Commercial and Federal Litigation Section Newsletter

2021 | VOL. 27 | NO. 2

A publication of the Commercial and Federal Litigation Section of the New York State Bar Association

PASSING THE BATON: SPINNING STRAW INTO GOLD: WINNERS: ROBERT L. UPDATES FROM ADVICE FOR THE NEXT HOW TO MAKE COMMUNICATION HAIG AND GEORGE SPRING MEETING GENERATION OF FEMALE IN THE COVID WORLD YOUR BUNDY SMITH AWARDS §LITIGATORS GOLDEN OPPORTUNITY § Commercial & Federal Litigation Section Events & Activities For decades, volunteers have been developing and presenting seminars, preparing rich collections of written materials and raising the bar for legal practice in New York. We’re happy to provide continuing education programming and events for our Section members, and hope you will join us as we continue to add more to our schedule. Visit NYSBA.ORG/COMFED and click on “Upcoming Events” tab for more info.

Take a look at what’s coming up next... View From the Bench Series: View From the Bench Series: September 2021 Session November 2021 Session September 23, 2021 | 12:30 p.m. – 1:30 p.m. | Virtual November 10, 2021 | 12:30 p.m. – 1:30 p.m. | Virtual

View From the Bench Series: View From the Bench Series: October 2021 Session December 2021 Session October 20, 2021 | 12:30 p.m. – 1:30 p.m. | Virtual December 7, 2021 | 12:00 p.m. – 1:00 p.m. | Virtual

Missed Opportunities in Approaching Your Practical and Ethical Skills for Arbitration: Arbitration Case Insider Views October 21, 2021 | 12:00 p.m. – 1:30 p.m. December 9, 2021 | 12:00 p.m. – 1:30 p.m. 1.5 MCLE Credits | Virtual 1.5 MCLE Credits | Virtual

Introductory Lessons: “On Ethics and Civility” 2021 October 29, 2021 | 9:00 a.m. – 1:00 p.m. 4.0 MCLE Credits | Virtual NYSBA.ORG | 800.582.2452 | [email protected] Contents Features 2021 Spring Meeting: Presentation of the Robert 4 L. Haig Award to the Hon. Loretta Lynch Mark C. Zauderer and Hon. Loretta Lynch Spring Meeting: Presentation of the George 9 Bundy Smith Award to the Hon. Peter Tom Vincent Chang and Hon. Peter Tom 15 Spring Meeting and Award 2021 Photos Spring Meeting: Spinning Straw into Gold: 18 How to Make Communication in the COVID World Your Golden Opportunity Clara Flebus Spring Meeting: Private Judging: 20 What Is It, and How Can It Help To Advance Your Cases? Maryann C. Stallone Commercial and Spring Meeting: Passing the Baton: Federal Litigation 22 Accomplished Women Attorneys Advise the Next Generation: A Program for Rising Female Section Newsletter Litigators Hamutal G. Lieberman 2021 | Vol. 27 | No. 2 Spring Meeting: Trailblazing Jurists Share 24 Valuable Insight for Junior Litigators Regulars Viktoriya Liberchuk and Peter J. Sluka Message From 3 the Chair Book Review: Commercial Litigation in New York Daniel K. Wiig 26 State Courts, Fifth Edition (Vols 2-4H, New York Practice Series), Ed. Robert L. Haig Section Committees Jonathan D. Lupkin 30 and Chairs CPLR Amendments: 2020 Legislative Session 27 32 District Leaders 2021 Amendments to the Uniform Rules for 28 Supreme and County Courts, Rules Governing Appeals, and Certain Other Rules of Interest to Civil Litigators

Proposed Rules of Interest to Civil Litigators 29 (2020-2021) Former Chairs COMMERCIAL AND FEDERAL Robert L. Haig Stephen P. Younger LITIGATION SECTION NEWSLETTER Michael A. Cooper Lesley F. Rosenthal Hon. Shira A. Scheindlin Carrie H. Cohen Editor Harry P. Trueheart III Peter Brown Mark L. Davies Hon. P. Kevin Castel Vincent J. Syracuse [email protected] Mark H. Alcott Jonathan D. Lupkin Gerald G. Paul David H. Tennant Mark C. Zauderer Tracee E. Davis Section Officers Bernice K. Leber Gregory K. Arenson Chair John M. Nonna Paul D. Sarkozi Daniel K. Wiig Jack C. Auspitz James M. Wicks The City University of New York Sharon M. Porcellio Mark A. Berman 205 East 42nd St. Jay G. Safer Mitchell J. Katz Cathi A. Baglin Robert N. Holtzman New York, NY 10017 Lewis M. Smoley Laurel R. Kretzing [email protected] Lauren J. Wachtler Jonathan B. Fellows Chair-Elect Ignatius A. Grande This Newsletter is distributed to members of the New Berkeley Research Group York State Bar Association’s Commercial and Federal 810 7th Ave. St 4100 Litigation Section without charge. The views expressed New York, NY 10019 in articles in this Newsletter represent only the author’s [email protected] viewpoint and not necessarily the views of the Asso- Vice-Chair ciation, the Section or its Officers. Anne Sekel Foley & Lardner LLP Accommodations for Persons with Disabilities: 90 Park Avenue NYSBA welcomes participation by individuals with New York, NY 10016-1301 disabilities. NYSBA is committed to complying with all [email protected] applicable laws that prohibit discrimination against in- Treasurer dividuals on the basis of disability in the full and equal Helene R. Hechtkopf enjoyment of its goods, services, programs, activities, Hoguet Newman Regal & Kenney LLP facilities, privileges, advantages, or accommodations. 60 E 42nd St., Fl. 48 To request auxiliary aids or services or if you have any New York, NY 10165-3003 questions regarding accessibility, please contact the Bar [email protected] Center at 518-463-3200. Secretary Publication Date: August 2021 Jessica Christine Moller Bond, Schoeneck & King © 2021 by the New York State Bar Association 1010 Franklin Ave. Rm 200 ISSN 1530-4043 (print) ISSN 1933-8570 (online) Garden City, NY 11530 [email protected]

NYSBA.ORG/COMFED Message From the Chair

It is a great honor for me to write this and professionalism, and with program- message as Chair of the Commercial and ming that includes social events and CLEs Federal Litigation Section (ComFed). At and issuing comments on new rules. the outset, I want to thank our Immediate Committee Co-Chairs each serve a three- Past Chair, Jonathan Fellows, for his work year term. As I write this, Peter Pizzi and as the first “virtual” ComFed Chair. While Joe Facciponti, Co-Chairs of the Privacy, Jonathan’s term was not what he or any Data Security, and Information Technol- of us expected, ComFed under Jonathan’s ogy Law Committee, are organizing a stewardship seamlessly transitioned to program on the U.S. Supreme Court’s Van virtual operations. Whether it was the Buren decision concerning the scope of the monthly Executive Committee (EC) meet- Computer Fraud and Abuse Act. Recently, ings or the numerous CLEs, town halls, the White-Collar Litigation Committee, and committee meetings, our members helmed by Evan Barr and Kate Cassidy, still managed to congregate, share ideas, hosted former AUSA Eric Rosen to discuss manage ComFed’s affairs, and enjoy a the landmark Operation Varsity Blues virtual drink or two despite physical Daniel K. Wiig investigation. And Mark Berman, Ralph separation. Gratefully, as I write this (June Carter, Jason Lichter, and Gina Sansone- 2021) New York is re-opening, and meet- Driscoll (Co-Chairs, respectively, of the ing in person is finally a reality again. And while I believe Commercial Division and E-Discovery Committees) are nothing can replace in-person collaboration, recent times reviewing the special master appointment process in New taught us that participation can be more than flesh-and- York state court commercial cases. blood interaction, and ComFed will not lose sight of that as it strives to offer more and varied opportunities for its ComFed’s delegates to NYSBA’s House of Delegates members to engage. represent ComFed in the decision and policy making body of the association. Delegates are elected at the An- As many of you know, ComFed’s affairs are overseen nual Meeting and serve for the following bar year. The by its officers. For 2021-2022, our officers are Chair-Elect liaisons are appointed by other NYSBA Section Chairs Ignatius Grande, Vice Chair Anne Sekel, Treasurer Helene and help foster collaboration and collegiality among the Hechtkopf, Secretary Jessica Moller, and yours truly as different NYSBA Sections. Chair. What may not be clear is that ComFed’s leadership is comprised of significantly more volunteer members, Our Members at Large, distinguished members of the who serve in discrete roles and are consequently mem- legal community, lend their sage advice and vast experi- bers of the EC. I thought it would be beneficial to share ence to ComFed’s operations and serve two-year terms. some information with you about these other ComFed Finally, the former Section Chairs, those who led ComFed leaders and their specific roles. over its storied 30-plus year history, remain committed to serve ComFed and its members. District representatives are assigned to each of the judicial districts in the state where there is a Commercial The Executive Committee consists of the Section Of- Division and organize bench/bar forums with the Com- ficers, found on page 2 of this newsletter, the Committee mercial Division justices who sit in the district representa- Chairs (page 30) and the District Leaders (page 32). tive’s assigned judicial district. District representatives ComFed is built upon volunteerism and service, and serve two-year terms. You may have attended a bench/ those who have been actively engaged and assumed bar forum in the storied rotunda of the New York County the leadership mantle have forged professional ties and Supreme Court, or the virtual forum held in summer 2020 lasting friendships. I invite all members to consider more with the Commercial Division justices of Suffolk and Nas- active participation and reap the many benefits of engage- sau counties (thanks to Michael Cardello III and Kathryn ment. Interested in planning a bench/bar forum? Connect Cole for the latter forum). As I write this, Joam Alisme, with the district representatives. Have an idea for a CLE? Second Judicial District Representative, is coordinating Meet with the appropriate Committee Co-Chairs. There is a bench/bar forum with Justice Lawrence Knipel for the plenty to do and plenty of room. Please let us know your Brooklyn Commercial Division. Please be on the lookout ideas and tell us how we can make your ComFed mem- for this and other bench/bar fora beginning in fall 2021. bership meaningful. Please feel free to reach out to me: Our Committee Co-Chairs steer one of the 27 Com- [email protected]. I look forward to a productive Fed committees, which focus on a range of topics and bar year and to working with you. legal issues from antitrust to the federal judiciary to ethics Daniel K. Wiig

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 3 2021 Spring Meeting: Presentation of the Robert L. Haig Award to the Hon. Loretta Lynch Mark C. Zauderer and Hon. Loretta Lynch

During its 2021 Spring Meeting, the Section held an each of them fought the pony’s attempt to throw them out amazing and exciting virtual event to recognize the Hon. | of the saddle. Loretta recalls fondly that once she discov- Loretta Lynch, former Attorney General of the United States, ered the pony loved peaches instead of apples, she was with the Robert L. Haig Award for Distinguished Public Ser- able to coax rides out of him. vice. The award was presented by former Section Chair Mark C. Zauderer on May 7, 2021. Both Mr. Zauderer and Hon. Loretta Fast forward, our next scene opens with Loretta Lynch offered thoughtful, substantive remarks, which are repro- Lynch enrolled in Harvard College and then Harvard duced in their entirety below. Law School. Upon graduation, she began her professional career at Cahill Gordon, and in 1990 she joined the Eastern District United States Attorney’s Office as a drug Mark C. Zauderer’s Introductory Remarks and violent-crime prosecutor. She later served as chief Each year, for over 25 years, the Commercial and of the Long Island office, and in 1999 was nominated by Federal Litigation Section has honored a distinguished President Bill Clinton to serve as the U.S. Attorney for the person with its Robert L. Haig Award for Distinguished Eastern District of New York. Subsequently, she became a Public Service. The award reflects the values of our Sec- partner at Hogan & Hartson and then was again nomi- tion’s founder, Bob Haig, whose dedication to our work nated to serve as U.S. Attorney for the Eastern District of has guided the Section over the decades. This year, I New York—this time by President Barack Obama. would have to say it is our Section that is being honored During her service in two terms as U.S. Attorney, by having the privilege of bestowing our Haig award Loretta Lynch oversaw some of the most significant pros- upon the Hon. Loretta Lynch. Her dedication to the prin- ecutions brought by the Justice Department, including the ciples of public service and justice are a shining example successful prosecution of Congressman Michael Grimm for both our legal community and the national commu- and politicians Pedro Espada, Jr. and William Boyland, nity at large. Jr.; and her office investigated Citigroup over mortgage To appreciate the significance of her contributions, we securities violations, resulting in a $7 billion settlement. are well-served by taking a lesson from her life story—a She was also involved in the $1.2 billion settlement with story that took shape some decades ago in the Jim Crow HSBC over violations of the Bank Secrecy Act. And she South that some of us remember, and others of us learned received plaudits for her 1999 prosecution of New York about in the history books. City police officers in the Abner Louima case. Loretta Lynch’s story began in a small community in In private practice after her first term as U.S. Attor- the South, where her father was a fourth-generation Bap- ney, she was fortunate to find a firm that supported her tist preacher. In the early 1960s, he opened his Greensboro pro bono work teaching trial advocacy at the Internation- church to those planning sit-ins and marches—while car- al Criminal Tribunal for Rwanda. During the summer of rying the young Loretta on his shoulders. Loretta’s moth- 2005, she was asked to lead a witness tampering inves- er was a retired English teacher and librarian, for whom tigation that led to her spending most of that summer in education was the key to a better life. Loretta recalls that, Rwanda and Tanzania, interviewing survivors of the 1994 as a young woman, her mother refused to use segregated genocide. facilities, because they did not represent the America In November 2014, President Barack Obama nomi- in which she believed. In speaking of her grandfather, nated Lynch for U.S. Attorney General, to succeed Eric also a minister, Loretta recalls that even though he was a Holder. She was confirmed by the Senate, thereby becom- sharecropper dependent on white farmers to hire him, he ing the first African-American woman to hold the office of would go out of his way to hide the down and out and U.S. Attorney General. I asked Loretta how she felt about keep them beyond the law’s reach. As Loretta recalls, the having been chosen as Attorney General, and she said it sheriff would knock on her grandfather’s door and ask, was not only the honor of a lifetime, but that the “coolest” “Have you seen so and so?” Her grandfather would sim- thing about it, as she put it, was receiving congratulatory ply say, “No, I haven’t seen him lately”—words that the flowers from Aretha Franklin. poor person could probably hear from beneath the floor boards or in the pantry where he hid. During her tenure as Attorney General, Lynch oversaw the charging of Charleston church shooter Dylan In her childhood, family was at the heart of her life. Roof, announcing that the Justice Department would seek She and her two brothers were joined at the hip. They the death penalty. She also oversaw the Justice Depart- shared a pony that they kept on a farm and laughed as

4 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 ment investigation of civil rights violations by the Chica- So, we left the marina on this beautiful day and when go Police Department in 2015, involving the fatal shooting we were out in the middle of Long Island sound, Lo- of Laquan McDonald by a white police officer. In October retta asked if she could try piloting the boat. I said: “Of 2016, Lynch removed the Brooklyn FBI agents and federal course.” Here is Loretta Lynch steering the boat. prosecutors in the case of the death of Eric Garner, replac- ing them with agents from outside of New York. But even Attorneys General in office now and then join the rest of us for real life human experiences. Let me share one of them with you. In the summer of 2016, I was in a meeting in my office and my assistant walked in and said, “The Attorney General of the United States is on the phone with a judge colleague in Hawaii.” I went to the telephone, thinking maybe I was in big trouble; but no. It turned out that the two of them were together on a well- earned, week-long vacation and were returning to New York for a final weekend. They asked if they could join me on my boat. I said, “Of course.” They then they said: “The FBI will be in touch with you.” Sure enough, an FBI team visited my marina in Mamaroneck and inquired about me and my boat captain.

On the Sunday of our planned trip, more agents When she finished, she asked, “How did I do?” I said, came, this time with a bomb sniffing dog that explored “Great.” But what I didn’t have the heart to tell her was every room and closet of my boat. Then the caravan that all the while she thought she was steering the boat it arrived and six FBI agents, along with Loretta Lynch, was on autopilot, so it didn’t matter what she did. So, we boarded the boat and a Coast Guard escort boat pulled finally returned to the marina after a lovely day cruise. up next to us. Here are three of the agents, who look like Here is the crew of our Coast Guard escort sharing a mo- they were not told about the summer dress code for this ment with the Attorney General. voyage.

Although Loretta Lynch has already accomplished more—and contributed more—than most people could achieve in three lifetimes, her work continues as a partner at Paul Weiss, handling complex matters for firm clients, but also responding to constant requests for public service. So, I conclude with where I began, by saying what an honor it is to have Loretta Lynch with us tonight as our honoree. Therefore, on this seventh day of May 2021, by the authority conferred upon me by the officers of the Com- mercial and Federal Litigation Section, I hereby confer

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 5 upon you, Loretta Lynch, the 2021 Robert L. Haig Award You are also working to open up our profession to ev- for Distinguished Public Service. Congratulations. eryone. You understand that diversity is more than just a by word, it is an intrinsic value whose depths we often ignore. The challenges we face today sharply illustrate that Hon. Loretta Lynch’s Haig Award Acceptance all voices are needed in the debate over how we protect Remarks and implement our deepest values. Our differences are Good evening and thank you, Mark, for that warm our strength. For minority lawyers in particular, however, and special introduction. And I especially thank you for our differences have too often been portrayed as some- the stories from the boat that you didn’t share! Thanks to thing that diminishes us, when in reality, our profession’s all of you who have come together this spring evening— inability to see the benefits of all points of view is some- at a time when we are still separated electronically into thing that diminishes it. I often tell minority law students squares on screens, and real connection still remains out to embrace being different. You will automatically stand of reach for so many of us, the connections we choose to out—but that gives you a visibility and a platform others make are truly meaningful and this means the world to seek. Every minority in this country knows the experience me. of moving between cultures. That fluidity of experience, that flexibility of thought, is a skill well suited to navigat- To receive an award named for Bob Haig is a signal ing the waters of our current political and cultural land- honor for me. It means so much to me because of who scape, which requires the ability to see and understand Bob is. We all know him as an accomplished litigator, people different from oneself. the founder of this Section, the dean of the Commercial Division. He is all of that. His storied career handling cut- We need young lawyers, of all backgrounds, to help ting edge cases and advising titans of industry certainly us move through the challenges of today. We need their makes him a master litigator. But it is his larger focus—on energy and their optimism. We need their commitment to building bridges, on supporting young lawyers, on en- reasoned debate and the exploration of ideas as a path- larging this great profession of ours by advancing diver- way to the truth. We need this now as the very concept sity at all levels—that makes him a great lawyer and wise of “truth” is under assault. There is of course no greater counselor. I have been privileged to have known Bob for example of this than the actual assault, on January 6, 2021, a number of years, both from my days as a young lawyer on our nation’s Capitol by a group that came together and on Wall Street trying to find my way in our profession decided to reject not just the truth about an election but through my government service and my return—twice also this country’s highest symbol of democracy itself, now—to private practice. He has supported me directly the peaceful transfer of power. This rift in our collective and behind the scenes. understanding was laid bare by the events at the Capi- tol. The cases will be adjudicated and the root causes But I know I am not the only one at this event who analyzed. feels as if they have known Bob most of their career or can point to his support of their efforts. He did, after all, But make no mistake, it is not the only assault upon found this Section. But Bob has never limited himself in truth we are facing. As we sit here today, states are pass- his support. That is best exemplified by an exchange I had ing some of the most restrictive voting laws since the era just this morning with a law school classmate and former of Jim Crow. They seek to expand upon another assertion corporate associate at Bob’s firm. We were speaking of untethered to truth, the spurious claims of voter fraud. something else, as this is graduation season, and I men- These are not new. They were the basis for the round of tioned I was receiving an award named for Bob at this exclusionary laws passed in the aftermath of the Supreme evening’s event. I felt she would certainly know his name Court’s decision in Shelby County v. Holder, itself the but given her life in the corporate department would culmination of a generations-long campaign to overturn not have had much interaction with him. Instead, I got the Voting Rights Act. Then, as now, allegations of voter an exclamation of gratitude and affection for Bob, as she fraud and the preservation of electoral security were used described him as responsible for her joining Kelley Drye as straw men to pass solutions in search of problems, as after law school. I asked how she came to know him and data and facts have shown us for years that this claim is my classmate, who is Cuban American, recalled vividly not grounded in truth. Even more tellingly, the legislative how supportive he was of Harvard students and diverse history from efforts of several years ago reveal the clear attorneys. desire to limit access to the voting booth by party, by race and by age. Legislators’ own statements to that effect So, thank you, Bob, on behalf of all the young attor- were used by courts to overturn these pernicious laws neys whom you have supported along the way and for several years ago. whom you have opened up our profession. And thank you to the Commercial and Federal Litigation Section of It is the responsibility of all of us who serve the law the New York State Bar Association for this wonderful to speak out against the current efforts to suppress the award. Thank you also for your commitment to develop- vote—the hallmark of our democracy. As my partners ing young lawyers and to diversity in our profession. Brad Karp and Bob Atkins wrote in their op-ed last

6 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 We may have thought our challenges were over with the turn of the electoral wheel. But this was always about more than just one man. This was always about all of us. We are the ones being tested even now. These are indeed challenging times. We are being tested. Our faith in our institutions, our procedures, in the story of what makes us America is being tested. But we must never forget that our greatest progress had often come after our greatest trials and tribulations. We must also remember, as we deal with the trials and tribulations of the day, that this has never been easy. Our path to justice and equality has always had twists and turns, and sometimes outright reversals. But we have pushed ever onward, and with every challenge we get a bit closer to our ideals. And at every turn, when our own struggles have threatened to tear us apart, we turn to the law to reconnect ourselves with our highest principles. We turn to the law to give voice to those fighting oppres- sion. We turn to the law to give hope to those seeking the redress of wrongs. We turn to the law to protect the weak from the strong. And to give true meaning to the cry of “never again.” These are our values. These are our beliefs. And when we hold on to them, we do great things. What we have learned from these challenges is the lesson for us today; it is not that our values are not true and good, but that every generation must commit to them and work to make them real for the challenges of their time. We have learned that the price of freedom is constant vigilance. And now it is our turn. Indeed, in month: “It is time again for the legal community to stand the challenge to protect our institutions and uphold our up against the renewed, cynical efforts to undermine our values—the challenge of our time—those of us devoted Constitution and to fight to protect the voting rights of all to the law are uniquely suited to lead the charge. That is Americans.” Leading law firms as well as general counsel because the lifeblood of the law, embraced by all great of many of our country’s leading companies have joined lawyers, is first and foremost a quest for the truth, also a this fight, coming together to denounce the new voting breadth of perspective, and most importantly a commit- restrictions. I stand with them in this fight and I urge ev- ment to justice. When we deploy these in the service of eryone here tonight to support and join these efforts. our democracy and the institutions that uphold it, great As we fight, let us be very clear that these attacks things happen. And it is this training, these skills and on the right to vote did not just start within the past few above all this commitment that is needed today in our months or even the past few years. It is tempting to cabin fractious and increasingly divisive national debate. them off and lay them at the feet of a discrete group of The best lawyers follow the facts. They do not let people, so we can isolate them and feel that they have re- dogma blind them to proof, and they seek the most reli- ceded with the turn of the political wheel. They stem from able and unbiased evidence to support their case. As the someone “over there,” and will soon be gone. Instead, we old saying goes, you’re entitled to your own opinion, but must face the truth that they are the culmination of years not your own facts—even alternative ones. Writing about of backlash against progress made over generations. It is his life in the law, no less a personage than Gandhi said, a backlash that ultimately did find its voice at the highest “facts mean truth and once we adhere to truth, the law levels of our government, but that is rooted in a fear and comes to our aid naturally.” disquiet over the work done over the years, championed by so many in this room, to open our democracy for all. Great lawyers maintain a breadth of perspective that allows them to see both sides of an issue. No lawyer has Why is this movement so intense? Because the strength ever been well served by considering only one point of of the backlash is directly proportional to the power it view. One must consider not just one’s opponent’s argu- seeks to suppress. And the vote is the citizen’s greatest ments but also their motivations. One must ascertain the power. The vote is the lever that moves our society. It is the weaknesses not just in one’s opponent’s case but also great leveler among citizens, giving all an equal voice in in one’s own. Great lawyers take all this in and begin deciding what kind of a country we want to be. to think in a different way. They become less enamored

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 7 of their own beliefs and more likely to appreciate argu- It is the lawyer’s responsibility to continue the search ments with which they disagree and to hear the fears and for truth amid the sound and fury of modern-day diver- concerns behind those arguments. The power to truly sions and disillusionment. It is the lawyer’s obligation to hear another’s fears and concerns conveys the power to bring the truth forward even when people want to ignore understand, and with the power to understand we gain it. And it is the lawyer’s privilege to stand for our highest the power to find common ground, and with the power ideals and in support of our important institutions—for to find common ground we gain the power to reach ac- the benefit of all. It was the privilege of my life to serve cord—to find the common truths that benefit us all. as your Attorney General. It was certainly wonderful to walk the halls of power and sit with the President and my Finally, great lawyers bring a devotion to justice and fellow Cabinet members. But the best part was traveling equality to public debate. How do we advance the cause this great country of ours and meeting groups and people of equality—the defining ideal of our nation—in the face like you, who were doing the hard work, the real work of of those who see it as something that can be cabined off justice. and denied to those with whom one disagrees or whom one does not understand? How do we find justice in such And it is my honor today to be in a room of lawyers a world? We turn to the law, using the example of history and jurists that understand that—because fighting for jus- and the template of the Constitution to guide us. Not be- tice and equality is part of your legal DNA. You fight the cause the law is perfect, but because it pushes us toward fight every day. You understand that we have been here our better selves. before. Through your work on equality and diversity, you truly make real the promise of the law for those who often Indeed, all of the advances we have made toward the know only the burden of the law. more perfect union of the founders’ dreams have come about when we have faced the hard truths and realities And now, as we wait for this, “the winter of our dis- of our world and pushed forward to improve it. Every content to be made glorious summer,” I thank you again group fighting for equality has used the law to open our for this wonderful award. I thank you also for all that society—for the benefit of all. So, when we see the law you have done and will do, as a body and individually, itself being twisted in order to narrow opportunity, foster to fight for truth and to keep our democracy real. Thank division, and advance self-interests, we have a responsi- you. bility to counteract that backward slide.

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8 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 Spring Meeting: Presentation of the George Bundy Smith Award to the Hon. Peter Tom Vincent Chang and Hon. Peter Tom

A highlight of the Section’s 2021 Spring Meeting was the ter another. And like Jackie Robinson, he tore those walls presentation of the George Bundy Smith Award to the Hon. down one by one. Peter Tom, former Associate Justice of the Appellate Division of the Supreme Court, First Judicial Department. On May 6, Justice Tom was the first Asian American appointed 2021, Section Chair Jonathan B. Fellows introduced the virtual to the Housing Court of the City of New York. Justice event and was followed by New York State Assembly Member Tom was one of the first Asians elected to the Civil Court David I. Weprin, who presented an official Assembly Procla- of the City of New York. He was the first Asian American mation to Justice Tom. Next, Justice Sylvia O. Hinds-Radix, elected to the New York State Supreme Court from New Associate Justice of the Appellate Division, Second Judicial York County. Justice Tom was among the first Asians Department, and Co-Chair of the Section’s Diversity Commit- elected to countywide office in a contested election in tee, discussed the genesis and significance of the George Bundy New York County. He was the first Asian American ap- Smith Award, which is reserved for distinguished attorneys of pointed to the Appellate Division in New York and the color. Finally, Vincent Chang presented the award to Justice first Asian American acting Presiding Judge of the First Tom. Department. Indeed, for many long years, Judge Tom served as the only Asian American in New York’s appel- Accepting the award, Justice Tom recounted that as a late courts. child he immigrated to the United States from Canton, China, where he was born, expecting to find “small mountains of gold Perhaps because I was born in Topeka, Kansas and lining the streets,” but he soon realized that the “real treasure grew up in Knoxville, Iowa, I have often been accused of in America” are the “golden opportunities” it offers “if one not being the most authentic of Asians. But Justice Tom is works hard and perseveres.” Justice Tom presented a useful and the real deal. He was born in Canton, China, and came to concise overview of the First Department’s appeals process. He the United States when he was nine years old. He encoun- also spoke about the importance of pro bono representation and tered difficulties learning the English language and ad- civility in the legal profession. Both Mr. Chang’s introduction justing to life in the South Bronx and then the Lower East remarks and Justice Tom’s acceptances remarks are published side. Tough neighborhoods especially at that time. Justice below in their entirety. Tom’s father eventually became the unofficial mayor of Manhattan’s Chinatown.

Vincent Chang’s Introductory Remarks As a youth, Justice Tom was weak and undernour- ished and often bullied. But he acquired the best defense These are difficult times for Asian Americans, with a mechanism imaginable. He became a Golden Gloves box- 150 percent increase in hate crimes directed against Asian er. Fortunately, as far as I know, he never had to use those Americans in 2020. Which makes Asian American lawyers pugilistic skills in defense of his various courtrooms. But especially proud and especially pleased that the State Bar he did become the first Asian American to win the New has chosen to give its George Bundy Smith Award to Jus- York City Golden Gloves—amateur boxing’s most pres- tice Peter Tom. Justice Tom served in the court system for tigious tournament, winning the tournament at Madison more than 40 years. He has been an inspiration to many Square Garden. Now, our profession almost lost Justice generations of Asian American attorneys. He and Justice Tom at an early age. He got a contract to embark on a Randall Eng are the first in almost every category when it career as a martial arts actor in Hong Kong. He wisely comes to Asian American judges. turned it down and decided to go to law school instead. Justice Tom is a pioneer in the true sense intended by After law school, Justice Tom became a law secretary the George Bundy Smith Award. His career reflects his- and later a Housing Court judge, He disposed of over tory in the making. It is, in my view, not unlike the career 4,000 matters in Housing Court. One decision stands of Jackie Robinson, the great Brooklyn Dodger who was out. On the Housing Court, Justice Tom did something the first African American to play major league baseball. nobody had done before. In a case called In the Matter of To New York County Asian American attorneys, it is no Kelner, he took a 100-year-old statute which was aimed at exaggeration to say that Justice Tom is our Jackie Robinson. fighting prostitution and used it for the first time to sup- Like Jackie Robinson, Justice Tom accomplished goals port the eviction of drug dealers from real property. As a that nobody from his race had previously accomplished. direct result of Justice Tom’s opinion, the city of New York Like Jackie Robinson, he confronted one racial barrier af- created a narcotics eviction part to expeditiously evict

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 9 drug dealers throughout the city. Justice Tom’s innovative dangerous” and said of Justice Tom’s opinion: “I couldn’t legal thinking enabled the cleanup of our neighborhoods agree more.” and provided a powerful weapon in the war against the scourge of drugs and drug dealers. Justice Tom is also proud of his work on the wrongful murder conviction of Luis Rojas, whose lawyer had failed Justice Tom’s rise to the Appellate Division was noth- to investigate his alibi and even ineptly indicated during ing short of meteoric. After only three years as a Housing trial that Rojas was present at the crime scene. After his Court judge, he launched a campaign for Civil Court. As conviction, Rojas hired new lawyers and investigators, the great Yogi Berra said about the 1973 Mets, “We were who unearthed evidence that seemed to vindicate Rojas overwhelming underdogs.” Well, Judge Tom was an over- entirely. Writing for the appellate panel, Justice Tom criti- whelming underdog, and like the 1973 Mets he prevailed. cized the defendant’s trial counsel for his “ignorance of Three years later, in 1990, Justice Tom ran for Supreme the facts” and reversed Rojas’ conviction and his sentence Court, again as an overwhelming underdog. And, again of 15 years to life. Justice Tom’s decision saved an inno- he won. cent man from a potential lifetime in prison. Three years after that Justice Tom was appointed to Of course, most of us remember the agonizing more the First Department. At the Appellate Division, Justice than dozen-year battle to achieve an increase in the pay Tom wrote more than 500 opinions and decisions in his of our judges. Justice Tom wrote the opinion in Larabee 25-year appellate career. Although he was one of the most v. Governor of the State of New York. Justice Tom found collegial members of the court, he was also a frequent dis- that the failure to increase judicial compensation for a senter. Despite his high rate of dissent, his opinions were dozen years violated the separation of powers doctrine. quite often embraced by the New York Court of Appeals. His powerful opinion stated that the “Legislature’s self- Illustrative of these dissenting opinions is Justice Tom’s serving grip on judicial compensation ultimately com- dissent in People v. Roche (286 A.D.2d 290 (1st Dep’t 2002)), promises the operation of the court system and thereby in which the Court of Appeals ultimately sided with Jus- diminishes the Judiciary as a self-functioning, and thus tice Tom and overturned the majority decision, reinstating independent, branch of government.” Fittingly, George a criminal conviction. New York Times columnist Bob Her- Bundy Smith, after whom the award that we give today bert called the majority’s decision “wrong-headed and is named, represented the judges in the Larabee case and said that Justice Tom’s decision in Larabee went a long

10 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 way toward rectifying what had been “enormously bad tion and once again, thank you. And congratulations on policy.” your upcoming induction as president of the New York County Lawyers Association. I wish you much luck, and During his years on the First Department, Justice Tom success on becoming the first Asian president of the New also served on a number of committees and commissions, York County Lawyers Bar—in the Association’s 113-year including one on the future of the Housing Court. Chief history. It is quite an accomplishment and well deserved. Judge Janet DiFiore said that Justice Tom’s commission provided “a strong vision and excellent direction for the Next, I wish to thank the Commercial and Federal future of the New York City Housing Court.” She added Litigation Section of the New York State Bar Association that “the commission’s recommendations provide the for giving me this prestigious recognition. It is an honor road map we need to strengthen Housing Court opera- for me to be selected as honoree by such a distinguished tions and improve the efficiency and quality of the litiga- group of attorneys. tion experience.” I am also deeply honored to receive an award named In addition to the decisions he authored and the after Judge George Bundy Smith, who was a magnifi- commissions on which he served, Justice Tom served as cent judge, a trailblazer, a civil rights activist, and a good Acting Presiding Justice of the First Department in 2007, friend. He is truly a galvanizing and inspirational influ- 2009, and 2016. In a memorable speech at the New York ence for today’s young attorneys. I also wish to thank County Lawyers Annual Dinner, Justice Tom recounted Assemblyman David Weprin for presenting me with the some of his work during his last term as Acting PJ, which New York State Assembly Proclamation. I wish Assem- I will briefly recapitulate. During his last stint as Acting blyman Weprin much success in his upcoming primary PJ, Justice Tom cleared a significant backlog of cases. He election for New York City Comptroller in June of this worked tirelessly to streamline and speed up the dispo- year. Good luck and much, much success. sition of over 3,000 appeals per year, including 500 to 600 complex commercial appeals each year. During his Vincent’s wonderful introduction of me focused tenure as Acting PJ, the First Department disposed of 146 mainly on my professional life. I wish to begin my additional appeals in 2016 as compared to 2015. Justice remarks by sharing some background information of a Tom also spent a significant amount of his time on several more personal nature. functions that are not usually thought of in an adjudica- As stated by Vincent, I was born in Canton, China, tory context—admissions to the bar, attorney disciplinary not Kansas; during that time, the Chinese Communist matters, assigning counsel, administering the representa- regime had just defeated the Nationalist Party and was tion of persons civilly committed for reasons of mental in the process of taking control of the country. As the illness, and more. communist troops advanced south towards Canton, my I would be remiss if I did not make one final point— family fled to Hong Kong, then a British colony. Part of that Justice Tom has given back to the Asian American my childhood was spent there. Shortly after our arrival in community. He still lives in Chinatown and still volun- Hong Kong, my father emigrated to this country, with the teers his services to many Asian civic and charitable orga- hope of making a better life for his family. Due to the anti- nizations. In fact, Justice Tom was a founder of the Asian Chinese immigration laws, my siblings and I were not American Bar Association of New York. He has provided allowed to accompany him. It was only after the harsh, advice and guidance for countless Asian American attor- discriminatory laws were abolished, that we were permit- neys, myself included. ted to join him in this country. In short, Justice Tom embodies all of the ideals that As a youngster in Hong Kong, I had mixed feelings Judge George Bundy Smith held. He is a worthy recipient of excitement and trepidation coming to America. While of this award, which I am now pleased to confer to him. I there was the fear of the unknown, I was anxious to see wish I could do it in person. But all of you can see this vir- the landscape of the new world. The Chinese word for tual representation of the award and its inscription which America is “Gum Shan.” Gum means gold and Shan is reads: “2021 Honorable George Bundy Smith Pioneer mountain. The literal translation of the word Gum Shan, Award—Hon. Peter Tom. Presented by the Commercial or America in Chinese, is “Gold Mountain” or “Mountain and Federal Litigation Section of the New York State of Gold.” Growing up in Hong Kong, I often visualized Bar Association.” Congratulations, Justice Tom. Much small mountains of gold lining the streets of America. deserved! We arrived at New York’s Idlewild Airport, the former name of today’s Kennedy International Airport. I Hon. Peter Tom’s Acceptance Remarks remembered peering excitedly through the side window of the taxi looking for the gold mountains as we coasted Thank you, Vincent, for your gracious and generous from the airport into the South Bronx where my parents introduction. With all the praises and accolades, and base- lived. Like a Charles Dicken’s character arriving in old ball, for a moment, I did not know if you were talking London, to my disappointment, I saw no gold but only about me, or Jackie Robinson. That was a great introduc-

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 11 old tenement buildings, many with graffiti on the walls, After accepting tonight’s award, I was thinking of cracked concrete sidewalks, and potholes. how I could present a topic that is not only engaging but also is useful. So, I thought that it may be interesting to We were thrust into a confusing and often exciting give you an insight of the internal operations of the First dynamism of New York City, where we had to find our Department and how some of these appeals are handled. own identity. It was a difficult task to learn the English Hopefully, this information together with my comments language and to excel academically, but it was even will be useful in your practice. harder to adjust to a completely different culture and environment. Instead of clambering up gold mountains, we As a preliminary matter, the First Department bench- were given an opportunity to get educated, work, and be es usually consist of five justices. Although, the court sits a part of the dynamics of entrepreneurial America. Thus, occasionally with four justices. The four-member bench I came to learn the true meaning of the “Gold Mountain” usually occurs around the time when there are several metaphor—that the real treasure in America was not in vacancies in the Appellate Court, and the governor does the mere arrival, or the anticipation of easy riches but, not promptly fill them, thus creating a shortage of justices rather, in the vast, golden opportunities in this diverse to fill the calendar for each of the term sittings. There country, and where the road of opportunities could lead if is a different bench for each day of the court in session. one works hard and perseveres. Confucius once said that Also, a little-known fact is that counsel can specifically “the expectations in life depend on diligence.” request that the appeal be heard by a five-member bench, under the court’s own rules (22 N.Y.C.R.R. 600.1). In such After graduating from law school, I worked in the request, a fifth judge will be vouched in. law department and as a law clerk to various judges in the Civil Court of the City of New York. I got my first As a general rule, the court does not favor adjourn- opportunity to serve on the judiciary when my mentor, ments once the case is calendared for argument. Any the late Justice Israel Rubin, appointed me Housing Court request for adjournment must be made by motion or Judge of the City of New York. Three years later, I ran for oral application to the justice presiding for that day. Last a countywide Civil Court seat in New York County. Many minute requests for adjournments are especially not well people told me not to do it because this was a contested received except for emergency circumstances such as election, and it will be extremely expensive, and that no illness or family matters. The reason for this is that much one will vote for an Asian over a Caucasian outside the time and work have already been expended on the appeal Chinese community. This was 1987. However, we ran a by the justices and their staff near the time of argument. tremendous campaign based on my record as an effective and prolific Housing Court judge. To the surprise and Attorneys often ask about argument time. The First shock of many politicians, I won. By winning the Civil Department liberally allows oral argument, but counsel Court, we broke new ground, and I became one of the must specifically request it in writing about a month first Asians to win a countywide election in New York beforehand. Always check with the clerk’s office for the City. Another three years later I was elected to the New exact date when to file the request for your appeal. The York State Supreme Court in New York County. Three date will be listed on the calendars the court makes avail- more years later, I was appointed by the governor to the able to attorneys. You can pick up an annual calendar Supreme Court, Appellate Division, First Department. I and keep it in your office. Generally, the First Department served in the Appellate Division for over 25 years until allows a maximum of 15 minutes of argument time for my retirement last year. each side. Counsel should be sure to reserve rebuttal time out of this. My journey as a young immigrant arriving in this country with nothing more than a sense of hope and After all briefs and records are submitted and the tradition, and ethos of hard work, to become a justice in appeal is calendared by the clerk’s office, the appeals are one of the preeminent high courts in New York state is a distributed to the court’s legal staff. The court’s prepara- testament to the vast opportunities in this country. As I tion for its ruling on the appeal begins with distribution reflect on my arrival and accomplishments in this country, of the appeals to the legal staff. To ensure the correct and I came to realize that I have indeed found the gold moun- accurate outcome of the court’s final determination of the tains of America. appeal, there are several layers of review of the appeal. The first review is done by the court’s legal staff. The New York City sits at the apex of commerce and First Department has a legal staff of well-trained attor- finance, both nationally and internationally, and complex neys who are supervised by supervisors, and a chief and commercial appeals have become a major part of the First deputy chief court attorney. Department’s case load. The First Department reviews approximately 500 to 600 complex commercial appeals However, let me make a few points about briefs. As each year. I believe the numbers will increase once the thorough as the review process is, the First Department COVID epidemic ends and court functions normalize. is submerged by heavy volume. The justices on average hear approximately 20 appeals per sitting. As a rule, the First Department takes a very strict approach to time. You

12 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 have an obligation to get things in on time and not try to As you know the First Department has a “hot” bench. adjourn a calendared appeal, and the court imposes on By the time the appeal is heard, it has been gone over itself an obligation to get you a result as fast as consistent several times so that the judges should be ready with with doing justice to each case. Balancing volume against questions or the court’s own brand of cross-examination, time can be a difficult task. when the attorneys for the parties finally stand up at oral argument. Please do not try to fudge a point during oral You as an appellate practitioner have an additional argument. The point has probably already been analyzed responsibility to your client as well as to the court, to be by the court, and misstating an authority, or twisting the as clear, as organized, and as concise as is possible for any facts, or trying to divert the panel’s attention by focusing given appeal. Do not muddle through a point in the brief, on non-consequential points will hurt your credibility and state clearly what the point is. Do not obfuscate—you may even cause you to lose the appeal. may lose credibility, and I cannot overstate the importance of the credibility of your brief especially considering Attorneys often ask me whether oral argument actu- the volume which the staff and the bench must deal with. ally decides anything, and as you sit here now, hearing Do not misstate a statute or a holding; even if your op- how well-analyzed the appeal already is, before the ap- ponent does not pin you on it, the court probably will. If peal is even heard, you may wonder the same thing. Why there’s law that goes against you, there is nothing wrong the need to argue an appeal? I can assure you it is impor- with trying to distinguish it—that is what you are getting tant that you go into argument and be ready to do battle. paid to do and you may even be successful. But there is Unless the law is cut-and-dried on an issue, the justices’ a boundary between creative analysis and bald misstate- minds may not be made up. After all, there are usually ment. You need to know where that line is drawn. This is five justices, and you have to win over at least three. the very core or essence of intellectual argument, and the Even if you get two votes, you can still take the case up to most successful appellate attorneys raise it to an art form. the Court of Appeals. In a civil appeal, two dissents are needed to get the case to New York state’s highest court Returning to the court’s internal process: the chief and in a criminal appeal one dissent is required. I have and deputy chief court attorney make the assignments drafted numerous dissents in the Appellate Division and of appeals to the legal staff at least three weeks prior to was quite successful in the Court of Appeals. the calendar date for argument. Although many staff attorneys have specialties in one legal field or another, all Now back to the importance of oral argument. All are required to be versatile in all areas of the law within or some judges on a panel might be waiting to hear from our jurisdiction. Given the First Department’s very broad you why they should or should not see things your way. jurisdiction, this means that every legal staff member On occasion, but not often, a judge goes into oral argu- should be able to handle every type of appeal given to ment maybe leaning one way just to come out another him or her. way. So, oral argument is important and performance at oral argument can be critical. In a case of unsettled law or The court attorney receives the briefs and records where the application of the law to your facts may be un- and any supplemental materials. His or her job is to read clear, a strong performance at oral argument can put you and analyze the briefs and the records. The staff attorney over the top. Oral argument gives the attorney the chance prepares a report which concisely states the pertinent to refine some unclear issues, and even to draw the facts and legal points, and evaluates the relevant statutes, court’s attention to some weaknesses in the adversary’s regulations, or case law. Each staff attorney typically is position. Counsel should not waste valuable time in responsible for two or three appeals per week. However, rehashing the facts. The justices are familiar with the facts this number can fluctuate depending on the number of of each appeal. However, you can refer to certain facts staff attorneys available and the number of appeals filed. relevant to support your position. Main issues should be Again, the impact of sheer volume cannot be overstated. argued first. If you wait to argue these issues at the end, The staff attorney’s report is then submitted to the the time may expire before you can reach it. Do not forget, supervisors for review. Then the report is given a final the First Department has a “hot” bench and the judges’ review by the chief or the deputy chief court attorney. The questions will cut into your time. chief court attorney’s review is the third overall review After oral argument, the panel of judges immediately by the legal staff. The multiple review process of the ap- retire to the conference room, where they discuss each peal is designed to make sure that all relevant issues are appeal heard that day. After conference, the appeals can looked at and analyzed by several trained professionals. proceed along one of a few different tracks. After the review by the legal staff is completed, the report together with the briefs and records are distributed to Typically, the judges vote on and decide many ap- the members of the particular bench, for their review and peals during the post-argument conference. On average, analysis. The panel’s review is the fourth overall review over 90% of the appeals with a unanimous vote are im- of the appeal that occurs before the appeal is even heard. mediately decided at the conference. A memorandum per The distribution of the report to the bench occurs seven curiam decision is usually drafted for these appeals. Once days before the calendar date for argument. the panel judges agree on the memorandum decision, it

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 13 is referred to the specialized clerks in the opinion room to how it sees its responsibilities, and in view of the always finalize the decision for form and prepare it for publica- scarce commodity of time—how the court views your tion. In the overwhelming number of appeals, the First responsibilities. Department will have a decision ready for you within a month or two after oral argument. Next, I wish to briefly speak to you on two other topics. The first is on pro bono representation. The legal If there is a split bench, then the dissenting judge or profession brings with it numerous rewards. As attorneys, judges will have to write up a dissent. This can take some you can help shape our society, our political system, our time, since the points of difference may be troublesome, economy and the personal relationships among individu- and there may be negotiation between or among cham- als, families, and businesses. All these opportunities offer bers on how to align the various positions of the different great personal and professional satisfaction. However, the judges, or even how to arrive at an outcome. My usual legal profession is not just a trade, but rather member- response when someone asks me about a decision that ship in a profession that entails certain obligations and seems to be taking a while to be issued, is that someone responsibilities. obviously is thinking hard about some of the points raised. This can be either good or bad for the attorney— Remember, as attorneys you are sworn to uphold and depending on whether you won or lost below—but over- dispense justice to all, including the underprivileged in all, it tends to be good for the system, that thorny issues the society you serve. It is important that you continue to get extra attention. Of course, if a decision takes too long, do your part, and to encourage your colleagues to serve that principle does not hold; but in the First Department, society’s most vulnerable members in the form of pro publico at the final December agenda conference and in the last bono representation. More specifically, pro bono — two June agenda conferences, the judges have to account for the good of the public. Winston Churchill once said, for any appeals that are still open. It is unusual for a case “We make a living by what we get, but we make a life to be held over from the June term, before the summer by what we give.” Your pro bono work will be invalu- break—unless it is a very problematic case. The First able and can improve the quality of life for those who are Department takes to heart the maxim that justice delayed without financial means and in need of legal assistance. may well be justice denied. The spirit of public service is deeply ingrained in the tradition of the legal profession and serves to balance the ap- Occasionally, a justice develops a strong intellectual plication of the law to all members of society. As members interest in a particular issue. In that event he or she may of the bar, it is your obligation to continue to carry on this not be content to just sign on to a per curiam decision but tradition in the cause of justice. wants to write an opinion. An opinion gives a justice an opportunity to expound more on an interesting point of The next topic I wish to briefly talk to you about is law. This will be longer, more expansive, and is intended civility in the legal profession. All of you have the respon- to address not just the parties but the legal community. sibility as lawyers to practice law with the highest degree Writing an opinion also may require the investment of of professionalism. If you want the best people in the some time. The justice wants to reflect more, and to be profession, it is necessary that we all strive to maintain careful with the opinion’s perspective being communicat- standards of civility. As Confucius advised, “It is good ed. So, an opinion may take longer to issue than the usual manners which make the excellence of a neighborhood. couple of weeks that are involved for a memorandum No wise person will settle where they are lacking.” In our decision. The court is still governed by its self-imposed “neighborhood” of the law, we cannot afford not to be deadline of finishing the opinions by the December or selective in our aspirations for colleagues who conduct themselves with professionalism and respect. June final conferences, if not much sooner. But the result usually is worth it-–a justice or the court itself can make In law, the company in which we spend our careers an authoritative statement on a point of law that can is a remarkably small world where reputations are hard guide future litigation. earned and easily lost. Keep in mind, the way in which As I just stated, the First Department’s appeals pro- you treat your fellow attorneys will determine how the cess is comprehensive. It is only after numerous reviews members of the bar will treat you. of the appeal, hearing oral arguments, and then delibera- Civility in the legal profession garners reverence and tions by the panel justices before a final determination is respect. We should all strive for the highest degree of pro- made on the appeal. The First Department has revised fessionalism in the practice of the law if we want to main- and refined its court process and procedures for over a tain the integrity and respect of this noble profession. century since the court was established by legislation in 1896. I think you will agree that the First Department With that, I conclude my remarks and wish all of you compares very favorably with other appellate courts in a prosperous and healthy 2021, the Chinese Lunar year of the state, and maybe even throughout the country. I hope the Ox. Once again, thank you and stay safe. Good speed. my comments on the First Department’s appeals process, provide you with a better idea of how the court operates,

14 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 Spring Meeting 2021

Passing the Baton: Accomplished Women Attorneys Advise the Next Generation A Program for Rising Female Litigators

Anne Sekel, Section Vice-Chair Laurel A. Kretzing

Sonia Low

Lesley Rosenthal Hamutal Liberman

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 15 Spring Meeting 2021

It Does Please the Court: What Judges Want to See in Young Litigators in Both Skills and Ethics A Program for Rising Attorneys

Hon. Elizabeth Strong

Hon. Mae D’Agostino

Viktoriya LIberchuk and Peter Sluka

16 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 George Bundy Smith Award Ceremony – May 6

Assemblymember David Weprin with New York State Assembly Proclamation

Vincent Chang Hon. Peter Tom George Bundy Smith Award Ceremony – May 7

Mark Zauderer Hon. Loretta E. Lynch, former Attorney General of the United States

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 17 Spring Meeting: Spinning Straw into Gold: How To Make Communication in the COVID World Your Golden Opportunity By Clara Flebus

The Commercial and Federal Litigation Section’s Spring Meeting was held via Zoom on May 6-8, 2021, and offered five one-hour Continuing Legal Education programs designed to help a cross-section of its members “spring” their career forward. The programming included: “The Path to Arbiter: Tips for the Litigator and Jurist Looking for a Second Act as Neutral”; “Passing the Baton: Accomplished Women Attorneys Advise the Next Generation: A Program for Rising Female Litigators”; “Spinning Straw into Gold: How to Make Communication in the COVID World Your Golden Opportunity”; “A Program for Rising Attorneys: It Does Please the Court—What Judges Want to See in Young Litigators in Both Skills and Ethics”; and “Private Judging: Can it Help to Advance our Cases.” All the CLEs were devised and organized by Section Chair-elect Daniel K. Wiig. This article focuses on the panel “Spinning Straw into Gold”—the other CLEs will be discussed separately throughout the newsletter. This timely, unusual and interactive program was presented by Katherine James, Alan Blumenfeld and An- drew Caple-Shaw, all of ACT of Communication. The panelists demonstrated through examples and exercises how attorneys can use acting skills to increase advocacy effectiveness in virtual appearances, such as court conferences and oral arguments or hearings, and in the new physical COVID courtroom.

Tips for Virtual Appearances According to the panelists, a key concept to remember for remote appearances is that online communication is only audio and visual. This represents a challenge for litigators who spend their careers learning how to hone courtroom skills. However, a few behavioral “tricks” can viewers’ attention to the person speaking. The resulting help attorneys achieve a level of clarity and persuasion effect is analogous to a “close-up” in filmmaking, where similar to their performance in the physical courtroom an actor’s face fills most of the screen. Employing this environment. Below are some tips for lawyers to try after technique is appropriate, for example, when you make an practicing off-line. objection.

“The camera” “The hand” As an attorney, you should look into the webcam like Put up your hand when you are stating an objection an actor looks into the camera. This will help you make a to ensure you are heard. On video, this gesture will have connection with the person on the other side of the video. the same effect that standing up has in the courtroom. You should avoid looking at yourself in the monitor while you are speaking, which is a very common temptation. Clara Flebus is an Appellate Court attorney in New “The move” York Supreme Court, where she focuses on commercial litigation and also assists in the disposition of interna- You may reinforce what you are saying by briefly tional arbitration-related matters. She chairs the Sec- moving closer to the webcam. This move draws the tion’s International Litigation Committee.

18 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 “Mind the gap before you speak” “Know your battlefield” There is a literal sound gap of 1 or 1½ Prepare for trial by visiting the court- seconds between speakers on online plat- room ahead of time. Familiarize yourself forms. Before you start talking, make sure with the jurors’ perspective by sitting in that your voice is not overlapping with every chair while someone plays your role another speaker or your words will not walking about in the well. Understand if be heard and recorded, and consequently the PPE (i.e., personal protective equip- will not become part of the record. ment) breaks the line of sight for some jurors. Figure out where you will position “Use the right inflection” yourself and why. Inflection refers to the ups and downs of the sound of your voice at the end of “Adjust the volume of your voice and phrases or sentences. Make sure that you your gestures” modulate your voice based on the mean- Practice in the courtroom to under- ing of what you are saying. The “falling” stand how your voice travels so that inflection is used to communicate that Clara Flebus it will reach all the spaced-out jurors, you are finished speaking. The “rising” without bouncing off the wall behind inflection must be used for questions. In real life, law- them and creating an echo. You need to work with your yers, as all people, ask questions with a rising inflection. voice so that you can display a variety of emotions and However, in the courtroom, litigators often tend to ask all levels while still having the high volume you need. For questions with a falling inflection. Remember that a rising example, use pace, pauses and inflections to compensate inflection is appropriate in direct examination and cross- for the fact that you have less volume variety. In addition, examination, even if you already know the answers to make sure that your gestures or movements are not too your questions. The “sustained” inflection connects two small to be seen by all jurors since most likely you will or more parts of a story by implying to the listener that not be able to walk up to the jury box. there is more to come. Failing to use a sustained inflection may render the story “unglued” and your narration less “A face shield is better than a mask” effective. A sustained inflection may also be helpful when If possible, you and your witnesses should be wear- you utter the word “objection,” because the listener in- ing a face shield because it makes it easier for the jurors to stinctively will wait to hear you stating the grounds upon establish a connection with the speaker. However, prac- which you are objecting. tice with your PPE and make sure there is no glare on the shield and that it does not fog up. Similarly, a person who “Fix that vocal pattern” is wearing both eyeglasses and PPE may also have “fog” All people pick up voice patterns especially in their issues that require a solution before the trial. early years and in school. For example, the rhyme “Mary had a little lamb” has a repetitive falling inflection pattern “Less is more” that later in life might come to haunt your own speech Finally, the panel reminded the attendees that now patterns. Generally, it is necessary to mix up inflections so more than ever, “less is more.” People do not like be- that the pattern of your voice is not monotonous and var- ing kept in a closed venue. Because of health and safety ies based upon meaning and context. concerns, attention spans are lower and jurors may resent repetitive questioning. Generally, avoid anything that Tips for Appearances in the New COVID could be perceived as wasting the jurors’ time. Be concise. Ask yourself: “Have I reduced the story of my case to 10 Courtroom words?” Conducting a trial live in front of a jury in a “courtroom” that has been modified to prevent the spread of COVID can present a number of unprecedented chal- Conclusion lenges. Jurors may be socially distanced, wearing masks, The panel and the novel topic were a resounding suc- and protected by plexiglass walls. A lawyer’s movement cess. Throughout the program all attendees were invited around the room may be limited to standing at a podium. to participate and perform fun acting exercises under Witnesses may have to be masked, too. Unlike lawyers, the speakers’ guidance. Following the clever suggestions actors are very aware of having to adjust to different made by the panelists may help lawyers maximize the audiences and different configurations of stage and set. effectiveness of years of experience and wisdom gathered Attorneys can borrow solutions from the world of theater in the courtroom and adapt to practicing in the new CO- to face the unfamiliar accommodations made to hold VID world more efficiently. trials and hearings in safer indoor spaces. Here are some suggestions offered by the panelists.

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 19 Spring Meeting: Private Judging: What Is It, and How Can It Help To Advance Your Cases? By Maryann C. Stallone

On May 8, 2021, the Commercial and exclusive time and attention to this mat- Federal Litigation Section hosted an inter- ter. Mindful that justice delayed is justice active CLE program during the Section’s denied, the court is not without tools and Spring Meeting 2021 addressing an impor- volunteers to unburden the parties as they tant and pressing issue facing the courts labor toward trial or resolution.” Justice and practitioners alike—the need for Masley further discussed the legal author- private judges/special masters to alleviate ity under New York law allowing for the the burden on the courts and their staffs. referral of cases to private judges and special discovery masters, including with- The event was organized by Section out limitation, CPLR 4212, CPLR 4201, Chair-elect Daniel K. Wiig. While I served CPLR 4320, 22 N.Y.C.R.R. § 202.14, and 22 as the program’s moderator, the esteemed N.Y.C.R.R. § 202.44. panelists of Hon. Andrea Masley, Com- mercial Division Justice in the State Justice Richter and Mr. Younger also Supreme Court; Hon. Rosalyn Richter, underscored how private judging is not former Associate Justice in the Appellate a new concept. For years, court-based Division of the New York Supreme Court, Maryann C. Stallone referees have been hearing and determin- First Department, and now senior counsel ing matters with the consent of the parties at Arnold & Porter; and Stephen Younger, past president and a court order. They explained the history behind of the New York State Bar Association, and a partner in private judging, and Mr. Younger further discussed how Foley Hoag LLP’s Litigation Practice, led the discussion. the states of Delaware and California had been referring issues to private judges for years. In addition, the pan- Increasing caseload demands on New York state court elists discussed how federal judges have the authority judges, including the multitude of discovery issues, cou- to appoint a special master under Rule 53 of the Fed- pled with budget cuts resulting in fewer court employee eral Rules of Civil Procedure (FRCP) without the parties’ referees and judicial hearing officers, have put a strain on consent, to be paid by the parties. The question was posed the court system and the administration of justice. whether the CPLR should be amended to allow for the The panelists unanimously opined that a possible same procedure. solution to the problem is “private judging.” They began There was also a discussion about how the use of by discussing how litigants should consider selecting pri- private judges differed from binding arbitration. Unlike vate judges or special masters in their cases to either hear in arbitration, a motion to confirm is not required, and the and report or hear and determine issues in the litigation, ruling of the private judge is appealable straight to the as agreed to by the parties, including without limitation, Appellate Division where the parties have agreed to al- discovery disputes as well as potentially substantive is- low the private judge to hear and determine the issues (as sues of fact or law. Justice Richter opined that for certain opposed to hear and report). matters, it may be more efficient for parties to move the entire case to a private judge to decide rather than just The panelists also had an interactive discussion discovery-related issues. concerning Administrative Order 112A issued by the chief Justice Masley thereafter described her experience in appointing a private judge/special discovery master, Mark H. Alcott, in a case before her (Hindlin v. Prescrip- tion Songs LLC et al., Index No. 651974/2018) to supervise Maryann Stallone is a partner and commercial litigator discovery to conclusion. She explained how Mr. Alcott in Tannenbaum Helpern Syracuse & Hirschtritt LLP’s was instrumental in moving the case along in deciding Litigation & Dispute Resolution practice. She has more and resolving numerous discovery disputes between the than a decade of experience counseling business entities parties, which the court did not have the time or neces- and executives in a broad range of industries on the best sary staffing to hear and adjudicate in a timely fashion. ways to prosecute, defend, and resolve their complex As explained in Justice Masley’s October 6, 2020, Order in business disputes in the state and federal courts, arbitra- Hindlin, the “court and its remaining staff cannot devote tion, and alternate dispute resolution forums.

20 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 administrative judge earlier this year authorizing the his or her docket. This has become even more pertinent referral of complex discovery issues to volunteer special and imminent with the backlogs caused by the COVID-19 masters as of April 15, 2021. One of the concerns with pandemic. this pilot program was that the pool of special masters was limited to “retired judges and commercial litigators All three panelists strongly recommended that the who are no longer in active practice who have substantial Section craft protocols and procedures allowing for the experience in complex commercial matters,” thereby ef- reference and appointment of private judges or special fectively limiting the diversity of the pool. Justices Masley masters to give practitioners and judges alike a form to and Richter expressed concerns about the lack of diversity implement. The Section plans to appoint a group to look in the pool of special masters and the parties’ selection into this issue. process. Additionally, unlike FRCP 53, judges seeking Notably, toward the end of the program, I polled the to refer cases to special masters have to do so “with the participants of the CLE on their interest in using private consent of the parties” and moreover, the special masters judges for their cases. The overwhelming majority (over must agree to serve on a pro bono basis. Therefore, while 80%) indicated that they would be interested in using the program is a step in the right direction, there was a private judges/special masters for their cases. However, general consensus that there is room for improvement. their comfort level was limited to referring discovery Throughout the discussion, the panelists highlighted issues as opposed to referring the entire case to a private the benefits of appointing private judges/special masters. judge at this time. One obvious benefit is the ability for practitioners to have In summary, the “Private Judging” program elicited input into the selection of the decision maker. Another discussion on how lawyers and judges can, and should, benefit is the ability to get discovery issues decided ef- work together to identify cases that may be appropriate ficiently and have a trial sooner than the assigned judge for private judging in order to, among other reasons, al- can try it since private judges are undoubtedly more leviate the burden and backlog on an understaffed court likely to have more time available to them to spend re- system, and for the purpose of moving cases along more solving or deciding discovery issues or substantive issues expeditiously. of law and fact over a judge with hundreds of cases on

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NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 21 Spring Meeting: Passing the Baton: Accomplished Women Attorneys Advise the Next Generation A Program for Rising Female Litigators By Hamutal G. Lieberman

On May 7, 2021, I had the pleasure to woman appeared as lead counsel. In sum, mediate the panel “Passing the Baton— the low percentage of women attorneys Accomplished Women Attorneys Advise appearing in speaking roles in courts was the Next Generation, a Program for Rising found at every level and in every type of Female Litigators” as part of the 2021 court. The report breaks down the per- ComFed Section’s Spring Meeting. The centages of criminal and civil, private and panel encompassed an impressive group public, federal and state courts, and by of female attorneys, each having achieved geographic region in the state, as well as in success in her own right in industry pri- ADR forums. vate practice, government, and in-house: In 2020, the ComFed Section’s Wom- Laurel R. Kretzing, Anne B. Sekel, Sonia en’s Initiatives Task Force conducted Low, and Lesley Rosenthal. a follow-up survey to see whether any This program was particularly improvement had occurred over the last meaningful to me as a female litigator still three years, and the results showed that within my first 10 years of practice (which there had not been much improvement. is considered a “young” attorney). When Hamutal G. Lieberman The Section’s follow-up report in 2020 planning the program content with the found a 1.5% increase of female attorneys panelists, it was important for me to press the panelists in lead counsel or speaking roles. on their path to success in order for others to learn from Both reports offered recommendations for how to their experiences. It was refreshing and encouraging to overcome the disparity, including setting up women’s hear that each and every panelist’s path was filled with initiatives within law firms to provide forums to address turns and challenges, and by embracing these unexpected concerns of the firm’s female attorneys; creating formal events, they were able to achieve tremendous success. programming specifically for female attorneys focused on The first portion of the program included a brief lead roles in court; and providing speaking opportunities overview of the reading materials provided for the pro- for women attorneys. gram, NYSBA’s 2017 Report If Not Now, When, authored The 2017 Report and the 2020 Follow-Up Report by the ComFed Section’s Task Force on Women’s Initia- emphasized the distinction between a mentor and a tives (2017 Report) (which included panelist and former sponsor, which I think is critical to understanding how ComFed Chair Lesley Rosenthal) and NYSBA’s ComFed young female lawyers can build a support system for Section’s 2020 Women’s Initiatives Task Force Follow-Up their career. Sponsorship goes beyond mentorship in that Report (2020 Follow-Up Report”) (under the direction mentors give career advice and provide suggestions on and leadership of another panelist and former ComFed Chair, Laurel Kretzing). The overview highlighted the rather disappointing results of the 2017 Report and the 2020 Follow-Up Report, Hamutal G. Lieberman is an associate attorney and the which set out to determine whether (and to what extent) Co-Chair of the Litigation Group at Helbraun & Levey there was a disparity in the number of female attorneys LLP. Hamutal is well-versed in litigation involving com- versus male attorneys who appear in speaking roles in mercial and business disputes, partnership and business federal and state courts throughout New York state. divorce, real estate matters, employment disputes, and intellectual property matters, and is experienced in all The 2017 Report found that female attorneys made up pre-trial, trial, arbitration, and appellate proceedings an average of 25% of attorneys in lead counsel or speak- across state, federal, and administrative forums. In ad- ing roles in courtrooms throughout New York State. The dition, Hamutal has assisted clients in trademark and most striking disparity appeared in complex commercial copyright prosecution from application to high-stakes cases: women’s representation as lead counsel shrank infringement litigation. Her clients range from individ- from 31.7% in one-party cases down to 19.5% in cases uals, small businesses, and fortune 500 companies in the involving five or more parties—leading the task force to hospitality, fashion, real estate, financial services, food conclude: the more complex the case, the less likely that a services, and technology industries.

22 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 how to navigate certain career situations. A sponsor can takeaways from the women’s narratives when describing do everything mentors do, but also have the stature and how they achieved their current positions were: (1) to be gravitas to affect whether associates make partner, wield open-minded about opportunities presented to you, (2) their influence in order to further a junior lawyer’s career build a support system that will not only mentor but also by calling in favors, bring attention to the lawyer’s suc- sponsor you, (3) always be prepared to work to be the cesses, and help them cultivate important relationships most prepared person in the court or boardroom, (4) con- with other influential lawyers and clients—which are tinuously work on building up your network, and (5) be essential to success. sure to speak up for yourself when you are in a situation that does not feel right. The program then transitioned to a panel discussion which focused on the panelists’ rise to success and on the challenges that they faced while doing so. Some overall

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NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 23 Spring Meeting: Trailblazing Jurists Share Valuable Insight for Junior Litigators By Viktoriya Liberchuk and Peter J. Sluka

participate in court proceedings. “You are On Saturday, May 8, 2021, mem- ready before you know it,” assured Judge bers of NYSBA gathered virtually for “It Stong. Does Please the Court: What Judges Want to See in Young Litigators in Both Skills The panelists also shared their obser- and Ethics: A Program for Rising Attor- vations on how junior lawyer participa- neys,” where state and federal judges of- tion varies from the physical courtroom fered their experience, advice, and practice to the virtual courtroom arising out of the pointers as guidance for the less experi- COVID-19 pandemic. Justice Jamieson enced litigators who appear before them. stated that she continues to see many junior lawyers appear before her in the The distinguished panel of judges virtual courtroom. She posits that remote featured Hon. Elizabeth Stong, U.S. court proceedings present a unique op- Bankruptcy Court judge, EDNY; Hon. portunity for tech-savvy junior lawyers Mae D’Agostino, U.S. District Court judge, to offer their skills to their more senior NDNY; and Hon. Linda Jamieson, West- colleagues to better help them navigate chester County Commercial Division. the virtual courtroom. Judge D’Agostino Viktoriya Liberchuk Each member of the three-jurist panel stressed that although remote proceedings recalled honing their own litigation skills present their fair share of challenges, they through early experiences in open court. present an opportunity for junior lawyers Judge D’Agostino tried six cases in her first to seek in-court opportunities because of year as a lawyer, while Judge Stong and the cost savings that are directly corre- Justice Jamieson recalled learning effective lated to conducting proceedings remotely. in-court advocacy through similar trial-by- In other words, the cost savings associ- fire moments. ated with remote proceedings may result in the client allowing two attorneys to The panelists universally emphasized participate in a single court proceeding— that the bench takes great interest in the giving the junior attorney an opportunity development of junior lawyers, assuring to participate that otherwise might not that firms’ efforts to provide junior attor- have been present. neys with in-court opportunities are always well received. Judge Stong described The panel closed by offering their as an “unfailing success” the written initia- own practice pointers for junior lawyers tive in the EDNY Bankruptcy Court that seeking mastery of in-court advocacy: encourages the participation of junior law- Be Courteous. While emphasizing yers, even in circumstances where it means Peter J. Sluka that multiple attorneys may argue for the the importance of maintaining decorum same party. Justice Jamieson and Judge in the courtrooms—physical and virtual D’Agostino explained that their zeal for junior lawyer alike—Justice Jamieson stressed that great junior attor- participation often leads them to pose questions directly neys must be courteous and respectful not only to the to junior attorneys who accompany more senior attorneys court, but also to adversaries and courtroom personnel. to conferences or arguments, sometimes surprising the Be Prepared. Asked if there were any skills or char- junior attorneys in the process. acteristics that she sees in more experienced lawyers that Drawing on their own experiences, the panelists of- younger lawyers should work on, Judge D’Agostino fered advice for junior litigators seeking to maximize their stressed that young lawyers must know their file com- opportunities for in-court experience. Judge D’Agostino pletely, be familiar with both the judge’s rules and the urged junior litigators to ask their superiors for active local rules, and prepare their arguments—arguments, roles in various proceedings, appearances, and arguments. Judge Stong likewise emphasized the importance of being proactive in one’s professional development, Viktoriya Liberchuk and Peter Sluka are associates at including by stepping outside of one’s comfort zone to Farrell Fritz, P.C., where they focus on complex commercial and business divorce litigation.

24 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 examinations, and summations should never be deliv- If the court asks you a question, be sure to respond to it ered extemporaneously. “Don’t leave anything to chance, even if you do not know the answer, opined Judge Stong. especially if you are young,” stressed Judge D’Agostino. Justice Jamieson similarly stressed the importance of NYSBA thanks Judge Stong, Judge D’Agostino, and knowing the court’s rules, “I love to see a well-prepared Justice Jamieson for their participation in the program, attorney.” service to the bar, and commitment to the development of junior lawyers. Be Attentive. Judge Stong encouraged junior attorneys to practice active listening. While roadmaps and outlines are helpful and necessary, avoid too-rigid adher- ence to them, particularly when the court asks a question.

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NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 25 BOOK REVIEW Commercial Litigation in New York State Courts, Fifth Edition (Vols 2-4H, New York Practice Series) Robert L. Haig, Editor-in-Chief, Thomson Reuters, 2020 Review by Jonathan D. Lupkin

Robert L. Haig’s Commercial Litigation Commercial litigation in this state in New York State Courts is a veritable cor- has changed dramatically since Mr. Haig nucopia of invaluable analysis and insight published the first edition of this treatise for the New York commercial litigator. in 1995. The release coincided with the It combines an exhaustive treatment of launch of the then-embryonic Commer- the procedural nuances inherent in New cial Division of New York State Supreme York’s complex and oftentimes impen- Court, which was created to address a etrable state court system with extensive glaring shortcoming in our state’s court analyses of the myriad areas of substan- system. At that time, according to Mr. tive law that fall under the commercial Haig: litigation rubric. The increasing volume of litigation The only treatise of its kind in this and the increasing complexity of specialized area of New York practice, many commercial cases had placed Mr. Haig’s multi-volume work is unique an insupportable burden on the court system that threatened timely and in another respect; it reflects not just the Jonathan D. Lupkin thoughtful resolution of disputes. As views of one or two authors, but benefits a result, many businesses were turn- from the experience, insight, and exper- ing to the federal courts . . . as well tise of 256 contributing authors, including 29 sitting and as to the courts of other states such former trial and appellate judges across the state and as Delaware and to private dispute beyond. That Mr. Haig successfully organized such a resolution. In order to remain the large number of distinguished practitioners and jurists to commercial, financial, and banking participate in this project (and that he did so in the midst capital of the world, New York had of a global pandemic, no less) is a testament to his prodi- to have a viable public court system. (Forward at vii) gious ability to rally busy professionals around a common, civic-minded cause. More than 25 years later, the Commercial Division has become a preferred venue for businesses the world over, This most recent release is the fifth edition of Mr. and one of the division’s great attributes is its ability and Haig’s masterwork, and a few noteworthy statistics bear willingness to adapt to the changing needs of litigants mentioning. This current iteration comprises 13,076 pages and the disputes for which they seek a cost-effective and of text (2,888 more than the fourth edition) and a stagger- fair resolution. In fact, the New York City Council recent- ing 156 chapters. As compared with the fourth edition, ly observed that “New York owes much of its world-class Mr. Haig’s fifth edition includes 28 entirely new chapters status as an economic engine to its world-class court: the on varied topics ranging from artificial intelligence and Commercial Division of the New York Supreme Court.” private equity to third-party litigation funding and mar- keting to potential business clients. The timing for the release of this fifth edition is almost as auspicious as the release of the first edition in Among the many noteworthy features of the trea- 1995. Beginning in 2012 and continuing to the present, the tise is its ability to coalesce doctrinal jurisprudence with boots-on-the-ground insight into everyday practice and provide guidance regarding how to harness this vast body of law for clients on both sides of the “v.”As was Jonathan D. Lupkin is the founding member of Lup- true in its earlier iterations, the fifth edition of Commercial kin PLLC. He is a former chair of the Commercial and Litigation in New York State Courts includes countless pro- Federal Litigation Section and currently sits as an active cedural and practice checklists, sample jury instructions, member of the Chief Judge’s Commercial Division Ad- and an assortment of model litigation forms. visory Council.

26 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 Commercial Division received a major overhaul, which mercial Division” (by Hon. Brian M. Cogan and Alan M. was prompted by the findings of former Chief Judge Klinger), and Chapter 65: “Techniques for Expediting and Jonathan Lippman’s Task Force on Commercial Litigation Streamlining Litigation” (by Hon. Martin E. Ritholtz and in the 21st Century. The Task Force conducted an in-depth Rebecca C. Smithwick). It is safe to say that apart from analysis of the Commercial Division and made concrete the Office of Court Administration’s website, there is no recommendations, including significant, innovative other single source to which a practitioner may turn for modifications and additions to the Statewide Rules of the guidance. Commercial Division, about how to improve practice and Commercial Litigation in New York Courts maintain the division’s stature as the premier forum for remains an the resolution of complex commercial disputes. indispensable guide for anyone who practices in the New York State Commercial Division and needs to plumb the Due to the unique focus of Mr. Haig’s treatise—state intricacies of New York’s substantive commercial law. court commercial litigation—the enhancements to prac- It has immense value for both hardened veterans of the tice before the division receive extensive in-depth treat- state court trenches and newcomers alike, and it contin- ment in no fewer than three chapters: Chapter 1: “Com- ues to find a prominent and readily accessible place on mercial Litigation in New York State Courts” (by Hon. my bookshelf. Janet DiFiore), Chapter 39: “Practice Before the Com-

CPLR Amendments: 2021 Legislative Session

(2021 N.Y. Laws Ch. 1-395)

CPLR § Chapter Change Eff. Date (Part) (Sub- part, Item, §)

212(e) 311(2) Increases limitation from 10 to 15 years 7/28/21 1101(f) 322(249) Changes “inmate” to “incarcerated individual” 8/2/21 1310 92(26) Deletes cross-references to marihuana provisions in Penal Law 1311 92(7) Deletes references to marihuana and cross-references to marihuana 3/31/21 provisions in Penal Law Adds domestic violence advocate and definitions of “domestic vio- 4510 309 lence program” and “domestic violence advocate”; adds restrictions on 7/23/21 confidentiality

4519 351(6) Changes “mentally ill person” to “person with mental illness” 8/2/21 5011 322(250) Changes “inmate” to “incarcerated individual” 8/2/21 5205(1)(2)(p) 107(1) Adds exemption for emergency relief funds 5/13/21 5222(e) 107(2) Adds to notice COVID-19 stimulus relief 5/13/21 5222-a(b)(4) 107(3) Adds to exemption notice and exemption claim form COVID-19 5/13/21 stimulus relief Art. 53 127 Updates New York’s Foreign Country Money Judgments Recognition 6/11/21 Act to reflect the 2005 amendments of the national uniform act proposed by the Uniform Law Commission 7002(b)(5) 322(251) Changes “inmate” to “incarcerated individual” 8/2/21

Notes: (1) 2021 N.Y. Laws ch. 55, Part A, § 16, extended the expiration of CPLR 1101(f) until Sept. 1, 2023. (2) 2021 N.Y. Laws ch. 117, extended the expiration of CPLR 105(s-1) until June 30, 2022. (3) 2021 N.Y. Laws ch. 118, extended the expiration of CPLR 2111(b)(2-a) until Sept. 1, 2022.

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 27 2021 Amendments to the Uniform Rules for Supreme and County Courts, Rules Governing Appeals, and Certain Other Rules of Interest to Civil Litigators

(West’s 2021 N.Y. Orders 4-15; Adopted Rules on OCA website, at http://ww2.nycourts.gov/rules/ comments/index.shtml; amended rules on appellate court websites)

22 N.Y.C.R.R. Court Subject (Change) Eff. Date § Link to Order 202.16(k)(3) Sup. Includes within fees and expenses of experts the costs of processing NYSCEF 1/19/21 documents for certain self-represented parties who e-file https://www.nycourts.gov/LegacyPDFS/rules/comments/orders/AO%2031. pdf 202.16-b(2) Sup. Expands provision to all applications 1/19/21 https://www.nycourts.gov/LegacyPDFS/rules/comments/orders/AO%2031. pdf 202.70(a) Sup. Adds monetary threshold of $75,000 for Bronx County 202.70(g), Sup. Limits pre-trial memoranda to 7,000 words; requires exhibits for each attorney’s 3/1/21 Rule 31 use and submission of pre-trial memoranda, trial exhibits, and requests on USB flash drives in paperless commercial parts https://www.nycourts.gov/LegacyPDFS/rules/comments/orders/2021_01_21_15_12_50.pdf 600.17(a) 1st Dep’t Strikes $10 fee for a certificate in good standing 2/24/21

670.17 2nd Dep’t Strikes $10 fee for a certificate attesting to admission or good standing 1/1/21

NYLitigator Invites Submissions

The NYLitigator welcomes submissions on topics of interest to members of the Section. An article published in the NYLitigator is a great way to get your name out in the legal community and advertise your knowledge. Our authors are respected statewide for their legal expertise in such areas as ADR, settlements, depositions, discovery, and corporate liability. MCLE credit may also be earned for legal-based writing directed to an attorney audience upon application to the CLE Board. If you have written an article and would like to have it considered for publication in the NYLitigator, please send it in electronic document format (pdfs are NOT acceptable), along with biographical information to its Editor: Orna Artal Ramos & Artal LLC [email protected]

NYSBA.ORG/COMMERCIAL-FEDERAL-LITIGATION-SECTION

28 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 Proposed Rules of Interest to Civil Litigators (2020-2021) http://ww2.nycourts.gov/rules/comments/index.shtml Note: The comment periods for all of the following proposed rules have expired.

March 19, 2021: Request for Public Comment on the Proposal to Adopt ABA Model Rule 8.4 (g) in New York’s Rules of Professional Conduct Description of proposal: https://www.nycourts.gov/LegacyPDFS/rules/comments/pdf/Request%20for%20Public%20 Comment%20-%20Rule%208.4%20-%20March%202021%20v3.pdf

December 23, 2020: Request for Public Comment on a New Commercial Division Rule Requiring a Nongovernmental Corporate Party to File a Disclosure Statement Identifying Any Parent Corporation and Any Publicly Held Corporation Owning 10% or More of Its Stock, or State That There Is No Such Corporate Ownership Description of proposal: https://www.nycourts.gov/LegacyPDFS/rules/comments/pdf/corporate-disclosure.pdf

December 10, 2020: Request for Public Comment on a Proposal to Amend Commercial Division Rule 30 to Provide for a Mandatory Settlement Conference Description of proposal: https://www.nycourts.gov/LegacyPDFS/rules/comments/pdf/mandatory-settlement.pdf

December 4, 2020: Request for Public Comment on an Amendment to Commercial Division Rule 3(a) (22 N.Y.C.R.R. § 202.70(g), Rule 3(a)) to Permit the Use of Neutral Evaluation as an ADR Mechanism and to Allow for the Inclusion of Neutral Evaluators in Rosters of Court-Appointed Neutrals Description of proposal: https://www.nycourts.gov/LegacyPDFS/rules/comments/pdf/Neutral-evaluators.pdf

November 20, 2020: Request for Public Comment on a Proposed New Commercial Division Rule on Remote Depositions and a Remote Deposition Protocol Description of proposal: https://www.nycourts.gov/LegacyPDFS/rules/comments/PDF/Request%20for%20Public%20 Comment%20-%20Remote%20deposition%20protocol.pdf

October 22, 2020: Request for Public Comment on a Proposed New Commercial Division Rule to Allow Virtual Evidentiary Hearings and Non-Jury Trials on Consent Description of proposal: https://www.nycourts.gov/LegacyPDFS/rules/comments/PDF/Request%20for%20Public%20 Comment%20-%20virtual%20trials.pdf

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NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 29 Section Committees and Chairs

Alternative Dispute Resolution Commercial Division Electronic Discovery Charles J. Moxley Jr. Mark Arthur Berman Jason Ira Lichter MoxleyADR LLC Ganfer & Shore LLP Troutman Pepper Hamilton Sanders 850 Third Avenue,14th Floor 360 Lexington Avenue, 14th Floor 875 3rd Avenue New York, NY 10022 New York, NY 10017-6502 New York, NY 10022 [email protected] [email protected] [email protected] Gina Sansone-Driscoll Jeffrey T. Zaino Ralph Carter Axinn, Veltrop & Harkrider American Arbitration Association Duane Morris LLP 114 W 47th St. Floor 24 150 East 42nd Street, 17th Floor 1540 Broadway New York, NY 10036 New York, NY 10017 New York, NY 10036 [email protected] [email protected] [email protected] Employment and Labor Relations Antitrust Corporate Litigation Counsel Gerald T. Hathaway Jay L. Himes Marc P. Madonia Drinker Biddle & Reath Labaton Sucharow LLP C.V. & Starr Co. 1177 Avenue of the Americas, 41st Floor 140 Broadway 399 Park Ave. Fl. 3 New York, NY 10036 New York, NY 10005 New York, NY 10022 [email protected] [email protected] [email protected] Theresa M. Levine Kate Wald Matthew R. Maron Law Office of Theresa M. Levine PC Paul Weiss 1/0 Capital LLC 214 Kent Ave # 288 1285 Avenue of the Americas 1 World Trade Center Fl. 85 Endwell, NY 13760 New York, NY 10019-6031 New York, NY 10007 [email protected] [email protected] [email protected] Ethics and Professionalism Appellate Practice Creditors’ Rights and Bankruptcy John Mastando III Karla Moskowitz Litigation Weil, Gotshal & Manges LLP NAM Alan J. Brody 767 Fifth Ave. [email protected] Greenberg Traurig LLP New York, NY 10153 500 Campus Drive [email protected] Natasha Shishov Florham Park, NJ 07932 NYS Supreme Court [email protected] Vincent J. Syracuse 60 Centre St. Tannenbaum Helpern Syracuse & New York, NY 10007 Sheryl P. Giugliano Hirschtritt LLP [email protected] Ruskin Moscou Faltischek PC 900 Third Ave, Fl 13 1425 Rxr Plz Fl 15 New York, NY 10022 Civil Prosecution Uniondale, NY 11556 [email protected] Richard J. Dircks [email protected] Getnick & Getnick Federal Judiciary 521 5th Avenue, 33rd Fl. Diversity and Inclusion Stephen L. Brodsky New York, NY 10175 Sylvia Ometa Hinds-Radix Kaufman Dolowich Voluck LLP [email protected] NYS Appellate Division 135 Crossways Park Drive, Suite 201 Second Department Woodbury, NY 11797 Neil V. Getnick 320 Jay Street [email protected] Getnick & Getnick LLP Brooklyn, NY 11201 521 5th Avenue, 33rd Fl. [email protected] Jay G. Safer New York, NY 10175 Wollmuth Maher & Deutsch LLP [email protected] Kan M. Nawaday 22 Marbourne Drive Venable LLP Mamaroneck, NY 10543 Courtney Finerty-Stelzner 1270 Avenue of the Americas, Fl 24 [email protected] Getnick & Getnick LLP New York, NY 10020 521 5th Avenue, 33rd Fl. [email protected] New York, NY 10175 [email protected]

30 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 Federal Procedure Kevin J. Smith Peter J. Pizzi Stephen J. Ginsberg Sheppard Mullin Richter & Hampton LLP Walsh Pizzi O’Reilly Falanga LLP Morritt Hock & Hamroff LLP 30 Rockefeller Plz One Newark Center 400 Garden City Plz New York, NY 10112 1085 Raymond Boulevard Garden City, NY 11530 [email protected] Newark, NJ 07102 [email protected] [email protected] Membership Stephen T. Roberts Michael Cardello Programming Mendes & Mount, LLP Moritt Hock & Hamroff LLP Hamutal Lieberman 750 Seventh Avenue 400 Garden City Plz Ste. 202 Zumpano Patricios & Popok PLLC New York, NY 10019-6829 Garden City, NY 11530-3336 417 5th Ave., Suite 826 [email protected] [email protected] New York, NY 10016 [email protected] Hedge Fund and Peter Sluka Capital Markets Litigation Farrell Fritz PC Publications Benjamin R. Nagin 622 3rd Ave Ste 37200 Moshe Boroosan Sidley Austin LLP New York, NY 10017-6707 Cohen & Mizrahi LLP [email protected] 787 Seventh Avenue 300 Cadman Plz W Fl. 12 New York, NY 10019-6018 Mentoring Brooklyn, NY 11201 [email protected] Maverick James [email protected] Wilson Elser Danielle L. Rose 77 Water St. Fl. 7 Marcella Jayne Kobre & Kim LLP New York, NY 10005-4416 Foley & Larner 800 Third Ave. [email protected] 90 Park Ave. New York, NY 10022 New York, NY 10016 [email protected] Maryann Stallone [email protected] Tannebaum Helpern Syracuse & Securities Arbitration International Litigation Hirschtritt LLP Maragarita Echevarria Clara Flebus 900 3rd Ave. Fl 12 Mecheverria ADR LLC NY Supreme Court New York, NY 10022-4796 43 W. 43rd St. Ste 178 60 Centre St. Rm 401 [email protected] New York, NY 10036 New York, NY 10007-1402 [email protected] [email protected] Nomination Jonathan D. Lupkin Jenice L. Malecki Charles Scibetta Lupkin PLLC Malecki Law Chaffetz Lindsey LLP 80 Broad St. Suite 1301 11 Broadway Rm 715 1700 Broadway Fl. 33 New York, NY 10004 New York NY 10004 New York, NY 10019-5905 [email protected] [email protected] [email protected] Sharon M. Porcellio Securities Litigation Legislative and Judicial Initiatives Bond, Schoeneck & King PLLC James Joseph Beha II Anthony Harwood 200 Delaware Ave. Suite 900 Morrison & Foerster LLP Harwood Law PLLC Buffalo, NY 14202 250 W 55th St. 245 Park Ave. [email protected] New York, NY 10019 New York, NY 10167 Privacy, Data Security and Information Social Media Michael C. Rakower Technology Litigation Damian Cavaleri 260 Madison Ave Fl 8 Joseph Paul Facciponti Hoguet Newman Regal & Kenney New York, New York 10016 Murphy & McGonigle PC 60 East 42nd St. Fl. 48 [email protected] 1185 Avenue of the Americas New York, NY 10165 New York, NY 10036 [email protected] Litigation Academy [email protected] Isabel D. Knott Scott L. Malouf Wasserman Grubin & Rogers LLP Office of Scott L. Malouf 1700 Broadway 101 Sullys Trail, Building 20 New York, NY 10019 Pittsford, NY 14534 [email protected] [email protected]

NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 31 State Court Counsel Kathleen Elizabeth Cassidy Mahnoor Misbah Morvillo Abramowitz Grand Iason & Anello PC New York State Supreme Court 535 Fifth Ave., Floor 4 27 Madison Ave. New York, NY 10017 New York, NY 10010 [email protected] [email protected] Young Lawyers Michael A. Rivera Viktoriya Liberchuk NYS Supreme Court Farrell Fritz, P.C. 60 Centre St. Rm 555 400 Rxr Plz New York NY 10007 Uniondale, NY 11556 [email protected] [email protected]

White-Collar Criminal Litigation Kevin Joseph Quaratino Evan T. Barr Foley & Lardner LLP Fried, Frank, Harris, Shriver & Jacobson 90 Park Ave. 1 New York Plz New York, NY 10016 New York, NY 10004 [email protected] [email protected]

The Section’s District Leaders County (District) District Leader Firm New York (1st) Michael B. Smith Lupkin PLLC [email protected] Kings (2nd) Joam Alisme Alisme Law LLC [email protected] Albany (3rd) Mara Afzali Bond Schoenick & King PLLC [email protected] Onondaga (5th) Suzanne M. Messer Bond Schoeneck & King PLLC [email protected] Monroe (7th) Jeffrey J. Harradine Xerox Corporation [email protected] Erie (8th) Heath J. Szymczak Bond Schoeneck & King PLLC [email protected] Westchester (9th) Vacant Nassau/Suffolk (10th) Kyle Gruder Farrell Fritz PC [email protected] Queens (11th) Nicole McGregor NYS Supreme Court [email protected]

Contribute to the NYSBA Journal and reach the entire membership of the state bar association The editors would like to see well-written and researched articles from practicing attorneys and legal scholars. They should focus on timely topics or provide historical context for New York State law and demonstrate a strong voice and a command of the subject. Please keep all submissions under 4,000 words. All articles are also posted individually on the website for easy linking and sharing. Please review our submission guidelines at www.nysba.org/JournalSubmission.

32 NYSBA Commercial and Federal Litigation Section Newsletter | 2021 | Vol. 27 | No. 2 PUBLICATIONS New York Employment Law: The Essential Guide

Editors: Louis P. DiLorenzo and Jeffrey Kehl

Covering a wide range of state substantive and regulatory employment issues, this title is a must-have reference for employers in all practice areas. This easily accessible, Question-and-Answer format offers clear and succinct responses to more than 450 employment-related questions, such as: • What policies should be included in an employee handbook? • May an employee be disciplined for social media activity? • What qualifies as a trade secret or confidential information? • Under what circumstances will an otherwise eligible claimant be disqualified from receiving unemployment benefits? Topics addressed include hiring and interviewing employees, employee and employer rights and obligations, the worker’s compensation framework and regulatory schemes for maintaining a safe workplace, disability issues, unemployment insurance, unfair competition, discrimination in the workplace, and Book (410121) disciplinary policies and procedures. eBook (410121E) NYSBA Members $95.00 Non-Members $130.00

ORDER ONLINE: NYSBA.ORG/PUBS | ORDER BY PHONE: 800.582.2452 NEW YORK STATE BAR ASSOCIATION NON PROFIT ORG. COMMERCIAL AND FEDERAL LITIGATION SECTION U.S. POSTAGE One Elk Street, Albany, New York 12207-1002 PAID ALBANY, N.Y. PERMIT NO. 155

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