professional opinion Mrs. Privileged claims that her garden- professional responsibilities, a lawyer as to what he or she believes would er negligently over-fertilized her prize necessarily assumes various roles that likely be the ultimate decision of the rose garden, rendering the roses unfit require the performance of many diffi- courts on the matter at hand.” for the annual flower show in which cult tasks. Not every situation which If, after giving her your view of the she has participated for many years, the lawyer may encounter can be fore- case, Mrs. Privileged nevertheless and won medals for her displays. She seen, but fundamental ethical princi- insists on pursuing it against your claims $5,000 in damages and is furi- ples are always available for guidance. advice, you may have a problem. A ous with the gardener, so much so that . . . Each lawyer’s own conscience must lawyer should not “knowingly assist she not only fired him, but also provide the touchstone against which the client . . . to take a frivolous legal “spread the word” about his incompe- to test the extent to which the lawyer’s position” (EC 7-5) or advance a claim tence to her neighbors, many of whom actions should rise above minimum that is “unwarranted” under the law. also used him. Although I have never standards. But in the last analysis it is met Mrs. Privileged, the scuttlebutt the desire for the respect and confi- The Attorney Professionalism Committee around the office is that she is not very dence of the members of the profession invites our readers to send in comments kind, to say the least, and is also penu- and of the society which the lawyer or alternate views to the responses rious, despite her wealth. serves that should provide to a lawyer printed below, as well as additional As instructed, I prepared a com- the incentive for the highest degree of hypothetical fact patterns or scenarios to plaint and commenced discovery. I just ethical conduct.” be considered for future columns. Send completed taking the deposition of the With this in mind, you can begin to your comments or questions to: NYSBA, gardener, who is indigent, and was not analyze the problems you are facing. One Elk Street, Albany, NY 12207, Attn: represented by counsel. His testimony DR 7-102(A)(1) provides as follows: “In Attorney Professionalism Forum, or by does not support our client’s claim that representation of a client, a lawyer e-mail to [email protected]. he was negligent, and, even if it did shall not file a suit, assert a position, and we obtained a judgment, his lack conduct a defense, delay a trial, or take This column is made possible through the of assets would render it uncollectible. other action on behalf of a client when efforts of the NYSBA’s Committee on In addition, the gardener has been the lawyer knows or when it is obvious Attorney Professionalism. Fact patterns, unable to find work, having been that such action would serve merely to names, characters and locations presented “blacklisted” by our client – who, I am harass or maliciously injure another.” in this column are fictitious, and any resem- convinced, is just being petty and Further, a lawyer is prohibited from blance to actual events or to actual persons, spiteful. This is my first case without “knowingly advanc[ing] a claim or living or dead, is entirely coincidental. These close supervision, and I want to make defense that is unwarranted under columns are intended to stimulate thought a good impression on an important existing law” unless certain conditions, and discussion on the subject of attorney client and the senior partner. As a mat- not relevant here, exist. DR 7-102(A)(2). professionalism. The views expressed are ter of my own professional develop- Based upon the discovery you con- those of the authors, and not those of the ment, I am also anxious to take a case ducted, you have reached the conclu- Attorney Professionalism Committee or to trial. Nevertheless, I am conflicted, sion that your client’s claim of negli- the NYSBA. They are not official opinions as I think that this case should not be gence cannot be proven. You also sense on ethical or professional matters, nor continued. What should I do, particu- that your client is being petty and should they be cited as such. larly if the senior partner tells me to spiteful, and that her actions may be
52 | Journal | March/April 2005 DR 7-102(A)(2). Your only course of you to do otherwise. DR 1-104(E). In motor vehicle when the driver lost action may be withdrawal if you fact, absent such a resolution, DR 1- control at high speed, and struck a become convinced that Mrs. Privileged 104(D)(1) places him in the position of telephone pole. The accident hap- is pursuing her claim solely to punish violating the rules himself if he directs pened in the middle of the day, and her former gardener. DR 2-110(B)(1) you to proceed. there was only one car involved. As is requires mandatory withdrawal if “the It is hoped that these suggestions often the case, the driver survived but lawyer knows or it is obvious that the and guidelines will assist you. the passenger did not. client is bringing the legal action, con- Remember that professionalism is Although the case is arguably ducting the defense, or asserting a something you should always strive worth two to three times as much, the position in the litigation, or is other- for. While the economic interests of a maximum insurance coverage avail- wise having steps taken, merely for the firm may influence some decisions, able is $100,000. I contacted the claims purpose of harassing or maliciously they should never cloud ethical and person, who indicated that she was injuring any person.” professional judgment. prepared to offer the full amount of the Of course, your supervising partner The Forum, by policy, but just wanted to see the may have other thoughts about such a Arthur N. Terranova, Esq. autopsy report first to make sure that decision. Nevertheless, you must clear- Jamaica, NY the boy had no underlying diseases ly articulate your concerns to him. The which would affect his life expectancy. economic interests of the firm do not LETTERS TO THE FORUM: I told her I would send the report allow you to violate the Disciplinary when I received it. Rules, no matter how much business is We received the following letter in A few days later I got the autopsy generated by this particular client. In response to the Forum published in the report, and to my surprise (and dis- fact, the partner has to be aware of his January 2005 issue of the Journal. may) the attached toxicology results own obligations. DR 1-104 covers the I disagree with certain aspects of the indicated that Sam had a fair amount responsibilities of a partner or supervi- response to “Conflicted’s” problem. of alcohol in his system at the time of sory lawyer with respect to subordi- While courtesy to a fellow attorney is death. My sense from talking to the nate lawyers. The law firm itself has an always appropriate, I think that claims adjuster is that she, as I, had not obligation to make reasonable efforts Conflicted was also dilatory and considered drug or alcohol use on to ensure that all the lawyers in the gullible. When the opposing attorney Sam’s part. The problem I perceive is firm conform to the Disciplinary Rules. failed to meet, and then to respond to that once the carrier learns about the DR 1-104(A). In addition, the individ- discovery, Conflicted took weeks and alcohol finding it may seize on it as an ual lawyer with management responsi- weeks to contact the court. This was opportunity to delay resolution of the bility in a firm, or who has direct much too long a delay, especially in case, or to negotiate down from full supervisory responsibility over anoth- light of the client’s previous experi- policy coverage, even though Sam’s er lawyer, must make reasonable ence. Conflicted also made a real mis- intoxication did not cause the accident. efforts to ensure that other lawyers take in taking the matter off the dock- The parents are devastated by their conform to the Disciplinary Rules. DR et, as opposed to continuing it, before son’s death. I would like to spare them 1-104(B). getting back a signed arbitration agree- having to be deposed and being ques- It is to be hoped that the senior part- ment. There was every reason to dis- tioned about their son’s drinking. ner who assigned you this matter is trust the other attorney, yet Conflicted My question is this: What should I concerned with your professional disarmed before achieving the desired send to the claims adjuster? I’ve asked development. Supervision is particu- result. Courtesy and concern for a fel- three lawyers I respect for their advice, larly important for someone like you, low attorney’s distress is fine, but it and have gotten three different opin- who is a new associate with limited should not become an excuse for ions: (a) don’t send anything, except experience. See DR 1-104(C). If the neglecting or devaluing the client’s an authorization allowing the carrier partner, as your supervising attorney, interests. to get the autopsy report only; (b) send is able to give you a reasonable resolu- Keith Roberts, Esq. the entire report, with the toxicology tion of “an arguable question of profes- Roberts Proprietaries, Inc. results; or (c) send the report, without sional duty,” then you would be pro- New York, NY the toxicology results. A variation of tected if you acted accordingly. DR 1- (c) would be to alert the claims person 104(F). Unfortunately, it appears that QUESTION FOR THE that I was only sending part of the he will be hard pressed to come up NEXT ATTORNEY report. with one given the circumstances you PROFESSIONALISM FORUM: Is one of those options more “pro- describe – and if he cannot, you will fessional” than the others? have to comply with the Disciplinary I represent the estate of a 17-year- Sincerely, Rules even if your supervisor orders old boy. Sam was a passenger in a Unsure
Journal | March/April 2005 | 53 EDITOR’S MAILBOX
To the Editor: it) for six months, $4,000, for a total of of buyer, it seems to us less unfair a I read and enjoyed very much Eric $7,600. Let’s throw in that 1% for the result. Penzer’s article in September on broker, $3,000 plus say $1,000 for legal A variation could be, seller can grab “When a Mortgage Commitment Is fees. A total of $11,600. 5% no questions asked, or can seek Issued But Later Revoked….” Now, if the replacement contract is 10% but pays buyer’s legal fees if sell- But it reminded me of a thought I also $300,000 why should seller get er loses. We cannot explain why this have had before as to whether the very more than $11,600? And if the new con- appeals to us but at least this cuts the concept of 10% down payment – and tract is more, if it’s $325,000!, why pain of the innocent buyer in half. With its forfeiture as liquidated damages – should seller get anything? these million-plus prices, losing in one-family house sales is flawed. A liquidated damages provision $100,000 for a reason beyond your con- There is no reason today, with the may require that the actual damages trol just seems overly harsh. So per- purchase numbers so amazing, that are difficult to determine, but that’s not haps it’s time to revisit the 10% num- the measure of damages cannot, and true in our situations. It’s quite simple ber in consumer one-family sales. should not, be limited to actual dam- to determine them, no harder than any As a coda, Mr. Penzer notes that the ages. contract default cover; you resell and latest standard contract provides that The median price of a home in New compare the price. So in our suggested no matter what the cause, revocation of York in 2003 was about $300,000. A method, we say: carrying costs plus the the commitment after its issuance is no traditional down payment would be price differential and cap it all at 10%. grounds for purchaser to cancel. $30,000. Assuming a first time buyer It could be done by having the Obviously (to understate the obvious), (young couple) is thinking about one escrow agent continue to hold the purchaser is not buying without a of those insured 85% mortgages, they down payment until the new contract mortgage. So why do these forms not would need cash of $45,000. But if is signed. At that moment seller is right take that into account somehow. For some misfortune befell them after they back where it began. The taxes, insur- ages the standard was just the oppo- signed a contract and after they ance and mortgage are easily docu- site, including the cooperative con- received a mortgage commitment, as mented, and the seller’s attorney could tract; if for any reason except purchas- described by the cases cited by Mr. be required to certify to the new con- er’s default the loan did not close the Penzer – loss of job, illness, just for tract’s sale price. This would be sub- deal was off. Now they are all re- example – resulting in the commitment mitted to buyer and escrow agent. If versed, for no apparent reason. Even being pulled by the bank before clos- buyer has no objection, escrow agent worse, they provide that a commit- ing (remember, they require borrower disburses, loss to seller and balance ment conditioned on any requirement to certify to no material adverse back to buyer; or they can duke it out except appraisal is deemed uncondi- change in financial status at closing), if in court. Perhaps then plaintiff (who- tional for contingency clause purposes. the kids were to forfeit their down pay- ever was unhappy with the numbers) We wonder why they put it, and we ment, 2/3 of the cash needed to buy, pays legal fees if it loses. leave it, in. they would probably be out of the This would only apply if buyer had Richard M. Frome home market for years trying to accu- an unforeseen misadventure. It would New York, NY mulate the $45,000 again. not be available if buyer just changed However, if seller is not harmed, if its mind and bought a different house, in fact the price has gone up, is it a fair or any other kind of bad faith situation. result? No. What would be fair is, car- (Although we believe that theoretically MEMBERSHIP TOTALS rying costs, that is, seller’s mortgage, it makes no difference, seller should taxes and insurance, plus the actual not have a windfall; a party is allowed difference in the price under the to default so long as it makes the other NEW REGULAR MEMBERS replacement contract of sale, but not to party whole.) 1/1/05 - 2/14/05 ______998 exceed an aggregate of 10%. Perhaps Buyer would be required to submit NEW LAW STUDENT MEMBERS even 1% for the broker for its trouble. to seller evidence of the unexpected 1/1/05 - 2/14/05 ______283 Let’s see how this might work for an event and seller could reject the evi- imagined $300,000 sale price house. dence and litigate the point. But, we TOTAL REGULAR MEMBERS Assume it takes three months to find a suggest that the number of unfortu- AS OF 2/14/05 ______68,794 new buyer, who needs three months to nate events is so small that this would TOTAL LAW STUDENT MEMBERS close. Six months of taxes, say $500 per not be a burden in general. It would be AS OF 2/14/05 ______4,261 month, plus $100 per month for insur- a hardship once in a while, for example ance and assume seller has a $100,000 a seller who needs the money in order TOTAL MEMBERSHIP AS OF mortgage at 8% (the prices were most to buy a different house. But based on 2/14/05 ______73,055 likely much less when seller acquired the apparent rarity, and the innocence
54 | Journal | March/April 2005 NEW MEMBERS WELCOMED
FIRST DISTRICT Carrie Ann Cheskin Fabian Guevara Isabel Kyongah Lee Robert Paul Nupp Uzunma Eme Abiayi Campbell Chentao Lisa Michele Hackett Pang Lee Daniel Martin O’connor Karen Ruth Abraham Chiang Thaddeus Jeremiah Owen Philip Lefkon Joseph S. O’Donnell Benjamin Craig Abrams Arlene Lee Chow Hackworth Paul Nicholas Lekas Gideon O. Oliver Wayne A. Agard Michael Robert Christon Jason M. Hall Mark Levin Colleen V. O’Neill Amy Sara Albert Susan Chuang Joseph Alan Hall Ian Nathaniel Levy John D. Onnembo Thomas Ament Lisa Soyoung Chun Bridget V. Hamill Li (Lillian) Li Lauren Elizabeth Edward Roger Ames Thomas Joseph Cmar Alexis Simone Harry Lindsay Ellen Lippman O’Rourke Don J. Andrew Seth Harris Cohn Charles Wesley Hart Gregory G. Little Aisling Rockwell O’Shea Dante William Apuzzo Nonette Kristen Conway Derek John Haskell Lawrence T. Liu Spencer Maxwell Oster Michelle Louise Meredith Wells Cook David M. Hazan Yu-xi Liu Paula A. Oviedo Ardanowski Dayna Rachel Cooper Michael Edelen Healy Charles Jason Lore Gabriela E. Palmieri Rachel Ruth Arnold Matthew Cosentino Joanna R. Helferich Sean Patrick Lynch Anton G. Papakhin George Bennett Arthur Gregory Edward Jeffrey A. Hendricks Ramin Mahnad Liliana Parias-Neuburg Raquel Simone Atkinson Cunningham John Martin Henrich Attaul Q. Malik Wayne Allen Parker Grace Kaytlin Avedissian Melissa Schatzberg Akiko Hirabayashi Conor McDowell Elizabeth W. Peirce Marcella Joan Barganz Dassori Sadiqa G. Holland Malinowski Gina Marie Pellegrino Donna M. Bates Margaret Clare Daun Nicholas Stone Holmes Robert John Malionek David Bruce Perry-campf Rayka Trifonova Belova Zoe Lynn Davidson Robert F. Horn Elizabeth Scarlett James Mackay Phillips Bradon Ross Bergstresser Eric Fenton Davis James Gaddis Houghtlin Mandell Michael Alan Platt Elizabeth Theresa Charles Christopher Casey Brian Howard Shannon Kia Manigault Slawomir Wieslaw Platta Bernard De Martino Claire E. Hunter Nelson Bernal Manuel Matthew S. Poulter Shelley L. Bernard Natasha Demosthene Jane J. Hwang Benjamin S. Marashlian Andrea J. Prasow Vivian Marten Bernstein Jeong Deng Carlos P. Ibarra- Jeanine Theresa Allen R. Prunty Jamila A. Berridge Adam Di Paolo Fernandez Margiano Sharon Nicole Purcell Capricci Bilandal Deanne M. Diblasi Michael Jozef Israels Shay Mordechai Markus Serina Quinones James Michael Birnbaum Daniel W. Dietrich Osborne Keith Jack Andrea Marquez Ellen Rabiner David Joshua Bloch Christopher Joseph Richard Andre Jacobsen Bottome Regina Marie Raimond Louis Glenn Borodinsky Dimase James Evan Jeffers Lenor Cathleen Marquis Vijay Raveendranath Joshua Dylan Bradley Kevin M. Donohue Marsha Monique Simone Eric L. Martin Laura F. Redman Marisa Ilana Brahms Erynne Bianca Dowe Johnson Nena Easterling Mashaw Edward A. Reilly Samantha Scott Brantley Jamie Melissa Eckstein Susan Zetta Jorgensen Kamron Massumi Thomas Joseph Reilly Matthew Robert Thomas J. Egan Kristin Marie Joslyn Teresa Matushaj Thomas Anthony-george Braunstein Raymond C. Estes Won Sun Jung Nicholas Joseph Mauro Rice Tia L. Breakley Matthew Benjamin Fagin Ari Kahn Marina Mayer Stuart Jason Riemer Nicole M. Bright Reuven Brian Falik Marc Alan Kaplan Marie Judith McCormack Zane Christian Riester Maria Gabriela Brito Rebecca Michaels Konstantinos Katsaros Hugh Robert Jose Ariel Rivera Christopher Bradley Ferrante Elliot Franklin Kaye McCullough Ray W. Rodriguez Britton Kristen Elizabeth Finlon David Michael Kearney Hugh James McGlincy Brittain Allen Rogers Anne Elise Brown Margo Samantha Flug Michele Kamila Kelber Derek Adam McNally Jennifer E. Romano James R. Brown Svetlana M. Fowler James C. Kelly David Jay Medow Stephanie Erica Rosander Joseph M. Burke Randi E. Frankle Theodore A. Kiem George S. Meissner Suzanne Tracy Rosen Michael Patrick Burke Kelly Ann Frawley Elizabeth J. Kim Arianny Melissa Mejia Kevin F. Rothman Michael F. Busch Elsa Aurelie Fraysse Jean J. Kim Andres Gonzalez Mimi Kristin Rupp Gabriella A. Butterworth Rochelle Friedlich James Anthony King Mendoza Michael Jay Ruseskas Janeen Marcia Byron Idit Froim Danielle Janine Kiwak Claire V. Merkine Christopher J. Ryan Vanessa Caballero Richard Froom Jennifer Lynd Klass Jordan Abraham Suma Sanakkayala Tanessa Alison Cabe Shana Galeon John M. Kleeberg Messinger Rodrigo Abraham Sandeep Caberwal Jose Manuel Garcia Andrew Jerome Klein Anton F. Mikel Sanchez Carolyn Marie Caccese Represa Ronald Murray Kleinberg Rupa Mikkilineni Anne Jeffrey Savage Zjantelle Cammisa Robert Gaydu Zackary Daniel Knaub Jay Tyler Mirostaw Gerald William Sawczyn Melanie Anne Adam Isaac Gehrie Phaidra Sharice Knight Rebecca Louise Misner Sandra Ruth Schiff Capobianco Abraham M. George Lauren M. Kohn Matthew James Mitchell Jed R. Schlacter Susan Park Carlin Sean Thomas Gilmartin Elana Victoria Konstant Richard J. Mollot Allison Leigh Schrader William M. Catlan John Paul Ginty Christine Bonju Koo Brian Keith Morgan Rachel Schwartz Meghan Ann Cavalieri Ann E. Gittleman Joseph James Kroening Tonya D. Morgan Raena Aimee Selip Michael William Cavino Peggy Ellen Gizzarelli Joshua Aaron Kurtz Robert A. Morra Joshua S. Shames Jessie Ya-chun Chan Daniel A. Goldfried Donald Edward Lacey Christopher Michael Jack Ben Shapiro Parthapratim Chanda Jonathan S. Golfman Stephen Joseph Laffey Mozingo Anne Christine Shelby Sung I. Chang Erin Marie Graves Stacey Lizabeth Lager Kathleen Ann Murphy Jaya Shrivastava Allegra Alejandra Thomas Gray Malcolm E. Landau Kimberly B. Nerenberg Janice Casey Silverberg Chapman Lisa R. Greenbaum Clifford Alba Lay Mitchell Andrew Kenneth D. Silverman Lauren Jennifer Charme Wendy Zeft Greenwood Christy B. Lee Newmark Leonard M. Simon Oliver K. Chee Ishai Grunfeld David Yongdae Lee Steven Robert Newmark Shambie Singer
Journal | March/April 2005 | 55 John Smargiassi Kara Van Dorsten THIRD DISTRICT Paul Barton Paula J. Bailey Zinaida B. Smolyanskiy Dennis J. Dozis Veronica Benigno Christina M. Bruner Laurie Belony Yuri So-conrad Felix Alain Dubosse Katie Beaudett Besha Mari K. Cania Lauren Jennifer Berrol Chris Lewis Sprengle Rebecca Joy Engel Carla A. Brogoch Aimee R. Churchill Nichol Marie Bonardi Ying Stafford Eileen Dorothy Esposito Anthony L. Burkert Carrie A. Colegrove Laurie A. Brentson Vivien I. Stark Carla V. Faraldo Lisa Card Matthew P. Hughson Nicholas M. Brino Kevin T. Stein Janet Forrester Allison M. Carr Dennis B. Laughlin Alan Michael Bronfeld Ladan Fazlollahi Stewart Danielle Sandra Susan Cartier Amy Jo Lucenti Antonietta D. Bruno Boukje Maria Stoelinga Friedberg Bhavna Changrani Michael Patrick Canty Brian A. Sullivan Robert Gitelman Matthew Chauvin SEVENTH DISTRICT Joel H. Cassagnol Jennifer C.C. Teng Jonathan S. Glenn Benjamin S. Clark Evelyn Ann Adams Lance D. Clarke Ana Maria Tent Allen Cary Goodman LaVonda Collins Gregory J. Coughlin Tracy Nicole Clarry Saya Teraoka David Meyer Gross Edward L. Cummings Kendra Suzanne Kleber Sarah R. Colton Andrew Michael Thau Michael Grosso Maria E. Curley Langston D. McFadden Binsy T. Cyriac Sarah Huppertz Thoma Erin M. Hargis Mackenzie L. Curtin Jamone Rene Turner Jean M. D’alessandro Gregory Alan Thomson Michael Elliot Lisa M. Dekenipp Elena L. Derose Jean S. Tom Herskowitz Paul M. Dontenville EIGHTH DISTRICT Luigi Devito Aimee Elizabeth Torres Adam Lawrence Crystal Doolity Jacqueline A. Brummer Dominic Anthony Dinh Tu Tran Hirschfeld Jeffrey R. Escobar Charles Harrison Cobb Errichiello Morris Traube John Liam Hynes Charles Z. Feldman Hope Rachel Jay Diane Feniello Andrea William Trento Dina Hyppolite Andrew C. Fogarty Christopher Alan Larry Errol Flowers Jessica Rose Troy Kevin M. James Kevin M. Grossman Johnson Jeffrey B. Fox Luis R. Trujillo Joan Keely John Frederick Hector George Stephen Jones Julie A. Genovese Samuel A. Tversky Inna Khiterer Marco B. Koshykar Victor M. Wright Benjamin A. Gorelick Molly Niederlander Hyung Suk Kim Malcolm Alexander Siddharth Goswami Van Etten Darya Klein McPherson NINTH DISTRICT Jina A. Guirguis Joanna Rose Varon Sally Rebecca Kohn Thomas P. Moore Elizabeth Anne Patrick J. Gunn Elsie Cecilia Vasquez Wojciech Zbigniew Keith A. Muse Abramtsev John Healy Katherine Dunbavin Kornacki Alejandra Noel Paulino Hassan Ahmad Jeffrey D. Herbst Vince Amy M. Kramer Karen A. Rhoades Charles Scott Amann Charles Matthew Matthew Wayne Walding Christopher Joseph Adam H. Rosenblum Adrienne J. Arkontaky Hochman Karen Walny Laline Colleen M. Rumsey Sinan Aydiner Jonathan Joseph Illari Zara K. Watkins Danya Nicole Ledford Suzy Joy Shields Allen Beals Lars Christian Johnson Eliezer S. Weiss Brian A. Lincer D. Alexander Shults Heather Naime Brogan Richard J. Johnson Jonathan B. Weiss Michael A. MacDougall Breanne S. Skivington Brian Candela Sarika Kapoor Willliam Preston Welty Philip Mancuso Eric A. Stewart Otto Cheng Robyn Michele Katz Gavin Allen White Cassaundra Lynette Michael E. Sutton Gary G. Cooper Jonathan Edward Cecily Carolyn Williams Manning Cristina Garcia Da Silva Kirchner Stanley Eustace Wilson Tanya Messado FOURTH DISTRICT Jason Carver D’ambrosio Nicole M. Kozin Jed Paul Winer Sergey Mikhlin Neil Tarak Bhatt Dana Cuoco Droesch Robert E. Landman Aubrey Jaye Wisler Joseph Mure Marilyn Jeannine Bleser Jennifer C. Ferrer Marissa Candace Lau Heather R. Wlodek Roderick J. O’Connor Jeremy Bollam Linda Helen Grant Jessica Lorin Lightstone Johnnie Woluewich Christopher Harold Ilona E. Coyle Jeanette C. Lorenzetti Kelly Elizabeth Lonergan Valerie Ying Chen Wong Otterbeck Craig Cushing Jennifer Christine Neal Kim N. Machida Greg Vonlee Wood Jill K. Oziemblewski Victor P. DeAmelia Brian Nugent Christine A. Mapes Gary D. Yanker Shulamis Peltz Kerry Delaney Philip Justin O’Rourke Laura C. Marino Tammy Yuen Mario Perez Brenda Marie Gibbs Diana S. Ortiz Julie Anne Mason Yitzhak Zelmanovitch Daniel J. Perrone Heidi Gifford John Henry Peters Daniel M. Maunz Aimee Jill Zeltzer Edwin Esberio Pieters Colleen M. Glavin Katharina Pfeiffer Matthew John Mehnert Sandra Hope Zucker Matthew Scott Porges Harold Colvin Nicholson Jeffrey C. Philp Lisa Terese Mevorach Elizabeth J. Salen John S. Smrtic Laura Anne Roberts William Brian Monahan SECOND DISTRICT Jody Saltzman Ann Catherine Sullivan Stacy M. Rotner Michael Mouzakitis Gerda Abramson Yifat Vered Schnur John Daniel Svare James Patrick Ryan Yuko Ann Nakahara Jeffrey Alfano Marisa T. Silverman Christina Watson Jeffrey Schonbrun Melissa Ann Perrotta Jeffrey M. Alfano Vladislav S. Sirota Teresa M. Smith Catherine J. Poissant Irina Alter Leneka Shenai Smalls FIFTH DISTRICT Holly C. Young Joan M. Rearick Patrick Bernal Steven Smith John Calcagni Mary L. Rhodes Daniel Patrick Blouin Dean Constantine Ryan K. Kerwin TENTH DISTRICT Thomas Michael Rosselli Stacie Lea Boomstra Sovolos Doreen Marie Melchiorre Alison Lynne Adleman Eric Ruland Darryl H. Cabbagestalk Zaki B. Tamir Christine Somers Waters David C. Althoff Amanda B. Schechter Demetra Arniotes Robert W. Thabit Robert J. Anderson Andrea Harum Schiavoni Calakos Helen Tsalevich SIXTH DISTRICT Gina A. Angelletta Carolyn D. Schwarz Stephanie S. Comas Theresa Ann Vitello William H. Baaki Cynthia Maria Attard Timothy Patrick Sheahan Gairy O. Davis Charles J. Balvin Nataly Sally Austin Michael E. Sims
56 | Journal | March/April 2005 Danielle A. Sorken Sarah Adler Seema Chandra Garner Girthoffer Kara M. Konray Joshua Soufeh Alvaro J. Aguilar Sohini Chatterjee Amy Glassman Jennifer D. Kraft David Henry Tobachnik Melissa S. Ahn Omar-John C. Chavez Richard Gluckselig Jacob S. Kreilkamp Peter Salvatore Georgia Albert Tommaso Cherubino Scott J. Goldstein Michaela Davina Krell Trentacoste Sergio Alves Mark Jarrett Chiarello Catarina Rosa Gonzales Patrick James Lamb Nancy Lynn Valery Margaret W. Ament Michele J. Clark Amanda Corinne Jennifer Elizabeth Laurin Elizabeth Moore Walsh Antoine Amiguet Johannes Stephanus Gonzalez Alice S. Lee Keri Ann Wehrheim Vishal J. Amin Adrianus Claus Jorge Luis Gonzalez Ayanna M. Lee Jessica Elizabeth Aaron M. Amundson Allison Clements Steven David Gonzalez Christopher Garrick Lee Zimmerman Jeong-Hoon An Michaela Cox Joseph William Goodman Jessica Y. Lee Karen Ancharski Matthew M. Crispino Kendra Goodman Soo Hyung Daelim Lee ELEVENTH DISTRICT Kalisse Anderson Anna Cross Nicole Maroulakos Yun Jin Lee Mohammad Ali Timothy B. Anderson Laura Cubberley Goodwin Richard Ira Lefkowitz Wayne Nolan Alleyne Matthew Appleby Matthew J. Cucolo Patricio Grane Charles-Philippe Letellier David L. Cohen Noha Arafa Abkenari Arman Dabiri Laura Sophie Jiaming Li Emily B. Compton Mariano I. Arias Ernest Eustachio Gravenhorst Ying-hui Liang Alisa W. Cupid Arul Jothi S. Arun D’Angelo Joel Samuel Green Emmanuelle Michele Shane David Deaton Harald Baertschi Najah Dannaoui James Justin Griffin Monique Liggens Tamara Ann L. Del Dmitry Bam Rebecca Anne D’Arcy Damara Griffith Emma Louise Lindsay Carmen Dinesh D. Banani Jonathan D. Daugherty Marissa M. Grimes Bronwyn Jane Longmire Savitri Ann Deopersaud Walter Banslay Charles B. De Navacelle Patricia Mariz Gudino Ryan Michael Lozar Maura Donnelly Neena Barua Lily Marie Debruler Robyn Guilliams Qiong Lu Basem Hassan El Thomas Bennigson Anthony DeGuerre Chad Lorenz Halliday Zheng Lu Hendawy Tammar Berger Henri DelSol Katherine L. Halpin Peter Joseph Lucca Kenneth J. Flickinger Lon Arthur Berk Grace Demario Patrick John Hanna Michael Lee Lundy John P. Gordon Simon-Brooks Henri Thomas Renau Denison Joseph L. Harberg Roderick James Peregrine Paulette Gray Berry Simple Bhandari Dhadda Barry Gerard Harbison Mackenzie-Smith Fernando Jose Guerra Boris Bershteyn Alexandra Diehl Rachel A. Harvey Kevin Patrick Malcarney Mantaj Kaur Hans Scott Bibb Jeremy S. Doster Martin J. Healy Patrick William Marley Arif A. Khan Ivan W. Bilaniuk Rachel Dougan Jake Hegeman Brian McIntyre Yee Ling Elaine Lau Joel B. Blank Kerry Driscoll Neil Scott Helfand Thomas Aston McKinney Jinye Liu Ann Blaylock Bo Du Katherine Clark Helzer Francesca Marion Michelle Lisa Needle Emilie A. Blech Carol Lee Dudnick Sera Heo McWilliams Dara Ain Olds Salvatore Bochicchio Gregory P. Duffy Edward Hesketh Ryan Mehm Michael Gerard Florian D. Bohusch Mary K. Dunning Takashi Hiroshige Jeffrey R. Meyer Postiglione Caroline Bolle Jared P. DuVoisin Holly Hoeft Rae L. Moore Christina Sanpietro Susan M. Boltz John Ryan Dwyer Alexander Hofmann Suzanna Marie Meyers Patrick S. SooHoo David Joshua Borkon Jill Helen Eisner Jee Pio Hong Morales Jeremy D. Sung Marie Borzo Christoph W.G. Engeler Micah John Howe Peter Morea Sean Michael Wettig Martin Botik Carol Paskin Epstein Yu-san Huang Yoshiko Moriyama Jennifer N. White Corina Ines Bove Sarah Evans Cherie Rose Huffman Richard Kelsey Dru Yiyen Yeh Patrick E. Brake Sosimo J. Fabian William Louis Hurlock Mulholland Linyan Zeng Caesar Brazza Neil H. Farbman Kelly Yoon Jeong Hwang Michael Woodruff Shira Brezis Christopher Faricelli Nahoko Iguchi Mulligan TWELFTH DISTRICT Rebecca Brisch Daniel Jacob Feigelson Saori Ishida Peter M. Murphy Kadesha Eddye Bagwell Yaacov M. Brisman Gennady Ferenbok Alan Cope Johnston Kevin Michael Murtagh Vincenzo Salvatore Kelley McNair Bruner Matthew E. Fernand Sharon Lynn Jones Colin Louis Nash Lippiello Susan Marie Bruno Christian J. Ferraro Evan Phillip Jowers James Reid Nelson Linda Martin Margaret M. Buck Joshua Dov Fine Damian Frane Juric Steven Santos Neves Vladimir Matsiborchuk Adam Budesheim Jeffery Steven Flores Lisa Dianne Kabnick Thomas Matthew Michael H. Mui Monya Monique Bunch Nichoel Forrett Chang-kai Kan Newman Jennifer Catherine Drew Burach William Frame Michael I. Kanter Anne-marie Nicolas Negron Robert James Burriesci Osamu Fujii Timo P. Karttunen John Herbert Noorlander Lia Angela Rodriguez Jaime Byrnes Joseph G. Fuoco David Matthew Kayal Hijoung Oh Aaliyah Christine Shorte Cheryl J. Campos Kathleen Margaret Golaleh Kazemi Jose Antonio Olaechea Nicole Arianna Spain Nicholas J. Canova Gabriel Kristina Elizabeth Kelly Ingvar Olsson Rosa B. Suazo Chunling Cao David J. Galalis Mark S. Kennedy Kosuke Onishi Yotvat Yohanan Kevin G. Caspersz Sandra Gebhardt Russell William Kessler Jennifer Opheim Paul Y. Castle Simon Genevaz Arshad Qamar Khan Whitener OUT OF STATE Jeanne Cavanaugh Elizabeth F. George- P. Stephen Kim Jamie Beth Ostrow Rashmi Elizabeth Ernesto Cavelier Cheniara Suh Won Kim Alexander Russell Abraham Kevin Chambers Ilan Gordon Gewurz Yooseok Kim Pagano Jolee Marie Adamich Tsung-Che Chan Kirenjeet Gill Yasushi Kojima Son Young Pak
Journal | March/April 2005 | 57 Rose A. Palmer Seongkwon Song Chun-ran Park Michael Sosso Woong Park Forrest Spallinger Louis G. Parker Melysa Sperber Foundation Memorials Hetal Patel Ana Claudia Rv. Spiguel Sabrina Cecilia Peart Margaret Skarbek fitting and lasting tribute to a deceased lawyer can be made Erin Alaine Peters Stefandl A through a memorial contribution to The New York Bar Marques Ontiveros Robert Gannon Stevens Foundation. This highly appropriate and meaningful gesture on the Peterson Michael Amikam Stosser Reimar S. Petursson Jill Strickland part of friends and associates will be felt and appreciated by the Arthur H. Piervincenti Evelyn J. Suarez family of the deceased. Todd Michael Pinarchick Joanna Catarina Suarez Samantha Pitts-Kiefer Hiroyuki Suda Contributions may be made to The New York Bar Foundation, Leticia Plucknett Ashly Dawn Suedkamp One Elk Street, Albany, New York 12207, stating in whose memory Petr Polasek Stephen James Sugrue Marie C. Pollio Jie Sun it is made. An officer of the Foundation will notify the family that a Marwan Emmett Porter William C.G. Swift contribution has been made and by whom, although the amount of Anjali Nira Prasad Petro Roman Sztyk the contribution will not be specified. Gordon Ho Ching Pun Tauna Marie Szymanski William Edward Lars Paul Taavola All lawyers in whose name contributions are made will be listed Quackenboss Mitchel Tarter Charles Raymond Quinn Kaori Terauchi in a Foundation Memorial Book maintained at the New York State Sabeena Rajpal Christopher Hugh Bar Center in Albany. In addition, the names of deceased members Noel Isadora Raley Thogmartin in whose memory bequests or contributions in the sum of $1,000 or Christina Adeline Rankin Deborah Ruth Toland more are made will be permanently inscribed on a bronze plaque Adam Michael Raviv Thelma Tong Prathyusha Reddy Menachem Mendel mounted in the Memorial Hall facing the handsome courtyard at the Gregory Britton Reece Trapedo Bar Center. Jarrod Forster Reich Barry Joseph Trilling Estefania Monge Eline Stephanie Yanne Requena Tritsmans Marc Sascha Rieker Jacquelyn Trussell Nadine Susan Rockman Aya Umezu Michael W. Rosati Ejaita Ann Usude Gayle Esther Rosenstein Katherine Anne Varker Alan John Ross Siddhartha Manohar Predita C. Rostomian Velandy Fernando J. Rovira Dennis Michael Villasana Shaomei Ruan Nicholas N. Viorst Eric Dowling Ruka Joanne Maria Vlahos In Memorium Byeongho Ryou Oliver Von Schweinitz Wiroj Sakdakrai Eli Wald Norman Annenberg Arthur Karger Shannon Kathleen Hui Wang New York, NY Bronx, NY Salvatoriello Sarah Weinstein John Akumbom Ya-hsin Weng Clayton M. Axtell Ronald Lafferty Sam-kubam Brian J. Wheelin Binghamton, NY London, UK Joseph Robert Schaaf Aleshia Mae White Gerald S. Crowley Jerome M. Lasky Esperanza Segarra John Legare Williams New York, NY Palm Beach, FL Jacques Leon Sexton Olaseni Ayodele Williams John J. Curran William L. Messing Daniel Marc Shapiro Melissa Leigh Winn Wilton, CT Los Gatos, CA Khalil Zulfikar Shariff Valinda Barrett Wolfert Thomas R. Elmer Samuel P. Militello Brian J. Sheehan Ray Andrew Wynter North Tonawanda, NY Watertown, NY Martin Alan Shell Ling Xiao William B. Erb Steven J. Rothschild Peter Alan Shelton Nelson Jun Xu Seaford, NY Wilmington, DE Darpana M. Sheth Yoshihiro Yamashita James H. Fisher Oscar M. Ruebhausen Jenny Sheu Aya Yanay Kingston, NY New York, NY Man Joong Shin Andrew Ming-han Yang Benjamin Levi Shinewald Karin Yeung Timothy Matthew Gladden Bradley T. Schwartz New York, NY Jericho, NY Charlotte Minng Minng Kyong Jin Yo Sin Andrea Marie Young Robert H. Janover Malcolm L. Stein Kottege J. Siriwardana Marc J. Yudkin Bloomfield Hills, MI New York, NY Autumn Wind Smith Jay Benjamin Zimner Duane C. Johnson Jon Patrick Smith David Benjamin Medina, NY Matthew John Somma Zucerbrod
58 | Journal | March/April 2005 LEGAL WRITER Comprise, consists of, includes. To be “contemptuous” is to feel or CONTINUED FROM PAGE 64 “Comprise” means “to contain,” “to express contempt. Correct: “The court embrace,” or “to consist of.” “The ele- is contemptuous of contemptible attor- Cite, citation, site. “Cite” is a transi- ments comprise the statute” is incor- neys.” A contemnor has been contuma- tive verb: “The court attorney’s cita- rect because statutes comprise ele- cious and is guilty of contempt. tions [not cites] are accurate.” Correct: ments, not the other way around. A tip: Continue, continually, continuously, “He cited [omit to] a case.” In legal Use “has” instead of “comprises”: resume. “Continue” suggests no inter- writing, authorities are called “cita- “The statute has elements.” Note: ruption. “Resume” does. “Continually” tions,” not references. A “site” is a “Includes” precedes a partial list and means “again and again.” “Contin- place, such as a battle site or a Web site. thus is not a synonym for “comprises.” uously” means “without stopping.” Cohort. A “cohort” is not a colleague More to “include”: A sentence that Converse, reverse. The “converse” is or a co-conspirator. A cohort is a group includes “include” may not also the turning about: “The judge knows so large it cannot be counted and include “some.” Thus, the following is the defendant” is the converse of the which is united in a common goal. incorrect: “Some of the briefs included defendant knowing the judge. The Correct: “A cohort of law clerks pressed one from an amicus.” “reverse” is the opposite or the con- for a raise.” In Roman times a “cohort” Concerned about, concerned with. To trary. Correct: “Please list your citations was a group of 500–600 soldiers. be “concerned about” is to worry in reverse chronological order: from Common, mutual. Correct: “We and about it. To be “concerned with” is to newest to oldest.” our mutual friend share common inter- have an interest in it. Correct: “Ms. X, Convince, persuade. To “convince” is ests.” the court attorney, was concerned to satisfy by argument. To “persuade” is Compare to, compare with, contrast. about the intern’s writing because Ms. to influence someone to believe that Use “compare to” when the things X was concerned with writing a draft you are correct. An attorney may con- being compared are alike, when the opinion.” vince a client that he should settle but phrase introduces a similarity. Use Confute, deny, refute. To “confute” is not persuade him to do so. Correct: “compare with” when the things being to “refute” conclusively. To “deny” is “Opinion writers must persuade. It is compared are both alike and different. to disavow. To “refute” is to destroy by not good enough for them to convince.” Correct: “The court compared the New argument. Incorrect: “He refuted the Correspond with, correspond to. Use York statute with the New Jersey charge.” Use “denied.” “correspond with” to mean “writing to statute.” Do not use “compare with” if Congenial, genial. To be “congenial” other people.” Use “correspond to” to you make no comparison. “The Chief is to be easy to get along with. To be analogize. Judge hired five court attorneys this “genial” is to be pleasant. Correct: “Her Corespondent, co-respondent, corre- year compared with four last year.” geniality made her congenial.” spondent. A “corespondent” is a euphe- Becomes, for example: “The Chief Judge Connote, denote. Words “connote” mism that describes the third party in a hired five court attorneys this year; last what they suggest. They “denote” divorce action. A “co-respondent” is a year she hired four.” Use “contrast” what they mean. second litigant responding to an action when things are compared only for Consecutive, continuous, continual, or proceeding or, in some jurisdictions, their differences. Your sixth-grade successive. “Consecutive” and “contin- an appeal. A “correspondent” writes teacher’s “compare and contrast” is a uous” mean “uninterrupted” or letters or is a journalist in any medium. tautology. To compare something with “unbroken.” “Continual” and “succes- Cost, price, value, worth. “Cost” is the something else is to note similarities sive” mean “intermittent” or “repeated amount the purchaser paid. “Price” is and differences. at intervals.” amount the seller asks for the article. Compel, impel, induce. To “compel” is Consist of, consist in. “Consist of” “Value” is assessed by comparing the to force. To “impel” is to persuade. To refers to materials. Correct: “A comput- article with a fair standard. A buyer’s “induce” is to impel gently. er consists of a motherboard, a screen, need or desire for an article determines Compendious. “Compendious” and a keyboard.” “Consist in” refers to its “worth.” Correct: “He knows the means “abridged,” not “voluminous.” abstract qualities or intangibles. cost of everything and the value of Compleat, complete. Both mean “per- Correct: “The character of a good law nothing.” fectly skilled or equipped,” but “com- clerk consists in effort and integrity.” Council, counsel, consul. A “council” pleat” is archaic. Consistently, constantly. Both suggest is an organization. “Counsel,” a noun Complement, compliment. To “com- something ongoing. What occurs “con- or a verb, is advice or someone who plement” is to complete something. To sistently” occurs without contradic- gives advice. A “consul” is an officer in “compliment” is to flatter. Correct: tion. What occurs “constantly” occurs the foreign service. Correct: “Counsel “Because the judge’s necklace comple- persistently. gave good counsel to the Council of mented her judicial robes, the court Contemptible, contemptuous. To be Elders and the French consul.” officer complimented the judge.” “contemptible” is to deserve contempt. CONTINUED ON PAGE 60
Journal | March/April 2005 | 59 CONTINUED FROM PAGE 59 Diagnosis, prognosis. A “diagnosis” Discomfit, discomfort. To “discomfit” Credible, creditable, credulous, credence, analyzes a bodily condition. A “prog- is to thwart. To “discomfort” is to make incredible, incredulous. A “credible” per- nosis” is a projected course of a disease uncomfortable. son or thing is believable. “Creditable” or condition. Discover, invent. To “discover” is to means “worthy of belief or praise.” A Dialectal, dialectic, dialectical. find something that exists but which person who is “credulous” is someone “Dialectal” means “pertaining to a was unknown. To “invent” is to bring too willing to believe. “Credence” dialect of language.” “Dialectic” is the something new into existence. Correct: means “mental belief” or “acceptance.” art of reasoning correctly. “Dialectical” “The pilgrims might not have discov- “Incredulous” is the opposite of “credu- means “pertaining to dialectic.” ered America, but they invented the lous.” A person or thing unworthy of Differ from, differ with. Correct: “The Thanksgiving Dinner.” belief is “incredible.” two court clerks differ from each other Discreet, discrete. To be “discreet” is Criticize, criticism, critical. To “criti- in temperament.” Correct: “The two to be circumspect. Something “dis- cize” is to assess. “Criticism” and “crit- court clerks differ with each other crete” is separate or disconnected. ical” assessments can be positive or about politics.” Disinformation, misinformation. negative, but neither is given without Different from, different than. The for- “Disinformation” is a deliberate false- explanation. A “critic” criticizes the mer is always correct, unless the sen- hood. “Misinformation” is incorrect good and the bad. A “critical” person tence sounds tortured, but the latter may information. finds fault everywhere. be used to compare differences: “Judge Disinterested, uninterested. To be Currently, presently. “Currently” is A’s writing style is different from Judge “disinterested” is to be neutral. To be “now.” “Presently” is “soon.” Note: It is B’s, but Judge C’s style is even more dif- “uninterested” is not to care. Correct: redundant to use the present tense “is,” ferent than Judge A’s and Judge B’s.” “We want our judges to be disinterest- “am,” or “are” with “currently.” Excise The phrase “should be no different ed, not uninterested.” accordingly: “[Currently] I am a law from” is incorrect. Correct: “The rule Dissimulate, simulate. To “dissimu- clerk.” Soon after you learn this rule should not be different from . . . .” late” is to conceal. To “simulate” is to you will cut currently presently. A tip: Dis-, un-. Words that have an “un-” feign or to create the effect of. The two Use “now” or “soon” rather than the prefix are weaker than words that have words are not antonyms. pretentious “currently” or “presently.” a “dis-” prefix. An “ununited group,” Distinct, distinctive. “Distinct” Data, datum. “Data” is plural. for example, was never united. A “dis- means “easily perceived.” Something “Datum” is singular. Avoid a construc- united” group was once united but is “distinctive” is different. tion that uses “datum,” which is obso- no longer. To be “uninvolved” is not to Divers, diverse. According to divers lete. be involved. To be “disinvolved” is to authorities, “divers views” are various Deduction, induction. “Deduction” is have withdrawn from involvement. To views. “Diverse” views are opposing reasoning from general principles to be “unorganized” is to lack order. To be views. But “divers” is archaic. specific conclusions. Reasoning de- “disorganized” is to have been organ- Doubtless, no doubt, doubtlessly, indu- ductively is a civil-law hallmark. ized but now to be in disarray. To be bitably, undoubtedly. Even doubting “Induction” is reasoning from one or “unqualified” is to lack qualifications. Thomases agree that “doubtless” and more specific observations to a general To be “disqualified” is to lose one’s “no doubt” suggest “probably” and principle. Reasoning inductively is a qualifications. To be “unsatisfied” is to therefore are weak. “Doubtlessly” and common-law hallmark. be not entirely satisfied. To be “dissat- “indubitably” are pretentious. Pick Definite, definitive. “Definite” means isfied” is to be entirely unhappy. “undoubtedly” to express certainty. “explicit.” “Definitive” means “ex- Disassemble, dissemble. To “disassem- But recall that adverbs often weaken. haustive” and “authoritative.” ble” is to take apart something that Thus, “He lied” is stronger than “He Delete, omit. To “delete” is to erase. was once assembled. To “dissemble” is undoubtedly lied.” To “omit” is to leave something out to conceal. Duplicate, replicate. A “replica” is a intentionally or to neglect accidentally. Disburse, disperse. To “disburse” is to copy made by the original creator. A Delusion, illusion. A “delusion” is a pay out. To “disperse” is to separate and “duplicate” is an exact copy. ■ false belief. An “illusion” is a false per- move apart in into different directions. ception. Disclose, divulge, expose, reveal. To 1. Morgan v. Jones, [1773] Lofft 160, 176. Des’ert, desert’, dessert. The issue “disclose” is to make private informa- GERALD LEBOVITS is a judge of the New York City here is pronunciation: Place the right tion public. To “divulge” is to pass a Civil Court, Housing Part, in Manhattan. An emPHASIS on your syllABLES. secret to a select group. To “expose” is adjunct professor at New York Law School, he has written Advanced Judicial Opinion Writing, Correct: “Her friend wanted to desert to make public something reprehensi- a handbook for New York’s trial and appellate her while they were eating dessert in ble. To “reveal” is to unveil something courts, from which this column is adapted. His the desert. She got her just deserts.” beyond one’s knowledge. e-mail address is [email protected].
60 | Journal | March/April 2005 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION
EXECUTIVE Cynthia Gaynor, Controller 2004-2005 OFFICERS Patricia K. Bucklin [email protected] Robert L. Haig, President 101 Park Avenue Executive Director LEGAL AND GOVERNMENTAL AFFAIRS New York, NY 10178-0001 [email protected] Kathleen R. Mulligan-Baxter John A. Williamson, Jr. Senior Director John R. Horan, Vice President Associate Executive Director [email protected] 825 Third Avenue New York, NY 10022 [email protected] COUNSEL’S OFFICE Patricia K. Bucklin, Secretary L. Beth Krueger OVERNMENTAL ELATIONS G R One Elk Street Assistant Executive Director Glenn Lefebvre, Director Albany, NY 12207 [email protected] [email protected] Hon. Randolph F. Treece, Treasurer DMINISTRATIVE ERVICES Ronald F. Kennedy A S , 445 Broadway EETINGS AND EDIA ELATIONS Associate Director M M R Albany, NY 12207 L. Beth Krueger [email protected] Assistant Executive Director LAWYER ASSISTANCE PROGRAM DIRECTORS James B. Ayers, Albany ADMINISTRATIVE SERVICES Ray M. Lopez, Director Hon. Richard J. Bartlett, Glens Falls The New York Bar Foundation [email protected] Jonathan G. Blattmachr, New York City Rosanne M. Van Heertum LAWYER REFERRAL AND Cristine Cioffi, Niskayuna Director of Development INFORMATION SERVICE Charles E. Dorkey, III, New York City [email protected] PRO BONO AFFAIRS Emily F. Franchina, Garden City Law, Youth and Citizenship Program Cynthia Feathers, Director Maryann Saccomando Freedman, Buffalo Deborah S. Shayo, Director [email protected] John H. Gross, Northport [email protected] MARKETING AND Paul Michael Hassett, Buffalo Rebecca Oldenburgh INFORMATION SERVICES Frank M. Headley, Jr., Scarsdale Program Manager Richard J. Martin, Senior Director John J. Kenney, New York City [email protected] [email protected] Steven C. Krane, New York City Glenn Lau-Kee, White Plains MEDIA SERVICES AND PUBLIC AFFAIRS DESKTOP PUBLISHING Bradley G. Carr, Director Bernice K. Leber, New York City MARKETING [email protected] Susan B. Lindenauer, New York City Kay Crawford Murray, New York City Frank J. Ciervo, Associate Director MIS John M. Nicoletta, Director Carla M. Palumbo, Rochester [email protected] [email protected] Richard Raysman, New York City Amy Travison Jasiewicz, Editor, Jeffrey Ordon, Network Support Specialist Thomas O. Rice, Garden City State Bar News [email protected] Sanford J. Schlesinger, New York City [email protected] Gregory A. Vincent Lorraine Power Tharp, Albany MEETINGS Database Administrator Lucia B. Whisenand, Syracuse Kathleen M. Heider, Director [email protected] [email protected] Paul Wos CONTINUING LEGAL EDUCATION Data Systems and JOURNAL BOARD Terry J. Brooks, Senior Director Telecommunications Manager, MEMBERS EMERITI [email protected] [email protected] As a tribute to their outstanding service to CLE PROGRAMS WEB SITE our Journal, we list here the names of each Jean E. Nelson II, Associate Director Barbara Beauchamp, Editor living editor emeritus of our Journal’s Board. [email protected] [email protected] HOWARD ANGIONE Jean Marie Grout, Staff Attorney MEMBERSHIP SERVICES Immediate Past Editor-in-Chief [email protected] Patricia K. Wood, Senior Director RICHARD J. BARTLETT Leslie A. Fattorusso, Staff Attorney [email protected] [email protected] COLEMAN BURKE CHIEF SECTION LIAISON JOHN C. CLARK, III Cheryl L. Wallingford, Program Manager Lisa J. Bataille ANGELO T. COMETA [email protected] [email protected] ROGER C. CRAMTON CLE PUBLICATIONS LAW PRACTICE MANAGEMENT MARYANN SACCOMANDO FREEDMAN Daniel J. McMahon, Director PRINT AND FACILITIES OPERATIONS EMLYN I. GRIFFITH [email protected] H. GLEN HALL Roger E. Buchanan, Senior Director PAUL S. HOFFMAN Patricia B. Stockli, Research Attorney [email protected] [email protected] CHARLES F. KRAUSE BUILDING MAINTENANCE PHILIP H. MAGNER, JR. INANCE AND UMAN ESOURCES F H R GRAPHICS WALLACE J. MCDONALD Paula Doyle, Senior Director PRINT SHOP J. EDWARD MEYER, III [email protected] Matthew Burkhard, Production Manager KENNETH P. N OLAN FINANCE [email protected] ALBERT M. ROSENBLATT Kristin M. O’Brien, Director ROBERT J. SMITH [email protected] LAWRENCE E. WALSH
62 | Journal | March/April 2005 2004-2005 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES
KENNETH G. STANDARD FIRST DISTRICT THIRD DISTRICT †* Hassett, Paul Michael President Alcott, Mark H. Ayers, James B. McCarthy, Jeremiah J. Barson, Alan D. Bauman, Harold J. Meyer, Harry G. New York Bienstock, Peter Cloonan, William N. Peradotto, Hon. Erin M. Blasi, Gregory J. Copps, Anne Reynolds Pfalzgraf, David R. A. VINCENT BUZARD Boyers, Hon. Seymour DeFio, Elena M.R. Porcellio, Sharon M. President-Elect Brett, Barry J. Dolin, Thomas E. Saleh, David J. Rochester Brown, Geraldine R. Engel, Hon. Franklyn J. Seitz, Raymond H. † Campos-Galvan, Manuel Fernandez, Hermes Shaw, James M. Chambers, Hon. Cheryl E. Freeman, Paul M. Young, Oliver C. JAMES B. AYERS Cheng, Pui Chi Greenberg, Henry M. NINTH DISTRICT Treasurer * Cometa, Angelo T. Hanna, John, Jr. Bartlett, Mayo G. Albany Davis, Tracee E. Higgins, John Eric Basso, John J. Dominguez, Ivan J. Higgins, Patrick J. Berman, Henry S. KATHRYN GRANT MADIGAN Ferrara, Lucas A. Kelly, Matthew J. Enea, Anthony Secretary Fink, Rosalind S. Kinum, John B. Fedorchak, James M. Finkelstein, Robert Kretser, Rachel Geoghegan, John A. Binghamton Fish, Daniel G. Lynch, Margaret Comard Goldenberg, Ira S. Flood, Marilyn J. Lytle, James W. Gouz, Ronnie P. A. THOMAS LEVIN * Forger, Alexander D. Maier, Christopher T. Ingrassia, John Immediate Past President * Gillespie, S. Hazard Meislahn, Harry P. Johnson, Martin T. Mineola Grays, Taa R. Miranda, David P. Krooks, Howard S. Green, Prof. Bruce A. Moy, Lillian M. Marwell, John S. Gregory, John D. Netter, Miriam M. Miklitsch, Catherine M. Gross, Marjorie E. Perino, Justina R. Cintron * Miller, Henry G. VICE-PRESIDENTS Gutekunst, Claire P. Privitera, John J. Murray, Conal E. † Haig, Robert L. †* Tharp, Lorraine Power O’Leary, Diane M. FIRST DISTRICT Harris, John B. Thornton, Timothy B. †* Ostertag, Robert L. Hendricks, Susan L. Treece, Hon. Randolph F. Plotsky, Glen A. Mark H. Alcott, New York Hoffman, Stephen D. * Yanas, John J. Ramsey, Hon. B. Harold Stephen D. Hoffman, New York Hollyer, A. Rene FOURTH DISTRICT Riley, James K. Horan, John R. Bartlett, Hon. Richard J. Seiden, Hon. Adam Jackson, Damian S. SECOND DISTRICT Cantwell, Lori A. † Standard, Kenneth G. Jacobs, Robert A. Cioffi, Cristine Sweeny, Hon. John W., Jr. Barry M. Kamins, Brooklyn Jacobs, Sue C. Clements, Thomas G. Walker, Hon. Sam D. Kiernan, Peter J. Coffey, Peter V. Wilson, Leroy, Jr. THIRD DISTRICT * King, Henry L. Dorsey, Matthew J. Zeltner, Peter P. †* Krane, Steven C. Hoffman, Robert W. TENTH DISTRICT Rachel Kretser, Albany Kuntz, William F., II King, Barbara J. Asarch, Hon. Joel K. Lau-Kee, Glenn Pelagalli, Paul * Bracken, John P. FOURTH DISTRICT Lee, Charlotte C. Tishler, Nicholas E. D’Angelo, Frank G. Lesk, Ann B. Cristine Cioffi, Niskayuna IFTH ISTRICT Duffy, James P., III Levy, M. Barry F D Fishberg, Gerard Lieberman, Ellen Alessio, George Paul FIFTH DISTRICT Franchina, Emily F. Lieberstein, Marc Ari Benedict, Timothy A. Fredrich, Dolores Lindenauer, Susan B. Doerr, Donald C. Michael E. Getnick, Utica Gross, John H. * MacCrate, Robert Dunckel, Earl B. Karson, Scott M. McShea, Sarah Diane Fetter, Jeffrey M. SIXTH DISTRICT Kossove, Scott E. Milito, Christopher Scott Garramone, Hon. Anthony J. Labbe, Magdale L. James C. Gacioch, Binghamton Miller, Michael Getnick, Michael E. Lerose, Douglas J. Minkowitz, Martin Hayes, David M. †* Levin, A. Thomas SEVENTH DISTRICT Mitchell, Thomas J. Myers, Thomas E. Levy, Peter H. Mitzner, Melvyn Norfleet, Doren P. C. Bruce Lawrence, Rochester Liotti, Thomas Francis Moreland, Thomas H. Peterson, Margaret Murphy Millman, Bruce R. Nathanson, Eugene Plumley, Judy L. EIGHTH DISTRICT Monahan, Robert A. Nathanson, Malvina Priore, Nicholas S. Perlman, Irving Sharon Stern Gerstman, Buffalo * Patterson, Hon. Robert P., Jr. * Richardson, M. Catherine * Pruzansky, Joshua M. Paul, Gerald G. Weinstein, Ellen Stempler Purcell, A. Craig Plevan, Bettina B. SIXTH DISTRICT NINTH DISTRICT Quinlan, Robert F. Ramos, Hon. Charles E. Beehm, Angelina Cutrona * Rice, Thomas O. Henry S. Berman, White Plains Reimer, Norman L. Denton, Christopher Robert, Joan L. Reitzfeld, Alan D. Gacioch, James C. Santemma, Jon N. TENTH DISTRICT Richman, Steven H. Kachadourian, Mark Shulman, Arthur E. Rifkin, Richard Lee, Carolyn S. Hon. Joel K. Asarch, Hempstead Smolowitz, Barry M. Rosner, Seth Lewis, Richard C. Spellman, Thomas J., Jr. Rothstein, Alan Madigan, Kathryn Grant ELEVENTH DISTRICT Sperendi, Michael F. Safer, Jay G. Smyk, Stephen D. Tell, M. David Seymour W. James, Jr., Queens * Seymour, Whitney North, Jr. Tyler, David A. Sherman, Carol R. Wayland-Smith, Tina ELEVENTH DISTRICT TWELFTH DISTRICT Sherwin, Peter J.W. SEVENTH DISTRICT Fedrizzi, Linda F. Sherwood, O. Peter Ashcraft, Sara Stout Hans, Stephen D. Lawrence R. Bailey, Jr., New York Silkenat, James R. Barney, Brian J. Haskel, Jules J. Smoley, Lewis M. † Buzard, A. Vincent James, Seymour W., Jr. Sonberg, Hon. Michael R. Doyle, Hon. John D. Lee, Chanwoo Stenson, Lisa M. Frazee, Hon. Evelyn Leinheardt, Wallace L. MEMBERS-AT-LARGE OF THE Torrent, Damaris E. Grossman, James S. Nashak, George J., Jr. EXECUTIVE COMMITTEE Wachtler, Lauren J. Harren, Michael T. Nizin, Leslie S. Wales, H. Elliot Lawrence, C. Bruce Rosenthal, Edward H. Donald C. Doerr Walsh, Susan J. †* Moore, James C. Terranova, Arthur N. Warner, Rita Wasserstein * Palermo, Anthony R. Walsh, Jean T. John H. Gross Williams, Bryan R. Reynolds, J. Thomas TWELFTH DISTRICT Claire P. Gutekunst SECOND DISTRICT Schraver, David M. Bailey, Lawrence R., Jr. Castillo, Nelson A. Tyo, John E. Chavez, Daniel M. David R. Pfalzgraf Cerchione, Gregory T. * Vigdor, Justin L. Kessler, Muriel S. Jay G. Safer Connors, John P., Jr. * Witmer, G. Robert, Jr. †* Pfeifer, Maxwell S. Cyrulnik, Hon. Miriam Wolford, Michael R. Price, Hon. Richard Lee David M. Schraver DiGiovanna, Lawrence F. EIGHTH DISTRICT Schwartz, Roy J. Golinski, Paul A. Aversa, John M. Summer, Robert S. Hall, Thomas J. Doyle, Vincent E., III Weinberger, Richard Kamins, Barry Edmunds, David L., Jr. OUT OF STATE Longo, Mark A. Evans, Sue M. * Fales, Haliburton, II Romero, Manuel A. Flaherty, Michael J. Peskoe, Michael P. Slavin, Barton L. * Freedman, Maryann Saccomando Smith, Prof. Beverly McQueary Sunshine, Hon. Jeffrey S. Gerstman, Sharon Stern * Walsh, Lawrence E.
† Delegate to American Bar Association House of Delegates * Past President
Journal | March/April 2005 | 63 THE LEGAL WRITER BY GERALD LEBOVITS
Problem Words and Pairs in Legal Writing—Part II
s Lord Chief Justice Mansfield cut into parts of any number or size the opinion if I get around to it.” wrote, “Most of the disputes but two equal parts. “Might” is the past and past perfect in the world arise from Blatant, flagrant. Something or tense of “may”; implies a conditional A 1 words.” Therefore, utilize words someone “blatant” is offensive or (“Ms. X might run for Village Justice”); good. Irregardless how others employ brazen. A “flagrant” act is a wrong act, expresses a supposition when used in words, you are suppose to use them done openly and knowingly. the subjunctive (“The court attorney is like a writer should. Be especially care- Boat, ship, vessel. A “boat” is a small acting as if he might run for judicial ful to use adverbs correct. Otherwise craft. A “ship,” the more common office”); and is a strong synonym for your writing will look horribly. word for “vessel,” is a large craft suit- “may” (“Judge X said that it may hap- Bad, badly. Use “bad,” an adjective, able for travel on the high seas. pen, but I am certain that it might”). to modify a noun or pronoun (“He did Bombastic. To be “bombastic” is to Cannot, can not? — the former. a bad job”) or to describe emotions. be pompous, not strident or violent. Capital, capitol. The seat of govern- Use “badly,” an adverb, to modify a Breach, breech. “Breach” as a noun, ment is the “capital.” “Capitol” is the verb, to answer the question “how” (he means a “violation” or a “gap.” As a building. Capital punishment awaits played badly”), or to describe physical transitive verb, “breach” means “make those who confuse “capital” with sensations. Correct: “The court attorney a gap in.” As an intransitive verb, “capitol.” felt bad because his judge felt badly “breach” means “to break through Carat, caret, karat. A “carat” is a unit after she fell off her chair.” water.” A “breech” is the back part of a of weight for precious metals and Balance, remainder. A “balance” is gun or gun-barrel or a birth in which stones. Editors use a “caret” (“∧”) to not a remainder, except as a part of an the baby’s buttocks emerge first. note that something should be insert- account. The “remainder” is what is Bring, take. To “bring” is to carry ed. A “karat” is a measure of the fine- left over. toward. To “take” is to carry away. ness of gold. Bellwether. A wether is a male sheep Correct: “She brings home the bacon Catch-22, dilemma, Hobson’s choice. A that leads its flock and has a bell but takes it to work.” “Catch-22” is an impossibility. Correct: around its neck. The word is not Broke, broken. “Broken” is the par- “John could not get a job without expe- spelled “bellweather.” ticiple of “broke.” It is illiterate to write rience, and he could not get experience Beneficent, benevolent. To be “benefi- that something is “broke.” A person without a job.” A “dilemma” is a choice cent” is to do good. To be “benevolent” who writes free handbooks on legal between two bad bargains — also is to offer supportive sentiments. writing, however, becomes “broke” in known as a “Sophie’s Choice” or being Correct: “I would rather be ruled by a the pecuniary sense. “between a rock and a hard place.” To beneficent than a benevolent dictator.” Burglarize, burgle. Neither back-for- be in a dilemma does not mean “to be Bi-, semi-. “Bi-” is an ambiguous mation is acceptable in formal writing. in a bind, plight, predicament or prefix. Biweekly, for example, means Can, could, may, might. “Can” and quandary.” A “Hobson’s choice” is no every two weeks, but many believe, “could” mean “able.” Do not use choice at all. A Hobson’s choice means incorrectly, that it means twice a week. either word to express a possibility or “take it or leave it.” In the clichés Twice a week, in fact, is “semiweekly.” permission. “May” means “permis- “between a rock and a hard place” and Semiperfect advice for those who need sion” or “possibility.” “May” will con- “between Scylla and Charybdis,” nei- bifocals: Do not use “bi-” or “semi-”; fuse when it can mean either “permis- ther offers any comfort, but the latter both have the potential to confuse. sion” or “possibility.” If “may” might offers a safe though difficult exit. Instead, write “twice a week,” “once mean either “permission” or “possibil- Character, reputation. “Character” every two weeks,” and so on. ity,” use “might.” Thus, “I may write defines what you are. “Reputation” is Bisect, dissect. To “bisect” is to cut the opinion” can mean “I am permitted what others think of you. into two equal parts. To “dissect” is to to write the opinion” or “I will write CONTINUED ON PAGE 59
64 | Journal | March/April 2005 New York State Bar Association’s Forms Automated by industry-leading HotDocs® document assembly software Increase accuracy, eliminate repetitive typing and save time with these easy-to-use document assembly forms products.
Family Law Forms Developed in collaboration with LexisNexis, NYSBA’s Family Law Forms is the most authoritative and efficiently automated set of forms in this field. Access dozens of official forms promulgated by the New York State Office of Court Administration (OCA), as well as model matrimonial forms drafted by the distinguished veteran matrimonial law practitioner Willard H. DaSilva, a member of DaSilva, Hilowitz and McEvily LLP. PN: 6260 • Member price • $291 • List price • $339
Guardianship Forms When you’re preparing legal documents, couldn’t you use an extra hand? What if you didn’t have to tie up your time retyping, cutting, pasting and proofing for errors? Now there’s a quick and easy way to produce accurate guardianship documents, with New York State Bar Association’s Guardianship Forms. This invaluable package con- tains 135 forms covering virtually every aspect of guardianship practice under Article 81 of the Mental Hygiene Law, ranging from the petition for guardianship to forms for annual and final accountings. PN: 6120 • Member price • $375 • List price • $411
Residential Real Estate Forms Discover how easy it is to electronically produce 200 different residential real estate forms—for both downstate and upstate transactions—with this automated set of forms. Quickly prepare clean, crisp, ready-to-file deeds, contracts of sale, clauses for numerous contingencies, various riders, escrow documents and closing agreements for traditional house sales, as well as for sales of cooperative and condominium units. PN: 6250 • Member Price $351 • List Price $411
Surrogate’s Forms Now you can electronically produce forms for filing in New York surrogate’s courts using your computer and a laser printer. This fully automated set of forms contains all of the official probate forms promulgated by the Office of Court Administration (OCA), including the official OCA Probate, Administration, Small Estates, Wrongful Death, Guardianship and Accounting Forms. PN: 6229 • Member Price $315 • List Price $375
Prices include shipping, handling and 1 year subscription for updates. Multiple user and annual renewal pricing is available.
To order call 1-800-582-2452 or visit us online at www.nysba.org/pubs Source code: CL2424