NEW YORK STATE BAR ASSOCIATION JournalJournalNOVEMBER/DECEMBER 2004 | VOL. 76 | NO. 9
Is It Junk or Genuine?
Precluding Unreliable Scientific Testimony in New York – A Look at the Last 10 Years in the Wake of Frye and Daubert
Inside Surrogate's Court Discovery Electronic Discovery Appellate Statistics Medical Malpractice Experts Judge Kaye on Frye and Daubert BESTSELLERS NEW! FROM THE Civil Advocacy and Litigation NYSBA BOOKSTORE Preparing For and Trying the Civil Lawsuit, November/December 2004 Second Edition This loose-leaf volume updates and expands the extremely well-received first edition, by Business, Corporate, Tax New York Lawyer’s adding five new chapters. More than 20 of Limited Liability Companies Formbook, 2nd Ed. New York’s leading trial practitioners, judges Updated with 2003 Supplement and professors reveal the techniques and tactics This practical guide, written by Michele A. they have found most effective when trying a The Formbook is a companion volume to the Santucci, enables the practitioner to navigate the civil lawsuit. 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David C. Wilkes C ONTENTS Editor-in-Chief Tarrytown Is It Junk or Genuine? e-mail: [email protected] Precluding Unreliable Scientific Testimony in New York – Rose Mary Bailly A Look at the Last 10 Years in the Wake of Frye and Daubert Albany Harold L. Schwab Willard H. DaSilva 10 Garden City Louis P. DiLorenzo Surrogate’s Court Discovery New York City Recent Cases Illustrate Changes Under Provisions of SCPA Philip H. Dixon Gary E. Bashian and James G. Yastion 20 Albany Lesley Friedman Rosenthal New York City Threshold Decisions on Electronic Discovery Judith S. Kaye Kerry A. Brennan and Mia R. Martin 23 New York City John B. Nesbitt Lyons Update: Did the Odds Change in 2003? Appellate Statistics in State and Federal Courts Eugene E. Peckham Binghamton Bentley Kassal 28 Sanford J. Schlesinger New York City Know Thine Expert Richard N. Winfield Expert Witness Discovery in Medical Malpractice Cases: New York City Supplementing Disclosure with Online Investigation Eugene C. Gerhart Steven Wilkins 31 Editor Emeritus Binghamton
Daniel J. McMahon Hon. Judith Kaye: Remarks at Annual Meeting Managing Editor Dinner, January 22, 2003 Albany e-mail: [email protected] 35 Philip C. Weis Associate Editor Oceanside D EPARTMENTS EDITORIAL OFFICES One Elk Street President’s Message ______5 Classified Notices ______58 Albany, NY 12207 (518) 463-3200 CLE Seminar Schedule ______7 Index to Advertisers ______58 FAX (518) 463-8844 Changes at the Journal______8 New Members Welcomed ______59 Attorney Professionalism Forum ____ 38 Editor’s Mailbox ______61 ADVERTISING REPRESENTATIVE Network Publications Language Tips ______41 2004-2005 Officers ______63 by Gertrude Block Sheri Fuller The Legal Writer ______64 Executive Plaza 1, Suite 900 Index to Articles 1999–2004 ______42 by Gerald Lebovits 11350 McCormick Road Index to Authors 1999–2004______52 Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] ON THE WORLD WIDE WEB: Layout by Lori Herzing. http://www.nysba.org Cartoons © CartoonResource.com
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 cita- tions 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 © 2004 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 | November/December 2004 3 “Ah . . . New York City in August together in good faith representatives . . . No Lawyers.” A member of the of all perspectives. That is the Association told us about this sign at PRESIDENT’S Association’s position. The voices of a store that she and countless other our Association members reflect New Yorkers had seen in their daily MESSAGE these different backgrounds and travels. I wrote on behalf of the insights. That is our strength. Association to the storeowner where Speaking out for the profession the electronic sign was located to and for the justice system is one of take issue with this message and list the key responsibilities of our some of the many positive contribu- Association presidents. In these days tions that would be missing from our of technological advancements that lives if lawyers were absent for a bring daily blizzards of information month, a week or a day. and opinions to the airwaves, Web, The message, we were told, had and elsewhere, it is particularly been suggested by someone writing important to present a complete and in to the store. In my letter, I recom- accurate picture and work to increase mended some alternative messages: public understanding about the legal (1) Lawyers donate free legal services system. We at the New York State Bar to poor people – last year in New Association are committed to taking York, more than two million hours to every opportunity to do so. the poor and disadvantaged and Responding to articles and messages many more hours to countless chari- is one element of our efforts, and we ties and other not-for-profit entities. urge you to bring such items to our (2) Lawyers stand up boldly and res- attention and to share with us your olutely to defend the rule of law and KENNETH G. STANDARD efforts to speak out in your commu- principles of justice, despite being nity. the target of jokes by misguided Raising Our We are not waiting for opportuni- copywriters, would-be pundits and ties to respond. We are taking our others who fail to recognize the Voices message to the media, to public essential role that lawyers fill in pro- forums, to the community, and to tecting the basic rights of all within our shores, includ- lawmakers of how the legal system is functioning, what ing non-citizens. provisions need change, what approaches would be Also in August, on the Association leadership’s daily constructive, and what approaches would be detrimen- review of law-related issues in the news, we came upon tal. We are able to do that through our most important this headline in a magazine speak-out column: “Are asset – the intellectual capital of our members and their trial lawyers robbing you? The legal feeding frenzy can commitment to ensuring that the legal process and pro- rob you of a favorite doctor, destroy your job, and esca- fession can meet today’s challenges while preserving late the costs of the products you buy.” the basic tenets of the rule of law and access to the jus- There, too, we responded with a letter with facts tice system. refuting the inflammatory misinformation in the article. Over the past months, I have been meeting with As I explained, the tort system has not run amok. In reporters in the legal, business and general media to dis- 2002, only 2% of those who sustained serious injury cuss the issues that we see as priorities and our posi- actually filed a lawsuit and of the 90 million new cases tions for constructive change. The tort system has been filed in state courts that year, less than 1% involved tort a topic, as I described above. I have also described the matters. Our system of civil justice should not be sum- need to reform the Rockefeller drug laws – an issue we marily dismantled or eroded. Certainly, it should be the have identified as a priority for legislative action to rem- focus of constant review and constructive improvement, edy the deleterious effect of these unduly harsh yet inef- taking into account the needs of all concerned. For our fective laws and to restore judicial discretion in sentenc- democracy to continue, we all have to work to ensure ing. I also spoke with the media about the work under- that the average person and the small business have the way by our Special Committee on State Constitution same right to be heard and the same right to seek and Governance to examine and make recommenda- redress as wealthy physicians, global insurance compa- nies and other large business interests. Any modifica- KENNETH G. STANDARD can be reached by e-mail at tion of the system must be accomplished by bringing [email protected].
Journal | November/December 2004 5 PRESIDENT’S MESSAGE fault-based grounds – cruel and inhuman treatment, adultery, abandonment for one or more years, and tions to improve the functioning of the state legislative imprisonment for at least three years – and to the provi- process, which has been plagued by 20 consecutive sion of living apart for a year under a separation agree- years of late budgets and the bottling up of needed leg- ment or court decree. This affirmative legislative pro- islation. posal was prepared by the Family Law Section and I also have been submitting op-ed pieces. As you may approved by the Executive Committee in June for sub- have seen in an opinion piece published in October in mission to lawmakers. The Section observed that the The Buffalo News and elsewhere, I spoke of how our jus- present lack of no-fault provisions may result in he- tice system is designed to balance civil liberties and said/she-said accusations between spouses, increased public safety and how, in this post 9/11 world, we need litigation costs and more embittered relationships. to remain vigilant that our laws and procedures contin- The second addition to our priority list calls for legis- ue to strike this balance. This is the view we have main- lation and related provisions to require videotaping of tained in all our reports and recommendations on pro- custodial interrogations by law enforcement authorities, posed and existing federal and state anti-terrorism leg- to reduce the risk of false confessions and false claims of islation and regulations. coercion. A joint resolution of the Criminal Justice Each year, as we approach the new legislative ses- Section and the New York County Lawyers’ Association sion, we consider and identify several issues for priori- urging this legislation and related provisions was ty action for the year ahead. To start the process, we approved by the House of Delegates in June. invited by letter and e-mail our general membership, as For each of these priorities, we are devising specific well as our committees and sections, to submit sugges- plans to spotlight the need for action, in our meetings tions. Following review by our Steering Committee on and other communications with lawmakers, in speaking Legislative Priorities and the Committee on Legislative out in the media, and in discussing our perspectives Policy, the Executive Committee decided we should with other organizations and in various forums. While continue efforts for drug law reform and for mainte- the number of priority items is necessarily limited, we nance and improvement of access to the tort system and continue to pursue other affirmative legislative propos- access to the civil justice system for both low-income als and positions with lawmakers and in the media, and middle-income consumers. working in concert with our sections and committees. We also added two items to our priority list. We will You can be assured that your Association will contin- seek amendment of the Domestic Relations Law to pro- ue to raise its voice on your behalf, on behalf of our pro- vide for no-fault divorce in New York. This would add fession and on behalf of our society. We welcome and the irretrievable breakdown of a marriage to the current encourage your help in spreading the word.
6 Journal | November/December 2004 NYSBACLE Tentative Schedule of 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. FALL PROGRAMS DATE LOCATION † Update 2004 (video replays) December 1 Poughkeepsie December 3 Canton; Loch Sheldrake December 7 Rochester December 9 Suffern Local Criminal Court Practice (half-day program) December 2 Buffalo December 7 Albany Ethics and Professionalism (half-day program) December 2 Uniondale, LI December 8 Syracuse Hot Topics in Trusts and Estates Practice (half-day program) December 9 Tarrytown December 10 Uniondale, LI Modern Discovery (half-day program) December 3 New York City † Advanced Elder Law December 2 Albany December 3 Westchester Fundamentals of Banking Law and Regulation December 1 New York City The Heart of the Case with James McElhaney December 1 Rochester December 2 New York City † Advanced Real Estate Practice December 3 New York City
SPRING PROGRAMS Bridging the Gap: Crossing Over Into Reality February 9–10 New York City (two-day program) † International Estate Planning Institute March 10–11 New York City (one-and-one-half day program) Avoiding and Defending Legal Malpractice March 11 Rochester; Uniondale, LI (half-day program) March 18 Albany; New York City A Primer on Civility and Ethics in Litigation April 8 New York City; Rochester (half-day program) April 15 Albany; Uniondale, LI 2005 Insurance Coverage Update – Personal Lines, April 15 New York City Bad Faith and Other Developing Topics April 29 Melville, LI; Syracuse May 6 Albany, Buffalo Federal Civil Practice: A Primer April 22 New York City; Rochester April 29 Albany May 6 Melville, LI Senior Housing April 22 Albany May 13 New York City Three Hot Topics in Criminal Law April 29 Rochester May 6 Albany May 19 Uniondale, LI May 20 New York City DWI: The Big Apple V May 5–6 New York City (one-and-one-half day program)
** Denotes revision † Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. 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/fall2004 (Note: As a NYSBA member, you’ll receive a substantial discount) Changes at the Journal
avid Wilkes takes fter six years at over as the new the helm, Howard DEditor-in-Chief AAngione has of the Journal with this reached the end of his issue, succeeding Howard term as Editor-in-Chief Angione. Mr. Wilkes of the New York State plans to maintain and Bar Association Journal, advance the preeminent the Association’s flag- reputation the Journal ship publication. has achieved over its During his tenure, long history through the Mr. Angione presided hard work, dedication over a redesign of the and talent of his prede- Journal and added a cessors. Readers can expect to continue to see many of ninth issue to the yearly publication schedule. He also their favorite columns and writers, as well as the addi- incorporated several new columns, including the tion of new columnists providing regular advice and “Attorney Professionalism Forum,” by the Committee updates on substantive areas of law. on Attorney Professionalism; “Legal Writer” by Hon. With the help of the Journal’s prestigious editorial Gerald Lebovits; and “Point of View,” a forum for board, Mr. Wilkes plans to expand the range and quan- Association members to offer opinion pieces on current tity of topics included in each issue. New “nuts and legal issues. One of Mr. Angione’s goals was to give the bolts” columns will be introduced that will appeal to a editorial board a greater role, and in the last few years broader spectrum of readers. Design and graphics he published more articles by, and secured by, board changes will also be introduced over the course of the members. coming year, including a shift to a full four-color format. Mr. Angione came to the Journal after 22 years as an As Editor-in-Chief, Mr. Wilkes brings many years of editor for the New York Times and the Associated Press publishing experience to the Journal. After working for a and 10 years as an attorney, concentrating in elder law. Manhattan book publisher and then earning his law He brought with him a keen sense of the importance of degree, he became a staff writer and editorial board a pithy headline and a solid lead paragraph in drawing member for Litigation News, a publication of the a reader into an article, and a passion for language and American Bar Association. Since 2001, Mr. Wilkes has good writing. In addition to Judge Lebovits’s column, served as Senior Editor of Real Estate Review, an aca- Mr. Angione continued to publish “Language Tips” by demic quarterly published by New York University and Gertrude Block and, at least once a year, showcased a Thomson Publishing. He is a partner in the Westchester major article on writing. County firm of Huff Wilkes, LLP, representing commer- The New York State Bar Association thanks and cial real estate owners and municipalities in a wide applauds Howard Angione for his two terms of dedi- range of real estate litigation throughout New York cated service. State, with a particular concentration in commercial property tax appeals and eminent domain. The interview process for the position of Editor-in- Chief was led by Kathryn Grant Madigan, Chair of the Committee on Association Publications and Secretary of the Executive Committee. Mr. Wilkes thanks the mem- bers of the committees for this opportunity to serve the New York State Bar Association, the board of editors for their enduring commitment to the Journal, Mr. Angione for the time he has devoted to making the transition a success, and the staff members of the Association for their tireless efforts to ensure the continuing quality of the Journal.
8 Journal | November/December 2004 Is It Junk or Genuine? Precluding Unreliable Scientific Testimony in New York – A Look at the Last 10 Years in the Wake of Frye and Daubert
BY HAROLD L. SCHWAB
he admission of testimony from an expert witness Frye Applies, But Not Daubert is fraught with difficulty. Courts have struggled People v. Wesley considered whether DNA profiling Tfor many years to distinguish junk science from evidence was admissible, and if so, whether it should reliable evidence that is accepted by the scientific com- have been admitted in that case. DNA evidence was pre- munity. This is the first of two articles sented as novel scientific evidence at that review and analyze the signifi- the time of the lower court proceedings cant reported New York cases since in 1988 and 1989, which thus required 1994 that reference either Frye v. a determination as to its reliability. The United States1 or Daubert v. Merrell trial court held a hearing and ruled Dow Pharmaceuticals,2 the landmark that the evidence was reliable and cases in this field of law. These articles therefore admissible. A conviction of are intended to provide a helpful sin- the accused resulted, and the Court of gle-source reference for these cases. Appeals affirmed. They should also serve as a useful The stringent general acceptance synthesis and advancement of the standard first articulated in Frye was jurisprudence relating to the preclu- applied by the Court of Appeals, sion of opinion testimony that is sub- which determined that the issue of stantiated only by the word of the wit- admissibility of DNA profiling evi- ness himself, or the so-called “ipse dence was novel but that there was dixit” expert.3 general acceptance of its reliability in the scientific community. Writing for A Look at Frye the majority, Judge Smith stated that a The seminal New York case on the principle or procedure that is the basis issue of Daubert/Frye application is People v. Wesley.4 for expert testimony must first be shown to have 6 Remarkably, in the 10 years since Wesley there has “gained general acceptance” in its field. The specific been no Court of Appeals case discussing the possibil- procedure must be “generally acceptable as reliable,” ity of a Frye/Daubert interface in New York. Many sig- although the scientific community need not “unani- 7 nificant questions have been raised. Does Frye apply mously indorse” the procedure. in cases involving scientific evidence that is not novel? Concurring, Chief Judge Kaye wrote: Does Frye apply in cases involving technical expert The Court agrees unanimously that where the scientific testimony that is not scientific? Is there a bright line evidence sought to be presented is novel, the test is that between evidence that is scientific and evidence that is articulated in Frye v. United States, 293 F.1013, 1014, in technical?5 What standards should be used by a trial essence whether there is general acceptance in the rele- court in deciding admissibility of expert evidence vant scientific community that a technique or proce- dure is capable of being performed reliably.8 where Frye is not applicable? And, to what extent should trial courts hold Frye hearings prior to trial or immediately before prospective expert testimony dur- HAROLD L. SCHWAB
10 Journal | November/December 2004 Judge Kaye noted that the test according to Frye Succinctly stated, People v. Wesley established that in “‘emphasizes counting scientists’ votes, rather than on cases involving novel scientific evidence the test to be verifying the soundness of a scientific conclusion.’” applied is whether there is general acceptance within Contrary to the majority, she concluded that the opinion the relevant scientific community of techniques that, of two scientists with commercial interests in the DNA when properly performed, generate results that are reli- work under consideration (they were primary develop- able. An evidentiary preliminary hearing may be desir- ers and proponents of the able for a trial court to make technique) was insufficient foundational determinations. to establish “general accept- When deciding whether there is New York remains a “Frye ance” in the scientific field. state,” unlike the overwhelm- In other words, when decid- general acceptance, courts ing majority of other jurisdic- ing whether there is general should not merely “count votes” tions. acceptance – the very pur- Soft Science pose of which is to ensure but should analyze the reliability reliability – courts should Frye has been applied in not merely “count votes” but of those doing the voting. New York not only to scientif- should analyze the reliability ic evidence involving so- of those doing the voting. called “hard” sciences such as biology, chemistry and physics, but also to “soft” sci- The Daubert decision was referenced by the Wesley ences involving psychology, sociology and psychiatry.15 court in two footnotes. Judge Smith wrote that Daubert The “general acceptance” requirement of Frye has also was not applicable because, at least in federal courts, the been applied to various cases in the civil law field which Frye rule was superseded by Rule 702 of the Federal on initial analysis may not appear to involve either Rules of Evidence. Rule 702 permits testimony to be “hard” or “soft” scientific evidence. offered concerning scientific or technical evidence if it A case involving soft sciences that will be of particu- “will aid the fact finder in understanding the evidence 16 or determining a fact in issue.”9 The rigidity of the “gen- lar interest to trial lawyers is People v. LeGrand. The eral acceptance” rule was contrasted with the “liberal issue presented at a Frye hearing was whether a defense thrust” of the Federal Rules of Evidence “and their ‘gen- psychologist could testify concerning the accuracy of eral approach of relaxing the traditional barriers to eyewitness identification testimony, known as “confi- “opinion” testimony.’”10 dence-accuracy correlation,” and related psychological concepts.17 The trial court, summarizing the Frye and Judge Kaye in her footnote observed that “[e]ven the Wesley opinions, noted that the trial judge at an eviden- new Federal test articulated in Daubert . . . would require tiary hearing must apply a four-fold test to decide proof of reliability of novel scientific evidence.”11 admissibility of scientific expert testimony. First, the Although a Frye hearing had been held by the trial court to determine whether the relevant scientific community had accepted DNA evidence as reliable, the majority Frye’s “Deception Device” opinion observed that a preliminary hearing was not mandatory: “[i]t should be noted that novel scientific In Frye v. United States, a device known as the evidence may be admitted without any hearing at all by “systolic blood pressure deception device” produced the trial court.”12 a result that was favorable to the accused, who had Although she did not believe that a preliminary hear- been convicted of murder. On appeal, the issue was ing was mandatory, Judge Kaye emphasized the impor- whether the result of the deception device should tance of conducting a foundational inquiry: have been received in evidence. The Circuit Court of Appeals of the District of Columbia initially noted Next, a foundational inquiry must be satisfied before that courts will go a long way in admitting expert such evidence is placed before the jury: in each case, the testimony deduced from a well-recognized scientific court must determine that the laboratory actually employed the accepted techniques. This foundational principle or discovery. However, “the thing from inquiry also goes to admissibility of the evidence, not which the deduction is made must be sufficiently simply its weight.13 established to have gained general acceptance in the And: particular field in which it belongs.” In affirming the judgment of conviction, the court concluded that the Our cases have always required a foundational inquiry before scientific evidence can be admitted, even after a device had not gained sufficient standing and scien- particular technique has passed out of the “twilight tific recognition. Today, we know the device as a zone” of “novel” evidence that is the subject of Frye and polygraph or, more colloquially, a lie detector. is judicially noticed as reliable.14
Journal | November/December 2004 11 court must determine whether the witness is competent spinoscope examinations (although an equal number in the field of expertise that he purports to address at did not), and the use of some 50 to 60 of these machines trial. Second, the expert testimony must be based on a in the United States and Canada were not enough to scientific principle or procedure that has been “suffi- establish acceptance ciently established to have gained general acceptance in in the scientific com- the particular field in which it belongs.” Third, there munity in general, must be an inquiry into whether the “proffered expert according to the testimony is beyond the ken of the jury.” And fourth, it court. must be shown that the expert’s opinion is relevant to In Collins v. the issue and facts of the case at bar.18 Welch,20 plaintiff’s The trial court concluded that the proffered testimo- physician was pre- ny of the asserted expert, Dr. Malpass, as to “confi- pared to testify that dence-accuracy correlation” and related psychological plaintiff was suffer- concepts was not generally accepted within the relevant ing from multiple psychological community and therefore denied defen- chemical sensitivity dant’s motion for the admission of such evidence. (MCS) syndrome Application of the general acceptance standard has that rendered plain- been particularly varied in the civil law field. A spin- tiff hypersensitive to oscope machine, which is used to measure limitation in a wide variety of chemical compounds. Plaintiff alleged function as a result of low back pain, was held not to that certain work was negligently performed causing meet the Frye requirement in Castrichini v. Rivera.19 dust, fumes, and particles to enter the building and ren- Following a Frye hearing, the court precluded evidence der her permanently disabled. The court conducted a offered by plaintiff’s rehabilitation specialist of meas- Frye hearing and noted among other things that Dr. urements obtained with the spinoscope device. Hipp, her physician, admitted there was no diagnostic Testimony by Dr. Gracovetsky, the inventor of the test for MCS, there were no studies to establish a causal machine, his articles published in peer-reviewed jour- relation between certain chemicals and MCS, he did not nals, the fact that between 100 and 150 insurance com- know to which specific chemicals plaintiff had been panies in the United States reimbursed expenses for exposed and, most important, he conceded that his diagnosis of MCS “had not achieved general acceptabil- ity within the field of medicine.” Plaintiff, however, ref- Collins v. Welch Compares erenced a decision of the Third Circuit Court of Appeals concluding that a diagnosis of MCS was admissible Frye and Daubert: under Daubert. Despite this, the court concluded that Frye applies in New York and, citing the Wesley and “The present Federal rule [of Daubert], which Castrichini decisions with approval, that a different dethrones the general acceptance test, is the expres- result must be obtained in the MCS case before the sion of a reformist zeal to clear the underbrush and court. The court opined that in most cases Frye and open all pathways to the truth. The Frye rule, in that Daubert would produce a similar result, but in some context, is contrariant. Nevertheless, it faithfully instances the “general acceptance” standard would reflects and supports the traditional reluctance of the “play a decisive and differentiating role.”21 “This is such common law to upset established liberty and prop- a case,” the Collins court wrote, and granted defendant’s erty interests without good cause, supported by a motion for an order precluding the offer of expert testi- preponderance of credible and reliable evidence. mony advancing the MCS syndrome diagnosis. “We conclude that the defendant’s motion should be granted to the extent that it seeks an order to pre- Viagra Testimony Ineffective 22 clude the offer of expert testimony in support of the In Selig v. Pfizer, Inc., defendant moved for an order MCS syndrome diagnosis. The claim of bronchial directing a Frye hearing or, in the alternative, excluding injury caused by chemical fumes and dust, attributa- plaintiff’s proposed expert testimony that the erectile ble to the negligent performance of roofing work, dysfunction drug Viagra caused plaintiff’s heart attack remains viable if supported by competent evidence and granting summary judgment. Defendant submitted at trial.”1 affidavits from experts who concluded, among other things, that the opinions of plaintiff’s doctor were not 1. 178 Misc. 2d 107, 111, 678 N.Y.S.2d 444 (Sup. Ct., generally accepted in the scientific community. Plaintiff Tompkins Co. 1998). contended that Frye did not apply because the testimo- CONTINUED ON PAGE 14
12 Journal | November/December 2004 Moskowitz concluded that the “slow bleed” theory was not generally accepted in the scientific community and A Four-Part Test: what Dr. Lechtenberg had done was to take a number of medical textbook principles and combine them in order At an evidentiary hearing, courts are to apply a to arrive at his opinion. four-part test to decide whether scientific expert tes- A unanimous Appellate Division affirmed that the timony is admissible.1 infant plaintiff did not meet the Frye requirement of 1. Is the witness competent in the field of expert- showing that plaintiff’s expert’s theory was generally ise in which he seeks to testify before the court? accepted in the medical community: 2. Is the expert testimony that is to be offered based on a scientific principle or procedure that has As plaintiff’s expert admitted, there are no reported been “sufficiently established to have gained general medical cases or formal studies to support his theory. Therefore, the trial court correctly found that the expert acceptance in the particular field in which it be- “could not point to a reported case and could not point longs”? to a medical writing that set forth his theory even in 3. Is the proffered expert testimony “beyond the general terms.” Since plaintiff’s malpractice claim ken of the jury”? relied solely on a theory, which is neither recognized 4. Is the proposed expert witness’s opinion rele- nor accepted, Supreme Court properly granted defendants’ motion to preclude plaintiff’s expert’s testi- vant to the issue and facts of the individual case? mony.26 27 1. People v. LeGrand, 196 Misc. 2d 179, 747 N.Y.S.2d 733 A Frye analysis was also used in Saulpaugh v. Krafte, (Sup. Ct., N.Y. Co. 2002). another medical malpractice case. There, plaintiff’s pediatric neurologist had concluded that the infant, delivered by cesarean section, had suffered brain dam- CONTINUED FROM PAGE 12 age due to protracted fetal head compression during ny of Dr. Mallis did not involve a novel scientific tech- labor contractions that squeezed the blood out of plain- nique such as in Wesley and People v. Wernick.23 Justice tiff’s head and deprived the brain cells of oxygen. York acknowledged that the issue was not based on an On motion, defendants opposed the prospective outwardly novel scientific technique but nevertheless expert testimony by proffering the affidavit of a pedia- applied the Frye standard: “Nonetheless, as in the other trician in neonatology who averred that plaintiff’s theo- case applying the Frye standard, at issue here is whether ry was not generally accepted in the medical field or Dr. Mallis’ theory is supported by accepted scientific supported by medical literature. In opposition, plaintiff methods, particularly because his conclusions are submitted the affidavits of Dr. Charash and two other allegedly novel.”24 experts which supported the generally accepted theory The trial court concluded that defendant on motion that brain damage can occur due to head compression had made out a prima facie showing that the conclusion and lack of oxygen, but did not mention the core of reached and the methodology utilized by Dr. Mallis plaintiff’s theory that uterine contractions can squeeze were not generally accepted in the scientific community blood out of the fetal head and lead to the type of brain and that plaintiff had failed to rebut this prima facie damage that occurred. showing. Hence, there was no need for a Frye hearing. The Appellate Division affirmed summary judgment based upon plaintiff’s failure to make a showing that his A Frye hearing was necessary expert’s testimony had “gained general acceptance” in because the testimony was the particular field. The Frye general acceptance requirement was applied about the scientific likelihood in the medical malpractice case of Lara v. New York City of the causation, not about a Health & Hospitals Corp.25 There, plaintiff’s medical expert, Dr. Lechtenberg, testified to a so-called “slow medical departure. bleed” causation theory resulting in the infant plaintiff being born with cerebral palsy. A Frye hearing was The trial court, utilizing a Frye analysis, precluded deemed necessary by the trial court because the testi- the key causation testimony. Although finding that mony of plaintiff’s medical expert was about the scien- defendant had deviated from accepted medical prac- tific likelihood of the causation, not about a medical tices, the jury found that those deviations were not a departure. The court reserved decision following the substantial factor in causing plaintiff’s injuries. The hearing and the jury awarded the infant plaintiff a total of $12 million in damages. On post-trial motion, Justice CONTINUED ON PAGE 16
14 Journal | November/December 2004 CONTINUED FROM PAGE 14 the change in velocity was only five miles per hour and judgment for the defendants was affirmed on appeal, that impacts of that nature, based upon data and stud- holding that ies, do not yield long-term serious injuries. In contrast to the result in Valentine, however, Judge [b]road statements of general scientific acceptance, Maltese impliedly found such testimony to be novel and without accompanying support, are insufficient to meet scientific and concluded that the testimony did not meet the burden of establishing such acceptance. Absent any controlled studies, clinical data, medical literature, peer the Frye general acceptance standard. The opinion finds review or supportive proof indicating that Charash’s that the use of repair costs and photographs as the basis theory was generally accepted by the relevant medical for determining that community, Supreme Court properly excluded testimo- the change in velocity of two vehicles at impact is not a ny regarding that theory.28 generally accepted method in any relevant field of engi- neering or under the laws of physics. Hence, under the Engineering Testimony Questioned Frye test of general acceptance, the opinion upon which In a vehicular accident case, Valentine v. Grossman,29 a it relies is inadmissible.32 Frye hearing was held at the request of the plaintiff. The The decision concludes: Frye standard was applied to determine whether the conclusion reached by two defense biomechanical engi- [H]e may not render an opinion based upon his report neers – that the forces generated in an automobile acci- and testimony at the Frye hearing because the source of dent were insufficient to cause the injuries claimed by the data and the methodology employed by him in plaintiff – was based upon valid scientific methods. The reaching his conclusion is not generally accepted in the relevant scientific or technical community to which it second biomechanical engineer relied upon studies that belongs.33 applied a 3.2-g force to living people and a 3.6-g force or greater to dummies, cadavers and animal tissue. The From Frye to Daubert engineer testified that the difference between a 3.6-g From the above, one can say with certainty that Frye force and a 3.2-g force was negligible. The trial court is alive and well in New York and the general accept- found that the scientific methods used were valid, but ance test has been applied in disciplines and factual sit- rejected the testimony of the second biomechanical uations which may not have been envisioned at the time engineer on relevancy grounds, namely, that the studies of People v. Wesley in 1994 and certainly not in 1923 when involving living people were not relevant as they Frye v. United States was decided. However, if novel employed only a 3.2-g force and the other science is to be a prerequisite, one must studies did not involve living people. also ask whether there is an ever-pres- The appellate court concluded that ent risk of expert preclusion simply the trial court erred in excluding the tes- because a significant number of votes timony of the second biomechanical do not exist to form a statistically valid engineer. To the contrary, the reviewing basis for either general acceptance or court found, the expert’s testimony that the lack of such acceptance. More the difference between the two studies important, what defined parameters was of no significance was “clearly rele- exist or should exist to evaluate admis- vant.” Such testimony, the court wrote, sibility of expert testimony in cases would tend to make it more probable that where the subject is not novel or not sci- the accident was not sufficiently severe to have caused entific? The path leads inexorably to Daubert, the subject the injuries, as defendants contended. “The weight to be of the forthcoming second part of this article. accorded this expert testimony is a matter to be deter- 30 mined by the jury.” 1. 293 F.1013 (D.C. Cir. 1923). 31 Similarly, in Clemente v. Blumenberg, the trial court 2. 509 U.S. 579 (1993). conducted a Frye hearing to ascertain whether the prof- 3. “Ipse Dixit. He himself said it; something asserted but fered testimony of a defense biomechanical engineer not proved.” Black’s Law Dictionary, 8th ed. “[N]othing was generally accepted in the engineering community. in either Daubert or the Federal Rules of Evidence The issue was whether the forces generated in the two- requires a district court to admit opinion evidence which vehicle accident were sufficient to have caused plain- is connected to existing data only by the ipse dixit of the tiff’s herniated disc. The defense expert, Salzer, based expert.” GE v. Joiner, 522 U.S. 136 (1997). upon his review of photographs of the damaged vehi- 4. 83 N.Y.2d 417, 611 N.Y.S.2d 97 (1994). cles, repair bills, and General Motors charts of repair costs in five-mile-per-hour crash tests, concluded that CONTINUED ON PAGE 18
16 Journal | November/December 2004 CONTINUED FROM PAGE 16 16. 196 Misc. 2d 179, 747 N.Y.S.2d 733 (Sup. Ct., N.Y. Co. 2002) (Fried, J.). 5. The dictionary definition of the words “science” and “sci- 17. There had previously been a unanimous decision by the entific” may be of interest to the reader although not nec- Court of Appeals in People v. Lee, 96 N.Y.2d 157, 726 essarily dispositive of the issue. N.Y.S.2d 361 (2001), holding that while expert testimony Science: 1(a) The observation, identification, on eyewitness identification is “not inadmissible per se, description, experimental investigation and theo- the decision whether to admit, it rests in the sound dis- retical explanation of natural phenomena. (b) Such cretion of the trial court. activity restricted to a class of natural phenomena. 18. LeGrand, 196 Misc. 2d at 186–88. (c) Such activity applied to any class of phenomena. Methodological activity, discipline or study. An 19. 175 Misc. 2d 530, 669 N.Y.S.2d 140 (Sup. Ct., Monroe Co. activity that appears to require study and method. 1997) (Fisher, J.). Knowledge, esp., that gained through experience. 20. 178 Misc. 2d 107, 678 N.Y.S.2d 444 (Sup. Ct., Tompkins “Scientific: Of, pertaining to, using or based on the Co. 1998) (Relihan, Jr., J.). methodology of science.” 21. Id. at 111. Webster’s II New College Dictionary (1999). 22. 185 Misc. 2d 600, 713 N.Y.S.2d 898 (Sup. Ct., N.Y. Co. 6. Wesley, 83 N.Y.2d at 422–23. 2000), aff’d, 290 A.D.2d 319, 735 N.Y.S.2d 549 (1st Dep’t 2002). 7. Id. at 423. 23. 89 N.Y.2d 111, 651 N.Y.S.2d 392 (1996) (neonaticide syn- 8. Id. at 435 (citing People v. Middleton, 54 N.Y.2d 42, 49, 444 drome). N.Y.S.2d 581 (1981)); (Kaye, C.J., concurring). 24. Selig, 185 Misc. 2d at 606. 9. Fed. R. Evid. 702. 25. N.Y.L.J. Oct. 4, 2000, p. 26, col. 6 (Sup. Ct., N.Y. Co.) 10. Wesley, 83 N.Y.2d at 423. (Moskowitz, J.), aff’d, 305 A.D.2d 106, 757 N.Y.S.2d 740 11. Id. at 435. (1st Dep’t 2003). 12. Id. at 426 (citations omitted). 26. Lara, 305 A.D.2d at 106 (citations omitted). 13. Id. at 436. 27. 5 A.D.3d 934, 774 N.Y.S.2d 194 (3d Dep’t 2004). 14. Id. (citations omitted). 28. Id. at 935–36 (citations omitted). 15. Hutter, Establishing the Reliability of Expert Testimony: 29. 283 A.D.2d 571, 724 N.Y.S.2d 504 (2d Dep’t 2001). The Principles, Theories and Methods Employed by the 30. Id. at 573 (citations omitted). Expert: Frye or Daubert? “Out of the Frye-Ing Pan, Into the Hearing” 8, 9 (Summer Seminars, New York State 31. 183 Misc. 2d 923, 705 N.Y.S.2d 792 (Sup. Ct. Richmond Judiciary 2002). Co. 1999) (Maltese, J.). 32. Id. at 934. 33. Id. One could well argue that the subject matter was only technical and not scientific in which event Frye would apparently not apply even though the methodology was on its face novel. However, it is common in automobile prod- uct liability cases for engineers to compare accident damage photographs to barrier crash test photographs and films to assist in arriving at change in velocity calculations. This generally accepted procedure was apparently not presented by the defense expert.
18 Journal | November/December 2004 Surrogate’s Court Discovery Recent Cases Illustrate Changes Under Provisions of SCPA
BY GARY E. BASHIAN AND JAMES G. YASTION
ver the past 10 years, Surrogate’s Court judges SCPA 2103 and 2104 as Applied across the state have made a series of decisions The 2002 case In re Esposito1 involved a dispute over Odealing with discovery proceedings and “reverse” the statute of limitations in discovery proceedings. In an discovery proceedings under the Surrogate’s Court older case addressing the issue, the court in In re Norstar Procedure Act (SCPA) that provide valuable guidance on Trust Co.2 applied a three-year statute of limitations, how the statutes are being interpreted and how attorneys likening the action to one for replevin or conversion. should develop strategies on behalf of their clients. The statute was said to accrue on the date the property Some cases have involved the guillotine-like defense was taken. of the statute of limitations, which can be a clear-cut Esposito, however, covers the situation where the ending to any proceeding; others have revealed the property is taken after the decedent’s death. When this unexpected breadth and utility of the discovery statutes; happens, CPLR 210(c) starts the statute running on still others have provided an insight into the criminal either the date letters testamentary are issued or three dimensions of discovery proceedings years after the decedent’s death, whichever is earlier. In SCPA 2103 and 2104 address discovery proceedings Esposito, the decedent died on October 1, 1997, and the generally, and SCPA 2105 deals with discovery proceed- respondent allegedly took the property after the dece- ings against a fiduciary, which are commonly referred to dent’s death. Letters testamentary were granted on May as “reverse” discovery. SCPA 2103 and 2104 come into 24, 2001, and the fiduciary began the discovery pro- play where the fiduciary has collected the assets of the ceeding on May 30, 2001. The court ultimately found estate and finds, or has reason to believe, that not all of that the petitioner commenced the action in a timely the assets are accounted for. The fiduciary can then manner, within the three-year statute of limitations. If bring a discovery proceeding to determine whether any the property had been taken prior to the decedent’s other person has possession of estate assets and/or to death, as was the case in Norstar Trust Co., the action take steps to obtain such assets. would have been time-barred. Because the property was The first of two distinct phases under SCPA 2103 is taken after death, however, the statute started on the “inquisitorial phase,” which is used when the fidu- October 1, 2000, which was three years after the dece- ciary is not sure whether the respondent possesses dent’s death; the action was brought within three years estate property and wants an examination to seek infor- of that date. 3 mation. If the court finds reasonable grounds for the In re Kulesh confirms that the jurisdiction of the examination, it will order the respondent to appear and Surrogate’s Court also includes the determination and be examined. The second, or “hearing,” phase is used enforcement of contractual rights the decedent had with when the fiduciary knows that the respondent has estate property. In this case, the court will issue a citation ordering the respondent to show cause why the proper- GARY E. BASHIAN
20 Journal | November/December 2004 a third party. There, the decedent had entered into a ward’s assets terminates upon the ward’s death and retirement agreement with a corporation that entitled turnover is, therefore, appropriate at that time. him to the future proceeds of certain claims the corpo- In re LaFroscia6 addressed the interplay of SCPA 2103 ration had against third parties. When the claims were with criminal procedure. There, after a petition was liquidated and the corporation refused to pay the estate filed and an inquest held, the court found that the the proceeds, the fiduciary commenced a discovery pro- respondent possessed $30,000 belonging to the estate ceeding under SCPA 2103 to and directed the respondent determine the estate’s rights to pay that sum to the estate, under the agreement and to Only a fiduciary with full letters plus interest. At the end of its enforce those rights. The decision the court noted its respondent corporation filed can be the target of a reverse concern that the actions of a motion to dismiss for fail- discovery proceeding. the respondent were criminal ure to state a cause of action, in nature. The court, there- arguing that the purpose of a fore, directed that the clerk of discovery proceeding was to the Surrogate’s Court serve a obtain specific property or money that belongs to the copy of its decision to the district attorney’s office for estate and not to determine the decedent’s contractual further investigation and whatever action it deemed rights against the respondents. The court denied the appropriate. motion to dismiss, holding that in light of the expansion of the Surrogate’s Court’s jurisdiction, an SCPA 2103 SCPA 2105 as Applied discovery proceeding was the proper remedy to deter- SCPA 2105 allows an interested person to begin a mine the decedent’s rights vis-à-vis the corporation reverse discovery proceeding to discover property in with which he had dealings. the possession of a fiduciary. Only a fiduciary with full letters can be the target of a reverse discovery proceed- Similar to Kulesh is In re Lambrou,4 in which the peti- ing, not a preliminary executor. Furthermore, one is not tioners commenced a proceeding under SCPA 2103 to a target of a reverse discovery proceeding who merely compel the respondent, a business associate of the dece- happens to be holding estate assets. dent, to be examined, requesting discovery regarding 7 certain real property and information pertaining to the These issues were addressed in In re Dempsey. The respondent’s management of a travel agency they had decedent had a life estate in real property located in owned. In granting the petition and allowing discovery New York that was to pass to his issue upon his death. Upon the decedent’s death, the decedent’s son became into matters such as the respondent’s management of preliminary executor of his estate and in that capacity the business, the court confirmed the broad scope of the collected rents from the property. The petitioners, dece- discovery proceeding under SCPA 2103. dent’s grandchildren (children of a predeceased son), A separate issue relating to discovery proceedings sought turnover of the rents from the son. The court was addressed in the 1999 case of In re Baron.5 The question was at what point is a guardian obligated to turn over an incapacitated person’s funds when that individual has died. There, the preliminary executor of the deceased incapacitated person’s estate sought turnover of the estate assets. The guardian asked for the court’s direc- tion as to whether she should retain the assets pending the settlement of her account, despite the preliminary executor’s request that the assets be turned over to the estate. The court held that the guardian must turn over the assets to the executor immediately upon the incapacitated person’s death, even before the guardian has account- ed for them. The court explained that the guardian’s authority over the
Journal | November/December 2004 21 denied the petition, finding it outside the scope of an the realty and that those rights depended on the out- SCPA 2105 proceeding. The mere fact that the son was come of the Massachusetts proceeding. Only if the trust holding the rent did not make him a target of a reverse bequeathing the New York property to the daughter discovery proceeding, and neither did his status as pre- was voided would the son be “interested” in such prop- liminary executor. On this issue, the court asked, erty. The court, therefore, dismissed the son’s proceed- “[W]hat would happen to this proceeding, for example, ing, finding he was not an interested person and lacked if [the respondent] allowed his preliminary letters to status to bring a reverse discovery proceeding. expire? He would then no longer be a fiduciary . . . and Finally, In re Rose10 shows how the court can combine the proceeding would be dismissed automatically.”8 and decide together separate proceedings under SCPA This case, therefore, begs the question of whether, in 2103 and 2105. In this case, claims were flowing between all cases, a reverse discovery proceeding against a an estate and another entity. The estate had commenced mere preliminary executor will be entertained by the a discovery proceeding against the decedent’s coopera- Surrogate’s Court. A broad rule preventing reverse dis- tive apartment corporation seeking the stock to the covery proceedings against preliminary executors, or apartment. The corporation in turn commenced a temporary fiduciaries for that matter, would have to be reverse discovery proceeding seeking maintenance confirmed by further statutory or case law. arrears on the co-op from the estate and the costs of Only a person interested in the estate can bring a repairs to the apartment. The court combined the dis- reverse discovery proceeding. The court clarified who is covery and reverse discovery proceedings and thereby entitled to bring such a proceeding in Tiffany v. Tiffany.9 decided all the issues at once. There, a Massachusetts domiciliary had conveyed prop- erty located in New York to a lifetime trust and named 1. N.Y.L.J., May 1, 2002, p. 21, col. 2 (Sur. Ct., N.Y. Co.). his daughter trustee. The decedent’s son contested the 2. 132 A.D.2d 973, 518 N.Y.S.2d 502 (4th Dep’t), appeal denied trust and decedent’s will in Massachusetts and com- sub nom. In re Bellingham, 70 N.Y.2d 614, 524 N.Y.S.2d 432 menced a reverse discovery proceeding in New York (1987). under SCPA 2105. The court held that the son had no 3. N.Y.L.J., May 31, 2002, p. 22, col. 3 (Sur. Ct., Nassau Co.). personal claim to, or right to immediate possession of, 4. 208 A.D.2d 1093, 617 N.Y.S.2d 551 (3d Dep’t 1994). 5. 180 Misc. 2d 766, 691 N.Y.S.2d 882 (Sur. Ct., N.Y. Co. 1999). 6. N.Y.L.J., Apr. 20, 1999, p. 30, col. 3 (Sur. Ct., Suffolk Co.). 7. N.Y.L.J., July 11, 2000, p. 33, col. 1 (Sur. Ct., Westchester Co.). 8 Id. 9. N.Y.L.J., Oct. 1, 2001, p. 27, col. 2 (Sur. Ct., Westchester Co.). 10. N.Y.L.J., Dec. 19, 1999, p. 32, col. 4 (Sur. Ct., Kings Co.).
22 Journal | November/December 2004 Threshold Decisions on Electronic Discovery
BY KERRY A. BRENNAN AND MIA R. MARTIN
hile the federal courts have been issuing covery (e.g., active, online data used to create, process or numerous published decisions and develop- access electronic records; near line data, typically ing standards on electronic discovery issues housed in a robotic storage device; and offline storage or W 5 over the last several years, the New York state courts archives). have remained silent on the subject. The proliferation of Cost shifting to the requesting party may be ordered, the use of e-mail and electronic databases makes it like- however, under Federal Rule of Civil Procedure ly that almost every new case 26(b)(2), and the Zubulake court will involve electronic discov- suggested that cost shifting ery. Without authoritative may be appropriate in connec- published decisions by New tion with the production of York state courts on issues inaccessible electronic data (e.g., involving electronic discovery, back-up tapes of compressed trial courts have had little data, not organized for retrieval guidance and have often been and which require registration, reluctant to follow federal and erased, fragmented or cases on the subject. deleted data that requires sig- The Nassau County Su- nificant processing to recover). preme Court’s Commercial Subsequently, after a sampling Division, acknowledging the of back-up tapes containing absence of New York cases addressing electronic dis- e-mails was restored and ana- covery, recently ruled that electronic data is discover- lyzed, the Zubulake court ordered the parties to share the able, relying in part on federal precedent. In a departure cost of production, with the producing party bearing from federal standards, however, the court in Lipco 75% of the expenses. Electrical Corp. v. ASG Consulting Corp., held that the A useful guide on electronic discovery issues is “The party seeking electronic discovery should bear the cost Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document of its production based on the presumption in New 6 York that the requesting party is responsible for such Production” (although most references are to federal costs in traditional discovery.1 In another case, cases, a comprehensive analysis is supplied). While the Creditriskmonitor.com v. Fenerstock, the court, upon Sedona Principles suggest that “Production of Electronic Data and Documents Should Only Be request, appointed a forensic computer expert who 7 “mirrored” the defendants’ computers to search for Required in One Format,” there may be circumstances information that was alleged not to exist.2 E-mails rele- where production of both paper and electronic data may vant to the case were found, and it was further deter- be useful to the requesting party. Even if paper copies of mined that others were destroyed. The findings resulted in substantial punitive damages and an award of attor- KERRY A. BRENNAN
Journal | November/December 2004 23 January 2004 The Sedona Principles for Electronic Document Production 1. Electronic data and documents are potentially and retrieval. Resort to disaster recovery backup tapes discoverable under Fed. R. Civ. P. 34 or its state law and other sources of data and documents requires the equivalents. Organizations must properly preserve requesting party to demonstrate need and relevance electronic data and documents that can reasonably be that outweigh the cost, burden, and disruption of anticipated to be relevant to litigation. retrieving and processing the data from such sources. 2. When balancing the cost, burden, and need for 9. Absent a showing of special need and relevance electronic data and documents, courts and parties a responding party should not be required to pre- should apply the balancing standard embodied in serve, review, or produce deleted, shadowed, frag- Fed. R. Civ. P. 26(b)(2) and its state law equivalents, mented, or residual data or documents. which require considering the technological feasibility 10. A responding party should follow reasonable and realistic costs of preserving, retrieving, produc- procedures to protect privileges and objections to pro- ing, and reviewing electronic data, as well as the duction of electronic data and documents. nature of the litigation and the amount in controversy. 11. A responding party may satisfy its good faith 3. Parties should confer early in discovery regard- obligation to preserve and produce potentially ing the preservation and production of electronic data responsive electronic data and documents by using and documents when these matters are at issue in the electronic tools and processes, such as data sampling, litigation, and seek to agree on the scope of each searching, or the use of selection criteria, to identify party’s rights and responsibilities. data most likely to contain responsive information. 4. Discovery requests should make as clear as pos- 12. Unless it is material to resolving the dispute, sible what electronic documents and data are being there is no obligation to preserve and produce meta- asked for, while responses and objections to discovery data absent agreement of the parties or order of the should disclose the scope and limits of what is being court. produced. 13. Absent a specific objection, agreement of the 5. The obligation to preserve electronic data and parties or order of the court, the reasonable costs of documents requires reasonable and good faith efforts retrieving and reviewing electronic information for to retain information that may be relevant to pending production should be borne by the responding party, or threatened litigation. However, it is unreasonable unless the information sought is not reasonably avail- to expect parties to take every conceivable step to pre- able to the responding party in the ordinary course of serve all potentially relevant data. business. If the data or formatting of the information 6. Responding parties are best situated to evaluate sought is not reasonably available to the responding the procedures, methodologies, and technologies party in the ordinary course of business, then, absent appropriate for preserving and producing their own special circumstances, the costs of retrieving and electronic data and documents. reviewing such electronic information should be shift- 7. The requesting party has the burden on a motion ed to the requesting party. to compel to show that the responding party’s steps to 14. Sanctions, including spoliation findings, should preserve and produce relevant electronic data and only be considered by the court if, upon a showing of documents were inadequate. a clear duty to preserve, the court finds that there was 8. The primary source of electronic data and docu- an intentional or reckless failure to preserve and pro- ments for production should be active data and infor- duce relevant electronic data and that there is a rea- mation purposely stored in a manner that anticipates sonable probability that the loss of the evidence has future business use and permits efficient searching materially prejudiced the adverse party.
Reprinted courtesy of The Sedona Conference. A complete version of The Sedona Principles is available at
24 Journal | November/December 2004 plaintiff, a joint venture comprising two electrical con- The Lipco Joint Venture asserted that the raw elec- tractors, referred in this article as the Lipco Joint tronic data was necessary to determine if the printouts Venture, sued a consulting company, ASG Consulting, were indeed accurate. The parties presented different employed by the plaintiff to prepare estimates and bids views about the estimated costs of producing the for the public works projects. The Lipco Joint Venture requested electronic discovery. The Lipco Joint Venture alleged, among other things, that ASG Consulting over- contended that the process associated with such pro- charged it for services on certain projects and that these duction would be relatively simple based on the com- overbilling practices continued after ASG Consulting mercial availability of the necessary software. ASG became part of the joint venture. Consulting, on the other hand, asserted that the The Lipco Joint Venture sought damages to recover retrieval of the requested information from its comput- the alleged overcharges. In the second action, ASG ers would require it to retain a computer consultant and Consulting sued the Lipco Joint Venture and one of the would be a time-consuming and expensive process. companies in the Lipco Joint Venture, seeking damages The court followed the traditional New York “rule” for violations of consulting agreements it executed with that the party seeking discovery should incur the costs both defendants separately. ASG Consulting also of the production. The court relied on two earlier cases alleged breaches of the Lipco Joint Venture’s fiduciary that held, with respect to document discovery, that each duties and claimed that it was not permitted to review party should shoulder the initial burden of financing its 10 the books and records of the Lipco Joint Venture in own suit. Until the Lipco Joint Venture indicated a which it became a partner. ASG Consulting sought dam- willingness to pay the costs incurred for the production ages and an accounting. of electronic data, the court would not compel its pro- The Lipco Joint Venture requested certain of ASG duction. The court further noted that future requests for Consulting’s electronic data, including information discovery of electronic data should be accompanied by reproduced on disk, hard drive and back-up tapes, and a statement as to the actual costs for extracting the data. demanded that ASG Consulting bear the cost incurred The court has left open the possibility that the cost of in extracting and providing this material. ASG Consult- production of electronic data could be apportioned ing objected to the production of elec- tronic data, but produced printouts of the requested information. ASG Consulting argued that because the printouts were supplied and extraction of the material from the computer hard drives was difficult, it should not be required to produce the electronic data. The court was asked to decide whether electronic data is discoverable, and, if so, who should pay for its retrieval and production. Although rec- ognizing that electronic discovery implicates different issues, the court noted that “[w]hether the court is deal- ing with traditional paper discovery or electronic discovery, the first issue the court must determine is whether the material sought is subject to disclosure as ‘material and necessary’ in the pros- ecution or defense of the action.” The parties did not dispute that the subject was material, but ASG Consulting argued that production in electronic format was not necessary. Relying on federal precedent, including Zubulake, the Lipco court determined that “[r]aw computer data or electronic documents are discoverable.”
Journal | November/December 2004 25 upon proper application, allowing the parties an oppor- about whether the case will involve electronic discovery tunity to present detailed information regarding the issues. Are documents available in electronic form? actual cost of the production at issue. Would production in electronic form be less expensive than a document production? For example, it might be Creditriskmonitor.com v. Fenerstock less expensive to record to a compact disc a producing In the Creditriskmonitor.com litigation, the plaintiff party’s documents than to contended that the defendant pay the per-page copying left its employ taking cus- The court awarded $200,000 in charge. Moreover, for various tomer information to his new reasons, including the age of employer, also a defendant, punitive damages where the the information needed, thus violating a noncompete unintentional loss of docu- clause in his employment e-mails that were produced ments, or the destruction of contract. When e-mails and through electronic discovery paper documents consistent certain correspondence were with a document retention not produced in discovery, directly contradicted previous program, information may the plaintiff alleged bad faith affidavits sworn by the be available only in archived conduct and asked the court electronic format that may to appoint a forensic comput- defendants. require restoration. er examiner; the court did so. It is recommended that The court determined that the requesting party identify “[t]he [hundreds of] e-mails would not have been dis- at the outset the preferred method of production – covered without the services of an outside contractor paper or electronic data. This option of format would who cloned the defendants’ computers and then likely apply in New York as long as the requesting party searched them” and noted that information in the e- is willing to pay for the form requested. In the Lipco mails directly contradicted previous affidavits sworn by case, the requesting party specifically sought electronic the defendants. In its reasoning to impose punitive data, not merely a computer printout, but did not indi- damages, the court further stated, “The proceeding cate a willingness to pay for the electronic form. It is would never have stretched out the way it had at an likely not sufficient to claim that you need electronic immense cost to the parties if the e-mails had not been data only in order to confirm that production in paper shielded from discovery and in some cases destroyed.” format was accurate. The court awarded a total of $200,000 in punitive dam- Even if a requesting party opted for the electronic ages against both the departing employee and the new form and indicated a willingness to pay, the producing company that hired him, adding that it would award to party could seek a protective order under CPLR 3103(a) the plaintiff attorneys fees and expenses in an amount to if the request would prejudice that party in some fash- be determined. ion. Production in electronic form often implicates con- Electronic Discovery Considerations fidentiality and privilege issues. Because of the large While standards for electronic discovery in New York volume of data typically involved with production of are still in their infancy, lawyers and litigants should not electronic discovery, parties should, prior to production, adopt a relaxed approach to this subject. Upon learning agree to protect against inadvertent disclosure of privi- that litigation is probable, lawyers and litigants have a leged, confidential or irrelevant information. Assistance duty to preserve evidence, including electronic data. from the court should be considered if the requesting The easy manner in which electronic information can be party will not assent to such an agreement. altered and/or destroyed compels an early discussion If a situation arises, like in Creditriskmonitor.com, of these issues. Counsel should consult with the client where through common sense or inconsistencies it is about the scope of information to be preserved; the determined that e-mail or other electronic data is not impact of preservation on existing document retention produced or has been withheld, the requesting party and destruction policies; methods to accomplish preser- should seriously consider moving to compel produc- vation of paper and electronic data; and communica- tion. If bad faith or destruction of evidence is suspected, tions with employees and third parties (to whom func- the requesting party should seek the appointment of an tions may have been outsourced) about preserving electronic expert to mirror a party’s computers and per- paper and electronic data. form a forensic examination. When e-mail has been Although New York courts do not require parties to deleted, the file may remain on a computer’s hard drive, confer early about discovery (unlike the federal rules), and an expert may be able to determine the scope of e- litigants should attempt to learn as early as possible mails that have been deleted. Failing to disclose elec-
26 Journal | November/December 2004 tronic data or any other relevant evidence can result in serious consequences, including default judgment against a noncomplying party, sanctions, punitive dam- ages, attorneys fees and costs, as well as criminal penal- Informed ties for obstruction of justice. If you determine that your own client has not pre- served electronic data or other information, counsel Consumers should: investigate the circumstances of the loss or destruction promptly; be prepared to explain the cir- Make cumstances of the loss or destruction; and consider noti- fying the opposing party as soon as reasonably practi- cal. If the litigant is under a court order with respect to Better Clients production when the loss or destruction is identified, Legal Ease Brochure Series From the litigant should consider apprising the court at the The New York State Bar Association same time as opposing counsel. A showing of good faith may help to avoid the dire consequences of negligent or intentional spoliation. 15 titles on topics your clients With the Lipco and Creditriskmonitor.com decisions, need to know...written by the New York courts have just begun to address what experts from NYSBA’s can oftentimes be gnarly electronic discovery issues. Sections. Further case law fleshing out the duties and responsi- bilities of counsel and litigants with respect to electron- Put them to work for
IATION ASSOC TE BAR RK STA ic discovery will likely follow in the next few years. NEW YO your firm. Adoption 1. No. 8775/01, 2004 N.Y. Misc. LEXIS 1337 (Sup. Ct., in New York For more
Nassau Co. Aug. 18, 2004). NEW YORK STATE BAR ASSOCIATION information, call ith ent Published in rkcooperation City Departm w the New Yo ging 2. No. 006211/2001 (Sup. Ct., Nassau Co. Aug. 6, 2004). Rightsfor the A of “Mirroring” or “cloning” generally refers to the process Residential 800-582-2452 of replicating bit-for-bit a computer’s memory. The mir- Owners and or Tenants rored copy can then be analyzed by the forensic expert. 518-463-3724 3. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. Mention Code MK067 2003); Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999); Rowe Entm’t, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002); Anti- Monopoly, Inc. v. Hasbro, Inc., 94 Civ. 2120, 1995 U.S. Dist. LEXIS 8822 (S.D.N.Y. Nov. 3, 1995). 4. See, e.g., Oppenheimer Fund Inc. v. Sanders, 437 U.S. 340, 358 (1978). 5. Proposed amendments to the federal rules relating to electronic discovery can be found at
Journal | November/December 2004 27 Update: Did the Odds Change in 2003? Appellate Statistics in State and Federal Courts
BY BENTLEY KASSAL
o the appellate statistics in our state and federal All the data is presented in the following order: fig- courts change significantly from year to year or ures in the left-hand column are for 2003, those in the Dare they essentially constant? Appellate attor- middle are for 2002 and those on the right for 2001. neys generally rely on their own limited personal expe- The Court of Appeals – Civil Cases rience or their gut reaction when asked in a given case what they believe to be the chances of being affirmed, A comparison of the percentage statistics for 2003 reversed or modified. But empirical data exists, there civil cases with those for 2002 and 2001, shows little sig- are real statistics available, and it is possible to know nificant change. The figures for 2003 are set forth in the precisely the odds of a particular result in a given appel- left-hand column of these tables; those in parentheses late court. are for 2002 and 2001, in the middle and right-hand columns respectively. This study, the second by the author,1 is based upon official appellate data from New York’s principal courts, Court of Appeals of the State of New York both state and federal, provided by the New York State Affirmed 42 (41) (40) Office of Court Administration and the Administrative Reversed 31 (35) (37) Office of the United States Courts. The information cov- Modified 9 ( 9)( 7) ers the latest completed figures for the year 2003, togeth- Dismissed 0 ( 2) ( 1) er with the comparable ones, previously presented, for Other 18 (13) (15) the years 2002 and 2001. The “other” category consists mostly of matters certi- For the first time, additional categories and inciden- fied to the Court by the U.S. Circuit Courts of Appeal, tal information are being presented for these courts in attorney disciplinary and judicial disciplinary proceed- these sectors: ings. In this modified percentage table, with “other” 1. New York Court of Appeals – criminal appeals; being excluded, and in the same order of columns as 2. Avenues to the New York Court of Appeals; above, the statistics are: 3. General conclusions about the New York Court of Affirmed 51 (48) (47) Appeals; Reversed 38 (40) (44) 4. Appellate Terms of the New York State Supreme Modified 11 (10) ( 8) Court; First and Second Departments, Appellate Dismissed 0 ( 2) ( 1) Division. Certain definite trends are discernible in these courts that support valid statistical conclusions as to the numerical likelihood of success in a given court, based BENTLEY KASSAL,
28 Journal | November/December 2004 The Court of Appeals – Criminal Cases It can be observed that For the first time, these statistics on criminal cases are there are no significant presented for the year 2003: changes in the above statis- tics for the period 2001 to Percentage of Total Criminal Cases 2003, inclusive. As stated in Affirmed 71 the previous article on this Reversed 20 subject, the Third Depart- Modified 7 ment in Albany has a Dismissed 2 greater percentage of affir- mances than the other Avenues to the Court of Appeals departments because many Twenty-eight cases arrived at the Court in 2003 by of its cases are administra- way of notices of appeal, as a matter of right. At the tive appeals, directly from state agency determinations, same time, the discretionary statistics reveal 65 cases where the CPLR Article 78 “substantial evidence” stan- entered by the Court of Appeals granting leave, in con- dard is applicable. trast with a total of nine cases by way of leave granted by the Four Departments of the Appellate Division. Appellate Term Civil Statistics for 2003 It is apparent from these statistics that the Court of Appellate Term civil statistics are presented for the Appeals is now basically a certiorari court, controlling, first time. They are as follows: in great measure, its own calendar. First Department Second Department An incidental bit of intelligence for the appellate (Percentages) attorney: in 2003, the average period of time from the fil- Affirmed 61 52 ing of an application to the Court of Appeals for leave to Reversed 22 29 appeal until determination of the leave application was Modified 9 15 58 days. Dismissed 7 2 Trends in the Court of Appeals Other 1 2 There is a general movement, now clearly percepti- Some observations pertaining to the above table may ble, by the Court of Appeals2 in the following direction: be made. The volume of Appellate Term cases differs 1. Issues fewer decisions now, a little less than 200 greatly between the First and Second Departments. In annually where 250–300 were the norm in the mid- the First, there were 269 appeals disposed of after argu- 1990s; ment or submission. In the Second, the number is 554, 2. Steady decline in granting motions for leave to more than double the First. Comparing these affirmance appeal, now about 6.5 percent as opposed to 11% in the 3 and reversal percentage numbers with those of the mid-1990s; respective Appellate Division statistics shows a remark- 3. Significant reduction able similarity. in leaves to appeal being granted by the Appellate United States Court of Appeals, Division. In 2003, only 7% Second Circuit of cases at the Court of As in the previous study, the figures presented for Appeals were there via 2003 exclude bankruptcy and administrative appeals for Appellate Division leave, as the year ending September 30, 2003, and address only contrasted with 8.2% in those cases entitled “Appeals Terminated on the 2002, 19% in 2001 and 12% Merits.” Again, the figures in the left column are for in 2000. 2003; the figures in parentheses in the next two columns 4. Affirmance and rever- are for 2002 and 2001 respectively: sal rates are relatively sta- Affirmed 59 (64) (60) ble. Reversed 1 ( 3) ( 2) The Supreme Court’s Four Appellate Divisions Dismissed 18 (15) (18) First Second Third Fourth Remanded 17 (15) (18) Affirmed 62 (62) (62) 50 (53) (51) 75 (74) (73) 52 (50) (50) Other 5 ( 3) ( 2) Reversed 17 (16) (17) 25 (24) (25) 10 (10) (11) 15 (14) (14) Modified 12 (13) (13) 10 ( 9) ( 9) 10 (10) ( 9) 12 (16) (16) Dismissed 9 ( 9) ( 8) 15 (14) (15) 5 (6) ( 7) 21 (20) (20)
Journal | November/December 2004 29 The pattern noted last year continues, in the compar- 2. John Caher, Reports Show Decade’s Changes in Caseloads, ison of these statistics with those for the New York Criminal Appeals Heard, N.Y.L.J., Apr. 9, 2004. Court of Appeals and the Four Departments of the 3. An excellent article as to the step-by-step procedure for Appellate Division, Supreme Court. It should be noted seeking leave to the Court of Appeals, both from the that generally there is a much greater percentage of Appellate Division and Court of Appeals, is Thomas R. affirmances in the Second Circuit, as well as dismissals, Newman & Steven J. Ahmuty, Jr., Appellate Practice – Motions for Leave to the Court of Appeals, N.Y.L.J., Oct. 5, than in the New York state courts. 2004, p. 3. The reports containing the above statistics are direct- ly available. For the New York state courts, the informa- 4. “Caseload Activity in the Appellate Division – 2003” pub- lished by the Office of Court Administration, Table 3; tion may be obtained at the Web site,
1. Bentley Kassal, What Are the Odds? Appellate Statistics Reveal Patterns Among State and Federal Courts, 76 N.Y. St. B.A. J., 46 (Jan. 2004).
The Journal’s 2004 Statement of Ownership, Management and Circulation
30 Journal | November/December 2004 Know Thine Expert Expert Witness Discovery in Medical Malpractice Cases: Supplementing Disclosure with Online Investigation
BY STEVEN WILKINS
our case appears solid. A qualified physician has attacks result when the opposing expert is compelled to assisted you by reviewing the medical records concede your view of the underlying medicine; but get- Yearly in the course of the case, strengthening the ting there often requires a lot of work. Additionally, the preparation of the pleadings, allowing you to focus on cross-examining attorney’s ability to shake the protec- the proper questions during depositions, and helping to tive armor of a “Marcus Welby” demeanor or the 2 frame the relevant issues at the settlement conference. appearance of “Michael DeBakey” wisdom can have a The client’s injuries were certainly severe enough to devastating effect. warrant this litigation. First, though, in order Unfortunately, the de- to prepare an effective fense is unwilling or cross-examination of an unable to settle. A trial expert, one must know date is set. You prepare who the expert will be. yourself for battle. You New York medical mal- must now determine by practice attorneys are which means you will well aware of the paradox counter the testimony of that the Civil Practice the defendant’s expert Law and Rules places witness. Getting to know upon discovery when the as much as possible subject is identifying the about your adversary’s opposing medical expert. expert witness is key, and In fact, New York stands the Internet provides the alone in its refusal to practitioner with rapid require3 that the expert access to a wide range of such information. either be deposed or answer interrogatories.4 In New Cross-examination of an expert witness in a medical York, the attorneys only become aware of the identity of malpractice action is one of the key areas where a case the opposing party’s expert at the time that their request 5 may be won or lost. Trial attorneys know that a success- for this information is answered. Failure by the oppos- ful outcome rests, in part, on undermining the credibili- ing counsel to give adequate notice of the expert’s iden- ty of the opposing expert. Weaknesses in the training, tity does not necessarily preclude the expert from testi- knowledge, skill or experience of the expert must be fying, although there can be some consequences to this 6 exposed. The expert’s compensation for his testimony oversight. Of course, even the meaning of “identity” is somewhat skewed, since only the pertinent qualifica- must be questioned critically, so as to make the jury 7 8 aware of a possible financial incentive for the decision to tions and not the name of the expert need be given. provide testimony. The experienced plaintiff’s attorney understands that the opposing expert may be utilized to make the jury aware of the ‘conspiracy of silence’ by STEVEN WILKINS M.D., J.D., FACS
Journal | November/December 2004 31 Avoiding the Affirmation?
The American College of Surgeons recognized that 6. Will provide evidence or testimony that is com- many Fellows serve as expert witnesses, and it has plete, objective, scientifically based, and helpful to a recently prepared a form affirmation for experts to sign just resolution of the proceeding; and provide to the attorney representing the party on 7. Will make a clear distinction between a depar- 1 whose behalf the expert intends to testify. Medical ture from accepted practice standards and an unto- malpractice attorneys may find this to be a useful addi- ward outcome; tional resource in attacking an adversary’s expert wit- 8. Will make every effort to determine whether ness. The affirmation declares that the expert: there is a causal relationship between the alleged sub- 1. Will always be truthful; standard practice and the medical outcome; 2. Will conduct a thorough, fair, and impartial 9. Will submit testimony to peer review, if request- review of the facts and medical care provided, not ed by a professional organization to which the expert excluding any relevant information; belongs; 3. Will provide evidence or testify only in matters 10. Will not accept compensation that is contingent in which the expert has relevant clinical experience upon the outcome of the litigation. and knowledge in the areas of medicine that are the Many experts will not provide this affirmation to subject of the proceeding; their attorney, either as the result of an oversight or 4. Will evaluate the medical care provided in light fear of reprisal from their professional organization if of generally accepted standards, neither condemning they are requested to submit their testimony for review performance that falls within generally accepted prac- (see 9 above). Nevertheless, failure to sign this affirma- tice standards nor endorsing or condoning perform- tion provides the cross-examining attorney with the ance that falls below these standards; ability to question the rationale for not doing so, and 5. Will evaluate the medical care provided in light suggest to the jury that the testimony provided does of the generally accepted standards that prevailed at not live up to the high ideals put forward by the affir- the time of the occurrence; mation.
1. Expert Witness Affirmation, Bulletin of the American College of Surgeons, Vol. 89, No. 9, pp. 33–34 (Sept. 2004), avail- able at
Standing in stark contrast to this limitation on infor- niques and Internet-based services allow a more com- mation regarding the expert is the general statutory plete investigation to be performed. acknowledgment that “[t]here shall be full disclosure of 1. Obtain past testimony given by the expert. all matter material and necessary in the prosecution or Testimony offered in prior trials is often available defense of an action, regardless of the burden of proof.”9 online. Remember to check any state in which it is like- Thus, the CPLR simultaneously and confusingly ly that the expert has testified. Cooperative clearing- endorses full disclosure while limiting its exchange. houses run by many state medical societies offer such This critical game of “kiss and tell” usually plays transcripts to members. By making your transcripts itself out in real life with disclosure of an expert’s qual- available to others, you gain access to a much larger ifications only a few days before trial begins. Since the number. Commercial groups throughout the country time constraints are so severe, this article will concen- also have transcripts available for purchase, grouped by trate on the Internet-based methods of investigating the the physician expert’s name.11 These transcripts are likely opposing expert. By appealing to a sense of fair especially important whenever the expert’s point of play, it is usually possible to get sufficient information view involves an issue in the case. When the expert has from the opposing attorney to successfully distinguish registered with an expert service, the service may be the opposing expert from other physicians. What do helpful in finding the past testimony of the expert in an you do with that information? attempt to tout their “product.” Computer programs that are widely available com- When a jury is confronted with contradictory testi- mercially can be used like a reverse telephone book to mony on a crucial matter, with both sides presenting identify the physician by his vital statistics.10 Once the experts who provide opposite views, the outcome will name of the physician is obtained, investigative tech- be uncertain. However, if the defense’s expert is shown
32 Journal | November/December 2004 to have adopted both points of view depending upon able online, as are the official findings of the hearing which side has paid him, there is a far greater likelihood committees charged with evaluating the physician’s of convincing a jury that the defense expert’s testimony actions. is unreliable. 5. Search hospital Web sites for all hospitals where 2. Obtain information on any past civil or criminal the expert physician has privileges. An often under-uti- actions with which the expert was involved. The wit- lized source of information is the Web site of the hospi- ness’s reputation for truthfulness or untruthfulness is tals at which the expert has privileges. Some experts relevant to his credibility and any decision the jury is even maintain their own Web sites. If the expert truly is impaneled to make. Because little uniform case law an expert in the kind of case at issue, then his public exists in New York on the admissibility of particular col- writings – used to entice patients to use his services – are lateral issues involving an often excellent sources for his expert witness, any docu- true opinions. Also, many mented falsifications, mis- When discovered prior to trial, academic centers provide representations, or outright license infractions can have a information for prospective lies are worth pursuing, even patients with particular dis- if the source of the “untruth” devastatingly powerful effect eases. They often summarize is far from the medical mal- the expected course of treat- practice field.12 The physi- on the jury. ment for afflicted patients, cian can be investigated often minimizing the poten- through a Westlaw or Lexis search to identify any civil tial for complications and touting their own record. or criminal actions in which he was named as a party, or These narratives are fair game for discussion when the in which he provided testimony as an expert. This can expert is employed by the hospital that provided the be done through the Westlaw/Lexis search engines, by propaganda. using the doctor’s last name and degree (e.g., “Smith, 6. Get a copy of the curriculum vitae of the expert. M.D.”), and retrieving the cases that are found. Public The curriculum vitae, or resume, is usually offered after records are also widely available online – one Web site the expert has taken the stand. However, in order to permits actions on New York doctors’ licenses to be completely review it, examining all of the journal arti- researched. Sometimes, this investigation may uncover cles, periodicals, and books that the expert has an expert’s own related medical malpractice cases, too. authored, it is preferable to obtain it in advance of the 3. Obtain copies of all contributions to medical lit- day of cross-examination. If the expert maintains an aca- erature made by the expert. Computerized collections demic, university-based practice, then a call to his of peer-reviewed medical journals are not as well organ- department or to his secretary requesting that the cur- ized – nor are contributions as easily found – as in the riculum vitae be faxed has sometimes been successful. legal literature, but several services such as the National Occasionally one may find the expert’s resume pub- Library of Medicine,
Journal | November/December 2004 33 2. Thomas Moore, Trial Tactics, in Practising Law Institute’s 10. The most widely used of these is the ABMS Directory of Litigation and Administrative Practice Course Handbook Medical Specialists: ABMS Medical Specialists Plus, from Series, PLI Order No. HO-OOB6, 656 (Apr. 2001). Elsevier, 11830 Westline Industrial Drive, St. Louis, MO 3. Though rarely invoked, New York does have provisions 63146. to voluntarily bind each side to an agreement to make 11. These services are arranged by state, so testimony their expert available for deposition. CPLR 3101(d)(1)(ii). given in other states cannot easily be obtained, but 4. Richard Basuk, Expert Witness Discovery for Medical
THE NEW YORK STATE BAR ASSOCIATION ANNOUNCES A MAJOR NEW PUBLICATION Commercial Leasing
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34 Journal | November/December 2004 Hon. Judith Kaye: Remarks at Annual Meeting Dinner, January 22, 2003 Chief Judge Judith S. Kaye was the honored dinner speaker at the Annual Meeting of the New York State Bar Association on January 22, 2003, in New York City. Judge Kaye’s comments on the difficult questions posed by the Frye and Daubert decisions that are the subject of several articles in this issue of the Journal originally appeared in the Summer 2003 Torts, Insurance & Compensation Law Section Journal (Vol. 32, No. 1), and are reprinted here.
e are bombarded daily with news about al practice has not necessarily turned out to be one, and developments in technology and science. Just in many respects the tests have taken on new shadings Wrecently, for example, the scientists had us and nuances that bring them closer to one another. convinced that alcohol consumption is not a good idea. Obviously, it would be inappropriate for me, as a sitting Now they tell us that two glasses a day judge, to express an opinion as to which is every day are even better than exercise the better test. But I can, and would like for a healthy heart. And we all want to, say just a word about the ongoing healthy hearts, don’t we? Thankfully, sci- process. ence and technology are not static sub- At bottom, the renewed interest in re- jects. Thankfully, neither is the law. evaluating the test for technical and scien- For more than half a century, New tific evidence reflects a much broader York courts have been applying the Frye social development. It reflects that science test when asked to consider the admissi- and technology increasingly have pervad- bility of expert testimony based on a ed every facet of our lives. That has novel scientific theory. You, of course, are brought many wonderful benefits, includ- all well familiar with the Frye test. The ing the opportunity judges and juries now Frye test requires courts to determine have to consider helpful opinion evidence whether the theory has been generally about problems of causation, identity and accepted by the relevant scientific com- damages that they could never before munity. In the past decade, however, the have explored. Take DNA evidence, for federal courts have fashioned a new stan- example, which has proved so central both in procuring dard – the Daubert test – which requires courts them- convictions and in freeing the innocent, even from death selves to assure whether all types of expert evidence are row. But with all this dazzling new evidence, comes the founded on reliable principles and methods, and greater risk that triers of fact will be led astray by unre- whether they can validly be applied in the case at hand. liable testimony dressed up in the language and trap- The difference, in a nutshell, is that Frye looks to con- pings of true science. sensus within the scientific community as an indicator The choice between Frye and Daubert is important of reliability, while Daubert requires judges to evaluate precisely because the more science and technology both the validity of the expert reasoning and its applica- become essential to our every activity, the greater the tion to the case. Many state courts – including the courts potential benefit – and the potential danger – of such of New York – have been wrestling with whether to evidence in the courtroom. adopt the federal standard. As with so many things we experience as lawyers While I can’t say which is the better test, I can say that and judges, even after a full decade of debate the last we will – judges and lawyers – continue this fascinating word has not yet been spoken on the relative merits of dialogue, and that we will together find a good balance, the old and new tests. As Daubert has itself been tested so that the great discoveries of modern science and in the crucible of litigation, it has become apparent that technology will remain an aid, and not an obstacle, to what was originally seen as a “liberalizing” test, in actu- truth-finding and the delivery of justice.
Journal | November/December 2004 35 As the law develops on so many fronts, lots of it. As the years go by, one of my major regrets is that I debates like this are raging in the courts. Issues involv- did not follow the advice of my Uncle Charlie on the ing mass torts and punitive damages come immediately day I was sworn in as a Judge of the Court of Appeals. to mind, where the consequences of how we – judges He said: “Get your portrait painted right away.” and lawyers – strike the balance in the law are of enor- I have to admit, I have at times during oral argument mous consequence not just to individual litigants but glanced up at those portraits, especially the portrait of also to society at large. And isn’t it great to be at the cen- Benjamin Cardozo. Gazing into Cardozo’s saintly coun- ter of these exploding issues, using our time and talents tenance I can appreciate a story I heard recently that to assure both justice in individual cases and the law’s speaks volumes about him. It seems that a New York responsiveness to the demands of a new and changing City lawyer some years ago showed up at the State Law world. Library to do a bit of research just before afternoon argu- And speaking of courts and law, I’d like to talk a lit- ment. He handed his list of items to a gray-haired fellow tle about the life I left when I joined the Court of at the desk, who returned a short time later with every- Appeals, and the life I have. thing that had been requested. The attorney thanked the This year I will reach my 10th anniversary as Chief man for his help, completed his reading and went to Judge, my 20th as a Judge of the Court of Appeals. That lunch. At 2 p.m., the attorney was in the courtroom translates into 20 years since I left the delights of prac- when the judges filed in. The gray-haired gentleman ticing as a trial lawyer alongside you here in New York from the Law Library took his place in the Chief Judge’s City – delights like dutifully recording every six min- chair, nodded to the attorney and the arguments began. utes of my day on time sheets; dealing with sometimes After nearly 20 years on the Court, I can tell you the difficult partners and clients, and even some difficult presence of those portraits has a definite impact on us. judges; and visiting warehouses of documents in exotic I’m sure you all feel it, too. That parade of portraits, places like Bayonne, New Jersey, and Kingsport, beginning with John Jay and James Kent, for me repre- Tennessee. Technology unquestionably has made many sents a progression of the law and a powerful reminder things better in a litigator’s life – like keeping time that it is the institution that is enduring and not any of records, and instantaneously accessing documents us fortunate enough to be part of it. stored around the world, and PowerPoint presentations. Often I wonder what the old gents, looking down on But then again, technology has unquestionably also the proceedings, think of all of us today. Quite frankly, I made some things harder, like expectations of courts have never felt a moment’s skepticism, disapproval or and clients for immediate turnaround, and workdays disdain from any of them – not even when I moved sev- that are even longer and more demanding than they eral bottles of red nail polish into Judge Cardozo’s desk. were when “cut and paste” involved actual scissors and If every now and again there may be a raised eye- jars of rubber cement. brow up there, I think that is attributable more to the But it seems to me that the rewards of being a litiga- shocking change in the subject of the cases than any crit- tor remain as great as they always were. icism of us. Back 150 or more years ago, the issues before I think of the deep-down satisfaction of creating and the Court were overwhelmingly private property dis- counseling a successful dispute resolution strategy, putes – wills, deeds, mortgages, pledges, promissory maybe even one that wholly avoids litigation; a cross- notes, contracts, land use. examination that pulls the legs out from under an Today we have guns, murder and mayhem, even by adversary’s case; a summation or oral argument that children; Internet crimes, domestic violence, child sexu- exhausts every personal and professional skill. There’s al abuse and family dysfunction; suits against govern- discovering the smoking-gun document; obtaining a ment for entitlements; what, and who, defines the end result that improves the client’s life, ends an injustice, of a person’s life; who has the right to frozen embryos in secures a right, makes new law, makes the world a little a dispute between former spouses. better; a compliment from the judge; a grateful client. No, on second thought, I doubt the old gents up there Unforgettable moments like these make everything on our courtroom walls are even surprised by any of else worthwhile. Those are surely unforgettable this. They have, after all, watched the steady flow of moments – even for me, even after nearly 20 years of the cases – snapshots of society documenting our advance most glorious life imaginable, as a Judge of the Court of from simpler times to the wonders of modern life. I have Appeals. to think – I like to think – that they are on the whole sat- Those of you who have visited us in Albany know isfied because they can see that the system is working, our magnificent courtroom. It is to my mind the perfect indeed working well. The subjects have changed; the setting for the presentation of serious argument on seri- law we apply has changed, becoming increasingly ous law questions. I have seen no other courtroom like statutory. Our predecessors didn’t need to lose any
36 Journal | November/December 2004 sleep over the application of Frye or Daubert to evidence I invite all of you to drop by our courtroom. Come regarding the stability of recreational vehicles, toxic join us on the day, surely not long into the future, when mold, or the correlation between Viagra and cardiovas- we are finally asked to choose between Frye and cular disease. Daubert. While I can’t promise that I will personally But what has changed is not nearly as significant as retrieve books for you like some Chief Judges, I guaran- what has endured. The Third Branch of government – tee that you will feel both welcome and proud to be part the Least Dangerous Branch – continues to provide a of a profession that helps keep our law relevant to mod- fair and rational forum for the peaceful resolution of ern-day challenges and our nation true to its founding disputes. And it does this hand in glove with a vigorous ideals of liberty and justice for all. corps of attorneys advocating with civility and zeal in the interests of their clients.
You’re a New York State Bar Association member. You recognize the relevance of NYSBA membership. For that we say, thank you.
The NYSBA leadership and staff extend thanks to our more than 72,000 members — attorneys, judges and law students alike — for their membership support in 2004.
Your commitment as members has made NYSBA the largest voluntary state bar association in the country. You keep us vibrant and help make us a strong, effective voice for the profession.
Kenneth G. Standard Patricia K. Bucklin President Executive Director
Journal | November/December 2004 37 ATTORNEY PROFESSIONALISM FORUM
To the Forum: the letter because I had not talked to I am a new (i.e., lowly) associate in a one of my superiors first. The Attorney Professionalism large firm. We represent a large corpo- After the meeting I got a chance to Committee invites our readers to ration that has been sued by a person discuss the matter with a partner in my send in comments or alternate injured on its property, and I have been firm. He told me not to tell the client. views to the responses printed assigned to the case. The injured per- He also directed me to write a letter to below, as well as additional son is represented by a law firm in the plaintiff’s counsel in the near hypothetical fact patterns or another state. One of the members of future, advising that we would report scenarios to be considered for the plaintiff’s firm is admitted in New his conduct to the Ethics Committee future columns. Send your com- York, and he is the one who signs the unless he agreed to reduce the initial ments or questions to: NYSBA, One pleadings and discovery documents in settlement demand that had been Elk Street, Albany, NY 12207, Attn: the matter. However, it is the firm’s made some time before. Attorney Professionalism Forum, non-New York lawyers who contact I am not comfortable with keeping or by e-mail to [email protected]. me regarding case status, evaluation, the information from the client, nor am This column is made possible scheduling, etc. I comfortable with threatening the through the efforts of the A few days ago I was working late, plaintiff’s attorney in this manner. In NYSBA’s Committee on Attorney reviewing the plaintiff’s responses to addition, don’t I have an individual Professionalism. Fact patterns, our discovery demands. The plaintiff obligation under the disciplinary rules names, characters and locations had included a stack of documents to report unethical conduct to the presented in this column are ficti- (employment records, medical records, Ethics Committee once I become aware tious, and any resemblance to actual accident reports, etc.) as part of those of it? One other small matter: I am events or to actual persons, living responses. These documents were held afraid I will be fired if I disobey a part- or dead, is entirely coincidental. together by rubber bands, and were ner’s directive. Some advice would be These columns are intended to not bound in any other manner. most welcome. stimulate thought and discussion The last two pages clearly got into Signed, on the subject of attorney profes- that stack unintentionally, and just as Frustrated First-Year Associate sionalism. The views expressed are clearly were not supposed to be dis- those of the authors, and not those closed. They constituted a letter from Dear Frustrated: of the Attorney Professionalism the plaintiff himself to his attorneys, Your frustration is understandable, Committee or the NYSBA. They are and it was addressed to the attorney in as you find yourself caught between not official opinions on ethical or the firm who is admitted in New York. what you believe is the proper course professional matters, nor should The letter detailed the financial hard- of action and what a superior has told they be cited as such. ship the plaintiff was having resulting you to do. A few general principles should be from his inability to work. He asked Having said that, you will not be in stated at the outset. You may be new to the New York attorney for an “addi- violation of your ethical obligations if the profession, but you are a lawyer, tional” loan because he had exhausted you act in accord with a supervising and therefore are bound by the rules of the “first” loan made to him by anoth- lawyer’s directive – provided the professional conduct. As you are now er member of the firm (one who is not directive represents a reasonable a member of a self-regulating profes- admitted in New York). response to a question of professional sion, in which everyone has a duty to The contents of the letter shocked duty that has more than one possible adhere to those rules, you must do me. However, because it was late I answer. DR 1-104(F). If that is not the your part to ensure that your profes- could not find a partner to give me case (i.e., the response is clearly sional colleagues comply. That may some guidance, and I had a client wrong), following such a directive take the form of encouragement, assis- meeting scheduled for the first thing in would mean that you have violated tance, and, if necessary, enforcement the morning to discuss the plaintiff’s your own duty to comply with the through the reporting of violations. In responses. That meeting took place, rules. and although I was not altogether addition, you are bound by the rules notwithstanding the fact that you may The first step in your particular comfortable in doing so, I decided not dilemma is to identify the nature of to tell the client’s representative about act at the direction of another person, in this case your superior at the firm. your responsibility. Disciplinary Rule
38 Journal | November/December 2004 1-103(A) provides that “[a] lawyer pos- dence, provided the client remains this judicial department, shall be sessing knowledge, . . . not protected ultimately liable for such expenses.” subject to [the Appellate Division as a confidence or a secret, of a viola- The issue was addressed in In re rules governing conduct of attor- tion . . . that raises a substantial ques- Arensberg, 159 A.D.2d 797, 553 N.Y.S.2d neys]”). tion as to another lawyer’s honesty, 859 (3d Dep’t 1990). The respondents The final issue, and undoubtedly trustworthiness or fitness as a lawyer were charged with advancing financial the trickiest one for you, is the direc- shall report such knowledge to a tribu- assistance to clients in violation of DR tion you received from the partner in nal or other authority empowered to 5-103(B). In their answer, they admit- the firm. He suggested that you use the investigate or act upon such viola- ted that they were advancing funds to information to coerce your adversary tion.” clients in addition to litigation expens- into reducing the settlement demand. The circumstances under which es and were, in fact, aiding such clients Unfortunately, he has placed you in a you learned of your adversary’s con- in meeting personal financial obliga- difficult position because this direc- duct bears on this issue. It appears that tions. The respondents claimed, how- tive, if followed, would constitute mis- the letter from the plaintiff to his attor- ever, that their conduct did not cause conduct on your part. As noted earlier, ney was inadvertently disclosed, and them to obtain a proprietary interest in you may not engage in conduct that is that you did not realize that the letter their clients’ cases, that the sums paid prejudicial to the administration of jus- was a confidential communication to the clients were interest free, were tice. Your adversary’s violation of the until you read it. New York City Ethics not to be repaid in the event of an rule against providing financial assis- Opinion 2003-04 holds that a lawyer unsuccessful result in the case, and tance to a client has nothing to do with who receives a misdirected communi- that the alleged misconduct was per- the merits of the plaintiff’s underlying cation containing confidences should vasive in personal injury litigation. case. Consequently, making use of that promptly notify the sender and refrain The court upheld the determination misconduct to influence the outcome from further reading the communica- that the conduct violated DR 5-103(B) of the litigation would be prejudicial to tion. Nevertheless, the opinion goes on nonetheless. the plaintiff. Whether or not you to state that “the receiving attorney is New York State Bar Association should tell your own client is a judg- not prohibited . . . from using the infor- Ethics Opinions are similarly clear. ment call, but if you choose to do so mation to which the attorney was Ethics Opinion 133 states, “It is the you should also let the client know exposed before knowing or having opinion of this Committee that a that you will not allow the profession- reason to know the communication lawyer may neither loan money or al misconduct to influence your han- was inadvertently sent.” There are, guarantee the notes of a negligence dling of the case. however, restrictions; you may not client except for those purposes As to your fear of retaliation within exploit the information in such a way specifically authorized by DR 5- your firm, the suggestion here is that that it will undermine the administra- 103(B).” The prohibition extends you discuss the matter with a partner tion of justice. DR 1-102(A)(5). beyond negligence cases. Ethics who is not involved in this litigation. Next, you must determine if you Opinion 553 reiterated the prohibi- Better still, if your firm has an ethics have an obligation to report your tion in a matrimonial case and Ethics committee present the matter to them. adversary’s conduct. This conduct Opinion 600 addressed the prohibi- However, if you are ultimately direct- clearly violates a Disciplinary Rule and tion in the real estate context. In your ed to undertake a course of action that therefore calls into question your particular case, the fact that the ini- you believe is unethical, remember adversary’s fitness as a lawyer. tial loan was made by a non-New that your ethics are your own. The rep- Because you have knowledge of that York lawyer should not have any utation you develop today is the repu- conduct, you have an obligation to bearing on your assessment of the tation you will live with for the rest of report it. Disciplinary Rule 5-103(B) conduct. Most jurisdictions adhere to your career. states, “While representing a client in the same basic ethical standards. connection with contemplated or Further, by engaging in practice in The Forum pending litigation, a lawyer shall not New York, and by having a New By: Theresa Joan Puleo advance or guarantee financial assis- York lawyer sign papers on its Goldberg Segalla LLP tance to the client, except that . . . [a] behalf, the plaintiff’s firm has agreed Albany, NY lawyer may advance or guarantee the to be bound by New York’s profes- expenses of litigation, including court sional obligations. See, e.g., 22 costs, expenses of investigation, N.Y.C.R.R. § 603.1(a) (“any attorney expenses of medical examination, and from another state . . . who partici- costs of obtaining and presenting evi- pates in any action or proceeding in
CONTINUED ON PAGE 40
Journal | November/December 2004 39 QUESTION FOR THE NEXT waiting for a trial on our busy local particularly bad in light of the rumors ATTORNEY PROFESSIONALISM docket, I accepted the offer and indi- I have heard about my opposing coun- FORUM: cated that I would bring an arbitration sel’s personal difficulties, but this case agreement with me to the conference is important to my client and it needs To the Forum: the next day. to move forward. What should I do? I am a sole practitioner in a small My opposing counsel did not town. About a year and a half ago, a attend the conference, but instead sent Sincerely, client came to me seeking representa- a young associate from his office. The Conflicted tion in a property line dispute with his associate confirmed the understanding neighbor. My client previously had to arbitrate to the judge, but indicated been using an attorney who had been that she had not been authorized to There are less than diligent in moving the case execute the agreement and that the millions of reasons forward, and my client had reported attorney of record would arrange with that attorney to the local disciplinary me to have the document signed. to do Pro Bono. committee. His former lawyer had put Several more weeks elapsed while I ( the case in suit, and a settlement pro- Here are two.) attempted to get opposing counsel’s posal had been sent to the neighbor’s signature on the agreement. He fell attorney. However, nothing further completely out of contact. I have heard had been done for some time. rumors in the local community that he Shortly after I got involved, I con- is dealing with a serious personal situ- tacted the neighbor’s attorney to dis- ation involving a member of his fami- cuss the status of the case. Although ly, but his office will not confirm that our conversation was cordial, he didn’t and he will not return any telephone seem terribly well informed about the calls or letters. I am now at a loss as to facts, so I offered to meet with him and how to proceed. It has been several attempt to work out a resolution of the months since we agreed to arbitrate matter. He indicated that he was inter- the matter, but the agreement to arbi- ested in doing so, but would have to trate has never been signed, and hav- get back to me with dates. Several ing taken the matter off the court’s cal- weeks elapsed without any communi- Each year, in communities across endar I have no ability to move the cation from him, so I made attempts to New York State, indigent people matter forward in that forum. face more than three million civil contact him to arrange the meeting. legal matters without assistance. After several more weeks went by it My instinct is to bring an applica- Women seek protection from an appeared to me that he was not inter- tion to compel arbitration and for sanc- abusive spouse...children are denied ested in settling the case, and I served tions against my adversary because of public benefits...families are faced his willful delay of this matter; my with losing their homes – discovery demands on him. all without the benefit of legal The time to respond to the discov- client has sustained unnecessary counsel. They need help. We ery came and went and I attempted to expenses because I have had to hound need volunteers. contact him to find out when I might this attorney at every turn. My client If every attorney volunteered just 20 receive responses to my demands. also has been prevented from selling hours a year, and made a financial contribution to a legal services or Once more those communications his property for nearly three years as a result of this unresolved litigation. pro bono organization, we could went unanswered. Following my obli- make a difference in millions of gations under the Uniform Rules, I Indeed, my client and I both believe cases. Give your began to create a record of my good- that even his defendant neighbor is time. Share your frustrated at the lack of progress. To talent. Contact faith effort to resolve the discovery your local pro issues, but after several more weeks of make matters worse, my client’s prior bono program silence I realized that my only recourse experience with the disciplinary com- or call the New would be to contact the court. I did so mittee has led him to urge me to report York State Bar my opposing counsel for the delays. Association at and a discovery conference was sched- 518-487-5641 uled. On the literal eve of the confer- I don’t feel good about doing either today. ence, the attorney called me and asked of these things – I work in a small com- if I would consider arbitrating the case. munity and have always tried to main-
Knowing that arbitration would likely tain a cordial and civil relationship Sponsored by the lead to a resolution more quickly than with the attorneys in the area. I feel New York State Bar Association
40 Journal | November/December 2004 hopeful before it becomes hopefully. Of not matter. “People that are into course, there are other arguments that humanities . . . they are not looking at LANGUAGE you might make against using hopeful- the words,” she said. The city agreed ly to mean “it is to be hoped,” rather to pay the artist an additional $6,000 to TIPS than to mean “in a hopeful manner,” correct the spelling errors! its traditional meaning. Arguments Question: When I send one copy of about that usage have been discussed two different documents (for example, B Y G ERTRUDE B LOCK in this space in the past. one letter and one order), which of the Question: In the sentence, “The following two statements is correct? uestion: Is the spelling “acci- wine was chosen to ______the 1. I enclose copies of the letter and dently” now correct? I have entree,” which verb is correct, compli- the order. Qseen it in an opinion published ment or complement? My instinct is to 2. I enclose a copy of the letter and in a Reporter and found it again in a use complement, but in recent years I the order. casebook I use in my torts class. Here is have seen it spelled compliment. the sentence: An artist, who had been paid $40,000 for a mural, claimed the As the trial judge observed, the case city was at fault for failing to detect the spelling errors she is unusual in that the fatal shot was fired accidently by a police officer had made. The city agreed to pay her an additional $6,000 for and not by the felons perpetrating corrections! the kidnapping. Jackson v. State, 408 A.2d 721, 715. Answer: The correspondent’s Answer: This question is really not instinct is right. The verb to complement about grammatical correctness, but Answer: This question was asked means “to fill in or make complete.” about clarity; both sentences are gram- by a colleague at the University of Webster’s Third (1993) provides, as one matically correct, but neither is as clear Florida Law School. I told him that the illustration, the statement, “The muse- as it should be. You could revise ques- spelling is still incorrect, although it is um is complemented by a spacious tion two by adding “one copy” in two often seen in the writing of journalists. garden.” places: “I enclose one copy of the letter It was surprising, however, to find it in But it is understandable that the and one copy of the order.” Another a court reporter, and even more sur- unambiguous statement would be, “I choice may be confusing. The verb to prising to see it faithfully copied, with- enclose one copy each of the letter and compliment means “to present (a per- out a sic, in a torts casebook. of the order.” son) with a token of esteem, respect, or It is easy to guess the reason for the My thanks to the correspondent admiration,” which seems similar to misspelling. Adverbs are often formed who asked this question, which is sim- the definition of complement. But if you by adding -ly to adjectives, for exam- ilar to others previously sent. remember that a person is compli- ple strong/strongly, harsh/harshly, inter- Obviously there are a number of read- mented, but a situation or object is esting/interestingly, and quick/quickly. ers who are aware that the statements complemented, you can easily distin- So, by analogy, writers add -ly to other are confusing. guish the two verbs. words, like accident and the result is Potpourri: My thanks to Scotia attorney accidently. A reader sent an amusing item from Kathryn McCary for this interesting But there is a difference. Accident is the sports section of her local newspa- question, which had never previously a noun, not an adjective like the words per. It read, “An hour-and-a-half before been asked. No doubt this has con- listed above. The adjective form is acci- game time Tuesday night, a large fused many persons. dental. If you are aware of that, you portable marquis said that student can follow the usual form of adding - On the subject of spelling, a recent seats were still available.” The reader’s ly; and the result is accidentally, not news item reported that a beautiful comment: “I guess French royalty has accidently. ceramic mural, on display as part of fallen on hard times these days!” Nouns often add -al to become the new Livermore (California) adjectives; for example, incident/inci- Library, contained 11 misspelled names, GERTRUDE BLOCK is lecturer emerita at dental, instrument/instrumental, critic/ including Einstein, Shakespeare, and the University of Florida College of Law. She is the author of Effective critical, clinic/clinical, and others you Michelangelo. The artist who designed Legal Writing (Foundation Press) and can probably think of. If you consider the mural had been paid $40,000 for co-author of Judicial Opinion Writing what word it is that you are making her work, and she claimed the city was (American Bar Association). Her new into an adverb before adding -ly, you at fault for failing to detect the errors. book, Legal Writing Advice: Questions probably won’t be using substandard The mural, she said, was designed to and Answers (W. S. Hein & Co.), will English. For example, hope becomes unite people and the misspellings did be published this fall.
Journal | November/December 2004 41 Index to Articles – 1999-2004
This index places the articles in one of Constitutional Law International Law the following categories: Consumer Law Labor and Employment Administrative Law Courts Law Practice Antitrust Law Criminal Law Legal Writing Appeals Crossword Poetry Arbitration / Alternative Dispute Elder Law Point of View Column Resolution Environmental Law Real Property Law Attorney Professionalism Evidence Science and Technology Banking / Finance Law Family Law Tax Law Bankruptcy Government and the Law Torts and Negligence Books on Law Health Law Trial Practice Civil Procedure History Trusts and Estates Commercial Law Humor Column—Res Ipsa Jocatur Women in Law Computers and the Law Intellectual Property TOPIC/ARTICLE AUTHOR ISSUE/Pg. Annual Mock Trial Competition Introduces High School Students to Administrative Law the Law and Court Procedures, Wilsey, G., Mar./Apr. 2000 10 Survey of Practice Before Administrative Law Judges Finds Counsel CLE for New York Attorneys: Ensuring the Tradition of Are Often Poorly Prepared, Poppell, B., Mar./Apr. 2002 20 Professionalism, Pfau, A., Jan. 1999 8 Estates with Multiple Fiduciaries Pose Ethical and Practical Issues Antitrust Law for Attorney and Clients Alike, Freidman, G.; Morken, J., New York Antitrust Bureau Pursues Mandate to Represent State Nov./Dec. 2001 22 Interests in Fostering Competitive Environment, Cavanaugh, E., Ethics – “Touting” in 1963 Was Replaced by a Flood of Information Jan. 2000 38 About Lawyers, Craco, L., Jan. 2001 23 Appeals Exclusion Language of Policies May Deny Attorneys Coverage for Appeals Clinic – 7 Tips on Whether to Appeal, How to Write Better Mistakes in Business Pursuits, Adams, M., Mar. 1999 46 Briefs, Feathers, C., Feb. 2004 36 Forum, Committee on Attorney Professionalism, Appeals from Intermediate Courts Require Careful Adherence to Feb.–Nov./Dec. 2003; Jan.–Nov./Dec. 2004 Applicable Statutes and Rules, Young, S., Mar. 1999 8 In Memoriam: Charles E. Heming 1926–2003, Miller, H. Update: Did the Odds Change in 2003?, Kassal, B., Oct. 2003 42 Nov/Dec. 2004 28 In Memoriam: Lawrence H. Cooke 1914-2000, Kaye, J., What Are the Odds? Appellate Statistics Reveal Patterns Among Sept. 2000 50 State and Federal Courts, Kassal, B., Jan. 2004 46 Judiciary State Law Report of the Commission on Fiduciary Appointments, Jan. 2002 38 Arbitration / ADR (see also Labor and Employment) Justice Robert H. Jackson, Gerhart, E., Nov./Dec. 2000 42 Advocate’s Perspective, An – Mediation in Commercial Cases Can Be Very Effective for Clients, Beha, J., II, Sept. 2002 10 Part 1500. Mandatory Continuing Legal Education Program for Attorneys in State of New York, Jan. 1999 12 Courts Differ on Standard Applicable When Parties in Arbitration Cases Seek Provisional Remedies, Mone, J.; Wicks, J., Sept. 2000 35 Professionalism Award: An Exemplary Lawyer, Netter, M., Jul./Aug. 2002 52 Mediation Can Help Parties Reach Faster, Less Costly Results in Civil Litigation, La Manna, J., May 2001 10 Professionalism Award – Chronicle of a Career, Netter, M., May 2001 49 Should Mediation Be Available as an Option to Reduce Litigation in Contested Guardianship Cases?, Beane, L., June 2002 27 Recent News Events Illustrate Ethical Dilemmas Associated With a “Difficult” Organizational Client, DiLorenzo, L., Special Procedures Apply to Enforcing Judgments in Small Claims Mar./Apr. 2003 8 Courts, Lebovits, G., Jan. 1999 28 Reflections on Building a Practice – Lessons from the Neighborhood “Team Red Hook” Addresses Wide Range of Community Needs, Provide Secrets to Success, Nolan, K., May 2002 16 Calabrese, A., June 2000 14 Tournament Teaches Skills for a Lifetime, Korgie, T., View From Abroad – Turkey Embraces Arbitration as Step Toward Mar./Apr. 2000 11 Global Economic Integration, Grant, T., June 2002 46 Tribute – William J. Carroll, May 2001 25 Attorney Professionalism Using Threats to Settle a Civil Case Could Subject Counsel to 18-B Experience, The – Court-Appointed Attorneys Face Legal and Criminal Consequences, Holly, W., Jan. 2000 26 Financial Challenges, Korgie, T., May 2001 5
42 Journal | November/December 2004 Banking / Finance Law On Trial: Lessons From a Lifetime in the Courtroom (by Henry G. Confusury Unraveled: New York Lenders Face Usury Risks in Miller), Palermo, A., May 2002 52 Atypical or Small Transactions, Stein, J., Jul./Aug. 2001 25 Protect and Defend (by Richard North Patterson), Mulholland, E., Gramm-Leach-Bliley Act Challenges Financial Regulators to Assure Mar./Apr. 2001 53 Safe Transition in Banking Industry, Di Lorenzo, V., Oct. 2000 36 Reflections on Reading – Moments of Grace: Lawyers Reading Literature, Turano, M., Oct. 2000 12 Bankruptcy Robert H. Jackson: Country Lawyer, Supreme Court Justice, Criminal and Civil Consequences of False Oaths in Bankruptcy Help America’s Advocate (by Eugene C. Gerhart), Wagner, L., Ensure Reliable Information, Holly, W., Mar. 1999 38 Jul./Aug. 2003 47 Life Insurance and Annuities May Insulate Some Assets From Loss Successful Partnering Between Inside and Outside Counsel (West in Unexpected Bankruptcy Filings, Bandler, B.; Starr, S., Group/American Corporate Counsel Ass’n), Moore, J., Jul./Aug. 2000 28 Mar./Apr. 2001 52 Books on Law Transforming Practices: Finding Joy and Satisfaction in Legal Life 100 Years of Federalism (by Mark Curriden and Leroy Philips, (by Steven Keeva), Mulholland, E., Feb. 2000 59 Jr.), Moore, J., Mar./Apr. 2000 50 The Greatest Player Who Never Lived: A Golf Story (by J. Michael Arbitration: Essential Concepts (by Steven C. Bennett), Veron), Lang, R., Feb. 2001 57 Poppell, B., Jul./Aug. 2002 50 Business Law (see Commercial Law) Business and Commercial Litigation in Federal Courts (Robert L. Haig, ed.), Fiske, R., Jr., Mar. 1999 56 Children and the Law (see Family Law) Contempt of Court: The Turn-of-the-Century Lynching that Launched Civil Procedure Evidentiary Privileges (Grand Jury, Criminal and Civil Trials) (by Adjournments in State Civil Practice: Courts Seek Careful Balance Lawrence N. Gray), Boehm, D., June 2000 51 Between Fairness and Genuine Needs, Crane, S.; Meade, R., Jr., General Practice in New York (Robert L. Ostertag, Hon. James D. May 2000 36 Benson, eds.), Palermo, A., Apr. 1999 89 Advanced Litigation Techniques – Canons and Myths: Strategies to Handling Employment Disputes in New York (by Sharon P. Stiller, Enhance Success, Young, S., Jan. 2004 10 Hon. Denny Chin, Mindy Novick), Bernstein, M., Advanced Litigation Techniques – Conventional Wisdoms or Mar./Apr. 2000 51 Mistakes: The Complaint and the Response, Young, S., Inside/Outside: How Businesses Buy Legal Services (by Larry June 2004 28 Smith), Tripoli, L., June 2002 55 “Automatic” Stay of CPLR 5519(a)(1): Can Differences in Its Judicial Outreach on a Shoestring (by Hon. Richard Fruin), Application Be Clarified?, Cherubin, D.; Lauricella, P., Gerges, A., Jul./Aug. 1999 50 Nov. 1999 24 Judicial Retirement Laws of the Fifty States and the District of Civil Procedure – CPLR Provided Escape from Common Law Columbia (by Bernard S. Meyer), Gerhart, E., Feb. 2000 59 Technicalities, Siegel, D., Jan. 2001 10 Ladies and Gentlemen of the Jury (by Michael S. Leif, H. Mitchell Impleader Practice in New York: Does It Really Discourage Piecemeal Caldwell, Ben Bycel), Wagner, R., Feb. 2001 56 Litigation?, Wicks, J.; Zweig, M., Feb. 1999 44 Lawyer (by Arthur Liman with Peter Israel), Siris, M., Judicial Departments Differ on Application of Spoliation Motion Feb. 1999 51 When Key Evidence Is Destroyed, Rizzo, J., Feb. 2001 40 Legal Muscle (by Rick Collins), Liotti, T., Mar./Apr. 2003 46 New York’s Long Arm Statute Contains Provisions Suitable for May It Please the Court! (by Leonard Rivkin with Jeffrey Jurisdiction over Web Sites, Bauchner, J., Mar./Apr. 2000 26 Silberfeld), Mulholland, E., Sept. 2000 54 New York’s Statutes of Limitations Affect Strategies That Involve Mobbing: Emotional Abuse in the American Workplace (by Noa Counterclaims and Recoupment, Beha II, J., Jan. 2003 22 Davenport, Ruth Distler Schwartz, Gail Pursell Elliott), Parties Who Do Not Receive Mail May Have Difficulty Obtaining a La Manna, J., June 2000 52 Hearing on Service Issues, Golden, P., Sept. 2002 18 Modern Legal Drafting, A Guide to Using Clearer Language (by Recent Court of Appeals Decisions Reflect Strict Interpretation of Peter Butt), Gerhart, E., Jul./Aug. 2002 50 Procedural Requirements, Rosenhouse, M., Feb. 2003 30 New York Evidence with Objections (by Jo Ann Harris, Anthony A. Revisions in Federal Rule 53 Provide New Options for Using Special Bocchino, David A. Sonenshein), Kirgis, P., May 2000 50 Masters in Litigation, Scheindlin S.; Redgrave, J., Jan. 2004 18 New York Legal Research Guide (by Ellen M. Gibson), Emery, B., Suits Against Public Entities for Injury or Wrongful Death Pose Jan. 1999 49 Varying Procedural Hurdles, Bersani, M., Oct. 2002 24 New York Objections (by Justice Helen E. Freedman), Will the Proposed Amendments to the Federal Rules of Civil Rosenberg, L., Jan. 2000 58 Procedure Improve the Pretrial Process?, Ward, E., Oct. 2000 18 New York Zoning Law and Practice, 4th Edition (by Patricia Salkin), Gesualdi, J., Sept. 2000 54
Journal | November/December 2004 43 Commercial Law Knowledge of Computer Forensics Is Becoming Essential for Businesses Considering Renting in Commercial Condominiums Face Attorneys in the Information Age, Abrams, S; Weis, P., Unique Contractual Issues, Leeds, M., Jul./Aug. 2001 43 Feb. 2003 8 Can a Choice of Forum Clause Force a Franchisee to Litigate in the Lawyers Taking Equity Interests in Internet Companies Must Be Franchisor’s Home State?, Kassoff, M., June 2004 22 Alert to Special Ethical Risks, Popoff, A., Oct. 2002 19 Complex of Federal and State Laws Regulates Franchise Operations Protecting Trade Secrets from Disclosure on the Internet Requires as Their Popularity Grows, Kassoff, M., Feb. 2001 48 Diligent Practice, Cundiff, V., Oct. 2002 8 Contractual Unconscionability: Identifying and Understanding Its Risk of SLAPP Sanction Appears Lower for Internet Identity Actions Potential Elements, Marrow, P., Feb. 2000 18 in New York than in California, Timkovich, E., Mar./Apr. 2002 40 Cooperatives Authorized to Use Business Judgment Rule in Tale of Legal Research, A: Shepard’s® and KeyCite® Are Flawed (or Terminating Shareholder Leases, Kastner, M.; Kassenoff, J., Maybe It’s You), Wolf, A.; Wishart, L., Sept. 2003 24 Jul./Aug. 2003 32 Threshold Decisions on Electronic Discovery, Brennan, K.; Courts Apply Investment-Contact Test to Determine When LLC Martin, M., Nov/Dec. 2004 23 Membership Interests Are Securities, Mahler, P., Web Research Update – Changes Expand and Contract Research Jul./Aug. 2001 10 Options in New York, Manz, W., Feb. 2002 40 Courts in New York Will Enforce Non-Compete Clauses in Contracts Web Research Update: New Web Sites Add to Research Resources Only if They Are Carefully Contoured, Gregory, D., Oct. 2000 27 Available Online, Manz, W., Jan. 2003 42 Decisions Have Set Parameters for Establishing “Fair Value” of Constitutional Law Frozen-out Shareholder Interests, Mahler, P., Jul./Aug. 1999 21 Appeals Can Avoid the “Stain” of Unpreserved Constitutional Issues Decisions on Liability for Debts Are Inconsistent for Corporations if Criteria for Exceptions Are Met, Golden, P., Nov./Dec. 2001 34 Dissolved for Unpaid Taxes, Miller, R.; Siskin, M., June 2002 18 Decisions of the Past Decade Have Expanded Equal Protection Does the Doctrine of Contractual Unconscionability Have a Role in Beyond Suspect Classes, McGuinness, J., Feb. 2000 36 Executive Compensation Cases?, Marrow, P., Sept. 2003 16 Evolution of Corporate Usury Laws Has Left Vestigial Statutes That Consumer Law Hinder Business Transactions, Golden, P., May 2001 20 New York Consumers Enjoy Statutory Protections Under Both State Federal Courts in New York Provide Framework for Enforcing and Federal Statutes, Dickerson, T., Sept. 2004 10 Preliminary Agreements, Brodsky, S., Mar./Apr. 2001 16 Contract Law (see Commercial Law) Protecting Trade Secrets: Using ‘Inevitable Misappropriation’ and the Exit Interview, Carlinsky, M.; Krieger, L., Feb. 1999 29 Corporation Law (see Commercial Law) Quirk in New York UCC Provisions Puts Signers of Company Checks Courts at Risk for Personal Liability, Golden, P., Oct. 2004 36 Court Facilities Renewal, Younkins, R., Feb. 2001 12 Shareholder Wars: Internal Disputes in Close Corporations Do Not Can the Pattern Jury Instruction on Medical Malpractice Be Revised Always Lead to Judicial Dissolution, Mahler, P., Oct. 2004 28 to Reflect the Law More Accurately?, Fitzgerald, B., Nov. 1999 32 Should a Franchise Holder Be Allowed to Continue Operating While “Don’t Come Back Without a Reasonable Offer” The Extent of, and Termination Suit Is Pending?, Kassoff, M., Jan. 2003 32 Limits on, Court Power to Foster Settlement, Part One – The Theory Twenty Years of Court Decisions Have Clarified Shareholder Rights and Practice of Settlement Before the Court, Shoot, B.; McGrath, C., Under BCL §§ 1104-a and 1118, Mahler, P., May/June 1999 28 Mar./Apr. 2004 10 Use of Exculpatory Clauses Is Subject to Wide Variety of Definitions “Don’t Come Back Without a Reasonable Offer” Surprisingly Little and Circumstances, Barken, M.; Seaquist, G., Mar./Apr. 2002 27 Direct Authority Guides How Judges Can Move Parties, Part Two – When Limited Liability Companies Seek Judicial Dissolution, Will the The Judge’s Role, Shoot, B.; McGrath, C., May 2004 28 Statute Be Up to the Task?, Mahler, P., June 2002 8 Educating Future Jurors – School Program Highlights Jury Service as Fundamental Right, Wilsey, G.; Zullo, E., June 2001 50 Computers and the Law (see also Intellectual Property Law) Effect of Changes in Decisional Law on Other Cases Depends Upon Computers + Connectivity = New Opportunities for Criminals and Status When New Ruling Is Made, Steinberg, H., Nov. 1999 12 Dilemmas for Investigators, Fedorek, T., Feb. 2004 10 Innovative Comprehension Initiatives Have Enhanced Ability of Digging for Data – Today’s Discovery Demands Require Proficiency Jurors to Make Fair Decisions, Joseph, G., June 2001 14 in Searching Electronic Documents, Wechsler, M.; Lange, M. Mar./Apr. 2004 18 Introduction to Special Edition on Juries, Kaye, J.; Rosenblatt, A., June 2001 8 Electronic Discovery Can Unearth Treasure Trove of Potential Land Mines, Friedman Rosenthal, L., Sept. 2003 32 Judicial Roundtable – Reflection of Problem-Solving Court Justices, June 2000 9 Internet Web Sites Offer Access to Less Expensive Case Law and Materials Not Offered Commercially, Manz, W., Juror Excuses Heard Around the State, June 2001 34 Nov./Dec. 2000 26
44 Journal | November/December 2004 Jury Reform Has Changed Voir Dire, But More Exploration Is Westchester Family Court Program – Student Attorneys and Needed into the Types of Questions Asked, Richter, R., Mentors Help Domestic Violence Victims, Barasch, A.; Lutz, V., June 2001 19 Feb. 2002 27 Learning Experience, A – Holiday Program at Bayview Prison, When Employees Are Called – Rules Set Standards for Employers Krauss, S., Feb. 2002 52 and Allow Delays in Some Cases, Mone, M., June 2001 47 Linguistic Issues – Is Plain English the Answer to the Needs of Covenants Not to Compete (see Commercial Law) Jurors?, Lazer, L., June 2001 37 Magic in the Movies – Do Courtroom Scenes Have Real-Life Criminal Law Parallels?, Marks, P., June 2001 40 Criminal Law – Dramatic Changes Affected Procedural and New Edition of State’s “Tanbook” Implements Extensive Revisions in Substantive Rules, McQuillan, P., Jan. 2001 16 Quest for Greater Clarity, Lebovits, G., Mar./Apr. 2002 8 Cutbacks in Funding of PLS Have Crippled Its Ability to Seek New Rules on Surrogate’s Court Assignments Prompt Review of Fairness for Prisoners, Curran, P.; Leven, D., Jan. 1999 23 Issues in “Dead Man’s Statute” Radigan, C.R., June 2003 19 Expanded Enforcement Options for Orders of Protection Provide New York Adopts Procedures for Statewide Coordination of Complex Powerful Reply to Domestic Violence, Fields, M., Feb. 2001 18 Litigation, Herrmann, M.; Ritts, G., Oct. 2003 20 Forensic Social Work Reports Can Play Crucial Role in Mitigating New York Appellate Decisions Show Preference for Recent Cases, Criminal and Immigration Cases, Silver, M., Mar./Apr. 2004 32 Commentaries and Bill Memos, Manz, W., May 2002 8 Grounds May Exist to Challenge Orders Suspending Speedy Trials in New York County Filing Project for Tax Certiorari Cases Records 30- Aftermath of Sept. Attack, Feinman, P.; Holland, B., Feb. 2002 34 fold Rise in Electronic Filings, Silbermann, J., Feb. 2004 30 Hospital-based Arraignments Involve Conflicts in Roles of Press, New York’s Problem-Solving Courts Provide Meaningful Alternatives Patients, Hospitals and Law Enforcement, Taylor, P., Feb. 2000 41 to Traditional Remedies, Berman, G.; Knipps, S., June 2000 8 New York Felony Sentencing: Shift in Emphasis to Increase Penalties Now You See It, Now You Don’t: Depublication and Nonpublication for Violent Offenders, Cohen-Gallet, B., Jan. 1999 40 of Opinions Raise Motive Questions, Gershman, B., Oct. 2001 36 “Project Exile” Effort on Gun Crimes Increases Need for Attorneys to Old Rensselaer County Jail Is Transformed into Modern Facility for Give Clear Advice on Possible Sentences, Clauss, W.; Osiovich, J., Full-Service Family Court, Katzman, G.; Marbot, K.; Netter, M., June 2000 35 Nov. 1999 10 Recent Second Circuit Cases Reinforce Criminal Discovery Standards Pattern Instructions for Jurors in Criminal Cases Seek to Explain Set by Supreme Court, Liotti, T., Jan. 2003 29 Fundamental Legal Principles, Fisher, S., June 2001 29 Shootings by Police Officers Are Analyzed Under Standards Based on Public’s Perspective – Successful Innovations Will Require Citizen Objective Reasonableness, McGuinness, J., Sept. 2000 17 Education and Participation, Vitullo-Martin, J., June 2001 43 State and Federal Standards Require Proof of Discriminatory Intent Reflections – Judges’ Clerks Play Varied Roles in the Opinion in Ethnic Profiling Claims, McGuinness, J., Oct. 2003 29 Drafting Process, Lebovits, G., Jul./Aug. 2004 34 United States Should Ratify Treaty for International Criminal Court, Review of Jury Systems Abroad Can Provide Helpful Insights Into Murphy, F., Apr. 1999 86 American Practices, Vidmar, N., June 2001 23 Use of Race in “Stop-and-Frisk”: Stereotypical Beliefs Linger, But Self-Evaluation Privilege in the Second Circuit: Dead or Alive?, The, How Far Can the Police Go?, Gershman, B., Mar./Apr. 2000 42 Blum, R.; Turro, A., June 2003 44 Crossword Stare Decisis Provides Stability to the Legal System, But Applying It Mar./Apr.–Nov./Dec. 2003, Eldridge, J.D. May Involve a Love-Hate Relationship, Steinberg, H., Jan.–Oct. 2004 Mar./Apr. 2001 39 Statutes and Case Decisions Reflect Appellate Division Latitude in Discrimination (see Labor and Employment) Reviewing Punitive Damages, Baird, E., May 2002 32 Elder Law (see also Trusts and Estates) Summit Sessions Assessed Representative Quality of Juries and Juror Do Implied Contract Principles or Fraud Theories Support Medicaid Communication Issues, Mount, C., Jr.; Munsterman, G., Suits Against Community Spouses?, Rachlin, M., Feb. 2001 32 June 2001 10 New Rules Published for Fiduciary Appointments May 2003 42 Survey Shows Preferences of Northeastern Judges at Appellate Argument, Lewis, D., Oct. 2004 42 Employment Law (see Labor and Employment) Turning the Tables – The Commissioner of Jurors Takes on a New Environmental Law Role, Goodman, N., June 2001 32 Courts May Find Individuals Liable for Environmental Offenses View from the Bench – The Most Powerful Word in the Law: Without Piercing Corporate Shield, Monachino, B., May 2000 22 “Objection!”, Marrus, A., Jul./Aug. 2000 42 Environmental Cases in New York Pose Complex Remediation Issues View from the Jury Box – The System is Not Perfect, But It’s Doing with Profound Impact on Land Values, Palewski, P., May 2000 8 Pretty Well, Gutekunst, C., June 2001 35
Journal | November/December 2004 45 Environmental Remediation Process Is Undergoing Sweeping Juvenile Drug Treatment Court Uses “Outside the Box” Thinking to Changes Mandated by New Brownfields Law, Desnoyers, D.; Recover Lives of Youngsters, Sciolino, A., May 2002 37 Schnapf, L., Oct. 2004 10 New Law Gives Parents Authority to End Futile Treatment for ERISA (see Labor and Employment) Retarded Adult Children, Golden, B., Feb. 2003 16 Responses to Juvenile Crime Consider the Extent of Parents’ Estate Planning (see Trusts and Estates) Responsibility for Children’s Acts, Pollet, S., Jul./Aug. 2004 26 Estate Tax Law (see Trusts and Estates) State and Federal Statutes Affecting Domestic Violence Cases Recognize Dangers of Firearms, Nicolais, R., Nov. 1999 39 Ethics and the Law (see Attorney Professionalism) Uniform Interstate Family Support Act Has Made Extensive Changes Evidence in Interstate Child Support Cases, Aman, J., Jan. 2000 12 Behavioral Decision Theory Can Offer New Dimension to Legal View From the Bench – One More Time: Custody Litigation Hurts Analysis of Motivations, Marrow, P., Jul./Aug. 2002 46 Children, Fields, M., June 2000 20 Clarifying Evidentiary Rules on Contents of Reports by Physicians Freedom of Information (see Government and the Law) Could Give Jurors More Information, Friedman, M., Jan. 2002 33 Close Attention to Detail Can Persuade Judges to Order Truly Government and the Law Complete Discovery Responses, Weinberger, M., Decision in Schenectady Case Denies Access to Records of Police Jul./Aug. 2000 38 Guilty of Misconduct, Winfield, R., May/June 1999 37 Document Examination – Detecting Forgeries Requires Analysis of Military Law Cases Present Diverse Array of Vital Issues for Strokes and Pressures, Jalbert, R., Nov./Dec. 2000 24 Individuals and the Government, Fidell, E.; Sheldon, D., Judicial Certification of Experts: Litigators Should Blow the Whistle Feb. 2001 44 on a Common But Flawed Practice, Kirgis, P., Feb. 2000 30 Municipal Law – Fundamental Shifts Have Altered the Role of Local Kumho Tire – Decision Extends Daubert Approach to All Expert Governments, Magavern, J., Jan. 2001 52 Testimony, Cavanaugh, E., Jul./Aug. 1999 9 Tactics and Strategy for Challenges to Government Action Give Both Kumho Tire – Supreme Court Dramatically Changes the Rules of Sides Much to Consider, Malone, L., Feb. 2004 40 Experts, Littleton, R., Jul./Aug. 1999 8 Health Law Litigation Strategies – Reviewing Documents for Privilege: A Government Audits Probe Potential Fraud and Abuse by Physicians Practical Guide to the Process, Cohen, D., Sept. 2000 43 and Health Facilities, Formato, P.; Schoppmann, M.; Weiss, R.; Need for a Testifying Physician to Rely on Reports by a Non- Wild, R., Jul./Aug. 2002 8 Testifying Physician Poses Evidentiary Problems, Friedman, M., In Matters of Life and Death: Do Our Clients Truly Give Informed Nov./Dec. 2001 28 Consent?, Sheinberg, W., Feb. 1999 36 Privilege and the Psychologist: Statutory Differences Yield Untailored Medicaid and Medicare Fair Hearings Are Vital First Step in Multilateral Confusion, Marrow, P., Mar. 1999 26 Reversing Adverse Decisions on Patient Care, Reixach, R., Jr., Use of Surveillance Evidence Poses Risk of Ethical Dilemmas and Feb. 2000 8 Possible Juror Backlash, Altreuter, W., Jul./Aug. 2002 40 New Federal Regulations Expand Protections for Privacy of Health Family Law Records, Clemens, J., June 2002 37 Best Interests of the Child Remain Paramount in Proceedings to New York Requires External Review of Adverse Coverage Decisions Terminate Parental Rights, Crick, A.; Lebovits, G., May 2001 41 by HMOs and Health Insurers, Shaw, A., Jul./Aug. 1999 30 Changing Population Trends Spur New Interest in Prenup Helpful Practice Hints (see Law Practice) Agreements for Love, Money and Security, DaSilva, W., Feb. 2002 8 History Complex Laws and Procedures Govern Civil Contempt Penalties for Historic Perspective, The – Belva Ann Bennett Lockwood: Teacher, Violating Orders of Protection, Fields, M., Feb. 2002 21 Lawyer, Suffragette, Selkirk, A., May 2002 45 Court-Appointed Law Guardians Face Issues Involving Liability, Historical Perspective – Benjamin Cardozo Meets Gunslinger Bat Conflicts and Disqualification, Muldoon, G., Jul./Aug. 2004 30 Masterson, Manz, W., Jul./Aug. 2004, 10 Divorce Case Settlements Require Detailed Understanding of Pension Historical Perspective – Desegregation in New York: The Jamaica Plan Options, David, R., May 2003 33 School War, 1895–1900, Manz, W., May 2004, 10 Drafting Matrimonial Agreements Requires Consideration of Possible Historical Perspective – Office of N.Y. Attorney General Sets Pace for Unconscionability Issues, Marrow, P.; Thomsen, K., Others Nationwide, Weinberg, P., June 2004 10 Mar./Apr. 2004 26 “Of Practical Benefit” – Book Chronicles First 125 Years of New Family Law – From Father Knows Best to New Rights for Women York State Bar Association, Feb. 2004 44 and Children, Whisenand, L., Jan. 2001 49 Palsgraf 75th Anniversary – Trial Judge Burt Jay Humphrey Had In Vitro Fertilization Options Lead to the Question, “Who Gets the Long Career as Jurist, Manz, W., May 2003 10 Pre-Embryos After Divorce?”, Pollet, S., Feb. 2004 33
46 Journal | November/December 2004 Preserving a Heritage – Historical Society Will Collect Record of New Can Employers Limit Employee Use of Company E-mail Systems for York’s Courts, Angione, H., Sept. 2002 8 Union Purposes?, Young, M., Jan. 2000 30 Reflections on Sentencing – Adapting Sanctions to Conduct Poses Consumer Directed Assistance Program Offers Greater Autonomy to Centuries-old Challenge, Boehm, D., Oct. 2001 33 Recipients of Home Care, Bogart, V., Jan. 2003 8 Seriatim Reflections – A Quarter Century in Albany: A Period of Cost Savings from Hiring Contingent Workers May Be Lost if Their Constructive Progress, Bellacosa, J., Oct. 2000 4 Status Is Challenged, Bernak, E.; Frumkin, W., Taking Title to New York: The Enduring Authority of Roman Law, Sept./Oct. 1999 36 Massaro, D., Jan. 2000 44 Employers Need to Observe Limits on Monitoring the Workplace and World War II Right-to-Counsel Case – Colonel Royall Vigorously Reduce Privacy Expectations, Panken, P.; Williams, J., Defended Saboteurs Captured on U.S. Shores, Glendon, W.; Sept./Oct. 1999 26 Winfield, R., Feb. 2002 46 Employment-at-Will in New York Remains Essentially Unchanged After a Century of Refinements, Andrews, R.; Maroko, R., Humor Column – Res Ipsa Jocatur Sept./Oct. 1999 8 Deep in the Heart of Taxes, or . . . Few Happy Returns, Rose, J., “Final Regulations” Set Rules for Distributions From IRAs and Mar. 1999 54 Qualified Retirement Plans, Neumark, A.; Slater-Jansen, S., Defending the Lowly Footnote, McAloon, P., Mar./Apr. 2001 64 Feb. 2003 38 Does the FDA Have Jurisdiction Over “Miracles”?, Rose, J., Gradual Changes Have Silently Transformed the Adjudication of Sept. 2000 64 Workers’ Compensation Claims, Levine, B.; McCarthy, J., In Praise of Appraisal: Alternate Dispute Resolution in Action, Oct. 2002 40 Rose, J., Jan. 2000 56 Grutter and Gratz Decisions Underscore Pro-Diversity Trends in NAFTA’s Why Santa Claus Is Not Comin’ to Town, Rose, J., Schools and Businesses, Higgins, J., Jan. 2004 32 Nov./Dec. 2000 64 Labor Law – A Formerly Arcane Practice Now Handles a Wide Range Tooth Fairy Prosecuted Under Provisions of Public Health Law, of Issues, Osterman, M., Jan. 2001 40 Rose, J., May/June 1999 54 Labor, Management Officials See Benefits in Negotiated Procedure for “What’s Round on the Ends, High in the Middle and Late in the Coverage Under GML § 207, Dunn, R.; Gold, E., Union?” Will Become a Legal Question, Rose, J., Sept./Oct. 1999 70 Jul./Aug. 1999 48 New Rules Offer Greater Flexibility and Simpler Distribution Will New York State Nikes Become Pyhrric Victories?, Rose, J., Patterns for IRAs and Pension Plans, Neumark, A.; Jul./Aug. 2000 64 Slater-Jansen, S., Mar./Apr. 2001 26 NRLB Regional Director’s Life in Sports, An: Hard-ball Labor Insurance Law (see Torts and Negligence) Relations in Sports Lead to Government Involvement, Silverman, D., Intellectual Property (see also Computers and the Law) Sept./Oct. 1999 80 Appropriating Artists Face Uncertainty in Interplay Between First Pre-dispute ADR Agreements Can Protect Rights of Parties, Reduce Sale and Fair Use Doctrines, Sanders, J., Jul./Aug. 2004 18 Burden on Judicial System, Spelfogel, E., Sept./Oct. 1999 16 Development Agreements Are Vital to Prevent Later Disputes Over Project Labor Agreements Offer Opportunity for Significant Savings Proprietary Interests in Web Sites, Warmund, J., on Public Construction Projects, Gaal, J.; Oliver, D., Nov./Dec. 2002 34 Sept./Oct. 1999 61 Intellectual Property – Substantive and Procedural Laws Have Protections for Public Employees Who “Blow the Whistle” Appear to Undergone Fundamental Change, Carr, F., Jan. 2001 58 Be Inadequate, Herbert, W., Feb. 2004 20 Provisions of New York Laws Are Likely to Diminish Impact of High International Law Court Disability Decisions, Akohonae, R.; Reibstein, R., On the Road – Taking Depositions in Tokyo Or: The Only Show in Oct. 2002 47 Town, Disner, E., Mar./Apr. 2000 35 Recent Decisions Have Created New Theories of Negotiability Under Russia in Transition – Sharing Legal System Objectives as Russia the Taylor Law, Crotty, J., Sept./Oct. 1999 74 Revives Trial by Jury, Marks, P.; Bennett, M.; Puscheck, B.; Rising Tide of Retaliation Claims Challenges Employers to Adopt Reinstein, R., Mar./Apr. 2003 36 Adequate Preventive Measures, Halligan, R.; Klein, E., Judiciary (see Courts) Sept./Oct. 1999 51 Juries (see Courts) Romance in the Workplace: Employers Can Make Rules if They Serve Legitimate Needs, Berlin, S.; Zuckerman, R., Sept./Oct. 1999 43 Labor and Employment Summary of Report – Association Committee Recommends Pension As Managed Care Plans Increase, How Can Patients Hold HMOs Simplification Commission, Lurie, A., May 2000 36 Liable for Their Actions?, Trueman, D., Feb. 1999 6 To Defer or Not to Defer: Handling Improper Practice Charges Under Balancing Test and Other Factors Assess Ability of Public Employees the Taylor Act, Maier, P., May/June 1999 41 to Exercise Free Speech Rights, Herbert, W., Sept. 2002 24
Journal | November/December 2004 47 When Duty Calls: What Obligations Do Employers Have to Language Tips Column, Block, G. Employees Who Are Called to Military Service?, Cilenti, M.; Jan. 1999 – Dec. 2000 Klein, E., Nov./Dec. 2001 10 Feb., Mar./Apr., June, Jul./Aug., Oct. and Nov./Dec. 2001 Landlord/Tenant Law (see Real Property Law) Jan. 2002 – Nov./Dec. 2002 Land-Use Regulations (see Real Property Law) Jan.–May, Jul./Aug., Sept. 2003 Feb., May, June, July/Aug., Oct. 2004 Law Practice Not Mere Rhetoric: Metaphors and Similes – Part I, Lebovits, G., Changes in Rules for Home Offices Provide New Possibilities for June 2002 64 Deductions, Ozello, J., Mar./Apr. 2000 54 Not Mere Rhetoric: Metaphors and Similes – Part II, Lebovits, G., Computerized Research of Social Security Issues, Maccaro, J., Jul./Aug. 2002 64 May 2000 54 “Off” With Their Heads: Concision, Lebovits, G., Developing Associates: “Shadowing” Program Provides Early Nov./Dec. 2001 64 Mentoring Opportunities, Levine, A.; Birnbaum, E., Jul./Aug. 2003 42 On Terra Firma With English, Lebovits, G., Sept. 2001 64 Disability Benefit Opportunities for Clients, Modica, S., Pause That Refreshes, The: Commas – Part I, Lebovits, G., May/June 1999 52 Mar./Apr. 2002 64 Law Office Management – How Should Law Firms Respond to New Pause That Refreshes, The: Commas – Part II, Lebovits, G., Forms of Competition?, Gallagher, S., June 2000 24 May 2002 64 Law Office Management –Yesterday’s Strategies Rarely Answer Poetic Justice: From Bar to Verse, Lebovits, G., Sept. 2002 48 Tomorrow’s Problems, Gallagher, S.; Sienko, Jr., L., Sept. 2004 40 Pox on Vox Pop, A, Lebovits, G., Jul./Aug. 2004 64 Records and Information Management Programs Have Become Vital Research Strategies – A Practical Guide to Cite-Checking: Assessing for Law Firms and Clients, Martins, C.; Martins, S., Oct. 2001 21 What Must Be Done, Bennett, S., Feb. 2000 48 Roundtable Discussion – U.S., British and German Attorneys Reflect Short Judicial Opinions: The Weight of Authority, Lebovits, G., on Multijurisdictional Work, June 2000 31 Sept. 2004 64 Legal and Medical Malpractice (see Torts and Negligence) Statements of Material Facts in Summary Judgment Motions Require Careful Draftsmanship, Campolo, J.; Penzer, E., Feb. 2003 26 Legal Education (see Attorney Professionalism) Technique: A Legal Method to the Madness, Lebovits, G., Legal Profession (see Attorney Professionalism) June 2003 64 Technique: A Legal Method to the Madness – Part 2, Lebovits, G., Legal Writing Jul./Aug. 2003 64 Apostrophe’s and Plurals’, Lebovits, G., Feb. 2004 64 That’s the Way It Is: “That” and “Which” in Legal Writing, Beyond Words: New Tools Can Enhance Legal Writing, Collins, T.; Lebovits, G., Mar./Apr. 2004 64 Marlett, K., June 2003 10 Uppercasing Needn’t Be a Capital Crime, Lebovits, G., Bottom Line on Endnotes and Footnotes, The, Lebovits, G., May 2003 64 Jan. 2003 64 View from the Bench – Clarity and Candor are Vital in Appellate Devil’s in the Details for Delusional Claims, The, Lebovits, G., Discovery, Boehm, D., Nov. 1999 52 Oct. 2003 64 What’s Another Word for “Synonym”?, Lebovits, G., Dress for Success: Be Formal But Not Inflated, Lebovits, G., Jan. 2002 64 Jul./Aug. 2001 8 Write the Cites Right – Part I, Lebovits, G., Oct. 2004 64 Free at Last From Obscurity: Clarity, Lebovits, G., Write the Cites Right – Part II, Lebovits, G., Nov./Dec. 2004 64 Nov./Dec. 2003 64 Writers on Writing: Metadiscourse, Lebovits, G., Free at Last From Obscurity: Clarity – Part 2, Lebovits, G., Oct. 2002 64 Jan. 2004 64 Writing Clinic – An Attorney’s Ethical Obligations Include Clear Getting to Yes: Affirmative Writing, Lebovits, G., Oct. 2001 64 Writing, Davis, W., Jan. 2000 50 He Said – She Said: Gender-Neutral Writing, Lebovits, G., Writing Clinic – Analyzing the Writer’s Analysis: Will It Be Clear to Feb. 2002 64 the Reader?, Donahoe, D., Mar./Apr. 2000 46 If I Were a Lawyer: Tense in Legal Writing, Lebovits, G., Writing Clinic – Examine Your Grammatical Acumen, Nov./Dec. 2002 64 McCloskey, S., Sept. 2004, 30 Ineffective Devices: Rhetoric That Fails, Lebovits, G., Writing Clinic – Make Your Mark With Punctuation, Feb. 2003 64 McCloskey, S., Nov./Dec. 2003 18 Judicial Jesting: Judicious?, Lebovits, G., Sept. 2003 64 Writing Clinic – Making the Language of the Law Intelligible and Memorable, McCloskey, S., Nov. 1999 47
48 Journal | November/December 2004 Writing Clinic – Rhetoric Is Part of the Lawyer’s Craft, Teed Off: The Rise in Golf Rage and Resulting Legal Liability, McCloskey, S., Nov./Dec. 2002 8 Lang, R., Oct. 2004 48 Writing Clinic – So Just What Is Your Style?, McCloskey, S., Televised Criminal Trials May Deny Defendant a Fair Trial, Nov./Dec. 2001 39 Murphy, F., Mar./Apr. 2000 57 Writing Clinic – The Keys to Clear Writing Lead to Successful To the Supreme Court: Keep the Courthouse Doors Open, Results, McCloskey, S., Nov./Dec. 2000 31 Weinberg, P., Feb. 2000 55 Writing Clinic – Writing Clearly and Effectively: How to Keep the Treatment Option for Drug Offenders Is Consistent with Research Reader’s Attention, Stein, J., Jul./Aug. 1999 44 Findings, Leshner, A., Sept. 2000 53 Writing on a Clean Slate: Clichés and Puns, Lebovits, G., United States Should Ratify Treaty for International Criminal Court, Mar./Apr. 2003 64 Murphy, F., Apr. 1999 87 You Can Quote Me: Quoting in Legal Writing – Part One, Why the Legal Profession Needs to Mirror the Community It Serves, Lebovits, G., May 2004 64 Hall, L.P., Nov./Dec. 2000 38 You Can Quote Me: Quoting in Legal Writing – Part II, Woe Unto You, Lawyers in the Tax Shelter Business, Lurie, A., Lebovits, G., June 2004 64 Mar./Apr. 2003 48 Liens (see Real Property Law) Privileges (see Evidence) Litigation (see Trial Practice) Probate (see Trusts and Estates) Matrimonial Law (see Family Law) Professional Responsibility (see Attorney Professionalism) Mortgages and Liens (see Real Property Law) Real Property Law Poetry Control of Suburban Sprawl Requires Regional Coordination Not Provided by Local Zoning Laws, Weinberg, P., Oct. 2000 44 Challenges, Dunham, A., Jan. 2000 53 Early Assessment of Potential Liens Is Critical to Assure that Point of View Column Recovery Meets Client’s Expectations, Little, E., Being Respectful and Respected in the Practice of Law, Mar./Apr. 2001 44 Magner, Jr., P., Nov./Dec. 2003 39 Enhanced Notice Requirements in Property Tax Foreclosure Cases Cardozo Mystery, The, Kornstein, D., May 2003 47 Give Owners More Protection, Wilkes, D., Mar./Apr. 2002 48 Chess and the Art of Litigation, Weiner, G., Oct. 2003 46 First Court Case to Interpret Property Condition Disclosure Act Holds Sellers Not Liable, Holtzschue, K., Mar./Apr. 2003 Client Protection Funds Serve Noble and Pragmatic Needs, Miller, F., Feb. 2001 53 Mortgage Foreclosures Involve Combination of Law, Practice, Relationships and Strategies, Bergman, B., Conflicts Between Federal and State Law Involving the Spousal Right Jul./Aug. 2001 19 of Election, Rachlin, M., June 2003 52 Primer on Conveyancing, A – Title Insurance, Deeds, Binders, Double-Dipping Lives On. Holterman and the Continuation of the Brokers and Beyond, Rohan, P., Oct. 2000 49 O’Brien Dilemma, Rosenberg, L., Sept. 2004 50 Purchase Money Mortgages Require Careful Drafting to Avoid Later Faceless Mentally Ill in Our Jails, Gerges, A., Mar. 1999 52 Difficulties, Bergman, B., Nov./Dec. 2002 29 Medicaid Planning: An Obligation to Senior Citizens, Rachlin, M., RPL Requires Disclosure Statement, Mar./Apr. 2002 52 Sept. 2004 52 So Your Client Wants to Buy at a Foreclosure Sale: Pitfalls and Participation of Women Should Be Required in Domestic Violence Possibilities, Bergman, B., Sept. 2003 43 Cases, Murphy, F., Jan. 2000 54 Summation in Rhyme: What Amount Will Compensate for Robert’s Public Service Tradition of the New York Bar, The, Nathan, F., Sad Fate?, Pinzel, F., Mar. 1999 50 Jul./Aug. 2003 48 Understanding Mechanic’s Liens Reveals Approaches to Thwart a Reflections on Being Mediators, Ross, D.; Schelanski, V., Developer’s Improper Filing, Lustbader, B., Jul./Aug. 2001 51 Jul./Aug. 2000 46 Wall Street Remains a Key Player in Commercial Real Estate Representing an Incapacitated Person at a Fair Hearing, Rachlin, M., Financing Despite Capital Market Fluctuations, Forte, J., Sept. 2003 52 Jul./Aug. 2001 34 Re-thinking Retirement, Seymour, Jr., W.N., Jan. 2003 50 When a Mortgage Commitment Is Issued But Later Revoked, Who Slippery Slope, A: Discovery of Attorney Work Product, Gabriel, R., Keeps the Down Payment?, Penzer, E., Sept. 2004 35 Mar./Apr. 2004 50 Standing Down From the War on Drugs, Weinstein, J., Retirement (see Labor and Employment) Feb. 2003 55 Science and Technology State Legislative Power Supercedes Federal Laws in Accounting CaseMap (CaseSoft), Reed, J., Feb. 2000 58 Reform, Grumet, L., Mar./Apr. 2004 54
Journal | November/December 2004 49 Kidmate: A Joint Custody Program for Family Law Specialists (Lapin Early Review by Medical Experts Offers Opportunity to Develop Agile, Inc.), Siegel, F., Feb. 1999 50 Theory of the Case More Efficiently, Wilkins, S., Technology Primer – Video Teleconferencing of Hearings Provides Jul./Aug. 2004 42 Savings in Time and Money, La Manna, J., Sept. 2000 8 If the Jury Hears That a Defendant Is Covered by Liability Insurance, Wide Use of Electronic Signatures Awaits Market Decisions About a Mistrial Is Not a Certainty, Haelen, J., Oct. 2002 35 Their Risks and Benefits, Zoellick, B., Nov./Dec. 2000 10 In a Suit Based on Intentional Acts, Defendant May Attempt to Raise Comparative Fault Under CPLR 1411, Beha, J., II, June 2002 32 Securities Law (see Commercial Law) Insurance Department Regulations to Stem Fraudulent No-Fault Software Review (see Science and Technology) Claims Upheld by Court of Appeals¸ Billy, Jr., M.; Short, S., Jan. 2004 40 Tax Law Is It Junk or Genuine? Precluding Unreliable Scientific Testimony in Community Foundations: Doing More for the Community, New York, Schwab, H., Nov./Dec. 2004 10 Peckham, E., Feb. 2000 52 Know Thine Expert – Expert Witness Discovery in Medical Phase-Ins, Phase-Outs, Refunds and Sunsets Mark New Tax Bill, Malpractice Cases, Wilkins, S., Nov./Dec. 2004 31 a/k/a EGTRRA 2001, Peckham, E., Oct. 2001 41 Lawsuits on the Links: Golfers Must Exercise Ordinary Care to Avoid Proposed GST Regulations Clarify Exemptions for Grandfathered Slices, Shanks and Hooks, Lang, R., Jul./Aug. 2000 10 Trusts, Sederbaum, A., June 2000 48 Litigators Must Prepare for Risk That Insurers May Go Into Qualified State Tuition Programs and Education IRAs, Rothberg, R., Rehabilitation or Liquidation, Gillis, M.; Calareso, Jr., J., May 2000 51 Mar./Apr. 2003 20 Settlements and Taxes: The Seven Deadly Sins, Wood, R., Medicolegal Aspects of Whiplash – A Primer for Attorneys, Feb. 2004 52 D’Antoni, A., Oct. 2003 10 Specialty Retirement Plans, Kozol, G., Jul./Aug. 2004 50 New Court of Appeals Ruling Bolsters Use of Res Ipsa Loquitur in State Income Tax: Not All Trusts Must Pay, Michaels, P.; Medical Malpractice Cases, Rogak, J., June 2003 28 Twomey, L., Oct. 2001 52 Normal Rules on Liability for Failure to Use Seat Belts May Not Timing the Transfer of Tax Attributes in Bankruptcy Can Be Critical Apply in School Bus Accidents, Effinger, M., June 2000 41 to the Taxpayer, Hansen, L., Oct. 2001 44 Proof of Recurring Conditions Can Satisfy Prima Facie Requirement Tax Techniques (see Tax Law) for Notice in Slip-and-Fall Litigation, Taller, Y.D., Sept. 2000 27 Proposals for Change in Tort Law, Apr. 1999 57 Tort Law (see Torts and Negligence) Remarks at Annual Meeting Dinner, January 22, 2003, Kaye, J., Torts and Negligence Nov/Dec. 2004 35 2002 Update on Issues Affecting Accidents Involving Uninsured Report of the Task Force to Consider Tort Reform Proposals, and/or Underinsured Motorists, Dachs, J., June 2003 32 Apr. 1999 80 2003 Update on Issues Affecting Accidents Involving Uninsured Review of Uninsured Motorist and Supplementary Uninsured and/or Underinsured Motorists, Dachs, J., May 2004 38 Motorists Cases Decided in 2001, Dachs, J., Jul./Aug. 2002 20 Actions by Courts and Legislature in 2000 Addressed Issues Affecting Rising Tide of Torts?, Apr. 1999 40 Uninsured and Underinsured Drivers, Dachs, J., Sept. 2001 26 Summing up 1999 ‘SUM’ Decisions: Courts Provide New Guidance Aggrieved Disability Policyholders in New York Are Not Limited to on Coverage Issues for Motorists, Dachs, J., Jul./Aug. 2000 18 Past Benefits as Remedy, Hiller, M., Jul./Aug. 2002 32 Take the Money and Run: The Fraud Crisis in New York’s No-Fault Alternate Methods of Service for Motor Vehicle Cases Provide Way to System, Stern, R., Oct. 2003 35 Reach Elusive Defendants, Taller, Y.D., May/June 1999 24 Third Parties Can Have Rights to Property Insurance Proceeds in Are Lawyers Promoting Litigation?, Apr. 1999 9 Specific Circumstances, Binsky, M., Oct. 2003 24 Assessing the Costs and Benefits, Apr. 1999 32 Tort Law Debate in New York, Angione, H., Apr. 1999 7 Banking Law Sets Strict Procedures for Canceling Insurance Policies Tort Law in New York Today, Apr. 1999 8 Paid Through Finance Companies, Lustig, M., June 2004 18 Torts and Trials – Changes Made in Juries, Settlements, Trial Black Mold Suits Yield Some Large Personal Injury Verdicts, But Procedures, Liability Concepts, Miller, H., Jan. 2001 26 Their Future Is Uncertain, Del Gatto, B.; Grande, R., June 2002 23 Twenty Years of Decisions Have Refined “Serious Injury” Threshold Careful Defense Groundwork on Independent Medical Exams Can in No-Fault Accident Cases, Centone, A., May 2003 36 Help Balance Trial Testimony, Lang, R. Jan. 2003 17 Unhappy Clients May Lodge Complaints of Neglect Even when Civil Justice Reform Act, Apr. 1999 64 Malpractice Is Not an Issue, Coffey, J.; Peck, D., Corporate Officers and Directors Seek Indemnification from Personal May/June 1999 47 Liability, Coffey, J.; Gaber, M., Mar./Apr. 2001 8 Wrongly Convicted May Recover Civil Damages, But Must Meet Decisions in 1998 Clarified Issues Affecting Coverage for Uninsured Exacting Standards of Proof, Ruderman, T., Feb. 2002 30 and Underinsured Motorists, Dachs, J., May/June 1999 8
50 Journal | November/December 2004 Trial Practice Generation-Skipping Transfer Tax Continues to Evolve and May Pose Analytical Tools – Distinguishing Intended Deception From Traps and Pitfalls for the Unwary, Mark, D.; Schlesinger, S., Unconscious Inaccuracy, Teff, J., Mar./Apr. 2004 42 Dec. 1999 43 Analytical Tools – How to Spot a Lie: Checking Substance and Gifts Must Involve Some Sacrifice, But the Tax Benefits Can Enhance Source, Teff, J., Jul./Aug. 2003 27 Estate Planning Strategies, Schumacher, J., Dec. 1999 23 Analytical Tools – Human Memory Is Far More Fallible and Malleable Than Most Recognize, Teff, J., June 2004 38 Guardian ad Litem Procedures Reflect Traditional Court Concerns for Those Lacking Representation, Groppe, C., Nov./Dec. 2003 32 Changes in Practice and on the Bench – Days of Conviviality Preceded Specialization and Globalization, Hancock, Jr., S., Last Resort Estate Planning Finds Acceptance in Statutes and Cases Jan. 2001 35 Relying on Substituted Judgment, Peckham, E., Mar./Apr. 2002 33 CLE Insights: Current Trends on Rules for Hearsay, Barker, R., May 2003 28 Legislative Action in 2001 Updated Accounting Concepts and Made Procedural Changes, Rubenstein, J., Jan. 2002 30 CLE Insights: Evidence – Effective Techniques for Impeaching Witnesses, Meagher Jr., W., Mar./Apr. 2003 28 New Allocation Rules and “Indirect Skips” Now Apply to Generation-Skipping Transfers, Mark, D.; Schlesinger, S., CLE Insights: Pretrial Expert Disclosure in State Court Cases, Nov./Dec. 2002 26 Horowitz, D., Sept. 2003 10 New Era for Estate Administration in New York Has Reduced Estate Litigation Strategies: Dissecting the Deposition: More Than Just a Set Tax But Many Requirements Still Apply, Peckham, E., of Questions, Glick, R., Jul./Aug. 2003 10 Sept. 2000 30 Psychological Testimony on Trial – Questions Arise About the Notable Changes Affecting Estates in the Year 2000 Reformed Wills Validity of Popular Testing Methods, Erickson, S., and Trusts for Tax Purposes, Rubenstein, J., Feb. 2001 37 Jul./Aug. 2003 19 Post-mortem Tax Planning Will Continue as Vital Element in Real Case, A – Learning to Love: The Trial Lawyer’s 14 Challenges, Handling Large Estates, Peckham, E., Dec. 1999 37 Miller, H., Sept. 2001 8 Qualified Personal Residence Trusts Offer Helpful Planning Options Trial Strategies – Quick Voir Dire: Making the Most of 15 Minutes, for Potentially Large Estates, Michaels, P.; Twomey, L., Cole, A.; Liotti, T., Sept. 2000 39 Nov./Dec. 2003 10 View From the Bench – Lawyers Need Detailed Knowledge of Rules Special Procedures for Victims of the World Trade Center Tragedy for Using Depositions at Trial, DiBlasi, J., Oct. 2001 27 Provide Expedited Access to Assets, Leinheardt, W., Oct. 2001 8 View From the Bench – Preparing an Expert Witness Is a Multi-Step State Budget Shortfall in 2003 Was Impetus Behind Many Changes Process, DiBlasi, J., May 2003 22 Affecting Trusts and Estates, Rubenstein, J., Jan. 2004 26 View From the Bench – The Role of Trial Court Opinions in the Steps Taken While Testator Is Alive Can Play a Key Role in Judicial Process, Nesbitt, J., Sept. 2003 39 Upholding Client’s Estate Plan After Death, Barnosky, J.; View From the Bench – Thorough Trial Preparation Is Vital for Morken, J., Dec. 1999 8 Courtroom Success, DiBlasi, J., May 2002 21 Surrogate’s Court Discovery - Recent Cases Illustrate Changes Under Trusts and Estates Provisions of SCPA, Bashian, G.; Yastion, J., Nov./Dec. 2004 20 1999 New York State Legislative Changes Affecting Estate Planning Trust Glossary – Trusts Provide Variety of Options to Manage and and Administration, Rubenstein, J., Dec. 1999 52 Protect Assets, Mariani, M., Jan. 2003 38 Advances in DNA Techniques Present Opportunity to Amend EPTL Uniform Principal and Income Act Will Work Fundamental Changes to Permit Paternity Testing, Cooper, I., Jul./Aug. 1999 34 in Estate and Trust Administration, Groppe, C., Jan. 2002 8 Buy-Sell Agreements Developed as Estate Planning Vehicles Require Wills and Estate Plans Require New Flexibility to Reflect Tax Foresight and Periodic Review, Grall, J.; Zuckerman, M., Changes and Uncertain Future, Keller L.; Lee, A., Dec. 1999 16 Nov./Dec. 2002 19 Changes in Estate and Gift Taxes Will Increase Exemption Amounts Women in Law and Lower Federal Rates, Mark, D.; Schlesinger, S., Sept. 2001 37 Large Firm Practice – Women and Minorities Joined Firms as Rivalry Changes to Estate Laws in 2002 Affected Families of Terror Victims, Opened for Business, Gillespie, S.H., Jan. 2001 43 Adoptions, Accountings and Trusts, Rubenstein, J., Woman’s Reflections, A – Difficulties Early in the Century Gave Way Nov./Dec. 2002 15 to Present Openness, Spivack, E., Jan. 2001 60 Dividing Interests in Real Property Can Lead to Differences Among Competing Interests, Donlon, E., Nov./Dec. 2003 27 Early Detection of Possible Pitfalls in Fiduciary Obligations Can Prevent Later Problems, Freidman, G.; Morken, J., Jan. 2002 22 Estate Planning for Benefits from IRAs and Qualified Retirement Plans Involves Numerous Taxation Issues, Krass, S., Dec. 1999 29
Journal | November/December 2004 51 Index to Authors – 1999-2004 The following index lists the authors of all articles that have appeared in the Journal since the January 1999 edition. Below each author’s name is the general classification category used for the article. The headline describing the content of the article appears under that classification category in the Index to Articles that begins on page 42. Abrams, Steven M. Berlin, Sharon N. Centone, Anthony J. Computers and the Law Feb. 2003 8 Labor and Employment Sept./ Torts and Negligence May 2003 36 Adams, Martin B. Oct. 1999 43 Cherubin, David M. Attorney Professionalism Mar. 1999 46 Berman, Greg Civil Procedure Nov. 1999 24 Akohonae, Rachel A. Courts June 2000 8 Cilenti, Maria Labor and Employment Oct. 2002 47 Bernak, Elliot D. Labor and Employment Nov./ Altreuter, William C. Labor and Employment Sept./ Dec. 2001 10 Trial Practice Jul./Aug. 2002 40 Oct. 1999 36 Clauss, William Aman, John J. Bernstein, Michael I. Criminal Law June 2000 35 Family Law Jan. 2000 12 Books on Law Mar./Apr. 2000 51 Clemens, Jane F. Andrews, Ross P. Bersani, Michael G. Health Law June 2002 37 Labor and Employment Torts and Negligence Oct. 2002 24 Coffey, James J. Sept./Oct. 1999 8 Billy, Jr., Michael Torts and Negligence May/June 1999 47 Angione, Howard Torts and Negligence Jan. 2004 40 Torts and Negligence Mar./Apr. 2001 8 History Sept. 2002 8 Binsky, Mark Ian Cohen, Daniel A. Torts and Negligence Apr. 1999 7 Torts and Negligence Oct. 2003 24 Evidence Sept. 2000 43 Attorney Professionalism Committee Birnbaum, Eve D. Cohen-Gallet, Bonnie Attorney Professionalism, Forum Law Practice Jul./Aug. 2003 42 Criminal Law Jan. 1999 40 May–Nov./Dec. 2003; Jan.–Nov./ Block, Gertrude Cole, Ann H. Dec/ 2004 Legal Writing, Language Tips Trial Practice Sept. 2000 39 Baird, Edmund C. Jan. 1999–Nov./Dec. 2000; Feb. Collins, Thomas G. Appeals May 2002 32 2001–Nov./Dec. 2001; Jan. 2002– Legal Writing June 2003 10 Bandler, Brian C. Nov./Dec. 2002; Jan.–May, Jul./Aug., Cooper, Ilene Sherwyn Bankruptcy Jul./Aug. 2000 28 Sept. 2003; Feb., May–Jul./Aug., Trusts and Estates Jul./Aug. 1999 34 Barasch, Amy Oct.–Nov./Dec. 2004 Craco, Louis A. Courts Feb. 2002 27 Blum, Ronald G. Attorney Professionalism Jan. 2001 23 Barken, Marlene Courts June 2003 44 Crane, Stephen G. Commercial Law Mar./Apr. 2002 27 Boehm, David O. Civil Procedure May 2000 36 Barker, Robert A. Books on Law June 2000 51 Crick, Anne Trial Practice May 2003 28 History Oct. 2001 33 Family Law May 2001 41 Barnosky, John J. Legal Writing Nov. 1999 52 Crotty, John M. Trusts and Estates Dec. 1999 8 Bogart, Valerie J. Labor and Employment Sept./ Bashian, Gary E. Labor and Employment Jan. 2003 8 Oct. 1999 74 Trusts and Estates Borsody, Robert B. Cundiff, Victoria A. Nov./Dec. 2004 20 Point of View Mar./Apr. 2002 54 Computers and the Law Oct. 2002 8 Bauchner, Joshua S. Brennan, Kerry A. Curran, Paul J. Civil Procedure Mar./Apr. 2000 26 Computers and the Law Criminal Law Jan. 1999 23 Beane, Leona Nov./Dec. 2004 23 Dachs, Jonathan A. Arbitration/ADR June 2002 27 Brodsky, Stephen L. Torts and Negligence May/June 1999 8 Beha, James A., II Commercial Law Mar./Apr. 2001 16 Torts and Negligence Jul./Aug. 2000 18 Arbitration/ADR Sept. 2002 10 Calabrese, Alex Torts and Negligence Sept. 2001 26 Civil Procedure Jan. 2003 22 Arbitration/ADR June 2000 14 Torts and Negligence Jul./Aug. 2002 20 Torts and Negligence June 2002 32 Calareso, Jr., John P. Torts and Negligence June 2003 32 Bellacosa, Joseph W. Torts and Negligence Mar./Apr. 2003 20 Torts and Negligence May 2004 38 History Oct. 2000 5 Campolo, Joseph N. D’Antoni, Anthony Bennett, Mark W. Legal Writing Feb. 2003 26 Torts and Negligence Oct. 2003 10 International Law Mar./Apr. 2003 36 Carlinsky, Michael B. DaSilva, Willard H. Bennett, Steven C. Commercial Law Feb. 1999 29 Family Law Feb. 2002 8 Legal Writing Feb. 2000 48 Carr, Francis T. David, Reuben Bergman, Bruce J. Intellectual Property Jan. 2001 58 Family Law May 2003 33 Real Property Law Jul./Aug. 2001 19 Cavanagh, Edward D. Davis, Wendy B. Real Property Law Nov./Dec. 2002 29 Antitrust Law Jan. 2000 38 Legal Writing Jan. 2000 50 Real Property Law Sept. 2003 43 Evidence Jul./Aug. 1999 9
52 Journal | November/December 2004 Del Gatto, Brian Attorney Professionalism Nov./ Groppe, Charles J. Torts and Negligence June 2002 23 Dec. 2001 22 Trusts and Estates Jan. 2002 8 Desnoyers, Dale Friedman, Marcy S. Trusts and Estates Nov./Dec. 2003 32 Environmental Law Oct. 2004 10 Evidence Nov./Dec. 2001 28 Grumet, Louis Di Blasi, John P. Evidence Jan. 2002 33 Point of View Mar./Apr. 2004 54 Trial Practice Oct. 2001 27 Friedman Rosenthal, Lesley Gutekunst, Claire P. Trial Practice May 2002 21 Computers and the Law Sept. 2003 32 Courts June 2001 35 Trial Practice May 2003 22 Frumkin, William D. Haelen, Joanne B. Dickerson, Thomas A. Labor and Employment Sept./Oct. Torts and Negligence Oct. 2002 35 Consumer Law Sept. 2004 10 1999 36 Hall, L. Priscilla DiLorenzo, Louis P. Gaal, John Point of View Nov./Dec. 2000 38 Attorney Professionalism Mar./ Labor and Employment Sept./Oct. Halligan, Rosemary Apr. 2003 8 1999 61 Labor and Employment Sept./Oct. Di Lorenzo, Vincent Gaber, Mohamed K. 1999 51 Banking/Finance Law Oct. 2000 36 Torts and Negligence Mar./Apr. 2001 8 Hancock, Stewart F., Jr. Disner, Eliot G. Garbriel, Richard Trial Practice Jan. 2001 35 International Law Mar./Apr. 2000 35 Point of View Mar./Apr. 2004 5 Hansen, Lorentz W. Donahoe, Diana Roberto Gallagher, Stephen P. Tax Law Oct. 2001 44 Legal Writing Mar./Apr. 2000 46 Law Practice June 2000 24 Herbert, William A. Donlon, Elizabeth Pollina Law Practice Sept. 2004 40 Labor and Employment Sept. 2002 24 Trusts and Estates Nov./Dec. 2003 27 Gerges, Abraham G. Labor and Employment Feb. 2004 20 Dunham, Andrea Atsuko Books on Law Jul./Aug. 1999 50 Herrmann, Mark Poetry Jan. 2000 53 Point of View Mar. 1999 52 Courts Oct. 2003 20 Dunn, Ronald G. Gerhart, Eugene C. Higgins, John E. Labor and Employment Sept./ Attorney Professionalism Nov./Dec. Labor and Employment Jan. 2004 32 Oct. 1999 70 2000 42 Hiller, Michael S. Effinger, Montgomery Lee Books on Law Feb. 2000 59 Torts and Negligence Jul./Aug. 2002 32 Torts and Negligence June 2000 41 Books on Law Jul./Aug. 2002 50 Holland, Brooks Eldridge, J. David Gershman, Bennett L. Criminal Law Feb. 2002 34 Crossword Puzzle Courts Oct. 2001 36 Holly, Wayne D. Mar./Apr.–Nov./Dec. 2003 Labor and Employment Mar./Apr. Attorney Professionalism Jan. 2000 26 Jan.–June 2004 2000 42 Bankruptcy Mar. 1999 38 Emery, Bob Gesualdi, James F. Holtzschue, Karl B. Books on Law Jan. 1999 49 Books on Law Sept. 2000 54 Real Property Law Mar./Apr. 2003 31 Erickson, Steven K. Gillespie, S. Hazard Horowitz, David Paul Trial Practice Jul./Aug. 2003 29 Women in Law Jan. 2001 43 Trial Practice Sept. 2003 10 Fantino, Lisa M. Gillis, Margaret J. Jalbert, Joseph R. Point of View Oct. 2002 52 Torts and Negligence Mar./Apr. 2003 20 Evidence Nov./Dec. 2000 24 Feathers, Cynthia Glendon, William R. Joseph, Gregory P. Appeals Feb. 2004 36 History Feb. 2002 46 Courts June 2001 14 Fedorek, Thomas Glick, Robert A. Kassal, Bentley Computers and the Law Feb. 2004 10 Trial Practice Jul./Aug. 2003 10 Appeals Jan. 2004 46 Feinman, Paul G. Gold, Elayne G. Appeals Nov./Dec. 2004 28 Criminal Law Feb. 2002 34 Labor and Employment Sept./Oct. Kassenoff, Jarred I. Fidell, Eugene R. 1999 70 Commercial Law Jul./Aug. 2003 32 Government and the Law Feb. 2001 44 Golden, Ben Kassoff, Mitchell J. Fields, Marjory D. Family Law Feb. 2003 16 Commercial Law Feb. 2001 48 Criminal Law Feb. 2001 18 Golden, Paul Commercial Law Jan. 2003 32 Family Law June 2000 20 Civil Procedure Sept. 2002 18 Commercial Law June 2004 22 Family Law Feb. 2002 21 Commercial Law May 2001 20 Kastner, Menachem J. Fisher, Steven W. Commercial Law Oct. 2004 36 Commercial Law Jul./Aug. 2003 32 Courts June 2001 29 Constitutional Law Nov./Dec. 2001 34 Katzman, Gerald H. Fiske, Robert B., Jr. Goodman, Norman Courts Nov. 1999 10 Books on Law Mar. 1999 56 Courts June 2001 32 Kaye, Judith S. Fitzgerald, Brian P. Grall, John G. Attorney Professionalism Sept. 2000 50 Courts Nov. 1999 32 Trusts and Estates Dec. 1999 16 Courts June 2001 8 Formato, Patrick Grande, Robert J. Torts and Negligence Nov./Dec 2004 35 Health Law Jul./Aug. 2002 8 Torts and Negligence June 2002 23 Keller Lawrence P. Forte, Joseph Philip Grant, Tom Trusts and Estates Nov./Dec. 2002 19 Real Property Law Jul./Aug. 2001 34 Arbitration/ADR June 2002 46 Kirgis, Paul Frederic Freidman, Gary B. Gregory, David L. Books on Law May 2000 50 Probate Jan. 2002 22 Commercial Law Oct. 2000 27 Evidence Feb. 2000 30
Journal | November/December 2004 53 Klein, Eve I. Little, Elizabeth E. Marrus, Alan D. Labor and Employment Sept./Oct. Real Property Law Mar./Apr. 2001 44 Courts Jul./Aug. 2000 42 1999 51 Littleton, Robert W. Martin, Mia R. Labor and Employment Nov./Dec. Evidence Jul./Aug. 1999 8 Computers and the Law 2001 10 Lurie, Alvin D. Nov./Dec. 2004 23 Knipps, Susan K. Labor and Employment May 2000 44 Martins, Cristine S. Courts June 2000 8 Point of View Mar./Apr. 2003 48 Law Practice Oct. 2001 21 Korgie, Tammy S. Lustbader, Brian G. Martins, Sophia J. Attorney Professionalism Mar./Apr. Real Property Jul./Aug. 2001 51 Law Practice Oct. 2001 21 2000 11 Lustig, Mitchell S. Massaro, Dominick R. Attorney Professionalism May 2001 5 Torts and Negligence June 2004 18 History Jan. 2000 44 Kornstein, Daniel Lutz, Victoria L. McAloon, Paul F. Point of View May 2003 47 Courts Feb. 2002 27 Humor Mar./Apr. 2001 64 Krass, Stephen J. Maccaro, James A. McCarthy, James M. Trusts and Estates Dec. 1999 29 Law Practice May 2000 54 Labor and Employment Oct. 2002 40 Krauss, Sarah L. Magavern, James L. McCloskey, Susan Courts Feb. 2002 52 Government and the Law Jan. 2001 52 Legal Writing Nov. 1999 47 Krieger, Laura M. Magner, Jr., Philip H. Legal Writing Nov./Dec. 2000 31 Commercial Law Feb. 1999 29 Point of View Nov./Dec. 2003 39 Legal Writing Nov./Dec. 2001 39 La Manna, Judith A. Mahler, Peter A. Legal Writing Nov./Dec. 2002 8 Arbitration/ADR May 2001 10 Commercial Law May/June 1999 28 Legal Writing Nov./Dec. 2003 18 Books on Law June 2000 52 Commercial Law Jul./Aug. 1999 21 Legal Writing Sept. 2004 30 Science and Technology Sept. 2000 8 Commercial Law Jul./Aug. 2001 10 McGrath, Christopher T. Lang, Robert D. Commercial Law June 2002 8 Courts Mar./Apr. 2004 10 Books on Law Feb. 2001 57 Commercial Law Oct. 2004 28 Courts May 2004 28 Point of View Oct. 2004 48 Maier, Philip L. McGuinness, J. Michael Torts and Negligence Jul./Aug. 2000 10 Labor and Employment May/June Constitutional Law Feb. 2000 36 Torts and Negligence Jan. 2003 17 1999 41 Criminal Law Sept. 2000 17 Lange, Michele C.S. Malone, Lawrence G. Criminal Law Oct. 2003 29 Computers and the Law Mar./Apr. Government and the Law Feb. 2004 40 McQuillan, Peter J. 2004 18 Manz, William H. Criminal Law Jan. 2001 16 Lauricella, Peter A. Computers and the Law Nov./Dec. Meade, Robert C., Jr. Civil Procedure Nov. 1999 24 2000 26 Civil Procedure May 2000 36 Lazer, Leon D. Computers and the Law Feb. 2002 40 Meagher Jr., Walter L. Courts June 2001 37 Computers and the Law Jan. 2003 42 Trial Practice Mar./Apr. 2003 28 Lebovits, Gerald Courts May 2002 8 Michaels, Philip J. Arbitration/ADR Jan. 1999 28 History May 2003 10 Tax Law Oct. 2001 52 Courts Mar./Apr. 2002 8 History May 2004 10 Trusts and Estates Nov./Dec. 2003 10 Courts Jul./Aug. 2004 34 History Jul./Aug. 2004 10 Miller, Frederick Family Law May 2001 41 Marbot, Karen L. Point of View Feb. 2001 53 Legal Writing Jul./Aug. 2001 8; Sept. Courts Nov. 1999 10 Miller, Henry G. 2001–Nov./Dec. 2004 Mariani, Michael M. Attorney Professionalism Oct. 2003 42 Lee, Anthony T. Trusts and Estates Jan. 2003 38 Torts and Negligence Jan. 2001 26 Trusts and Estates Nov./Dec. 2002 19 Mark, Dana L. Trial Practice Sept. 2001 8 Leeds, Matthew J. Trusts and Estates Dec. 1999 43 Miller, Richard E. Commercial Law Jul./Aug. 2001 43 Trusts and Estates Nov./Dec. 2002 26 Commercial Law June 2002 18 Leinheardt, Wallace L. Trusts and Estates Sept. 2001 37 Modica, Steven V. Trusts and Estates Oct. 2001 8 Marks, Patricia D. Law Practice May/June 1999 52 Leshner, Alan I. Courts June 2001 40 Monachino, Benedict J. Point of View Sept. 2000 53 International Law Mar./Apr. 2003 36 Environmental Law May 2000 22 Leven, David C. Marlett, Karin Mone, Jennifer M. Criminal Law Jan. 1999 23 Legal Writing June 2003 10 Arbitration/ADR Sept. 2000 35 Levine, Arnold J. Maroko, Richard A. Mone, Mary C. Law Practice Jul./Aug. 2003 42 Labor and Employment Sept./Oct. Courts June 2001 47 Levine, Barbara Baum 1999 8 Moore, James C. Labor and Employment Oct. 2002 40 Marrow, Paul Bennett Books on Law Mar./Apr. 2000 50 Lewis, David Commercial Law Feb. 2000 18 Books on Law Mar./Apr. 2001 52 Courts Oct. 2004 42 Commercial Law Sept. 2003 16 Morken, John R. Liotti, Thomas F. Evidence Mar. 1999 26 Attorney Professionalism Nov./Dec. Books on Law Mar./Apr. 2003 46 Evidence Jul./Aug. 2002 46 2001 22 Criminal Law Jan. 2003 29 Family Law Mar./Apr. 2004 26 Trusts and Estates Dec. 1999 8 Trial Practice Sept. 2000 39 Trusts and Estates Jan. 2002 22
54 Journal | November/December 2004 Mount, Chester H., Jr. Pinzel, Frank B. Trusts and Estates Nov./Dec. 2002 15 Courts June 2001 10 Real Property Law Mar. 1999 50 Trusts and Estates Jan. 2004 26 Muldon, Gary Pollet, Susan L. Ruderman, Terry Jane Family Law Jul./Aug. 2004 30 Family Law Feb. 2004 33 Torts and Negligence Feb. 2002 30 Mulholland, Ellen M. Popoff, Antonella T. Scheindlin Shira A. Books on Law Feb. 2000 59 Computers and the Law Oct. 2002 19 Civil Procedure Jan. 2004 18 Books on Law Sept. 2000 54 Poppell, Beverly M. Schelanski, Vivian B. Books on Law Mar./Apr. 2001 53 Books on Law Jul./Aug. 2002 50 Point of View Jul./Aug. 2000 46 Munsterman, G. Thomas Trial Practice Mar./Apr. 2002 20 Schlesinger, Sanford J. Courts June 2001 10 Puscheck, Bret Trusts and Estates Dec. 1999 43 Murphy, Hon. Francis T. International Law Mar./Apr. 2003 36 Trusts and Estates Nov./Dec. 2002 26 Criminal Law Apr. 1999 86 Rachlin, Marvin Trusts and Estates Sept. 2001 37 Point of View Jan. 2000 54 Elder Law Feb. 2001 32 Schnapf, Larry Point of View Mar./Apr. 2000 57 Point of View June 2003 52 Environmental Law Oct. 2004 10 Nathan, Frederic S. Point of View Sept. 2003 52 Schoppmann, Michael Point of View Jul./Aug. 2003 48 Point of View Sept. 2004 52 Health Law Jul./Aug. 2002 8 Nesbitt, Hon. John B. Radigan, Hon. C. Raymond Schumacher, Jon L. Trial Practice Sept. 2003 39 Courts June 2003 19 Trusts and Estates Dec. 1999 23 Netter, Miriam M. Redgrave, Jonathan M. Schwab, Harold L. Courts Nov. 1999 10 Civil Procedure Jan. 2004 18 Torts and Negligence Attorney Professionalism May 2001 49 Reed, James B. Nov./Dec. 2004 10 Attorney Professionalism Jul./Aug. Science and Technology Feb. 2000 58 Sciolino, Anthony J. 2002 52 Reibstein, Richard J. Family Law May 2002 37 Neumark, Avery E. Labor and Employment Oct. 2002 47 Seaquist, Gwen Labor and Employment Mar./Apr. Reinstein, Ronald Commercial Law Mar./Apr. 2002 27 2001 26 International Law Mar./Apr. 2003 36 Sederbaum, Arthur D. Labor and Employment Feb. Reixach, Rene H., Jr. Tax Law June 2000 48 2003 38 Health Law Feb. 2000 8 Selkirk, Alexander M. Nicolais, Robert F. Richter, Roslyn History May 2002 45 Family Law Nov. 1999 39 Courts June 2001 19 Seymour, Jr., Whitney North Nolan, Kenneth P. Ritts, Geoffrey J. Point of View Jan. 2003 50 Attorney Professionalism May 2002 16 Courts Oct. 2003 20 Shaw, Adam M. Oliver, Donald D. Rizzo, Joseph B. Health Law Jul./Aug. 1999 30 Labor and Employment Sept./Oct. Civil Procedure Feb. 2001 40 Sheinberg, Wendy H. 1999 61 Rogak, Joyce Lipton Health Law Feb. 1999 36 Osterman, Melvin H. Torts and Negligence June 2003 28 Sheldon, David P. Labor and Employment Jan. 2001 40 Rohan, Patrick J. Government and the Law Feb. 2001 44 Ovsiovitch, Jay S. Real Property Law Oct. 2000 49 Shoot, Brian J. Criminal Law June 2000 35 Rose, James M. Courts Mar./Apr. 2004 10 Ozello, James Humor Mar. 1999 54 Courts May 2004 28 Law Practice Mar./Apr. 2000 54 Humor May/June 1999 54 Short, Skip Palermo, Anthony R. Humor Jul./Aug. 1999 48 Torts and Negligence Jan. 2004 40 Books on Law Apr. 1999 89 Humor Jan. 2000 56 Siegel, David D. Books on Law May 2002 52 Humor Jul./Aug. 2000 64 Civil Procedure Jan. 2001 10 Palewski, Peter S. Humor Sept. 2000 64 Siegel, Frederic Environmental Law May 2000 8 Humor Nov./Dec. 2000 64 Science and Technology Feb. 1999 50 Panken, Peter M. Rosenberg, Lee Sienko, Jr., Leonard E. Labor and Employment Sept./Oct. Point of View Sept. 2004 50 Law Practice Sept. 2004 40 1999 26 Rosenberg, Lewis Silbermann, Jacqueline W. Peck, Dana D. Books on Law Jan. 2000 58 Courts Feb. 2004 30 Torts and Negligence May/June 1999 47 Rosenblatt, Albert M. Silver, Mark S. Peckham, Eugene E. Courts June 2001 8 Criminal Law Mar./Apr. 2004 32 Tax Law Feb. 2000 52 Rosenhouse, Michael A. Silverman, Daniel Tax Law Oct. 2001 41 Civil Procedure Feb. 2003 30 Labor and Employment Sept./Oct. Trusts and Estates Dec. 1999 37 Ross, David S. 1999 80 Trusts and Estates Sept. 2000 30 Point of View Jul./Aug. 2000 46 Siskin, Michael A. Trusts and Estates Mar./Apr. 2002 33 Rothberg, Richard S. Commercial Law June 2002 18 Penzer, Eric W. Tax Law May 2000 51 Siris, Mike Legal Writing Feb. 2003 26 Rubenstein, Joshua S. Books on Law Feb. 1999 51 Real Property Law Sept. 2004 35 Trusts and Estates Dec. 1999 52 Siviglia, Peter Pfau, Ann Trusts and Estates Jan. 2002 30 Point of View Sept. 2002 34 Attorney Professionalism Jan. 1999 8 Trusts and Estates Feb. 2001 37
Journal | November/December 2004 55 Slater-Jansen, Susan B. Real Property Law Oct. 2000 44 Zullo, Emil Labor and Employment Mar./Apr. Weinberger, Michael Courts June 2001 50 2001 26 Evidence Jul./Aug. 2000 38 Zweig, Marie Labor and Employment Feb. 2003 38 Weiner, Gregg L. Civil Procedure Feb. 1999 44 Spelfogel, Evan J. Point of View Oct. 2003 46 Labor and Employment Sept./Oct. Weinstein, Hon. Jack B. 1999 16 Point of View Feb. 2003 55 Spivak, Edith I. Weis, Philip C. Women in Law Jan. 2001 60 Computers and the Law Feb. 2003 8 Starr, Stephen Z. Weiss, Richard MOVING? Bankruptcy Jul./Aug. 2000 28 Health Law Jul./Aug. 2002 8 Stein, Joshua Whisenand, Lucia B. Banking/Finance Law Jul./Aug. 2001 25 Family Law Jan. 2001 49 let us know. Legal Writing Jul./Aug. 1999 44 Wicks, James M. Steinberg, Harry Arbitration/ADR Sept. 2000 35 Courts Nov. 1999 12 Civil Procedure Feb. 1999 44 Notify OCA and NYSBA Courts Mar./Apr. 2001 39 Wilcox, John C. of any changes to your Stern, Robert A. Point of View June 2002 54 Torts and Negligence Oct. 2003 35 Wild, Robert address or other record Taller, Y. David Health Law Jul./Aug. 2002 8 information as soon as Torts and Negligence May/June 1999 24 Wilkes, David C. possible! Torts and Negligence Sept. 2000 27 Real Property Law Taylor, Patrick L. Wilkins, Steven Criminal Law Feb. 2000 41 Torts and Negligence Jul./Aug. 2004 42 Teff, Justin F. Torts and Negligence Nov./Dec. 2004 31 Trial Practice Jul./Aug. 2003 27 Williams, Jeffery D. OCA Attorney Trial Practice Mar./Apr. 2004 42 Labor and Employment Sept./Oct. Registration Trial Practice June 2004 38 1999 26 Thomsen, Kimberly S. Wilsey, Gregory S. PO BOX 2806 Family Law Mar./Apr. 2004 26 Attorney Professionalism Mar./Apr. Church Street Station Timkovich, Elizabeth Troup 2000 10 New York, New York 10008 Computers and the Law Mar./Apr. Courts June 2001 50 2002 40 Winfield, Richard N. TEL 212.428.2800 Tripoli, Lori Government and the Law May/June FAX 212.428.2804 Books on Law June 2002 55 1999 37 Trueman, David History Feb. 2002 46 Email attyreg@courts. Labor and Employment Feb. 1999 6 Wishart, Lynn state.ny.us Turano, Margaret V. Computers and the Law Sept. 2003 24 Books on Law Oct. 2000 12 Wolf, Alan Turro, Andrew J. Computers and the Law Sept. 2003 24 New York State Bar Courts June 2003 44 Wood, Robert W. Association Twomey, Laura M. Tax Law Feb. 2004 52 Tax Law Oct. 2001 52 Yastion, James D. MIS Department Trusts and Estates Nov./Dec. 2003 10 Trusts and Estates One Elk Street Vidmar, Neil Nov./Dec. 2004 20 Albany, NY 12207 Courts June 2001 23 Young, Maureen W. Vitullo-Martin, Julia Labor and Employment Jan. 2000 30 TEL 518.463.3200 Courts June 2001 43 Young, Sanford J. FAX 518.487.5579 Wagner, Lorraine Appeals Mar. 1999 8 Books on Law Jul./Aug. 2003 47 Civil Procedure Jan. 2004 10 Email [email protected] Wagner, Richard H. Civil Procedure June 2004 28 Books on Law Feb. 2001 56 Younkins, Ronald Warmund, Joshua H. Courts Feb. 2001 12 Intellectual Property Nov./Dec. 2002 34 Zoellick, Bill Ward, Ettie Science and Technology Nov./Dec. Civil Procedure Oct. 2000 18 2000 10 Wechsler, Michael M. Zuckerman, Michael H. Computers and the Law Mar./Apr. Trusts and Estates Dec. 1999 16 2004 18 Zuckerman, Richard K. Weinberg, Philip Labor and Employment Sept./Oct. History June 2004 10 1999 43 Point of View Feb. 2000 55
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Carrion Patrick Ryan McElduff Junmin Zou Nancy Wechsler Sandra Ezri Michael Boonsom John C. Melfi Gil Zohar Janice Michelle Farrell Chaisanguanthum Jeffrey Ross Mensch THIRD DISTRICT Nicholas Edward Jennifer Young Choi Ellen A. Menscher Samuel R. Parker ELEVENTH DISTRICT Fawcett Gregory Compa Patricia Moran Michelle Stephanie Lawrence G. Barbot Andrea Feliciani Andres Consuegra April Myers Pellegri Veronica Escobar Kathleen Sarah Amy Elizabeth Stacy Elyse Nathanson Elizabeth M. Haag Galbraith D’Agostino Alexandra Katherine FOURTH DISTRICT George Hrisikopoulos Joshua William Gardner David Scott Danner Nellos Tracey Janelle Chance Andrew Youngson Lin Kathryn Joy Garrison Mara Leah Davis Paula Odysseos Charles J. Noth Ian S. Mednick Lukasz Andrea Gasinski Noga N. Delshad Eric Samuel Olney Sara Elizabeth Paupini Adina F. Neuman Ian M. Gates Christian Phil Emily Jane Olson Kaveri Shrivastava Richa Gautam Dorenkamp Melissa Elaine Paparone FIFTH DISTRICT Lucas Granillo-Ocampo Colleen Echeveste Gavin Lee Parrish Jami E. Kaplan TWELFTH DISTRICT Michael Christopher Alastair Findeis Lawrence James Peck Amy Kathryn Avila Grieco David Robert Fishkin Jaime Mavie Previte SIXTH DISTRICT Joshua A. Edwards John Paul Guinan Shane W. Foster Nicole Deniel Quick Katy Lynne Dunlap Thomas R. Maeglin Tiffany Alexis Collette Fred S. Fuld Gloria E. Quinones Paul W. Elkan Lawrence D. Mandelker Hamilton Paul Pascal Gabie Joel Michael Randleman Tomoko Kinukawa Catherine K. Tang Harold Stephen Harris Ke Geng Eric Ralph Reimer Rocco Scanza Amir Toossi Shellie H. Hart Martin W. Gershon Margaret A.G. Reiss Thomas Philip Heim Felix John Gilman Daniel Stewart SEVENTH DISTRICT OUT OF STATE Jessie Henriette Heners Davin Z. Goldsztajn Robinson John J. Jakubek Hassan Ahmed Thomas Joshua Matthew B. Goren Scott Steven Rozic Daniel A. Testa Jungran Ahn Hershenson Jeffrey William Gould Jeffrey M. Rubinstein Iboroma Tamunoemi Kyle Andrew Benjamin Gris Peter Christian Sandel EIGHTH DISTRICT Akpana Hollingsworth Evelyn I. Guardarramas David Louis Scher Mark J. Hackett Rafael E. Alfonzo Florian Huber Christopher Olsson Keith Jordan Scherer Rebecca Z. McCauley Janice Allende Bhanu Babu Ilindra Hathaway Jacqueline K. Seidel William J. Shramek Richard N.M. Anderson Katie Ann Jefcoat Ruth Marie Herring Elaine Elisseou Serra Laura N. Tulyk-Rossi Melinda Lee Andra Erik W. Johnson Barry Heyman Elizabeth Jean Maria Virginia Archilla Everett Francis Jones Antony Alexander Shampnoi NINTH DISTRICT Aubrey Aredma Masatsura Kadota Hilton David Joseph Shapiro Alexander H. Ansari Anissa M. Aziz Lara Karam Cara Melissa Hirsch Sandra Lynn Sheldon John Aronian Magda Rona Baker Shane Daniel Richard Eric G. Hoffman Mary S. Simone Catherine Cotter Daniel H. Barber Kelleher Kevin Gerard Horbatiuk William R. Elliot A. Cristantello John Frederick Barrett Jung W. Kim Virginia Comer Ireland Spiegelberger Denyse M. Fecteau Raymond John Batla Sara Ann Kirschbaum David Douglas Jensen Ethan John Steward Stanley P. Fishman Matthew John Bennett Justin Michael Klein Stephen T. Kaiser Alla V. Stewart Peter A. Joseph Marie-Celine Bouvier Ana Maria Kleymeyer Ashur Barrett Kalb Joelle Svab Matthew Craig Mann Gregg B. Brelsford Thomas J. Knoblauch Aaron Stephen Kanter Irina Taka Shelby J. Novak Conor Byrne Rudolf Koch
Journal | November/December 2004 59 Marisa Giselle Krause Nicholas Paul Probert THE LEGAL WRITER Joseph Patrick Kreoll Doreen Regent CONTINUED FROM PAGE 64 Chad Michael Leicht Edward Arthur Renn Michael Alan Lerner Nancy Glenn Rhoads (1st Dep’t 1991) (mem.) (noting that rule against perpetuities is still Hanxing Li Andreas U. Rued Lei Li Neetu M. Sabnani alive), rev’d on dissenting opn. below, 91 N.Y.2d 19 (1991). New York Eric Jason Lubochinski Adam Michael Shedd trial-court opinions often omit pinpoint citations. Most full New Stephen J.A. Luck Tamia Simonis York appellate opinions, and all federal opinions, include pinpoint Thomas Macmanus Michael David Smith citations. Stephanie Bettina Daniel Rodrigo Solano Magnell August Richard Soltis Use pinpoint citations even if your proposition is on the first Robin Mahood Natasha M. Songonuga page, and even if your case has only one page: X v. Y, 16 N.Y.2d Anastasia Mantziou Lynne Campbell Soutter 61, 61 (1961). Margaret Hoefner Martin Walter Michael Spader The same rules about pinpoint citations apply to secondary Uwani Zenon Martin David E. Spiro Aran Thomas Matier Craig A. Squitieri authority, for which you must always give the author’s full name: Frances Aurelia Harry Dimitriou Alex Kozinski & Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale L.J. McCormick Stamelos 463, 464 (1993) (explaining how to become legal-writing mavens); Jack Edward McGehee Jacqueline Plain Yiddish for Lawyers and Judges Crystal Dawn Scripps Stein-Kaempfe Ralph Slovenko, , [June 1986] McKellar Robert Lee Steinberg Trial 92, 93 (same); Gerald F. Uelman, Plain Yiddish for Lawyers, 71 James Michael Barnaby William A.B.A. J. 78, 79 (June 1985) (same). McMahon Stewart Joselina Lopez Medrano Robert Bradley Stynes Using pinpoint citations will assure your readers that you did- Daniel Mencaroni Kristen Anne Szczech n’t simply forget to use a pinpoint citation and that you knew you Russell Charles Jin Takasaki should always use a pinpoint citation. Your readers will know that Menyhart Michele T. Tantalla you read the cited authority and that your proposition is accurate. Nathan John Miller Andrea Toth Derek Mason Mills Samuel Palmer Most important, your reader will be able to find quickly the exact Gerard Joseph Monchek Trumbull proposition for which you cited your authority. Using pinpoint Yolanda Denise Allen Charles Tucci citations also forces you to read your case. That will control your Montgomery Leo Van Den Hole citation and make it accurate. That will also lead you to other Raymond Peter Morasse Stephen Michael Vasil Jeffrey Scott Muller Robyn Anne Veasey authorities, and perhaps better ones. Pinpoint citing therefore 5 Sonia Sylvia Murray Yawei Wang inhibits boilerplate. Gene Namgoong Naoki Watanabe If several pages of your case support a proposition, avoid pin- Melissa A. Natale Oded Weinstock Kristin Elizabeth Jared Michael Weitz point citing to a broad spectrum of pages, such as 61–68. Instead, Neilson Frederick Hongyee Wen narrow your proposition and thus your pinpoint citation. Or use Kathleen Mary Lori Anne Williams passim to note that the entire authority supports your proposition: Newsham Njoki K. Williams X v. Y, 16 N.Y.2d 61, passim (1981). “Passim” usage is rare; legal Euguenia Eugenieuna Joshua David Winneker Otchkovskaia Jean Johnel Wolfe writers are unfamiliar with it. Vijaya Rangan Andrew J. Wood Parallel Citing Palaniswamy Katie Laura Wood John M. Paolino Kevin Michael Woodson It’s unnecessary in New York to give parallel citations. But if Avani B. Patel Karen Elisabeth Yates you do, always cite and use the official citation (Misc. 3d; A.D.3d; Rudhir Bakulesh Patel Hyun-Sang Youn N.Y.3d), if available,6 down to the pinpoint citation. The Steven Daniel Pertuz Karen May Patricia Bluebook’s advice that writers cite only the unofficial reporter Geoffrey James Peters Young Sharlenn Elizabeth Pratt Gregory Paul (N.E.2d, N.Y.S.2d) is wrong. Most New York judges don’t have the Frantz Thomas Price Zimmerman unofficial (West) volumes. If you cite only the unofficial version, you’ll force the judge to convert your citation, thus making it hard- er for the judge to rule for you. Moreover, the official version is often different from the unofficial version. The New York State In Memoriam Law Reporting Bureau carefully edits the official reports, and Arrial S. Cogan Matthew Picard before official publication judges have an opportunity to revisit New York, NY Woodbury, NY their opinions. The unofficial reporter doesn’t always pick up the Robert L. Golby Eugene L. Vogel New York, NY New York, NY edits and revisions. Why would any lawyer cite or use an imper- Daniel Gutenplan William J. Weiss fect version of a case? Long Beach, NY Derby, NY Don’t write “__Misc. 2d__,” “__A.D.2d__,” or “__N.Y.2d__” if Frank Klein Raymond R. Wittekind your cited case isn’t yet officially reported, even if you expect it to Cobleskill, NY Morristown, NJ be reported officially. All Appellate Division opinions will be James E. Padilla reported in the A.D.3d reporter, and all Court of Appeals opinions Arlington Heights, IL will be reported in the N.Y.3d reporter. It’s unnecessary to use the
60 Journal | November/December 2004 “__A.D.3d__” or the “__N.Y.3d__” for- has written Advanced Judicial Opinion mat to tell a reader that these opinions Writing, a handbook for New York’s will be published officially. Converse- trial and appellate courts, from which EDITOR’S ly, most trial term and Appellate Term this column is adapted. His e-mail opinions published in the New York address is [email protected]. MAILBOX Law Journal or elsewhere won’t be reported in the Misc. 3d reporter, 1. See The Legal Writer, You Can Quote although newer cases might be report- Me — Part II, 76 N.Y. St. B.J. 64, 57 Balancing Act (A. v. B. and B. v. A. examples). ed online in Westlaw and LEXIS as I would like to thank Ken Standard New York Slip Opinions. In Westlaw, 2. This is how to cite a citing reference for raising an important, relevant issue look up the NY-ORCSU database. that adds critical information: In re in his October “President’s Message.” I Marino S., 100 N.Y.2d 361, 369 n.3, Westlaw will tell you whether the am currently a first-year law student, but opinion will be reported officially by 795 N.E.2d 21, 25 n.3, 763 N.Y.S.2d 796, 800 n.3 (2003) (Kaye, C. J.) (cit- looking into the future I am worried writing “__N.Y.S.2d__” at the top of ing Anne Crick & Gerald Lebovits, about the “balancing act” I will have to the opinion. Opinions in NY-ORCSU Best Interests of the Child Remain play between a demanding career and a won’t be reported officially. Paramount in Proceedings to Terminate family. The message to law students Citing as Brevity Parental Rights, 73 N.Y. St. B.J. 41 today is that by becoming a lawyer, you (May 2001)). Citing doesn’t merely enable your consent to having no life. You will work reader to find your authority. Citing 3. Karl N. Llewellyn, The Bramble Bush: no less than twelve hours a day during also condenses your writing. Unless On Our Law and Its Study 89 (1930). the good weeks and frequently seven you need to explain procedural history 4. Stanley Mosk, The Common Law and days a week. A lot of people consider the first few years out of law school as the in your text, let your citation speak for the Judicial Decision-Making Process, “sacrifice” years where you do your time you. Unnecessary history: “After the 11 Harv. J.L. & Pub Pol’y 35, 35 (1988). at a demanding firm and then leave to Appellate Term, Second Department, have more of a life. It’s basically impossi- decided Smith v. Jones in 1997 in a per 5. See generally Bryan A. Garner, The ble to balance a family or spouse during curiam opinion that reversed in part Redbook: A Manual on Legal Style 108–09 (2002). that time and although I am very inter- and affirmed in part a 1996 judgment 6. Disenhouse Assocs. v. Mazzaferro, 135 ested in law, I don’t know if I am willing of the New York City Civil Court, to do that. There’s a great saying that, Queens County, the Appellate Misc. 2d 1135, 1137 n.*, 519 N.Y.S.2d 119, 120 n.* (Civ. Ct. N.Y. County “No one on their death bed ever said ‘I Division, Second Department, granted 1987) (urging all attorneys not to cite wish I spent more time at work.’” I think leave and reversed in 1998 in a memo- “the unofficial reports only”) (citing the concept is important to recognize. randum opinion, and then the Court of CPLR 5529(e), which proves that in Thank you, Appeals granted leave in 1999 but dis- their appellate briefs, attorneys who Kelly Francin missed the appeal in 2000.” Becomes: cite New York cases must cite the St. John’s University School of Law See Smith v. Jones, N.Y.L.J., Apr. 1, 1996, Official Reports, if available); accord In re Bernstein v. Luloff, 34 A.D.2d Queens, NY at 9, col. 1 (Civ. Ct. Queens County), 965, 965, 313 N.Y.S.2d 949, 949 (2d aff’d in part & rev’d in part, 199 Misc. 2d Dep’t 1970) (mem.) (admonishing 911, 119 N.Y.S.2d 911 (App. Term 2d counsel to cite official reports); La Dep’t 2d & 11th Jud. Dists. 1997) (per Manna Concrete, Inc. v. Friedman, 34 MEMBERSHIP curiam), rev’d, 191 A.D.2d 919, 119 A.D.2d 576, 576, 309 N.Y.S.2d 711, OTALS N.Y.S.2d 919 (2d Dep’t 1998) (mem.), 713 (2d Dep’t 1970) (mem.) (same); T app. dismissed, 191 N.Y.2d 191, 919 People v. Matera, 52 Misc. 2d 674, 687, 276 N.Y.S.2d 776, 789 (Sup. Ct. N.E.2d 919, 999 N.Y.S.2d 999 (2000). Queens County 1967) (“[W]e are NEW REGULAR MEMBERS Citations enable the reader to find required, in the rendition of our 1/1/04 - 10/25/04 ______6,661 opinions, to cite New York decisions the source. They also credit the source, NEW LAW STUDENT MEMBERS from the official reports, if any, as convey the source’s persuasiveness, 1/1/04 - 10/25/04 ______1,149 and demonstrate whether law sup- the counsel themselves are bound to TOTAL REGULAR MEMBERS AS OF ports an argument. To help a court to do in their briefs on appeal.”). 10/25/04 ______64,790 rule for you, cite it right. TOTAL LAW STUDENT MEMBERS GERALD LEBOVITS is a judge of the AS OF 10/25/04 ______3,637 New York City Civil Court, Housing TOTAL MEMBERSHIP AS OF Part, in Manhattan. An adjunct pro- 10/25/04 ______68,427 fessor at New York Law School, he
Journal | November/December 2004 61 Meetings Lawyer Referral and Information Service Kathleen M. Heider, Director, Pro Bono Affairs HEADQUARTERS [email protected] Cynthia Feathers, Director, [email protected] Continuing Legal Education STAFF Terry J. Brooks, Senior Director, Marketing and Information Services [email protected] Richard J. Martin, Senior Director, CLE Programs [email protected] E-MAIL ADDRESSES Jean E. Nelson II, Associate Director, Desktop Publishing [email protected] Marketing Jean Marie Grout, Staff Attorney, MIS [email protected] John M. Nicoletta, Director, Executive Leslie A. Fattorusso, Staff Attorney, [email protected] Patricia K. Bucklin, Executive Director, [email protected] Jeffrey Ordon, Network Support Specialist, [email protected] Cheryl L. Wallingford, Program [email protected] John A. Williamson, Jr., Associate Manager, [email protected] Gregory A. Vincent, Database Administrator, Executive Director, CLE Publications [email protected] [email protected] Daniel J. McMahon, Director, Paul Wos, Data Systems and L. Beth Krueger, Assistant Executive [email protected] Telecommunications Manager, Director, [email protected] Patricia B. Stockli, Research Attorney, [email protected] Administrative Services, Meetings and [email protected] Web Site Barbara Beauchamp, Editor, Media Relations Finance and Human Resources [email protected] L. Beth Krueger, Assistant Executive Paula Doyle, Senior Director, Director [email protected] Membership Services Administrative Services Finance Patricia K. Wood, Senior Director, The New York Bar Foundation Kristin M. O’Brien, Director, [email protected] Rosanne M. Van Heertum, Director of [email protected] Chief Section Liaison Development, [email protected] Cynthia Gaynor, Controller, Lisa J. Bataille, [email protected] Law, Youth and Citizenship Program [email protected] Law Practice Management Deborah S. Shayo, Director, Cynthia Cornaire, Director, [email protected] Legal and Governmental Affairs [email protected] Kathleen R. Mulligan-Baxter, Senior Charles F. Heritage, Program Print and Facilities Operations Director, [email protected] Manager, [email protected] Roger E. Buchanan, Senior Director, Counsel’s Office Media Services and Public Affairs [email protected] Governmental Relations Bradley G. Carr, Director, Building Maintenance Ronald F. Kennedy, Associate Director, [email protected] Graphics [email protected] Frank J. Ciervo, Associate Director, Print Shop Lawyer Assistance Program [email protected] Matthew Burkhard, Production Manager, Ray M. Lopez, Director, Amy Travison Jasiewicz, Editor, [email protected] State Bar News, [email protected] [email protected]
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2004-2005 OFFICERS DIRECTORS s a tribute to their outstanding service to Aour Journal, we list here the names of Robert L. Haig James B. Ayers, Albany each living editor emeritus of our Journal’s President Hon. Richard J. Bartlett, Glens Falls Board. 101 Park Avenue Jonathan G. Blattmachr, New York City Howard Angione New York, NY 10178-0001 Cristine Cioffi, Niskayuna Immediate Past Editor-in-Chief John R. Horan Charles E. Dorkey, III, New York City Richard J. Bartlett Vice President Emily F. Franchina, Garden City 825 Third Avenue Maryann Saccomando Freedman, Buffalo Coleman Burke New York, NY 10022 John H. Gross, Northport John C. Clark, III Paul Michael Hassett, Buffalo Angelo T. Cometa Patricia K. Bucklin Frank M. Headley, Jr., Scarsdale Roger C. Cramton Secretary John J. Kenney, New York City Maryann Saccomando Freedman One Elk Street Steven C. Krane, New York City Emlyn I. Griffith Albany, NY 12207 Glenn Lau-Kee, White Plains H. Glen Hall Hon. Randolph F. Treece Bernice K. Leber, New York City Paul S. Hoffman Treasurer Susan B. Lindenauer, New York City Charles F. Krause 445 Broadway Kay Crawford Murray, New York City Philip H. Magner, Jr. Albany, NY 12207 Carla M. Palumbo, Rochester Wallace J. McDonald Richard Raysman, New York City J. Edward Meyer, III Thomas O. Rice, Garden City Kenneth P. Nolan Sanford J. Schlesinger, New York City Albert M. Rosenblatt Lorraine Power Tharp, Albany Robert J. Smith Lucia B. Whisenand, Syracuse Lawrence E. Walsh
62 Journal | November/December 2004 Members of the House of Delegates 2004-2005 First District Third District * Freedman, Maryann Saccomando Alcott, Mark H. Ayers, James B. Gerstman, Sharon Stern Bienstock, Peter Bauman, Harold J. * Hassett, Paul Michael OFFICERS Boyers, Hon. Seymour Cloonan, William N. McCarthy, Jeremiah J. Brett, Barry J. Copps, Anne Reynolds Peradotto, Hon. Erin M. † Campos-Galvan, Manuel DeFio, Elena M.R. Pfalzgraf, David R. Chambers, Hon. Cheryl E. Engel, Hon. Franklyn J. Saleh, David J. Cheng, Pui Chi Freeman, Paul M. Seitz, Raymond H. * Cometa, Angelo T. Greenberg, Henry M. Shaw, James M. Kenneth G. Standard, President Dominguez, Ivan J. Hanna, John, Jr. Ferrara, Lucas A. Higgins, Patrick J. Ninth District New York Fink, Rosalind S. Kelly, Matthew J. Bartlett, Mayo G. Finkelstein, Robert Kinum, John B. Basso, John J. A. Vincent Buzard, President-Elect Flood, Marilyn J. Kretser, Rachel Berman, Henry S. Rochester * Forger, Alexander D. Lynch, Margaret Comard Enea, Anthony * Gillespie, S. Hazard Lytle, James W. Fedorchak, James M. James B. Ayers, Treasurer Grays, Taa R. Maier, Christopher T. Geoghegan, John A. Green, Prof. Bruce A. Miranda, David P. Goldenberg, Ira S. Albany Gregory, John D. Perino, Justina R. Cintron Ingrassia, John Kathryn Grant Madigan, Secretary Gross, Marjorie E. Privitera, John J. Johnson, Martin T. Gutekunst, Claire P. †* Tharp, Lorraine Power Krooks, Howard S. Binghamton † Haig, Robert L. Thornton, Timothy B. Marwell, John S. Harris, Arlene Treece, Hon. Randolph F. Miklitsch, Catherine M. Harris, John B. * Yanas, John J. * Miller, Henry G. A. Thomas Levin, Immediate Hendricks, Susan L. Murray, Conal E. Hoffman, Stephen D. Fourth District O’Leary, Diane M. Past President Hollyer, A. Rene Bartlett, Hon. Richard J. †* Ostertag, Robert L. Horan, John R. Cantwell, Lori A. Plotsky, Glen A. Mineola Jacobs, Robert A. Cioffi, Cristine Riley, James K. Jacobs, Sue C. Clements, Thomas G. Seiden, Hon. Adam Kiernan, Peter J. Coffey, Peter V. † Standard, Kenneth G. * King, Henry L. Dorsey, Matthew J. Sweeny, Hon. John W., Jr. †* Krane, Steven C. King, Barbara J. Walker, Hon. Sam D. Kuntz, William F., II Pelagalli, Paul Zeltner, Peter P. Lau-Kee, Glenn Tishler, Nicholas E. Vice-Presidents Lee, Charlotte C. Tenth District First District Lesk, Ann B. Fifth District Asarch, Hon. Joel K. Levy, M. Barry Alessio, George Paul * Bracken, John P. Mark H. Alcott, New York Lieberman, Ellen Benedict, Timothy A. D’Angelo, Frank G. Stephen D. Hoffman, New York Lieberstein, Marc Ari Doerr, Donald C. Duffy, James P., III Second District Lindenauer, Susan B. Dunckel, Earl B. Fishberg, Gerard * MacCrate, Robert Garramone, Hon. Anthony J. Franchina, Emily F. Barry M. Kamins, Brooklyn McShea, Sarah Diane Getnick, Michael E. Fredrich, Dolores Third District Milito, Christopher Scott Hayes, David M. Gross, John H. Rachel Kretser, Albany Miller, Michael Myers, Thomas E. Karson, Scott M. Minkowitz, Martin Fourth District Norfleet, Doren P. Kossove, Scott E. Mitzner, Melvyn Peterson, Margaret Murphy Labbe, Magdale L. Cristine Cioffi, Niskayuna Moreland, Thomas H. Plumley, Judy L. Lerose, Douglas J. Fifth District Nathanson, Eugene Priore, Nicholas S. †* Levin, A. Thomas Michael E. Getnick, Utica Nathanson, Malvina * Richardson, M. Catherine Levy, Peter H. * Patterson, Hon. Robert P., Jr. Weinstein, Ellen Stempler Liotti, Thomas Francis Sixth District Paul, Gerald G. Millman, Bruce R. James C. Gacioch, Binghamton Plevan, Bettina B. Sixth District Monahan, Robert A. Seventh District Ramos, Hon. Charles E. Beehm, Angelina Cutrona Perlman, Irving Reimer, Norman L. Denton, Christopher * Pruzansky, Joshua M. C. Bruce Lawrence, Rochester Reitzfeld, Alan D. Gacioch, James C. Purcell, A. Craig Eighth District Richman, Steven H. Kachadourian, Mark Quinlan, Robert F. Sharon Stern Gerstman, Buffalo Rifkin, Richard Lee, Carolyn S. * Rice, Thomas O. Rosner, Seth Lewis, Richard C. Santemma, Jon N. Ninth District Rothstein, Alan Madigan, Kathryn Grant Shulman, Arthur E. Henry S. Berman, White Plains Safer, Jay G. Smyk, Stephen D. Smolowitz, Barry M. Tenth District * Seymour, Whitney North, Jr. Tyler, David A. Spellman, Thomas J., Jr. Sherman, Carol R. Wayland-Smith, Tina Tell, M. David Hon. Joel K. Asarch, Hempstead Sherwin, Peter J.W. Eleventh District Sherwood, O. Peter Seventh District Eleventh District Seymour W. James, Jr., Queens Silkenat, James R. Ashcraft, Sara Stout Fedrizzi, Linda F. Smoley, Lewis M. Barney, Brian J. Hans, Stephen D. Twelfth District Sonberg, Hon. Michael R. † Buzard, A. Vincent James, Seymour W., Jr. Lawrence R. Bailey, Jr., New York Stenson, Lisa M. Doyle, Hon. John D. Lee, Chanwoo Torrent, Damaris E. Frazee, Hon. Evelyn Nashak, George J., Jr. Wales, H. Elliot Grossman, James S. Nizin, Leslie S. Walsh, Susan J. Harren, Michael T. Rosenthal, Edward H. Warner, Rita Wasserstein Lawrence, C. Bruce Sperendi, Michael F. Members-at-Large of the †* Moore, James C. Terranova, Arthur N. Second District * Palermo, Anthony R. Executive Committee Cerchione, Gregory T. Reynolds, J. Thomas Twelfth District Donald C. Doerr Connors, John P., Jr. Schraver, David M. Bailey, Lawrence R., Jr. Cyrulnik, Hon. Miriam Tyo, John E. Chavez, Daniel M. John H. Gross DiGiovanna, Lawrence F. * Van Graafeiland, Hon. Ellsworth Kessler, Muriel S. Claire P. Gutekunst Golinski, Paul A. * Vigdor, Justin L. †* Pfeifer, Maxwell S. David R. Pfalzgraf Hall, Thomas J. * Witmer, G. Robert, Jr. Price, Hon. Richard Lee Kamins, Barry Wolford, Michael R. Schwartz, Roy J. Jay G. Safer Longo, Mark A. Summer, Robert S. David M. Schraver Romero, Manuel A. Eighth District Weinberger, Richard Slavin, Barton L. Aversa, John M. Sunshine, Hon. Jeffrey S. Doyle, Vincent E., III Out-of-State Edmunds, David L., Jr. * Fales, Haliburton, 2d † Delegate to American Bar Association House of Delegates Evans, Sue M. Peskoe, Michael P. * Past President Flaherty, Michael J. Smith, Prof. Beverly McQueary * Walsh, Lawrence E.
Journal | November/December 2004 63 Write the Cites Right — Part II THE LEGAL WRITER BY GERALD LEBOVITS
ast month the Legal Writer cited both must be cited if you’re quoting String Citing 1 some rules about citing. We cite from both. If you’re not quoting from Limit string citing to three cases Lmore rules to stop the Bluebook both, citing the cited citation is permis- except when you must document the police from issuing citations for illegal sible. Tell your reader that your cita- sources necessary to understand citations. tion cites something else, but only if authority or a split in authority. Citing Accuracy in Citing the citing citation doubles the bang for for completeness rather than to make your buck. For example, if you cite a Never cite as binding or persuasive your point denotes research writing helpful, on-point small-claims opinion, an out-of-jurisdiction opinion that that has no place in a memorandum and for its proposition that opinion interprets a statute or rule different designed to inform or a brief designed cites a Supreme Court opinion not from the one you’re interpreting. Be to persuade. When you string cite, sep- entirely on point, cite the small-claims careful when citing a case affected by arate authorities by semicolons. For later statutory changes. opinion and note that it cites the obvious, threshold matters that require Supreme Court opinion. That will sig- no elaboration, don’t string cite at all. Never cite unpublishable opinions nify that at least the Small Claims court One good cite is good enough. — those to which a court, typically a believed that the Supreme Court opin- federal court of appeals, explicitly for- Ordering Authority ion supports its position. If, however, bids, under penalty of contempt, any- Which goes first: the Constitution the Supreme Court opinion is really on one to cite — except for res judicata or or a U.S. Supreme Court opinion that point, cite only that opinion.2 collateral estoppel purposes. interprets the Constitution? The Always alert the reader if your cita- Although it’s uncommon in New Constitution, which is higher authority tion comes from a concurrence or a dis- York State style, use the federal prac- than a case that interprets it. sent. Example: Reid, J., concurring; tice of alerting the reader to the weight Graffeo, J., concurring in part & dis- of authority: memorandum opinion, Always cite and use senting in part. Example: In re Notre per curiam opinion, or en banc opin- official citations in Dame Leasing, LLC v. Rosario, 2 N.Y.3d ion, as follows: A v. B, 100 App. Div. New York, if available. 459, 469, 812 N.E.2d 291, 296, 779 100 (4th Dep’t 1936) (mem.); B v. C, 101 N.Y.S.2d 801, 806 (2004) (Ciparick, J., Misc. 101 (App. Term 1st Dep’t 1937) Until this century, statutes were dissenting). (per curiam); C v. D, 102 F. 102 (2d Cir. considered “warts on the body of the Always include in a parenthetical 1938) (en banc). common law.”3 But “most American the court, county, department, district, Don’t discuss a citation you’ve men- jurisdictions are now Code states.”4 and year for New York cases and the tioned for the first time only in your pre- Statutes must therefore be cited before court, district, circuit, and year for fed- ceding parenthetical citation, whether as cases. Unless a statute is unconstitu- eral cases. a sentence citation or as a citational foot- tional or beyond the rule-making Always include following your cita- note. Not: “To be valid, a contract body’s authority to enact, statutes are tion any leave (New York Court of requires offer and acceptance. Av. B, 99 more authoritative than cases that Appeals) or certiorari (Supreme Court) N.Y. 99 (1899). In Av. B, the court . . . .” interpret them. granted or denied dispositions and any Rather, introduce your citation in your The order of a string citation: con- appeal granted or dismissed disposi- text before you discuss it in your text. stitutional provision before statute tions. Although the Bluebook tells you to Anticipate that your citation won’t be before rule and regulation before case; add only recent certiorari denials read — that your reader will read only federal before state; highest court first; unless the denial is relevant, adding all your text. You must lay a foundation in within co-equal courts, reverse chrono- leave and certiorari denials proves that the text, not in the citation, for anything logical order; and secondary authority, you shepardized your case. you later discuss in the text. in alphabetical order. Unless you must give a case’s full Never rely on another source, even Pinpoint (Jump) Citations procedural history, never cite reargu- a published opinion, for your citation. Use pinpoint citations, even to the ment denials. Always verify independently the accu- footnotes: X v. Y, 16 N.Y.2d 61, 62 n.3 If your citation quotes another racy of your citation’s numbers, quota- (1981); A v. B, 91 A.D.2d 19, 19 & n.9 statute, case, or secondary authority, tions, and propositions. CONTINUED ON PAGE 60
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