Journalseptember 2000 | VOL

NEW YORK STATE BAR ASSOCIATION JournalSEPTEMBER 2000 | VOL. 72 | NO. 7 CONNECTINGCONNECTING BYBY VIDEOVIDEO TELECONFERENCETELECONFERENCE

Inside: Law on Police Use of Force New Rules for N.Y. Estates Remedies in Arbitration Cases Proof of Recurring Conditions Strategies for Voir Dire Privileged Documents BOARD OF EDITORS C ONTENTS Howard F. Angione Editor-in-Chief Technology Primer—Video Teleconferencing of Queens e-mail: [email protected] Hearings Provides Savings in Time and Money Rose Mary Bailly Judith A. La Manna 8 Albany Willard H. DaSilva Shootings by Police Officers Are Analyzed Under Garden City Standards Based on Objective Reasonableness Louis P. DiLorenzo J. Michael McGuinness 17 Syracuse Paul S. Hoffman Proof of Recurring Conditions Can Satisfy Prima Croton-on-Hudson Facie Requirement for Notice in Slip-and-Fall Judith S. Kaye New York City Litigation Kenneth P. Nolan Y. David Taller 27 New York City Eugene E. Peckham New Era for Estate Administration in New York Binghamton Has Reduced Estate Tax but Many Requirements Albert M. Rosenblatt Still Apply Poughkeepsie Eugene E. Peckham Sanford J. Schlesinger 30 New York City Courts Differ on Standard Applicable When Parties Richard N. Winfield New York City In Arbitration Cases Seek Provisional Remedies James M. Wicks and Jennifer M. Mone Daniel J. McMahon 35 Managing Editor Albany Trial Strategies—Quick Voir Dire: Making the e-mail: [email protected] Most of 15 Minutes Eugene C. Gerhart Thomas F. Liotti and Ann H. Cole 39 Editor Emeritus Binghamton Litigation Strategies—Reviewing Documents for EDITORIAL OFFICES Privilege: A Practical Guide to the Process One Elk Street Daniel A. Cohen Albany, NY 12207 43 (518) 463-3200 FAX (518) 463-8844 Eulogy—In Memoriam: Lawrence H. Cooke ADVERTISING REPRESENTATIVE Judith S. Kaye 50 Network Publications Sheri Fuller D EPARTMENTS 10155 York Road, Suite 205 President’s Message ______5 Language Tips ______56 Crestridge Corporate Center Hunt Valley, MD 21030 RJI Form UCS-840 ______48 by Gertrude Block (410) 628-5760 Point of View ______53 Classified Notices ______58 e-mail: [email protected] by Alan I. Leshner New Members Welcomed ______60 Lawyer’s Bookshelf______54 ADDRESS CHANGE – Send To: 2000–2001 Officers ______63 Records Department by Ellin M. Mulholland Res Ipsa Jocatur ______64 NYS Bar Association James F. Gesualdi by James M. Rose One Elk Street Albany, NY 12207 O N T HE C OVER (518) 463-3200 e-mail: [email protected] This month’s cover illustration simulates both sides of a typical arbitration ON THE WORLD WIDE WEB: hearing conducted with the help of teleconference equipment. http://www.nysba.org Cover Design by Lori Herzing

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2000 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $12. Periodical postage paid at Albany, NY with additional entry Endicott, NY. POSTMASTER: Send address changes to: One Elk Street, Albany, NY 12207. Journal | September 2000 3 t certainly is not essential to travel fundamental human rights and op- to the United Kingdom to under- PRESIDENT’S position to tyranny. Despite the fact Istand the origins of the common that, in the words of Prime Minister law and its influence on our society ESSAGE Blair, “the conceptual tools and val- and free societies everywhere. On the M ues of the common law became en- other hand, attendance at the Ameri- trenched in the American legal estab- can Bar Association’s Annual Meet- lishment,” the late 18th century ing program entitled “Common Law marked the beginning of decades of - Common Bond,” which began in conflict between the two nations. New York City and continued in Lon- After the American Revolution and don in mid-July, led to a broader un- the establishment of the United derstanding and a new perspective States as a separate nation and the on how pervasive that common bond beginning of diplomatic relations be- has been, not only between the two tween the two nations, the relation- nations but also in their individual ship remained strained well into the national existence. latter half of the 19th century. At a re- At the beginning of the London ception at the American ambas- portion of the meeting, on a Saturday sador’s residence during the London afternoon at Runnymede, the ABA re- meeting, Ambassador Philip Lader dedicated its Magna Carta Memorial commented on the unusual nature of at a ceremony attended by U.S. At- that relationship. He remarked that torney General Janet Reno. The in- the first ambassador to the Court of scription on the Memorial reads: “15 St. James’s, John Adams, would have July 2000, the ABA returns this day to found his role quite different: it celebrate Magna Carta, foundation of PAUL MICHAEL HASSETT would be difficult, he said, for the rule of law.” The notion that even Adams to present his credentials to the King is subject to the law is sec- George III and suggest that they just ond nature to us now, but almost 800 Common Law, let bygones be bygones. years ago it was an entirely new con- It was not until early in this cen- cept and one that would revolution- Common Bond tury that the British and American ize the relationship between the gov- peoples were joined once again by ernment and the governed. their common bond, which inspired them to commit Two days later, the General Assembly at Royal Albert their lives to the defense of freedom on European soil in Hall formally opened the London Sessions of the An- World War I. That alliance was tested again two decades nual Meeting. The anthems of both nations, performed later when the very existence of the rule of law, of gov- with spirit by the combined bands of the Scots Guards ernment with the consent of the governed, was threat- and the Corps of Royal Engineers, heralded welcoming ened and when once again Americans gave their lives in remarks by the leaders of the profession on both sides of testimony to their belief that the rule of law was not the ocean and set the stage for an address by the Rt. merely a philosophical tenet but the essential principle Hon. Tony Blair, former practicing lawyer and now of their society. Prime Minister of the United Kingdom. He established A visit to the War Council Rooms, where Prime Min- the context of the entire meeting in these words: ister Churchill and his council met more than 100 times during the infamous Battle of Britain, brought home the British and American lawyers share a common bond, which goes deeper than a common heritage, or lan- enormity of an air war on one’s own soil and empha- guage, or even the way we think about and practice the sized the commitment of the British people to survive law day by day. It has to do with the idea of law, a that onslaught—their will to survive rooted in their shared view of its role in society, and with respect for freedom and that freedom rooted in the common law. the rule of law itself. The sound of Winston Churchill’s inspirational words Blair recounted that despite the Magna Carta, the Pil- and the image of Queen Mother Elizabeth (whose offi- grims were forced 400 years later to leave England in cial 100th birthday celebration occurred during the Lon- search of religious freedom and, in coming to America, don sessions) walking among the rubble, refusing to brought with them the idea of government based on the leave the city, were powerful reminders of that devotion consent of the governed. These first settlers from Eng- Paul Michael Hassett can be reached at 1500 Liberty Build- land were instrumental in founding a nation based on ing, Buffalo, N.Y. 14202.

Journal | September 2000 5 PRESIDENT’S MESSAGE these values as we do computer systems and commer- to freedom. That same devotion motivated our partici- cial codes? Obviously the rule of law requires some nur- pation alongside our European allies, assisted by a con- turing culture in which to persist but it grew on our siderable measure of national self-interest. The victory shores in the 17th century despite continuing differ- for our democratic institutions solidified the growing ences between the colonists and the inventors of the rule bond among English-speaking peoples but we are not, of law. Perhaps our ideal of freedom will take hold in of course, without our differences. There are significant other nations, inspired by the fact that wherever the differences in our civil law systems and how we assure common law has been instilled: in Europe, in North individual rights and liberties while sharing, again in America, in Australia, in South Africa and in India, free- the words of Prime Minister Blair, “the quality of the dom has survived despite considerable philosophical common law and the institutions which underpin it: an differences among its adherents. Prime Minister Blair independent judiciary; an independent legal profession; summed it up thus: “We may have our differences; our and our unshakable commitment to the rule of law, disputes over trade or commerce; our perspectives may without which no genuine democracy can exist.” sometimes be at variance on this or that item of diplo- George Bernard Shaw may have had those differences macy. But . . . I say what unites is by an infinity more in mind when he remarked that we are “two countries important than what may divide us.” And what unites separated by the same language.” us? Our values, our devotion to a system of law which And so, as we end one century and begin another, it has survived almost eight centuries, and which is the is well to consider the result of the two Great Wars in essence of that common law and common bond. Europe; not only did democracy persevere and flourish As I left Royal Albert Hall that morning, I was struck against the challenge of its enemies but the influence of by the irony of the spirited rendition of our national an- the common law has grown in Eastern Europe as we at- them by the British military bands—an anthem inspired tempt to instill it in other societies who have labored for by the British attack on Fort McHenry during the War of decades under totalitarian regimes. Can we just export 1812.

DaSilva Named to Journal Board

illard H. DaSilva of Garden City has been named DaSilva is also a Wto the Journal’s Board of Editors. frequently quoted A veteran matrimonial law practitioner, DaSilva is commentator in one of only 75 attorneys in the United States invited to the New York Times, be a Diplomate of the American College of Family Trial Newsday, USA Lawyers. He is listed in The Best Lawyers in America and Today, Newsweek in Who’s Who in America. and U.S. News & As a member of the NYSBA, he has chaired the Gen- World Report. He eral Practice Section and served on the Continuing has appeared on Legal Education Committee. network and syn- He is editor-in-chief of the ABA’s Family Advocate dicated television magazine; founding editor of the ABA Section of Family programs, includ- Law FAX News Update; founding editor of Matrimonial ing the Today Law Journal; co-editor of Matrimonial CaseLaw; editor and Show, the Phil Donahue Show, Regis Philbin Show, columnist for Fair$hare magazine; editor-in-chief of the CNN’s Sonya Live, and NBC Network News. New York Domestic Relations Reporter, published by A graduate of New York University, he received his Matthew Bender; and author of New York Matrimonial law degree from Columbia University Law School. Practice, published by the West Group. “We plan to expand the coverage of family law is- He is a council member of the American Bar Associa- sues in the Journal, and we look forward to Bill’s assis- tion Section of Family Law; a master and the secretary of tance in that effort,” said Editor-in-Chief Howard F. the New York Family Law American Inn of Court; and Angione. “We hope to benefit from his distinguished past president of the American Academy of Matrimo- background as an editor of numerous publications and nial Lawyers, New York Chapter. as an author.”

6 Journal | September 2000 Technology Primer Video Teleconferencing of Hearings Provides Savings in Time and Money

BY JUDITH A. LA MANNA

his is a “for example” primer. It is not just about table. At the onset, there is the usual round of introduc- labor arbitration hearings for labor and employ- tions, some explanation to witnesses new to arbitration Tment lawyers, but about the use of technology by about the process and their role, and some need to shuf- lawyers to break out of old habits and find new ways to fle through papers and deal with other preliminaries. do our work. With an understanding of how the process Witnesses can be sequestered or not. Opening state- is used in arbitration hearings, fears may be calmed and ments are made, witnesses are called, examined and ideas may arise for introducing it to other areas of prac- cross-examined, objections are made and ruled on, par- tice. ties ask for breaks, evidence is received, closing summa- The use of video teleconferencing is catching on, as tions are made or the parties agree to file closing briefs evidenced by the number of articles on the topic that is by set dates. appearing in the legal literature.1 It is being used for This is essentially what happens in a televised hear- long-distance EBTs. It was used in a divorce trial to take ing. The obvious difference, of course, is the location of the testimony of the husband from his prison cell. To the parties, who are not together in one room. The arbi- help relieve congestion in districts with congested dock- trator is an image on a television screen, the parties are ets, federal courts are using video teleconferencing so an image on another television screen, everyone has that judges with lighter schedules can conduct bench some sort of innocuous little microphone nearby, and a trials involving parties who may be many miles away in camera is focused on the room. The one procedural dif- their home districts. ference, because of the distance of the parties, is that ex- Labor arbitration, much like the judicial system, is a hibits must be forwarded to the arbitrator in advance of very habituated and entrenched process, as are so many the hearing. of its practitioners. After serving as an arbitrator for The Concerns more than 20 years, I, too, run the risk of being en- The big concern, mentioned by everyone who will trenched. In addition, colleagues consider me a techno- even discuss using video teleconference equipment for phobe. I was the last kid on the block to get e-mail and I do not like Web sites. So it is amazing to me that I am a proponent of video teleconferencing for arbitration JUDITH LA MANNA is a member of the hearings. But under the right circumstances for the right National Academy of Arbitrators, a cases, I am waving the flag to say that video teleconfer- member of the Labor and Employ- encing of arbitration hearings works. In particular, it ment Law Section of the NYSBA and serves on the Arbitration/Mediation saves me the wear and tear of travel, it can make sched- panel of the U.S. District Court for the uling easier and it can save the parties a great deal of ex- Northern District of New York. She pense. was a topic author for the 5th edition In fact, a video teleconference hearing bears a very supplement of the arbitration treatise, strong resemblance to being at a hearing in person. All How Arbitration Works (Elkoury), was the editor of the it really takes to make a video teleconference arbitration Labor and Employment Law Newsletter of NYSBA (1987-99) hearing work is for the parties to have a decent connec- and currently serves on the advisory board of the “New tion, some enthusiasm and flexibility, and some willing- York Employment Law & Practice” newsletter of the New ness to do a little preparatory work in advance. York Law Journal. A labor arbitrator for more than 20 years, she has presided over six cases via video telecon- The Differences ferencing in the past year. She is a graduate of LeMoyne There are hardly any. It is that simple. College and received her J.D. from Syracuse University In an in-person arbitration, the parties sit on opposite College of Law. sides of the table and the arbitrator sits at the head of the

8 Journal | September 2000 hearings, involves being able to judge the credibility of The advocate, concerned about witness discomfort, witnesses. Another is the intrusiveness of equipment wanted assurance that we could remain open to stop- and technology problems into the process. ping and scheduling an in-person hearing. Just hours Witnesses Some of the worry about taking witness into the morning session of our hearing he volunteered testimony via technology is a throwback to the days that, to his amazement, the witnesses seemed even more when attempts were made to use telephone conference at ease than they had been at in-person hearings be- calls at hearings. But a video cause—no offense to me, of teleconference is a giant step course—they could not see up from telephone-only tele- A witness discovers relief from the arbitrator. conferencing. By using a “camera nerves” by involvement Not only had the wit- camera/TV-like transmission nesses come to feel a part of of image and voice between in testifying and interacting with the “conversation” in the locations, the parties can see people in the room. room, the atmosphere of the as well as hear each other. room was different. We for- There is a value in having get how unnerving it is for the arbitrator see a witness as he/she testifies, of course. witnesses to see an arbitrator making notes, seemingly And there is also a real value, from my experience, to of their every word, while they testify. The “arbitrator both witness and advocates when they can see that the factor” is less in a video teleconference hearing. We are arbitrator is listening and watching. But judgment of not actually there, of course, and we are only present as witness credibility is no more an issue at a video tele- a somewhat familiar and easy-to-tune-out “talking conference hearing than it is at an in-person hearing. In head.” This is a sensation not unlike having the 6 o’clock the first place, witness testimony is offered in many ar- news on television, playing in the background, while bitration hearings to present history and position, and you eat dinner. Except every once and a while the arbi- thus it is not always a matter of judging credibility. Fur- trator adds something into the conversation. Interactive ther, credibility is only in small part judged by de- TV. That gets their attention. meanor, such as swearing-in, face-reddening and fidget- Equipment issues It is fair to say that the technology ing, which is behavior that is readily captured by the itself is the other big concern about video teleconference teleconference camera. hearings. Okay. Actual video teleconference transmis- Beyond this, fortunately, there are aids to assist judg- sion takes a little getting used to. ing witness credibility in a video teleconference hearing. With present technology and even if using the best Remarkably, they are the same aids as those used at an equipment and connections, there is a 2-3 second delay in-person hearing. That is, it has been my experience before what you say is received and heard on the other that advocates are rarely shy about bringing questions side. This means that people do not react as fast as you about witness credibility to my attention, either in care- speak, something we are used to in regular conversa- ful examination of that or another witness or later, in tion. This also means that as you speak, you can hear summation. Clues about credibility are also in what the your voice broadcasting to the other side, but delayed, witness says and in word usage. After years of listening which can throw you off a little. You get a sensation of at hearings, I have found that I can hear the sound of being an actor in a foreign movie, your words and lip poor credibility while I am also taking notes. And let’s movement out of synch. Most participants adjust easily face it, arbitrators rarely eyeball witnesses through the to this delay. If you pause after saying what you have to full time they are on the stand. say and do not interrupt, you will not be annoyed all the The camera itself is also an aid to testimonial credi- time. This is not a big deal and, anyway, interrupting is bility in video teleconference arbitration. First, it instills rude. a certain, healthy discomfort to a person who is about to Transmission options At least with the present stage be televised, above and beyond the anxiety associated of technology and the comfort level of the parties to ar- with waiting to be called to the stand. Ironically, a wit- bitration hearings generally, video teleconferencing ness discovers relief from “camera nerves” by involve- works best as a two-way transmittal. The arbitrator is ment in testifying and interacting with people in the alone at one location and the employer and union coun- room. A witness at ease is one who is prone to genuine- sel plus witnesses—all of the parties who generally al- ness. ready know each other—are together at another loca- And witnesses do become comfortable in very short tion. In a sense, this helps to maintain the “neutral” order when giving testimony by video teleconference. mode of the arbitrator. But it also works well to allow The witness ease factor, in fact, was remarked on by one the parties—who are usually geographically close to of the parties at a video teleconference hearing I held. each other anyway—to exchange documents at the

Journal | September 2000 9 table, take sidebars, review unfamiliar material, and It comes down to this. The reality is that the parties take time for meaningful settlement discussions and who choose to use video teleconferencing have already stipulation agreements. Without a doubt, a three-way placed a certain degree of trust in the arbitrator, so that video teleconference would require considerably more issues of “tainting” by evidence are not real. advanced planning. Other technology matters No video recordings. Al- Exhibits At an in-person arbitration, an arbitrator en- though the technology clearly permits this, electronic ters a hearing room as a virtual blank slate about the recordings are traditionally not allowed in arbitration case. We get only minimal information to identify the hearings. case (discipline or contract interpretation), the name of There should be some attention to the background the grievant, the advocates and the parties they repre- behind the camera image and to positioning each of the sent and we might possibly receive a copy of the griev- cameras. Rather than being about how an “image” ance document and demand for arbitration. As in a might have an impact on witness credibility, an issue court proceeding before a judge, it is not proper for an that is raised when video teleconferences are used for arbitrator to have received ex parte information. Evi- EBTs (see box on page 14), these should be addressed to dence is to be offered at hearing, where objections can be aid clarity of transmission, and to make that transmis- ruled on. sion as close to in-person vision levels as possible. A video teleconference arbitration is different. For it, Getting Ready the parties need to provide the arbitrator with their proposed exhibits in advance so that the arbitrator will Just as there needs to be some scheduling for in-per- have what the witness is looking at when testifying. An son arbitration, the parties need to set a timeline and arbitrator does not have to examine those exhibits be- schedule for a video teleconference arbitration hearing. fore actual hearing. But if he/she does (for example, to Sometimes a teleconference call is needed to cover the become familiar with the case in order to expedite the preliminaries, with attention focused on the matter of hearing), the arbitrator may see some evidence to which marking and offering exhibits to the arbitrator in ad- one side might have an objection. This is not the big deal vance of the hearing, by a scheduled date. it seems at first to be, for four basic reasons: The parties can offer evidence to the arbitrator either • As a practical matter, any pre-hearing review of by a process of mutual exchange, agreement and mark- proposed evidence will likely be cursory, as, for ing, or simply by sending in separate submissions. example, to assure that the material is arranged in When the parties use the mutual marking process, some readily retrievable manner. (Of course, the advocates exchange their proposed exhibits. By meeting parties could forward their exhibits to the arbitra- or otherwise, they agree to those exhibits that are actor at about the last possible moment before hear- ceptable joint exhibits, acceptable employer or union ex- ing to further reduce likelihood of an in-depth re- hibits and, with more attention, may even agree to the view.) numbering of those exhibits as well. Each counsel also • Arbitrators know that more needs to be heard identifies those exhibits of opposing counsel that cannot about evidence to give it meaning in the context of be agreed upon. A single package of exhibits is thereby the case, and that the information is expected to be prepared, including those challenged exhibits in a sepa- provided in testimony at the hearing. Without that rate, sealed envelope that can be opened by the arbitra- context, a document can only “speak for itself” in tor at hearing, as they are addressed. Each party will ap- the most meager way, and evidence that “speaks pear at the hearing with a conformed package of for itself” usually will incur much debate anyway. exhibits and the arbitrator will have an easy time finding the exhibits as testimony is received. • Rules of evidence, which are more relaxed in arbi- When the parties use the direct method, each advo- tration hearings, allow in more by way of testi- cate submits to the arbitrator one copy of each docu- mony and evidence than would be acceptable in a ment that he/she believes should be in evidence. To court proceeding (e.g., hearsay evidence and testi- make some order of this chaos, the arbitrator should di- mony). It is normally left to the arbitrator to decide rect some manner of arrangement, such as chronologi- later the weight to be given to that evidence. cally by date of document, as well as require that they be • An arbitrator is obliged to make a decision based marked and numbered in that sequence. Each advocate only on testimony and evidence actually received. must bring a fully conformed set of that package of evi- The proposed evidence sent to the arbitrator is not dence to hearing, to be prepared to offer the exhibits to received formally until offered at the hearing. An opposing counsel during testimony. objection to the evidence can be registered at hearing, and the matter sorted out then, as is done at an in-person arbitration. CONTINUED ON PAGE 14

10 Journal | September 2000 but that they are expected to provide the material at the actual hearing. Teleconferencing Unanticipated documents As sometimes happens in Litigation even in person, a party in a video teleconference hearing may produce a new document, or one that was not in- When teleconferencing techniques are used in cluded in its pre-hearing submission. When this has litigation, the results are likely to be most notice- happened at my video teleconference hearings, the par- able in three areas. ties were comfortable with offering testimony and for- Witness preparation Using video teleconfer- warding the document to me later. With a little descrip- encing allows attorneys to better prepare their tion and some general sense of the content by all clients and witnesses for questioning, both be- involved, this was not an issue. In one case, actually, we cause the attorney-client review is face-to-face. kept a list of missing documents for later mailing. Like Done by video teleconferencing, considerable at- the collective bargaining agreement, for example. torney or client time that would otherwise be lost If there is an objection to the document, the matter of in travel can be saved. And by video recording a missing exhibit could be more of a problem. An in- the session and then reviewing the tapes with the ability to review to rule on receipt might preclude cer- witness, corrections can be made to any distract- tain testimony. With all the preparation on exhibits for a ing witness habits, facial mannerisms can be video teleconference, this would be a rare moment, if it pointed out, and testimonial responses examined. occurred at all, but might warrant an adjournment or Other appearance issues can be “tested,” such scheduling of a continuation hearing date, if the docu- as the color of background, the camera angle, and ment could not be readily sent to the arbitrator during microphone settings. All parties benefit, as well, the hearing. from the experience of being before the camera, There are higher tech arrangements that can address making the witness and attorney more relaxed for this issue, and the issue of evidentiary documents gen- the “real thing.” erally, as well. Depending on the size of the document, Depositions If a witness gives a deposition by the parties can fax limited amounts of material during a video teleconferencing, that testimony is likely to hearing. Interactive computers can be set up, location to be video recorded. Later, at a trial, that deposition location, with documents scanned in and forwarded. record could turn into an ultimate “discredit” There is even a document camera, which allows the ma- mechanism, if the witness comes across poorly. terial to be “fed” in during the hearing. All of this can The benefit of witness preparation turns up par- slow down the process considerably, and is usually ticularly in this area. more than is necessary. Better they should forward the evidence in the first place, and include everything. Trial With the right software, distant counsel can receive “real time” transcripts from trials. By I have sometimes asked the parties to provide a sum- this means, as well as the actual video transmis- mary written statement of the grievance, the history sion, trial teams can be in separate geographic lo- leading to the grievance, and their positions. This can cations and still engage in informed strategy ses- serve as the basis of their opening statement, so the re- sions with each other. The Federal Rules of Civil quest is a help, not a hardship. I do not require the par- Procedure allow for testimony to be presented by ties to exchange that summary statement, unless they video teleconferencing when there has been a want to at the hearing. showing of “compelling circumstances.” (Fed. R. At the Hearing Civ. P. 43(a)). This is really simple. The arbitrator sits in one room, facing a television screen and camera and sets the camera to frame herself. Some systems allow the camera op- CONTINUED FROM PAGE 10 erator (the arbitrator) to “set” that position and to “set” Naturally, any arbitration proceeds most efficiently other positions around the room. The arbitrator, once when the parties agree on the joint exhibits, to the num- framed, can push a button and can see herself in a cor- bering and admissibility of employer and union ex- ner inset at any time, to check that her image is where it hibits, and even to a list of stipulated facts. This applies, should be and transmitting that way to the parties. That as well, to a video teleconference arbitration. But I do inset disappears a few seconds after being checked, but not require that the parties do this. It has been my prac- can be set to remain. tice to have each of the parties submit their proposed ev- The parties sit in their distant location and have their idence directly to me. I specifically tell them they do not camera set on the witness stand. Microphones are set for have to concurrently send a copy to opposing counsel, each advocate position and the witness. (In my video

14 Journal | September 2000 teleconference arbitration hearings so far, the distant “goes to sleep.” If you go away and return, you might camera has been pre-set onto the witness chair. In so- become panicky that the camera has swiveled away phisticated systems, I could take control of the distant from its set position. Just wait. The phone call will camera and even preset positions, to get a “look” at “ring” and the camera will wake up and return to its someone talking to the witness. This is an unneeded ad- pre-set position, images will appear on the television dition.) and then the parties will be there, all in time to transmit Anyway, at the appointed time for the hearing to your hello to the room. It is so cool. start, the “phone” rings and the television begins to ex- Tips About the Technology hibit some signs of techno-life as the call is being con- Much of this will come in the category of more than nected. Then suddenly, people at the remote location are you need to know now, because there is no point in buy- on the television screen in your room and you are on the ing this equipment for most parties who participate in screen in their room. arbitration hearings. (A full system would cost from A couple of other points help the process along. Mi- $5,000 to $10,000, exclusive of monthly fees for connec- crophones are on the hearing room table, so care has to tion and long-distance charges.) Nevertheless, it is use- be taken—and reminders given—that if documents are ful to know a little about the process to have some com- moved and shuffled they may either cover a micro- fort with the technology. phone (huh?) or bump into it (ouch). Both sides have a Video teleconference transmissions should go over a mute button, to turn off the audio transmission. It is a digital line. This involves transmission rates in bits per good idea to develop a hand signal or a flash card to be second. The transmissions can go a line that uses the In- able to remind each other on those occasions when the tegrated Services Digital Network (ISDN) technology, mute button of the other side has been left on. which essentially provides a telephone line with greater Sidebars, Breaks, Etc. Using even the most basic of bandwidth. The minimum available speed is 128Kbs video teleconference equipment, taking breaks, sidebars (128,000 bits per second, or 25,600 five-bit “words” per and private time is a snap, and faster than at an in-per- second), with a present top speed of 384Kbs. I am told son hearings. that the 384Kbs speed uses three ISDN lines. The pre- At both types of hearing, the arbitrator sets a time for ferred type of line for video transmission is known as “return.” At a video teleconference break, both locations a T-1 and provides a dedicated digital connection. The set their mute buttons to prevent inadvertent audio T-1 line operates at 1.5Mbs (1.5 million bits per second, transmission, and the arbitrator moves the camera off or 300,000 five-bit “words” per second), rents at a rate of her image, upward or to the side. The parties see that about $1,000 per month (plus connection, installation, there is a transmission, but not the arbitrator. After the etc.) or a little less, but it transmits with a fluid image allotted time, the arbitrator resets the camera onto her and involves a delay of only a few seconds. position, the parties look up and can start. These numbers have to do with the quality of the If you disconnect, for example for a lunch break, the video transmission. The slower the line, the more likely television image goes off and eventually the camera that the image “frames” you get to see will appear in a

Journal | September 2000 15 grainy and choppy, frame-by-frame surrealistic trans- A video teleconference arbitration hearing would in- mission. This means that while the Web camera you got volve reimbursement of the cost of the rental by the ar- for Christmas does transmit a fair image over the Inter- bitrator of a video teleconference site, whatever costs of net, the present maximum Internet rate of 56Kbs (56,000 the parties for their site, a long-distance charge for the bits per second) is less than adequate for a hearing of actual call and the costs associated with document mail- several hours in length. Camera quality may have ings. Because no travel is involved, the parties can save an impact on the image, but not nearly as much as the the costs of reimbursement for hotel, transportation, quality of the line on which and travel, as well as any the images are transmitted. added fee for travel time. Cheaper methods of good The ability of the technology Given the right arrangement connection are being devel- for the cost of the video hear- oped that will involve up- to duplicate almost entirely ing, the savings can be signif- grading the Internet lines an in-person arbitration icant. In the future, when the and using cable or the digital parties become more com- subscriber line (DSL) tech- hearing is unquestionable. fortable with the process and nology. ISDN band width is employ three-way transmit- also expected to be dramati- tal, or more, the savings in cally improved within five years or so. Given these lost time alone will be considerable, particularly for cor- costs, it is not worth investing in one’s own equipment porate and expert witnesses. if usage is not expected to be high. At present, video teleconferencing is being discov- In the meantime, there are places that already have ered by the legal profession in a variety of ways. Depo- the equipment and are connected to the right lines and sitions are being taken and firms are using the method also have the technical support staff to make a video to prepare distant witnesses, saving huge amounts of teleconference hearing go smoothly. Private video tele- lost time in travel for lawyers and clients while giving conference services are available in most major cities. In witnesses true rehearsal time and the ability to review the Syracuse area the services charge from $150 to $175 their anticipated presentations. Video witness testimony per hour of use, plus a stepped-up charge for the long- is used at trial (for distant and expert witnesses) and distance call if they place the call. An arbitration hearing some full trials have already been conducted by this may take an hour or last all day. These hourly rates process. Used in conjunction with other computerized might be prohibitive to most parties to an arbitration software, real-time transcripts can be created to aid dis- hearing, even when comparing the savings that might tant counsel and parties. Video teleconference equip- be had from avoided travel expenses alone. ment is even being used in the federal courts. It is worth investigating the availability of such Conclusion equipment at larger local companies, colleges, hospitals, television stations, etc., who may be willing to rent It will take time to get used to teleconference tech- scheduled time on their equipment. Instead of an hourly niques. As with any technology, there will be some rate, a rate for a block of several hours might be accept- equipment or connection problems along the way. But able. Be sure to have someone from the supplier’s tech- the bigger factor, the ability of the technology to dupli- nical support available on the scheduled time, which the cate almost entirely an in-person arbitration hearing, is supplier is likely to want as well. And have the parties unquestionable. place the call from their side. To be sure everything is Video teleconference arbitration hearings are not to operating well, a pre-hearing try-out of the connection be tried by people who cannot adjust to a measured by the technical people is recommended close in time to pace. This is not a system for people who cannot engage the actual hearing. in some advanced preparation. It is a system that will be usable in many cases, in a manner that is less costly and Costs and Savings more time-efficient than that same hearing in person. Generally in arbitration the parties carry their own Lights, camera, action. costs and share equally both the fee and the expenses of the arbitrator. Arbitrators charge for their time per hear- 1. See Elaine McArdle, Video Depositions: the New Weapon of ing day and most arbitrators charge for time spent in ex- Persuasion at Trial, Lawyers Weekly USA, Jan. 25, 1999, p. cessive travel such as a trip that must take place the day B.1; Eric Berkman, Live Video Slashes Deposition Costs, before. We are reimbursed for airfare, hotel, rental car, Speeds Court Dockets, Lawyers Weekly USA, Jan. 24, 2000, p. B.3; and Samuel L. Davis, A Practical Guide to Videocon- meals, parking and other expenses incurred to attend a ferencing, Trial Magazine, Mar. 2000, p. 48. hearing.

16 Journal | September 2000 Shootings by Police Officers Are Analyzed Under Standards Based on Objective Reasonableness

BY J. MICHAEL MCGUINNESS

Recent cases in New York1 and throughout the nation harm, investigating alleged or suspected crimes, appre- have demonstrated the trauma that citizens and law en- hending and taking suspects into custody, and other re- forcement officers may experience from routine police lated duties. Law enforcement officers are required to encounters with criminal suspects. Because of the immediately respond to citizen requests for assistance unique law enforcement context, a special set of rules in life-threatening environments and to protect every- has emerged that is substantially different from ordi- one. nary tort and criminal law principles. Officers are required by law to engage in defense of Serving as a law enforcement officer thrusts an indi- others and in self-defense, both of which are historically vidual into a dangerous world of heavily armed crimi- recognized complete defenses to alleged excessive force nals, along with duties to protect innocent citizens and charges. Courts have recognized that police “must pur- bystanders. In a split second, officers are required to sue crime and constrain violence, even if the undertak- evaluate and instantaneously employ potentially ing itself causes violence from time to time.”8 The use of deadly force against criminal suspects to combat appar- force, therefore, necessarily goes with the law enforce- ent dangers to citizens, bystanders, fellow officers and ment turf. However, the degree and appropriateness of themselves. However, officers may only use reasonable force is subject to scrutiny on a case-by-case basis9 wher- force to thwart the particular apparent danger. Scores of ever the objectively reasonable threshold is exceeded.10 cases have recognized that “an officer oftentimes only In determining reasonableness, courts consider a num- has a split second to make the critical judgment of ber of factors including apparent dangers, the severity whether to use his weapon.”2 The officer is often alone of the suspected crime, and whether the suspect is rein this nightmare, as a “pedestrian in Hell.”3 sisting or attempting to evade arrest.11 The evolving body of use-of-force law mandates a Law enforcement officers are required to react to ap- complete factual assessment of the facts and circum- parent dangers and apparent weapons because typical con- stances “at the moment” of the particular use of force. ditions and lag time (see box on page 22) do not allow The law expressly prohibits courts and juries from for an officer to wait to ascertain a precise weapon with “Monday morning quarterbacking” in these cases.4 certainty. Typical conditions in routine police encoun- The most common form of alleged police misconduct ters present the likelihood of frequent mistakes. Courts is excessive force.5 In use-of-force cases, the central issue have long recognized the balance that law enforcement is typically whether an objectively reasonable officer officers must employ: could have reasonably believed that the force employed was appropriate.6 Contemporary use-of-force law J. MICHAEL MCGUINNESS, a member of strikes an appropriate balance affording jurors an op- the New York State Bar Association, portunity to theoretically walk in the shoes of officers on practices civil rights, law enforcement the front line. This article addresses the principles set liability and employment litigation in forth in Graham v. Connor,7 a 1989 decision by the U.S. the eastern United States from his of- Supreme Court that established the standard to be em- fices in Elizabethtown, N.C., New York ployed in determining whether use of force by a law en- City and Washington, D.C. forcement officer is excessive, particularly in “mistaken (e-mail [email protected]). belief” cases. He represents both plaintiffs and defendants in law enforcement liability litigation and An Officer’s Essential Duty teaches use-of-force law. He is the author of a forthcom- Law enforcement work is a potentially deadly type of ing treatise, Law Enforcement Officer Legal Survival Guide. employment that involves protecting citizens from

Journal | September 2000 17 The police on an occasion calling for fast action have than four million calls for assistance.17 Actual mistakes obligations that tend to tug against each other. Their and mistaken beliefs will inevitably occur. duty is to restore and maintain lawful order, while not Second, the streets of New York and the United States exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show increasingly contain criminals wielding sophisticated restraint at the same moment, and their decisions have high-tech illegal weaponry, bulletproof vests and special to be made in haste, under pressure, and frequently ammunition designed to kill law enforcement officers without the luxury of a second chance.12 on the front line.18 The streets in some areas are so full of illegal guns that they have been described as a “domes- Many of these split-sec- 19 ond decisions to use force tic Vietnam.” Law enforce- are correct, while some are Attempts to evade the officer, as ment officers are usually the mistaken. Under what cir- prime targets of these illegal cumstances does a mistaken well as furtive glances, sudden guns. Courts have recognized these trends in apply- belief that deadly force is turns and ignoring requests to necessary subject an officer ing excessive force princi- to civil, civil rights or crimi- bring one’s hands into view are ples in garden-variety police nal liability? Generally, if encounters. The Supreme the officer’s mistaken belief common indicia of behavior that Court has long recognized is reasonable under the cir- the “practical difficulties of legitimately give rise to suspicion attempting to assess the cumstances, then the officer 20 is not subject to any civil or and prospective danger. suspect’s dangerousness.” criminal liability under set- Courts have also generally tled Supreme Court author- recognized that law enforcement officers are particularly vulnerable to unfounded ity. The perceived danger must only be apparent, not 21 real or actual, in order to justify the use of deadly force. claims of abuse. New York courts have recognized that a police officer is New York courts have recognized a common gesture not required to “await the glint of steel” before he or she that fuels the need for the use of force: the sudden reach can act to preserve his or her own safety because once towards a pocket or the waistband area. Such gestures pre- the “glint of steel” appears, it is “often . . . too late to sent grave risks for officers and citizens. In People v. Ben- 22 take safety precautions.”13 jamin, the court explained: Encountering and surviving critical law enforcement It is quite apparent to an experienced police officer, and incidents with criminal suspects is perhaps the foremost indeed it may almost be considered common knowl- challenge to the law enforcement profession. Actual ex- edge, that a handgun is often carried in the waistband. It is equally apparent that law-abiding persons do not cessive force can subject an officer to multiple and over- normally step back while reaching to the rear of the lapping charges, civil and criminal, in both state and waistband, with both hands, to where such a weapon 14 federal courts. The common thread that runs through- may be carried. Although such action may be consistent out these liability theories is the objective reasonableness with innocuous or innocent behavior, it would be unre- standard. alistic to require [the police] to assume the risk that the defendant’s conduct was in fact innocuous or innocent. Increasing Dangers . . . Indeed, it would be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his New York courts have observed that “‘[s]carcely a 23 day goes by in New York City’ during which an inno- safety (emphasis added). cent life is not lost to firearms wielded by criminals.”15 Law enforcement officers are trained to evaluate Street criminals are often better equipped with sophisti- human behavior as a part of their basic functions. At- cated weapons than are officers. tempts to evade the officer, as well as furtive glances, A number of factors have contributed to the environ- sudden turns and ignoring requests to bring one’s ment that requires decisive police response to apparent hands into view are common indicia of behavior that le- danger. gitimately give rise to suspicion and prospective dan- First, civil rights advocates have challenged police ger.24 Police encounters often occur at night, which sub- for the failure to protect citizens from better-armed stantially limits vision and enhances risk to everyone. criminals. This phenomenon has been particularly Criminals often flee and take cover in uncertain terrain prevalent in the alleged domestic violence context.16 thus putting officers at a further disadvantage. Law-abiding citizens demand instantaneous and deci- Potential for Multiple Claims Law enforcement offi- sive law enforcement responses to their legitimate cers are subject to civil, civil rights and criminal liability needs. In 1990, New York City police responded to more CONTINUED ON PAGE 20

18 Journal | September 2000 CONTINUED FROM PAGE 18 “reasonableness of the moment” standard.32 Cases make for excessive force and a broad range of other conduct.25 clear that “only” the situation present “at the precise moment” of the use of force is to be factored into the Citizens have available a plethora of remedies to chal- 33 lenge alleged police abuse. A common legal standard “reasonableness inquiry.” underlies most of these alternative charges: the objective The Supreme Court has also held that use-of-force reasonableness standard. law also does not allow any evidence that may suggest The amount of deadly force since the early 1970s has the officers had any less drastic or less intrusive alterna- 34 Plakas v. Drinski 35 dropped 50% in the major cities.26 Nevertheless, state tives available to them. In , the Sev- and federal prosecutors increasingly pound away with enth Circuit explained how officers are not required “to criminal prosecutions of law enforcement officers. use the least intrusive or even less intrusive . . . alternatives. . . . The only test is whether what the police offi- However, there are certainly considerable numbers of 36 documented cases of serious police abuse that meet the cers actually did was reasonable.” applicable liability standards.27 Where an officer’s con- The Objective Reasonableness Standard duct is objectively reasonable, he/she is entitled to sum- In Graham v. Connor,37 the Supreme Court enunciated mary judgment in civil cases and dismissal of criminal the parameters that are unquestionably the benchmark charges. for use-of-force law. The Court explained: [T]he reasonableness of a particular use of force must Courts have structured a be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hind contextual test for the analysis sight. of law enforcement use-of-force The calculus of reasonableness must embody allowance claims. This methodology is for the fact that police officers are often forced to make split-second judgments—in circumstances that are grounded on the “reasonableness tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situa- of the moment” standard. tion. . . .

Apparent Danger Requires Reasonable Force [T]he test of reasonableness under the Fourth Amend- ment is not capable of precise definition or mechanical If there is apparent danger to the officer or to any citi- application, however, its proper application requires zens, a law enforcement officer is required to stop the careful attention to the facts and circumstances of each 28 threat to the officer or citizen. In Davis v. Freels, a lead- particular case, including, the severity of the crime at ing police shooting case, the court explained: issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is ac- It is not necessary that the danger which gave rise to the tively resisting arrest or attempting to evade arrest by belief actually existed; it is sufficient that the person re- flight.38 sorting to self-defense at the time involved reasonably believed in the existence of such a danger, and such rea- The Court in Graham explained how an officer’s evil 29 sonable belief is sufficient even where it is mistaken. intentions will not make a Fourth Amendment violation Professor Irving Joyner of North Carolina outlined out of an objectively reasonable use of force; nor will an the principles of the use of deadly force by police offi- officer’s good intentions make an objectively unreason- 39 cers as follows: able use of force constitutional. In Tennessee v. Garner,40 the Supreme Court explained: A police officer is justified in using deadly force when it is or appears to be reasonably necessary: 1. To defend [I]f the suspect threatens the officer with a weapon or himself or a third person from what he reasonably be- there is probable cause to believe that he has committed lieves to be the use or imminent use of deadly physical a crime involving the infliction or threatened infliction 30 force (emphasis added). of serious physical harm, deadly force may be used if 41 Even someone fleeing a misdemeanor crime may be necessary to prevent the escape. subjected to deadly force. “[I]f the misdemeanant poses In Smith v. Freeland,42 the Sixth Circuit explained: a threat of death or serious bodily injury to the officer or 31 [U]nder Graham, we must avoid our personal notions of third persons, deadly force may be authorized.” proper police procedure for the instantaneous decision Analytical Methodology Courts have structured a of the officer at the scene. We must never allow the the- contextual test for the analysis of law enforcement use- oretical, sanitized world of our imagination to replace of-force claims. This methodology is grounded on the the dangerous and complex world that policemen face

20 Journal | September 2000 every day. What constitutes ‘reasonable’ action may object in a suspect’s hands before firing on him.’”48 The seem quite different to someone facing a possible as- court held that an officer may justifiably fire if he/she sailant than to someone analyzing the question at reasonably perceives that a suspect may have a weapon. leisure.43 In Slattery v. Rizzo,44 an officer who shot the suspect The “Could Have Believed” Standard was absolved of liability because it was objectively rea- A number of cases have demonstrated how courts sonable for the officer to have believed that the suspect now routinely apply the “could have believed” stan- was reaching for a gun, when in fact the object in the dard in use-of-force litigation. If an officer reasonably suspect’s hands was actually a beer bottle. In McLenagan could have believed that the suspect was armed, the shoot- v. Karnes,45 an officer was absolved of liability when the ing is justified. When criminal suspects reach into their officer shot an unarmed suspect who appeared to be pockets or waistbands in a law enforcement encounter, chasing another officer. Although the suspect was un- such almost always justifies the use of deadly force. 49 armed and handcuffed in front, the officer could not In Wyche v. City of Franklinton, the plaintiff alleged confirm there was no weapon. In McLenagan, the court that an officer used excessive force in shooting the dece- explained: dent after a confrontation. The decedent had been acting bizarrely, causing a convenience store clerk to summon [A] suspect’s failure to raise his hands in compliance police. The officer responded and observed the dece- with a police officer’s command to do so may support the existence of probable cause to believe that the sus- dent reach behind him. Fearing a weapon, the officer pect is armed. then shot the decedent in the leg. As the decedent continued to advance, the officer shot him a second time, We do not think it wise to require a police officer, in all killing him. The decedent was unarmed. The court ex- instances, to actually detect the presence of an object in a suspect’s hands before firing on him. . . . plained: We will not second-guess the split-second judgment of Caldwell is entitled to qualified immunity if he can es- a trained police officer merely because that judgment tablish that, in light of the clearly established principles turns out to be mistaken, particularly where inaction governing the use of force to effect an arrest, he could, could have resulted in death or serious injury to the of- as a matter of law, reasonably have believed that his use ficer or others . . . section 1983 does not purport to re- of deadly force was lawful.50 46 dress injuries resulting from reasonable mistakes. In Hunter v. Bryant,51 the Supreme Court adopted the In Sigman v. Town of Chapel Hill,47 the Fourth Circuit “could have believed” standard in law enforcement use- affirmed the trial court’s grant of summary judgment to of-force cases. This standard absolves the officer of lia- police officers who shot and killed a suspect whom the bility “if a reasonable officer could have believed [the officers perceived was holding a knife and began walk- conduct in issue] to be lawful, in light of clearly estab- ing towards them, stating: “[A] police officer need not, lished law and the information the [arresting] officers in all circumstances, ‘actually detect the presence of an possessed.”52

Journal | September 2000 21 the street. In an instant Officer Schulcz had to decide whether to allow his suspect to escape. He decided to ‘Lag Time’ and stop him, and no rational jury could say he acted un- Shots in the Back reasonably. The court further explained: At first glance, cases involving “back shots” or Had [Smith] proceeded unmolested down Woodbine shootings from a rear position may suggest that Avenue, he posed a major threat to the officers manning the shooting was unnecessary because the danger the roadblock. Even unarmed, he was not harmless; a was leaving. However, ballistics studies reveal car can be a deadly weapon. Finally, rather than con- that a person can turn around in less time than it fronting the roadblock, [Smith] could have stopped his takes to fire even a drawn weapon.1 Because of car and entered one of the neighboring houses, hoping this recognized “lag time,” cases with bullet tra- to take hostages. Mr. Smith had proven he would do al- jectories from the rear are analyzed under the ob- most anything to avoid capture; Officer Schulcz could certainly assume he would not stop at threatening oth- jectively reasonable standard. ers.54 Thus, it is not unusual for shots to enter a sus- 55 pect in the side or in the back. In the time it takes In Pittman v. Nelms, the court employed the objec- to unholster, prepare and fire a weapon, often the tive reasonableness standard and held as a matter of law position of the suspect has changed. After the first that a police officer did not use excessive force in shoot- shot or warning, it is not unusual for a suspect to ing a fleeing suspect from the rear. In Pittman, two offi- turn his or her back to the officer out of fear. These cers, Banks and Nelms, stopped a car belonging to a sus- scenarios often justify back shootings, although pected drug dealer. After approaching the car, Banks on the surface they may appear suspicious. leaned inside to speak to the driver, who then took off with Banks’ arm still stuck inside the window. After 1. See Earnest J. Tobin & Martin L. Fackler, Officer Re- Banks was thrown from the car, and the officer knew his action - Response Times in Firing a Handgun, 3 partner was no longer in danger, Nelms fired his gun, Wound Ballistics Rev. at 6 (1997); Mark Hansen, hitting Pittman, a passenger, in the back. The court con- Faster Than a Speeding Bullet: Study Says Quick Turns by Suspects Can Account for Gunshot Wounds cluded that the shooting was objectively reasonable de- in Back, Sept. 1997 A.B.A. J. at 38 (Sept. 1997). spite the back shot.56 In Ford v. Childers,57 the Seventh Circuit held that a fleeing suspect’s constitutional rights were not violated The following cases demonstrate far more difficult as a matter of law. The officer was held to have acted fact patterns but no liability. reasonably in shooting at a fleeing suspect, even though 53 In Smith v. Freland, the officer saw a car run a stop the officer could not be certain whether the suspect was sign and tried to stop the car. Instead of pulling over, the armed. In Ford, Officer Childers was called to the scene car led Officer Schulcz on a high-speed chase for several of a bank robbery in progress. He could see the hands of miles before turning down a dead-end residential street. the bank patrons in the air from outside, but he could During the pursuit, the driver, Mr. Smith, eluded several not see the suspect or any weapon that the suspect may police cars, swerving towards several of them, and have been wielding. The suspect exited the bank carry- around one roadblock. Once on the dead-end street, ing only a bag. Childers and his partner pursued the Smith turned his car around on a lawn and faced Officer suspect and warned him to stop. When he did not stop Schulcz’s car. Schulcz thought the car was stuck in the running, both officers fired shots at the fleeing suspect. lawn and began to close in on the car, in order to prevent Thereafter, the suspect was captured and the officers Smith’s escape. Officer Schulcz eventually got out of his found that he was shot in the back. The court explained car and began to approach Smith’s car in order to arrest that “a reasonable belief that danger exists may be Smith. formed by reliance on appearances.” (emphasis added).58 Just as Schulcz approached, Smith backed up and The lives of police officers depend on appearances. The drove forward, ramming Schulcz’s car, and then backed court reasoned: up again to go around it. When Smith drove by, Schulcz shot into the passenger side of the car. The bullet went In view of the totality of the information Officer Childers possessed when he fired at Ford, we hold that through the seat from behind and into Smith’s right a reasonable jury could only conclude that Officer side, killing him. The court held that, as a matter of law, Childers had probable cause to believe that Ford posed the seizure was not unreasonable. The court reasoned: a threat of serious physical harm to himself and/or to others. Thus, Childers’ actions under the circumstances After a dramatic chase, Officer Schulcz appeared to were objectively reasonable as a matter of law.59 have trapped his man at the end of a dark street. Sud- denly Mr. Smith freed his car and began speeding down CONTINUED ON PAGE 24

22 Journal | September 2000 CONTINUED FROM PAGE 22 The court reasoned that “the only objectively reasonable conclusion to be drawn from this evidence is that, 60 In Krueger v. Fuhr, the Eighth Circuit held that a po- if the defendants had not shot him, he would have con- lice officer’s shooting of a fleeing suspect was objec- tinued taking whatever measures were necessary to tively reasonable. Officer Fuhr responded to a call iden- avoid capture.”63 The court concluded that “[t]he use of tifying the area in which a suspect was allegedly deadly force was objectively reasonable under these cir- spotted. Fuhr believed that the suspect had just com- cumstances”64 and it held that the plaintiff’s rights were mitted an assault and was possibly an escapee from a not violated as a matter of law. halfway house. While canvassing the area, Fuhr spotted In each of the foregoing cases, while none of the sus- the suspect, Krueger, and approached him with his pects clearly wielded a weapon drawn. He then in- weapon at the time they were structed Krueger to freeze. shot, each court ruled that Krueger, instead, ran and Alleged excessive force cases the deadly force was reason- Fuhr pursued him. Fuhr typically arise from judgment able given the appearance of yelled for Krueger to stop; the threat and evasion. but Krueger continued and, calls made by law enforcement These and other cases as he ran, tried to pull some- officers under the most difficult demonstrate that the number thing from his waistband. As of shots fired is generally not Fuhr witnessed this attempt, circumstances. a determinative factor in the he slowed his pursuit and use of force inquiry. An offi- fired four shots at the sus- cer is required to shoot until pect. Two shots hit Krueger the threat is stopped. Modern police firearms will typi- in the back and one hit him in the base of the skull, cally fire up to 15 rounds in a matter of three or four sec- killing him. The “fact that Leroy Krueger was shot in the onds. Thus, it is not unusual to have an extensive num- back [was insufficient to negate] the reasonableness of ber of shots in a given encounter. Officer’s Fuhr’s actions.”61 The court held that it was “objectively reasonable for Conclusion Officer Fuhr to believe on the basis of this information Alleged excessive force cases typically arise from he faced a serious and immediate danger of physical judgment calls made by law enforcement officers under harm when Leroy Krueger pulled, or seemed to pull, a the most difficult circumstances. knife from his waistband.” Police officers are not re- Because of the proliferation of extensive use of illegal quired to “forgo the use of deadly force to prevent their guns by criminals and the necessity of quick police ac- own death or serious physical injury whenever there is tion, some innocent citizens will inevitably be injured or a possibility that another officer might later apprehend killed by law enforcement officers, especially when such the fleeing suspect.” innocent citizens make gestures inferring that weapons In Forrett v. Richardson,62 a suspect who committed a are being retrieved. The Graham standard and contem- burglary had tied up three people, murdering one and porary use-of-force law strike an appropriate balance af- assaulting another. He was shot while trying to escape. fording citizens remedies from truly unreasonable con- Once he left the house, one victim was able to notify the duct yet protecting officers whose actions are consistent police. The suspect fled in a stolen truck. The police re- with reasonable beliefs even when mistaken. sponded to the call and were able to locate the truck within the hour, but there was no sign of the suspect or 1. The recent high profile New York cases have spawned the firearms. The police canvassed the area and located new rounds of analysis within the law enforcement and the suspect, Forrett, in a residential neighborhood. He academic communities. The U.S. Civil Rights Commis- sion has held hearings and has issued preliminary re- ran, and the police gave chase. The chase continued as ports. In response, the New York City Police Department Forrett eluded the police by vaulting fences, hiding in a has fired back. See, e.g., NYPD Response to the Draft Report shed, taking off a layer of clothing to change his ap- of the U.S. Commission on Civil Rights - Police Practices and Civil Rights in New York City at http://www.ci.nyc.ny.us/ pearance, and running. Finally, the officers trapped him htm/nypd/home.html. in a yard that had a six-foot fence. The officers warned 2. E.g., Ford v. Childers, 855 F.2d 1271, 1276 (7th Cir. 1988). Forrett to stop but, as Forrett hesitated, the officers fired 3. “The policeman’s world is spawned of degradation, cor- at him. Forrett attempted to jump the fence and, as he ruption and insecurity . . . . he walks alone, a pedestrian reached the other side, the bullets penetrated through in Hell.” William A. Westley, Violence and the Police the fence and hit him in the back. Forrett sued the offi- (1970). “A police officer’s life is always at risk, no matter cers for excessive use of force. how routine the assignment might seem.” Floyd, Police

24 Journal | September 2000 Deaths Mount Nationwide, at 1; National Law Enforce- 15. People v. Marquez, 149 Misc. 2d 166, 170, 563 N.Y.S.2d 987 ment Officers Memorial Fund, Inc. “On average, one po- (Sup. Ct., Bronx Co. 1990) (citations omitted). lice officer dies within the line of duty nationwide every 16. 42 U.S.C. § 1983 and other cases are developing liability 54 hours.” Id. “There are more than 64,000 criminal as- theories against law enforcement officers and agencies for saults against our law officers each year resulting in more failing to properly respond to domestic violence. See than 22,000 injuries.” Id. Over 14,000 law enforcement of- Avery, Police Misconduct at § 2.33; Watson v. Kansas City, ficers have been killed. The Officers at 1. The most com- 857 F.2d 690 (10th Cir. 1988). mon source of death of officers occurs from murders committed by criminal suspects in the process of arrest. 17. See Peak, Policing America: Methods Issues and Chal- See Peak, Policing America: Methods Issues and Chal- lenges at 358 (1993). lenges, at 359 (1993). 18. Id. at 357-58. 4. See Graham v. Connor, 490 U.S. 386, 396-97 (1989); Schulz v. 19. See Gordon Witkin, Ted Guest & Dorian Freidman, Cops Long, 44 F.3d 643, 649 (8th Cir. 1995). Under Fire, U.S. News and World Report, Dec. 3, 1990, at 5. See Gillespie, Hart & Boren, Police Use of Force (1998); 32-44. Artwohl & Christensen, Deadly Force Encounters (1997). 20. Tennessee v. Garner, 471 U.S. 1, 20 (1985); Sigman v. Town of 6. A Confrontational Force Continuum “is generally recog- Chapel Hill, 161 F.3d 782 (4th Cir. 1998) (reasonable per- nized as a valuable analytical tool.” The Continuum illus- ception of a weapon warrants deadly force). trates a graduated scale of officer reaction to the level of 21. See, e.g., Brooks v. Scheib, 813 F.2d 1191, 1194 (11th Cir. threat/force employed by a criminal suspect. See Hanna, 1987) (holding that officers working in high crime areas How To Handle Unreasonable Force Litigation 353 Prac. L. are likely subject to higher numbers of complaints). Inst. at 360 (1998). 22. 51 N.Y.2d 267, 434 N.Y.S.2d 144 (1980). 7. 490 U.S. 386, 396-97 (1989). 23. Id. at 271. 8. Menuel v. City of Atlanta, 25 F.3d 990, 997 (11th Cir. 1994). 24. See, e.g., People v. Warren, 205 A.D.2d 368, 613 N.Y.S.2d 9. See Thomas v. Roach, 165 F.3d 137, 143 (2nd Cir. 1999). 375 (1st Dep’t 1994); People v. Alozo, 180 A.D.2d 584, 580 10. In civil cases, where the objective reasonableness test is N.Y.S.2d 298 (1st Dep’t 1992); People v. Rodriguez, 177 A.D. met, the officer is entitled to qualified immunity from suit 521, 575 N.Y.S.2d 911 (2d Dep’t 1991). if “officers of reasonable competence could disagree” on 25. Virtually every conceivable legal theory and prospective the legality of the officer’s actions. See Malley v. Briggs, legal cause of action available in tort, civil rights and con- 475 U.S. 335, 341 (1986); Lennon v. Miller, 66 F.3d 416, 420 stitutional law is readily applicable to law enforcement (2nd Cir. 1995). officers in their daily duties. The broad range of prospec- 11. Lennon at 420, citing Graham v. Connor, 490 U.S. 386, 396 tive civil and civil rights liability of police officers include (1989). alleged excessive force, negligence, claims based on arrest and detention involving warrantless arrests, arrests 12. Parish v. Hill, 350 N.C. 231, 245-46, 513 S.E.2d 547, 556 under unconstitutional statutes and ordinances, mali- (1999), quoting Whitley v. Albers, 475 U.S. 312, 320 (1986) cious prosecution, abuse of process, retaliatory prosecu- (omitting internal quotes). tion, illegal searches and seizures, illegal restraint, false 13. People v. Morales, 198 A.D.2d 129, 130, 603 N.Y.S.2d 319 arrest, abuse of process, deprivations through improper (1st Dep’t 1993). use of informants and undercover agents, deprivation of 14. Excessive force claims are actionable in state criminal rights based on retaliatory actions, interrogations, denial court via various homicide and felony assault charges. of medical attention, denial of counsel, verbal abuse and Title 18 of the U.S.C. § 242 provides a federal criminal harassment, failure to provide police protection in vari- remedy for excessive force. A plethora of civil and civil ous contexts including domestic violence, conspiracies to rights theories are applicable in actual police misconduct violate civil rights, interference with family relationships, cases. See, e.g., Spell v. McDaniel, 824 F.2d 1380 (4th Cir. police pursuits, failure to disclose or act upon exculpa- 1987); Avery, Rudovsky and Blum, Police Misconduct: tory evidence, negligence or deliberate indifference in the Law and Litigation (3d ed. 1999); McGuinness, Law En- establishment or maintenance of roadblocks, misuse of forcement Officer Legal Survival Guide (forthcoming weapons, defamation, invasion of privacy, discrimination 2000).

Journal | September 2000 25 and more. See Avery, Rudovsky and Blum, Police Miscon- 41. Id. at 11-12. duct: Law and Litigation (3d ed. 1999). 42. 954 F.2d 343 (6th Cir. 1992). 26. Chevigny, Police Violence: Causes and Cures, 7 J.L. & Pol’y 43. Id. at 347. 85 (1998); see Edge of the Knife: Police Violence in the 44. 939 F.2d 213 (4th Cir. 1991). Americas, 66-67 (1995). 45. 27 F.3d 1002 (4th Cir. 1994). 27. See Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987); Avery, Rudovsky & Blum, Police Misconduct: Law and Litiga- 46. Id. at 1007. tion (1999) (cataloging cases). 47. 161 F.3d 782 (4th Cir. 1998). 28. 583 F.2d 337 (7th Cir. 1978). 48. Id. at 787. 29. Id. at 341. 49. 837 F. Supp. 137 (E.D.N.C. 1993). 30. Irving Joyner, Criminal Procedure in North Carolina, 50. Id. § 3.4 at 155 (1989). 51. 502 U.S. 224 (1991). 31. Id. at 155 citing Tennessee v. Garner, 471 U.S. 1 (1985). See 52. Id. at 227. United States v. Sanchez, 914 F.2d 1355 (9th Cir. 1990); Smith v. Freeland, 954 F.2d 343, 357 (6th Cir. 1992). 53. 954 F.2d 343 (6th Cir. 1992). 32. E.g., Graham v. Connor, 490 U.S. 386, 396-97 (1989). 54. Id. at 347. 33. Schulz v. Long, 44 F.3d 643, 648 (8th Cir. 1995). 55. 87 F.3d 116 (4th Cir. 1996). 34. Illinois v. LaFayette, 462 U.S. 640, 647 (1983) (reasonable- 56. Id. at 120. ness of governmental activity does not turn on existence 57. 855 F.2d 1271, 1275 (7th Cir. 1988) (en banc). of alternative “less intrusive” means). 58. Id. at 1275. 35. 19 F.3d 1143 (7th Cir. 1994). 59. Id. 36. Id. at 1149. 60. 991 F.2d 435 (8th Cir. 1993). 37. 490 U.S. 386 (1989). 61. Id. at 440. 38. Id. at 395. 62. 112 F.3d 416 (9th Cir. 1997). 39. Id. at 397. 63. Id. at 421. 40. 471 U.S. 1 (1985). 64. Id.

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26 Journal | September 2000 Proof of Recurring Conditions Can Satisfy Prima Facie Requirement For Notice in Slip-and-Fall Litigation

BY Y. D AVID TALLER

roof that a “recurring hazardous condition” ex- dressed by the landlord.”9 A mere general awareness of isted may serve as effective constructive notice some dangerous condition is legally insufficient to es- Pwhen the plaintiff in a slip-and-fall case seeks to tablish constructive notice,10 but the threshold for liabil- provide the required prima facie showing that the defen- ity is met, for example, when a landlord is shown to dant either created the condition or defect that caused have negligently maintained the premises by failing to the accident or that the defendant had actual or con- maintain a clean-up schedule adequate to prevent the structive notice of the condition or defect.1 creation of a dangerous condition.11 Such evidence will The concept of a “recurring condition” is not widely be viewed in a light most favorable to the plaintiff.12 known, but it is a valuable tactic in opposing a defen- Appellate Decisions dant’s request for summary judgment and in proving The First and Second Departments of the Appellate the plaintiff’s case at trial. Unlike a defect such as a bro- Division seem to fall in step with a series of decisions re- ken step, low handrail or sidewalk protrusion that is garding recurring hazardous conditions in stairways continually present, the typical recurring condition in- where the defendant failed to maintain an adequate volves a hazard such as garbage that periodically ap- clean-up schedule. pears on the stairs of an apartment building. The First Department upheld a trial court’s decision Simply stated, a recurring condition exists when a denying the defendant’s motion for summary judgment property owner has actual or constructive knowledge in a case where the plaintiff alleged that she slipped on that a particular dangerous condition tends to occur on garbage in a stairwell that had accumulated over the a regular basis. When that is true, the owner is charged weekend. In a strongly worded decision, the court with constructive notice of each specific recurrence of found that the deposition testimony of the plaintiff and that condition.2 Although the plaintiff need not prove her mother regarding the frequent accumulations of that the defendant actually knew that the particular sub- garbage on the staircase over weekends when it was stance or object was present at the time of the accident,3 used by “a lot of guys hanging out there and partying the plaintiff must demonstrate that the defendant either and drinking” raised a triable issue of fact regarding created the condition by its own affirmative act, was constructive notice of a recurrent dangerous condition aware of a specific condition yet failed to correct it, or when coupled with the evidence of a gap in scheduled was aware of an ongoing and recurring unsafe condi- cleanings between mid-Sunday afternoon and mid- tion that regularly went unaddressed.4 Monday morning and of the assignment over the entire By itself, however, the mere existence of a foreign weekend of a skeleton maintenance crew consisting of a substance is not sufficient to support a negligence single janitor responsible for two 14-story buildings claim.5 To establish a prima facie case, the plaintiff must show that the defendant either created a dangerous con- dition6 or had actual or constructive knowledge of it.7 Furthermore, to constitute constructive notice, “‘a defect Y. DAVID TALLER is a member of the firm of Taller & Wiz- must be visible and apparent and it must exist for a suf- man, P.C. in Queens. His practice focuses on motor vehi- ficient length of time prior to the accident to permit [the cle negligence and premises and municipal liability. He is a graduate of the City University of New York and re- owners’] employees to discover and remedy it.’”8 ceived his J.D. from the Benjamin N. Cardozo School of The plaintiff’s burden of showing that the premises Law. owner had constructive notice of a hazardous condition may also be satisfied by providing evidence that an “ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unad-

Journal | September 2000 27 containing some 112 apartments and their common who alleged that they often noticed garbage and litter areas. The court held that the plaintiff’s proof tended to on the stairs prior to the accident. Two of the witnesses, show that the defendant “negligently maintained the who resided at the premises, said they had made com- staircase by failing to have in effect a clean-up schedule plaints about this condition to the “porters and/or su- sufficiently frequent to avoid the creation of a danger- perintendents” prior to the plaintiff’s accident. 13 ous condition of which it had constructive notice.” The court in Carlos held that the defendant made a In Ramos v. New York City Housing Authority,14 the prima facie showing of the absence of actual or construc- plaintiff sued the city housing authority for injuries sus- tive notice of the allegedly dangerous condition. To tained in a fall on the stair- withstand the motion for well in the authority’s summary judgment, the building. At the conclusion So long as plaintiffs can court, relying on Dwoskin v. of trial, the trial court, with- establish, through evidence in Burger King Corp.,20 held out exception from the de- that the plaintiff was re- fendant, charged the jury on admissible form, the existence of quired to show by specific the imposition of liability factual references that the based on a recurring haz- a sufficiently recurring hazard defendant had knowledge ardous condition. The the- on the defendant’s premises, they of the allegedly recurring ory is becoming the legal condition of garbage and standard by which the suffi- will be able to survive summary debris on the stairwell. It ciency of the evidence must said the conclusory affi- 15 judgment and proceed to trial. be judged. The First De- davits of the non-party wit- partment found that be- nesses were without proba- cause sufficient evidence existed that the stairwell in tive value because they failed to identify how long the which plaintiff fell was used as a “hang out” and would condition existed, the identity of the persons to whom regularly become cluttered with debris and soiled with notice of the condition was allegedly given, and when vomit and human waste between scheduled cleanings, and how it was given.21 the jury was entitled to conclude that the plaintiff’s fall was caused by a recurrent hazard routinely left unreme- The plaintiff should therefore take care not only to be died by defendant.16 sure that the evidence in opposition to the defendant’s In O’Grady v. New York City Housing Authority,17 the motion is presented in admissible form, but also that it First Department, relying on its past decisions, again af- fulfills the requirements of the court in Carlos, identify- firmed the finding of a recurring condition as construc- ing the length of time that the condition existed and the tive notice of a hazardous condition. In O’Grady, the identity of the persons to whom notice of the condition plaintiff was a firefighter responding to an alarm who was allegedly given, and when and how it was given. was injured when he slipped on liquid leaking from Without these specific facts, the affidavit will be held to garbage bags on the stairway in a building owned by be without probative value and will fail to defeat sum- 22 the city housing authority. The appellate panel held that mary judgment. where there was ample evidence in the record that ten- In Kivlan v. Dake Brothers, Inc.,23 the Second Depart- ants would leave garbage in bags in the common areas, ment held that the plaintiff did not need to prove, for and that vagrants who slept in those hallways and stair- purposes of her negligence action, that the landlord had wells at night would break open the bags in search of actual knowledge of the presence of the particular sub- usable items. The court stated that the “ongoing pattern stance, but that the plaintiff had only to demonstrate of such activity, along with the established routine of that the owner either created the condition by its own cleaning up and warning tenants, constituted construc- affirmative act, was aware of the specific condition yet tive notice to defendant of this recurrent condition.”18 failed to correct it, or was aware of an ongoing and re- In Carlos v. New Rochelle Municipal Housing Author- curring unsafe condition which regularly went unad- ity,19 the Second Department further specified its evi- dressed. The court, relying on O’Connor-Miele v. Barhite dentiary requirements for surviving summary judg- & Holzinger,24 held that “where the plaintiff has estab- ment. In opposing the defendant’s motion for summary lished evidence of recurring oil spills and the accumula- judgment, the plaintiff had contended that the stairwell tion of debris in the area where motor vehicles are per- on the defendant’s premises was often littered with de- mitted to park at defendant’s convenience store/gas bris and garbage, and the defendant was therefore on station, where motor oil and other automotive fluids are constructive notice of a recurring condition. The plain- sold. In our view, such evidence raises genuine issues of tiff submitted the affidavits of three non-party witnesses fact as to whether defendant had actual knowledge of

28 Journal | September 2000 and failed to properly remedy a recurring hazardous 10. Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 condition.”25 N.Y.S.2d 493 (1994). Therefore, so long as plaintiffs can establish, through 11. Compare Crosby v. Ogden Servs. Corp., 236 A.D.2d 220, 653 N.Y.S.2d 117 (1st Dep’t 1997), and Ramos v. New York City evidence in admissible form, the existence of a suffi- Hous. Auth., 249 A.D.2d 59, 671 N.Y.S.2d 74 (1st Dep’t ciently recurring hazard on the defendant’s premises, 1998), with Ginsberg v. New York City Transport Auth., 247 they will be able to survive summary judgment and pro- A.D.2d 307, 668 N.Y.S.2d 464 (1st Dep’t 1998); cf., Piacqua- ceed to trial. dio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493 (1994). 12. Anderson v. Klein’s Foods, 139 A.D.2d 904, 527 N.Y.S.2d 897 1. Kalogerides v. Citibank, 233 A.D.2d 298, 649 N.Y.S.2d 806 (4th Dep’t), aff’d 73 N.Y.2d 835, 537 N.Y.S.2d 481 (1988). (2d Dep’t 1996), quoting Bradish v. Tank Tech Corp., 216 A.D.2d 505, 506, 628 N.Y.S.2d 807 (2d Dep’t 1995); Bykof- 13. Lopez v. New York City Hous. Auth., 255 A.D.2d 160, 679 sky v. Waldbaum’s Supermarkets, 210 A.D.2d 280, 281, 619 N.Y.S.2d 398 (1st Dep’t 1998.) N.Y.S.2d 760 (2d Dep’t 1994), citing, inter alia, Eddy v. Tops 14. 249 A.D.2d 59, 671 N.Y.S.2d 74 (1st Dep’t 1998.) Friendly Mkts., 91 A.D.2d 1203, 459 N.Y.S.2d 196 (4th 15. See also Harris v. Armstrong, 64 N.Y.2d 700, 702, 485 Dep’t), aff’d 59 N.Y.2d 692, 463 N.Y.S.2d 437 (1983). N.Y.S.2d 523 (1984). 2. Columbo v. James River II, 197 A.D.2d 760, 761, 602 16. See also Megally v. 440 West 34th Street Co., 246 A.D.2d 346, N.Y.S.2d 959 (3d Dep’t 1993). 667 N.Y.S.2d 716 (1st Dep’t 1998); O’Connor-Miele v. 3. Weisenthal v. Pickman, 153 A.D.2d 849, 850-851, 545 Barhite & Holzinger, 234 A.D.2d 106, 650 N.Y.S.2d 717 (1st N.Y.S.2d 369 (2d Dep’t 1989). Dep’t 1996); Alvarez v. Mendik Realty Plaza, 176 A.D.2d 4. See O’Connor-Miele v. Barhite & Holzinger, 234 A.D.2d 106, 557, 575 N.Y.S.2d 25 (1st Dep’t 1991), lv. denied 79 N.Y.2d 650 N.Y.S.2d 717 (1st Dep’t 1996); Mercer v. City of New 756, 583 N.Y.S.2d 191 (1992); Weisenthal v. Pickman, 153 York, 223 A.D.2d 688, 689-690, 637 N.Y.S.2d 456 (2d A.D.2d 849, 851, 545 N.Y.S.2d 369 (2d Dep’t 1989). Dep’t), aff’d 88 N.Y.2d 955, 647 N.Y.S.2d 159 (1996). 17. 259 A.D.2d 442, 687 N.Y.S.2d 352 (1st Dep’t 1999). 5. Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249-250, 18. Id. 472 N.Y.S.2d 368 (1st Dep’t), aff’d 64 N.Y.2d 670, 485 19. 262 A.D.2d 515, 692 N.Y.S.2d 428 (2d Dep’t 1999). N.Y.S.2d 252 (1984). 20. 249 A.D.2d 358, 671 N.Y.S.2d 494 (2d Dep’t 1998). 6. Id. at 249. 21. See also Young v. Fleary, 226 A.D.2d 454, 640 N.Y.S.2d 593 7. Gordon v. American Museum of Natural History, 67 N.Y.2d (2d Dep’t 1996). 836, 837, 501 N.Y.S.2d 646 (1986). 22. See id. 8. O’Connor-Miele v. Barhite & Holzinger, 234 A.D.2d 106, 650 23. 255 A.D.2d 782, 680 N.Y.S.2d 293 (3d Dep’t 1998). N.Y.S.2d 717 (1st Dep’t 1996), quoting Gordon v. American Museum of Natural History, 67 N.Y.2d at 837. 24. 234 A.D. 106, 650 N.Y.S.2d 717 (1st Dep’t 1996). 9. O’Connor-Miele v. Barhite & Holzinger, 234 A.D.2d at 106- 25. Kivlan v. Dane Brothers, Inc., 255 A.D.2d 782, 783, 680 107. N.Y.S.2d 293 (3d Dep’t 1998).

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Journal | September 2000 29 New Era for Estate Administration In New York Has Reduced Estate Tax But Many Requirements Still Apply

BY EUGENE E. PECKHAM

he new era for handling estates in New York that • At $1 million, the credit for state death taxes began on February 1, 2000 when the state elimi- payable to New York is $33,200 and the federal tax Tnated the tax on estates that would not be subject is $92,050. to federal taxation has reduced the work required for As the current federal exemption equivalent of many estates. Nevertheless, the process of administer- $675,000 gradually increases to $1 million in 2006, so ing an estate still requires adherence to long-established will the threshold for the imposition of New York State procedures and an understanding of how to determine estate taxes.3 whether estate taxes may be due. When the value of an estate does exceed the exemp- The principal effect of the law is to make a New York tion equivalent, the familiar federal Form 706 must be estate tax return necessary only if the gross value of an filed no later than nine months after the date of death. estate exceeds the federal “exemption equivalent,“ The ET-90 form that was required for state taxes has which is fixed at $675,000 through December 31, 2001.1 been eliminated. In its place is New York Form ET-706, For the estate of anyone whose date of death is February which must be filed only if a federal return is required.4 1, 2000, or later, New York imposes only what is com- ET-706 is a simple two-page document based on the monly known as a “pick up tax,“ an amount equal to the multi-page federal form and Internal Revenue Code maximum amount the federal government allows on the (IRC) § 2011, which defines the federal credit for state federal estate tax return as a credit for state death taxes.2 death taxes. The main section of ET-706 is just 11 lines For an estate that totaled $675,000, the federal tax long. The key figure sought is the amount of the state would be $220,550, except that federal law provides a death tax credit that was computed in preparing the fed- “unified credit“ for the first $220,550 in taxes due, and eral Form 706. If the decedent was a New York resident hence no federal or state tax would be payable. who did not own any real estate or tangible personal For an estate worth $675,100, the federal tax would property outside New York, the federal credit is the be $220,587, but the credit for state taxes would be $37. New York tax. If the decedent was not a New York resi- No federal tax would be due, but $37 would be payable dent, the New York tax will be the proportion of the fed- to the state. eral credit represented by the value of realty and tangi- For a gross estate of $727,150, the federal return ble personal property located in New York, divided by shows that the tax due would be $239,846, but a credit the federal gross estate. For New York State residents of $19,296 would be allowed for state taxes. The effect of with out-of-state property, the adjustment is the value of the $220,550 unified credit would mean that no federal the out-of-state property divided by the federal gross es- tax was due, but $19,296 would be payable to New York. tate, times the credit, which is subtracted from the tax Only when a gross estate reaches $727,175 does fed- due to New York. eral tax become due. The federal return shows that the tax due for an estate of this size would be $239,855. The EUGENE E. PECKHAM, a member of the Journal’s Board of credit for state death taxes would be $19,304 and the Editors, is a partner in the Binghamton firm of Hinman, federal tax due would be $1. From this point onward, Howard & Kattell, LLP. He is a past chair of the Trusts the federal tax due increases rapidly: and Estates Law Section of the NYSBA and a fellow of • At $750,000, the credit for state death taxes is the American College of Trust and Estate Counsel. A graduate of Wesleyan University, he received his J.D. de- $20,400 and the federal tax is $7,350. gree from Harvard Law School. • At $800,000, the credit for state taxes is $22,800 and the federal tax is $24,450. • At $900,000, the credit for state taxes is $27,600 and the federal tax is $58,650.

30 Journal | September 2000 In keeping with the nine-month deadline for federal assets although the estate can endeavor to rebut the pre- returns, the first deadline for filing New York State sumption and establish that the decedent owned only ET-706 forms will arrive November 1, 2000. The former half of the asset.9 requirement that 90% of the estate tax be paid within If there is no will, deeds to real property can be trans- seven months after the date of death has been eliminated. ferred by a deed from all of the heirs at law without the need to file for letters of administration. Even if there is Steps Eliminated a will, real property can also be passed by the heirs Gone from the list of necessary steps in handling a without probate unless the will has specified some other New York estate is the requirement that so-called “tax disposition of the property. To pass title to real property waivers“ be obtained before financial institutions could in these circumstances, a title company will usually re- release amounts of $30,000 or more without incurring quire, in addition to a deed from the heirs reciting the the risk of liability for any taxes that might later be due transfer, an affidavit of heirship identifying all the dece- on the funds.5 The waivers, which required that the dent’s distributees. If there was no will, an affidavit value of each account be identified, assured that New must affirmatively confirm that fact. If a will existed, the York authorities would have enough data to compute title company will require proof that it did not specify when an estate was likely to exceed the previous estate some other distribution of the property. tax threshold of $300,000. Estates under $20,000 If the value of personal prop- Similarly, it is no longer necessary to obtain a release erty listed solely in the decedent’s name does not exceed before a financial institution can provide access to the $20,000, Surrogate’s Court Procedure Act § 1301 (SCPA) contents of a safety deposit box,6 another procedure that provides for the appointment of a “voluntary adminis- was designed to assure that a decedent’s assets could trator.”10 An administrator is authorized to collect assets not be concealed. up to $20,000, pay the decedent’s debts, and distribute Also gone is the requirement that a copy of the estate tax return be filed with the Surrogate’s Court together with a fee equal to the amount that was due when the Filing Procedures for ET-706 petition for probate or administration was filed. How- ever, the court may, by local rule, still require that the tax The instructions for Form ET-706 provide that a return be filed.7 completed form should be mailed to the N.Y.S. Es- Still in force are the requirements that an estate ob- tate Tax, Processing Center, P.O. Box 5556, New tain releases of liens for real estate and file a formal In- York, N.Y. 10087-5556. ventory with the Surrogate Court. No fees are associ- If you use a private delivery service such as ated with the filings, however.8 Airborne, DHL, FedEx or UPS, the return should be addressed to The Chase Manhattan Bank, Current Estate Procedures N.Y.S. Government Tax Processing, 12 Corporate To settle an estate in this new era, the first step is still Woods Blvd-4th Floor, Albany, N.Y. 12211-2524. to probate the will and have the executor appointed, or In addition to the completed form itself with all secure the appointment of an administrator if there is no schedules and supporting documents, the mailing will. Once an executor or administrator is in place, how- should include the following items if they have ever, the process of marshaling estate assets is simplified not been previously submitted: because the tax waivers are not required. • A copy of the decedent’s death certificate. As always, however, the probate/administration • A copy of the decedent’s will (if one exists). process is not necessary if all the assets were held jointly • Letters Testamentary or Letters of Adminis- with someone else who has survived, in accounts with a tration (if they were obtained from the Sur- named beneficiary, or in Totten Trust accounts that were rogate’s Court). being held “in trust for” an individual. The amount of • A completed Form ET-14, Estate Tax Power an asset that goes to a named beneficiary or to the per- of Attorney, if the executor/administrator son named in a Totten Trust account must be included, wants the state Department of Taxation and however, when determining whether the estate has a Finance to contact the attorney, accountant potential estate tax liability. or enrolled agent who is assisting with es- When the decedent had a joint account with his/her tate matters. spouse, there is generally a presumption that half the • If the decedent was not a resident of New amount belonged to the surviving spouse and thus only York State at the time of death, Form ET- the other half is subject to taxation. If the joint holder 141, Estate Tax Domicile Affidavit, should was someone other than the decedent’s spouse, there is be attached to the return. a presumption that the decedent contributed all of the

Journal | September 2000 31 the residue to the persons entitled to them either in in- spouse or one of these relatives, a creditor of the dece- testacy under Estates, Powers and Trusts Law § 4-1.1 dent or a person who has paid or incurred the funeral ex- (EPTL) or under a will filed with the court.11 pense of the decedent may also present such an affidavit. First preference for the voluntary administrator goes Once six months have elapsed, up to $5,000 can be to the closest surviving heir at law.12 If several individu- paid under similar conditions to more remote distribu- als have equal rights (a decedent’s children, for example), tees or to a creditor.18 the others must waive their right to be appointed. If there Another useful provision for paying out small was a will, the named executor has the first right to qual- amounts is EPTL § 11-1.1(b)(19), which authorizes a 13 ify, but heirs at law must consent. fiduciary to pay up to $10,000 due to an infant or in- This proceeding greatly simplifies the process of competent directly to the parent transferring the assets of someone who left only a small or a competent adult with whom estate, but it also applies when most of a the infant or incompetent re- wealthy individual’s asserts sides. are in trusts or in joint bank accounts and only $20,000 or Inventories and Tax less is in accounts that bear Computations only the decedent’s name.14 No federal or New York es- The small estate proceeding tate tax return is required if does not apply to property the gross value of an estate is such as housekeeping items, $675,000 or less. family bible and other family A federal return is re- mementos, pets, one motor vehi- quired when the value of cle and up to $15,000, all of which the estate exceeds the ex- vest in and are set off to a spouse emption equivalent, but in or children under 21 pursuant to computing that number EPTL § 5-3.1(a). the estate must include Assets obtainable under SCPA the value of any lifetime 1310 If the decedent’s assets in- gifts that exceeded the cluded amounts owed by a bank, annual $10,000 amount credit union, stockbroker, insurance that may be given to in- company, pension/retirement plan, dividuals without in- hospital/nursing home, etc., SCPA curring any tax liabil- 19 1310 provides a procedure to collect ity. For example, if a these sums if there was no beneficiary person who made a for the amounts and there would other- gift of $100,000 in wise be no reason to file for probate or 1995 dies on October 1, 2000, with administration. The amounts can be a gross estate of $600,000, both federal and New paid to eligible relatives or creditors if York returns will be due. Even though no tax was due at they provide the decedent’s debtor with a notarized af- the time of the $100,000 gift, the $100,000 counts toward fidavit describing their entitlement to the funds.15 the computation of total gift transfers before and after A surviving spouse can obtain $30,000 immediately death, and thus it is added to the $600,000 value of the upon executing an affidavit that all payments made estate when determining whether estate/transfer taxes under the SCPA § 1310 do not exceed $30,000.16 may be due. The amount subject to estate/transfer taxes Once 30 days have elapsed since death, a spouse, sur- will therefore be $700,000, although the actual tax due viving child 18 or older, a father or mother, sister or will be comparatively small after the effect of the brother, niece or nephew can obtain up to $15,000 upon $675,000 exemption equivalent is computed. executing an affidavit that gives the date of death and Once the executor or administrator has determined the individual’s relationship to the decedent, states that the extent of the estates assets and liabilities, a formal no fiduciary has qualified or been appointed, and identi- Inventory must be filed with the Surrogate’s Court.20 fies the names and addresses of the persons entitled to Even though no estate tax returns are due for small the money paid.17 The affidavit must also state that, to estates, assets that have shown a capital gain during the the best of the affiant’s knowledge after diligent inquiry, decedent’s lifetime still receive a step-up in basis to their the total of such payments under this provision does not date of death value, or to the alternate value six months exceed $15,000. Upon the request of the surviving from the date of death if that is elected.21 When these in-

32 Journal | September 2000 herited assets are sold, long-term capital gains rates be necessary to file for both the prior year and the short apply to any further gain in excess of the stepped-up year up to the date of death. If the return for the prior basis, regardless of how soon after death the sale takes year has been filed, only the return covering income replace. The capital gains holding period applicable to as- ceived up to date of death must be filed. No return is resets acquired from a decedent is always long-term.22 quired if income is below the filing limit, which ranges Now that fewer estate tax returns will be necessary, from $7,050 for a single taxpayer under 65 up to $14,400 the formal Inventory required by the Surrogate’s Court for a joint return when both spouses are over 65.27 For a will become more important as the best method for es- married taxpayer, a joint return filed for the year of tablishing date-of-death value. Under § 207.20 of the death (with the consent of the fiduciary, if any) would Uniform Rules, estates are required to submit “a list of include the surviving spouse’s income for the whole 28 assets constituting the gross estate for tax purposes.“ year and the decedent’s income up to death. Presumably, for an estate where no estate tax return is Even if income is below the filing limit, it is a good required, this means all assets that would be included in idea to file a return. It notifies the income tax authorities the gross estate as if a return were filed. The of the death, making it clear that no further returns Inventory form itself requires information on should be expected. A return may also be desirable to all such assets.23 When no estate tax return is make certain elections. Medical ex- required, the Inventory is due six months penses paid up to from the date letters are issued.24 When an one year from estate tax return is required, the Inventory is death may be due when the return is due (ordinarily nine deducted on the months from the date of death, but includ- decedent’s final ing extensions).25 If there is no probate or return, provided administration, it would still be prudent they are not de- to prepare a list of assets and their date- ducted as a debt of-death values. This would be useful on the estate tax re- 29 both to establish date-of-death values turn. Accrued and for basis purposes and to show that no unreported income estate tax return was required. from Series E bonds Another still-required step is to se- can be included on cure the Release of Lien for any real decedent’s final re- property of the estate. The purpose is turn, which can be an to discharge the lien for payment of advantage if the final return would otherwise the estate tax that applies under Tax 30 Law § 982. This is done by filing ei- report low income. ther Form ET-30 or Form ET-85, to- Another duty of the gether with Form ET-117. The ET- executor is to file fidu- 30 is used when a fiduciary has ciary income tax returns been appointed and nine months if the estate has gross in- have not passed since the date of death. come of more than $600. The ET-85 is used for all other cases.26 The exception to Because the tax brackets this procedure is when title is held by the decedent and that define the progression the surviving spouse as tenants by the entirety. In that of the rates for estate income case, Tax Law § 975(f) provides that the lien is automat- taxes are quite narrow, the top rate of 39.6% on the fed- ically divested. Nevertheless, it is always safer to get the eral return is reached when there is only $8,450 of tax- Release of Lien to remove any possible question. When able income. It is generally advisable, therefore, to dis- received, the Release of Lien should be recorded in the tribute the income to the beneficiaries so it will be taxed 31 County Clerk’s Office to clear title to the real estate. at their lower rates. Again, the executor has a choice: to deduct estate administration expenses (executor’s com- Income Tax Returns missions, appraisal fees, attorney and accountant fees, Regardless of whether estate tax returns are required, etc.) either on the estate tax return or on the fiduciary in- income tax returns will be necessary. come tax return.32 If such expenses are paid in the final At the very least, the decedent’s final federal and tax year of the estate, any excess deductions can be New York income tax returns should be filed. If the in- passed through to the beneficiaries to deduct on their dividual has died before the due date for the return cov- personal returns as miscellaneous itemized deduc- ering the prior year (by April 15 or an extension), it will tions.33 Capital losses and net operating losses, if any,

Journal | September 2000 33 also are distributed out in the final year.34 Obviously, if Conclusion the estate is small enough so that neither estate taxes nor As always, planning before death can reduce the estate income taxes are due, the expenses should be de- taxes and simplify the task of settling an estate. A review ducted against income tax. of the Journal’s December 1999 issue on Trusts & Estates As a separate taxable entity, an estate can elect a fis- will identify other items that also need to be considered cal year that must end, at the latest, on the last day of the in both large and small estates. 35 month preceding the date of death. An estate also is 1. New York Tax Law § 971(a) (hereinafter “Tax Law”) and 26 not required to pay estimated income tax for its first two U.S.C. § 6018 (IRC). fiscal years.36 Frequently, what should be done for 2. Tax Law § 952. smaller estates that owe no estate tax is to elect a first 3. IRC § 2010(c). 4. IRC § 6018(a)(3). Tax Law § 971(a). and final tax year ending on the last day of the month 5. Tax Law § 975(e) repealed by L. 1997 c. 389, pt. A, § 20. See preceding the date of death, distribute the assets to the also the Instructions for Forms ET-30 and ET-92. beneficiaries before the end of the year, and wind up the 6. Id. estate. Then a fiduciary return can be filed to distribute 7. Tax Law § 972(c). 8. Tax Law § 982(c) and Uniform Rules for Surrogate’s Court out the administration expenses in excess of the estate’s § 207.20 (hereinafter “Uniform Rules”). See Form ET-117. income as excess deductions for the beneficiaries to 9. Treas. Reg. § 20.2040-1(a)(2). See also Groppe, et al., Harris deduct on their personal returns. 5th Edition: New York Estates, §§ 15:97 et seq. 10. The official forms for a small estate proceeding are Forms Besides having more assets to deal with, the main dif- SE-2A and SE-2B in New York Surrogates Court Practice ference in handling an estate with assets that exceed the (Greenbook) Lexis Publishing, pp. SF201 -205. They are current $675,000 exemption equivalent is the need to file also available in the “New York State Bar Association’s federal and state estate tax returns. Surrogate’s Forms on HotDocs” published by Matthew Bender & Co. Inc. and the NYSBA. Federal Form 706 requires information about all the 11. SCPA 1307. decedent’s assets at death and provides for the subtrac- 12. SCPA 1303(a). tion of allowable deductions. The principal deductions 13. SCPA 1303(b). 14. Charles J. Groppe et al, New York Estates: Estate Planning are administration expenses of the estate and debts of and Taxation § 5.5 (5th ed. 1996) and Turano, Practice the decedent (IRC § 2053), charitable deduction (IRC § Commentary to EPTL § 1301 (McKinney’s). 2055), marital deduction (IRC § 2056) and the new fam- 15. See 27 Carmody Wait 2d §§ 156:42.1, 156:43.1, 156:45.1 (2d ily owned business deduction (IRC § 2057). 1997) for forms. 16. SCPA 1310(2). Accountings 17. SCPA 1310(3). 18. SCPA 1310(4). The final step in the administration process is to de- 19. IRC § 6018(a)(3). termine whether an accounting is necessary. 20. Uniform Rules § 207.20(c). The Inventory is Form I-1 of the If the surviving spouse and/or child or children are Official Forms for Surrogates Courts set forth at page SF- both the executors/administrators and beneficiaries, an 131 of the 2000 Greenbook. 21. IRC § 1014. accounting is probably not necessary. Because the same 22. IRC § 1223(11). people have a dual capacity, they would only be ac- 23. 22 N.Y.C.R.R., Subtitle D, Ch. VII, Form I-1. counting to and releasing themselves. 24. Uniform Rules § 207.20(a). In other situations, an accounting is necessary if the 25. Id. fiduciary wants to be released from further liability to 26. Tax Law § 982(c). See Instructions for ET-30 and ET-85. the beneficiaries. Frequently the account is settled infor- 27. See the chart at p. 14 of the Form 1040 instructions. 28. IRC § 6013(a)(2) and (3). mally without a filing in the Surrogate’s Court. The ac- 29. IRC § 213(c). count is prepared and presented to the beneficiaries, 30. Rev. Rul. 68-145, 1968-1 C.B. 203; IRC § 454(a). and they are asked to sign a receipt and release, dis- 31. IRC § 1(e) and Form 1041 Instructions at p. 17. charging the executor from further liability.37 32. IRC § 642(g). After an accounting has been completed, final distri- 33. Reg. 1.642(h) - 1 and 2. Form 1041, Schedule K-1 and In- structions thereto. bution of the estate assets can take place. If an account- 34. IRC § 6654(l). ing is not filed with the court, the report set forth at 35. See Carmody Wait 2d § 166.8 and 166.10 for Forms. § 207.42 of the Uniform Rules38 should be filed with the 36. 22 N.Y.C.R.R. 37. Forms for an informal account and a receipt and release court to show that the estate has been fully distributed. agreement are at 30 Carmody Wait 2d §§ 166.8 and 166.10. Generally, a formal accounting proceeding in the Sur- 38. 22 N.Y.C.R.R. §1.207.42. rogate’s Court is required only if the beneficiaries in- 39. Official Forms for an Accounting are at Forms JA-1 through clude minors or incompetents who cannot sign a valid JA-8 in Surrogate’s Court Practice (Greenbook) pp. SF134 to SF162. They are also available in the “New York State Bar As- release. It may also be required if the competent benefi- sociation’s Surrogate’s Forms on HotDocs” published by 39 ciaries will not agree to sign releases. Matthew Bender & Co. Inc. and the NYSBA.

34 Journal | September 2000 Courts Differ on Standard Applicable When Parties in Arbitration Cases Seek Provisional Remedies

BY JAMES M. WICKS AND JENNIFER M. MONE

hen courts in New York are asked to authorize This additional language, however, does not in- provisional remedies in aid of arbitration, evitably lead to the conclusion that the three-prong test Wsome apply a traditional three-prong test, esti- should be abandoned. Professor Vincent Alexander’s mating the likelihood of success, assessing the prospects Practice Commentaries to CPLR 7502(c) provide an for irreparable harm, and balancing the equities. Others, analysis that indicates the three-prong test remains ap- however, consider only whether the ultimate arbitration propriate. The commentary explains: award may not be effective if the remedy is not granted. Although ineffectiveness of the arbitration award is the Provisional remedies such as attachment and prelim- sole ground for provisional relief, there is a conceptual inary injunctions have long been tools available to liti- difference between the ground, or basis, for the relief gators seeking to preserve the status quo and prevent ir- and the procedural conditions that may apply when reparable harm during litigation. Requests for them in such ground is established. . . . CPLR 7502(c) itself says that, aside from the ground for provisional relief, “the arbitration cases rely on CPLR 7502(c),1 which was provisions of articles 62 and 63 of this chapter shall amended in 1985 to clarify that they would be available apply.” Although CPLR Article 63, which covers in- in these cases. junctions, does not explicitly impose any additional In litigation, the traditional three-prong test protects conditions, traditional equity jurisprudence requires a the due process rights of the non-movant, while ensur- showing of irreparable injury, likelihood of success on ing a balancing of the equities between the litigants. Re- the merits and balancing of the equities. Finally, the last quiring applicants in an arbitration context to show only sentence of CPLR 7501 is intended simply to prevent that an arbitration award could be rendered ineffectual without the remedy is a far more lenient test. Conceiv- JAMES M. WICKS is a member of the ably, without considering the likelihood of success or Long Island firm of Farrell Fritz, P.C. the possibility of irreparable damage, the potentially He is chair of the NYSBA’s Committee harsh remedies of attachment or injunction could be on Professionalism in Litigation of the granted in cases that lacked merit. Indeed, a preliminary Commercial and Federal Litigation injunction or attachment could be granted for a non- Section and president of the Theodore meritorious claim even before an arbitration began, so Roosevelt American Inn of Court. He long as there was an “arbitrable controversy.”2 was a law clerk to Judge Arthur D. The reasons why some courts are not using the three- Spatt of U.S. District Court. A gradu- prong test in the arbitration context is not clear, al- ate of Wheeling College, he received his J.D. from St. though the very language of CPLR 7502(c) may be a fac- John’s University School of Law. tor in some decisions that have looked at only the potential effect on the ultimate arbitration award. JENNIFER M. MONE is an associate with CPLR 7502(c) states that an application for an order Farrell Fritz. She is the chair of the of attachment or for a preliminary injunction may be en- Committee on Law Student Perspec- tertained in connection with an arbitrable controversy, tives and a member of the Council on “but only upon the ground that the award to which the Public Service of the Association of the applicant may be entitled may be rendered ineffectual Bar of the City of New York. She was without such provisional relief.” It goes on to say that a law clerk to Judge Loretta A. Preska the provisions of CPLR Articles 62 and 63, which govern of U.S. District Court. A graduate of Tufts University, she received her J.D. attachments and injunctions, shall apply, “except that from Fordham University School of Law. the sole ground for the granting of the remedy shall be as stated above.”

Journal | September 2000 35 the court from inquiring into the merits of the dispute The Cullman decision was contrary to existing prece- as a basis for denying arbitration or from intruding on dent, however. In two earlier decisions, panels in the the arbitrator’s authority to make an ultimate determi- First and Second Departments had considered only nation on the merits. Preliminary screening of the mer- whether a potential award might be rendered ineffec- its for the separate and independent purpose of deter- 7 mining the appropriateness of provisional relief has no tual if a provisional remedy was not granted. such effect. The Cullman panel made no mention of the conflicting precedent. But indeed, one case cited by Cullman in Thus, to the extent lawmakers were concerned that support of its holding, OTB,8 had used as its supporting courts might invade the province of the arbitrator by authority cases that had refused to apply the three- considering the merits of the dispute, as Professor prong test.9 OTB relied on quotes from H.I.G. Capital Alexander explains, the inquiry into the merits for pur- Management v. Ligator, in which the First Department poses of deciding a motion for provisional relief expressly held that is merely a preliminary whether the arbitration screening, which would Even decisions within award would be rendered not intrude on the arbitra- ineffectual was the “sole tor’s authority. the same department have applied applicable standard,” and An argument for apply- different standards to applications that the standards of CPLR ing the three-prong test Article 63 did not apply.10 can also be based on the for provisional relief brought Although Cullman did apparent reason why the not expressly state that it legislature adopted CPLR under CPLR 7502(c). was overturning prior de- 7502(c), namely to resolve cisions, it was clear in stat- disputes that had ques- ing that it concurred with tioned whether provisional relief was even available in the analysis set forth in Professor Alexander’s commen- connection with arbitrations. The legislators appear to tary and that courts should now apply the three tradi- have recognized that the need to protect the status quo tional factors in deciding motions under CPLR 7502(c). during a pending arbitration was the same as the need In 1988, the First Department was faced with inter- 3 to protect it during pending litigation. Unfortunately, preting the attachment portion of CPLR 7502(c) for the however, the legislative Memorandum from the Office first time in Drexel Burnham Lambert, Inc. v. Ruebsamen.11 of Court Administration did not shed light on whether The lower court had denied Drexel’s application to at- 4 the traditional three-prong test was intended to apply. tach the assets of the respondents, who were non-residents and had recently suffered substantial financial Conflicting Decisions 12 Even decisions within the same department have ap- losses. The lower court had held that the grounds plied different standards to applications for provisional available for attachments in aid of arbitration were lim- relief brought under CPLR 7502(c). ited to those set forth in CPLR 6201(3), which required a finding that the respondents had an intent to defraud In the most recent appellate decision construing 13 5 creditors or frustrate enforcement of a judgment. The CPLR 7502(c), Cullman Ventures, Inc. v. Conk, the First First Department disagreed with that interpretation of Department held that the three-prong test for injunctive CPLR 7502(c), observing: relief under Article 63 should be used in considering an application for preliminary relief under CPLR 7502(c). A plain reading [of CPLR 7502(c)] indicates that, contrary to the interpretation given thereto by the Supreme In the Cullman case, the lower court had granted the Court, the language of the statute neither limits an petitioners’ application under CPLR 7502(c) for a pre- order of attachment in aid of arbitration to the narrow liminary injunction staying an arbitration in Indiana circumstances set forth in CPLR 6201(3) nor requires pending resolution of an arbitration in New York. On that the petitioner demonstrate any affirmative conduct appeal, the First Department determined that the relief on the part of respondent(s). Indeed, . . . the foregoing section explicitly declares that ‘the sole ground for the in the New York arbitration would not be rendered in- granting of the remedy shall be as stated above’, and effectual if the Indiana arbitration concluded first. The what is stated above is that ‘the award to which the ap- court then applied the “general criteria governing the is- plicant may be entitled may be rendered ineffectual suance of injunctive relief to [the] application for a pre- without such provisional relief.’ . . . Thus, CPLR 6201(3) liminary injunction under CPLR 7502(c)” and held that and CPLR 6301 are simply inapplicable to the instant 14 the petitioners had failed “to demonstrate a likelihood situation. of success on the merits, irreparable injury, or that the In National Telecommunications Ass’n v. National Com- equities balance in their favor.”6 munications Ass’n,15 the petitioner moved for a prelimi-

36 Journal | September 2000 nary injunction under CPLR 7502(c). Relying on Drexel, must the applicant also show that the remedy is war- the First Department found: ranted after a review of whether the claim is likely to be successful, whether there is a prospect of irreparable In arguing that petitioner has failed to demonstrate irreparable harm and a probability of success on the mer- harm, and whether the resulting equitable analysis sup- its, respondent would have this court adopt an inap- ports a provisional remedy? propriate standard for deciding whether relief should be granted under CPLR 7502(c), under which the 1. CPLR 7502(c) states: ground for entertaining an application for a provisional Provisional remedies. The supreme court in the county remedy in aid of arbitration is whether the award ‘may in which an arbitration is pending, or, if not yet com- 16 be rendered ineffectual’ without it. menced, in a county specified in subdivision (a), may entertain an application for an order of attachment or for a Three other First Department decisions, before Cull- preliminary injunction in connection with an arbitrable man but after Drexel, also held that the three-prong test controversy, but only upon the ground that the award to was not appropriate in considering a CPLR 7502(c) mo- which the applicant may be entitled may be rendered in- 17 effectual without such provisional relief. The provisions tion. However, at least three other First Department of articles 62 and 63 of this chapter shall apply to the ap- decisions and four trial court decisions in the depart- plication, including those relating to undertakings and to ment before Cullman used the traditional three-prong the time for commencement of an action (arbitration shall approach.18 be deemed an action for this purpose) if the application is made before commencement, except that the sole ground Even after the 1998 Cullman decision used the three- for the granting of the remedy shall be as stated above. prong approach, confusion has continued in the trial The form of the application shall be as provided in subdi- courts. In a 1999 case, Salomon Smith Barney v. Zielonka,19 vision (a). the Supreme Court in New York County said “the First 2. See, e.g., Continental Chartering & Brokerage v. T.J. Stevenson Department has held” that courts may only entertain an & Co., 678 F. Supp. 58, 60 (S.D.N.Y. 1987) (if all that is required for the “extraordinary relief” of attachment is a application for provisional relief in aid of arbitration showing that an arbitration award may be rendered inef- “upon the ground that the award to which the applicant fectual, then this would allow “practically everyone may be entitled may be rendered ineffectual without going to arbitration to attach the goods and chattels of his such provisional relief.”20 The decision cited H.I.G. Cap- opponent, creating economic chaos”). ital Management, overlooking Cullman. Like most trial- 3. See 2 McKinney’s 1985 Session Laws of New York, at 3525 (Memorandum of Office of Court Administration) level courts, however, the Court nevertheless went on to (“OCA”). apply the three-prong test, noting that “even if this 4. Id. Court used the standards for granting a preliminary in- 5. 252 A.D.2d 222, 682 N.Y.S.2d 391 (1st Dep’t 1998). junction set forth in Article 63 of the CPLR, i.e., likeli- 6. Id. at 230 (citing New York Off-Track Betting Corp. v. New hood of success on the merits, irreparable injury and York Racing Ass’n, 250 A.D.2d 437, 673 N.Y.S.2d 387 (1st balancing of the equities,” the applicant would be enti- Dep’t 1998) (“OTB”) and Koob v. IDS Fin. Servs., 213 tled to relief.21 A.D.2d 26, 32, 629 N.Y.S.2d 426 (1st Dep’t 1995)). Early this year, in In re Application of David B. 7. H.I.G. Capital Management v. Ligator, 233 A.D.2d 270, 650 22 N.Y.S.2d 124 (1st Dep’t 1996) (sole applicable standard is Lawrence, M.D., the Supreme Court in Westchester whether award to which applicant may be entitled may County relied on the First Department’s Guarini deci- be rendered ineffectual without such provisional relief; sion to hold that the only question was whether, under standards of CPLR Article 63 are not applicable) (citing CPLR 7502(c), an arbitration award might be rendered County Natwest Sec. Corp. USA v. Jesup, Josephthal & Co., 180 A.D.2d 468, 579 N.Y.S.2d 376 (1st Dep’t 1992)); accord ineffectual without provisional relief. The court did not Suffolk County Patrolmen’s Benevolent Ass’n v. County of cite the Cullman decision, nor did it apply the three- Suffolk, 150 A.D.2d 361, 540 N.Y.S.2d 882 (2d Dep’t 1989) prong test. In fact, it simply held that the respondent’s (traditional preliminary injunction standard does not arguments under CPLR 6301 had “no relevance,” given apply to a motion under CPLR 7502(c)). that the parties were bound by an arbitration agree- 8. New York Off-Track Betting Corp., 250 A.D.2d 437. ment. 9. Cullman, 682 A.D.2d at 391 (citing OTB, 673 N.Y.S.2d 387). 10. But see Koob, 213 A.D.2d at 32-33 (also relied upon by Conclusion Cullman; applying traditional test under Article 63 in re- At least until CPLR 7502(c) is amended or the Court viewing motion under 7502(c)). of Appeals rules definitively on the standards that 11. 139 A.D.2d 323, 531 N.Y.S.2d 547 (1st Dep’t 1988). should apply when provisional remedies are sought in 12. Id. at 325. arbitration cases, practitioners face a vexing dilemma. 13. Id. at 326. Must an applicant for a provisional remedy demon- 14. Id. at 327-28. strate only that the ultimate award might be rendered 15. 189 A.D.2d 573, 592 N.Y.S.2d 591 (1st Dep’t 1993). ineffectual in the absence of the remedy sought? Or 16. Id. at 573, 580 N.Y.S.2d 289 (emphasis added).

Journal | September 2000 37 17. The following decisions held that the three-prong test Lebenthal & Co. v. Dean Witter, N.Y.L.J., Dec. 30, 1997, at 21 was not appropriate: (Sup. Ct., N.Y. Co.) (ruling that under CPLR 7502(c), a pe- Guarini v. Severini, 233 A.D.2d 196, 650 N.Y.S.2d 4 (1st titioner “must show a likelihood that it will prevail on Dep’t 1996) (“IAS Court properly refused to consider the the merits, that it will suffer irreparable harm in the merits of petitioner’s admittedly arbitrable claims, as it meantime, and that the balance of equities is in its would on a motion for a preliminary injunction under favor”). CPLR article 63, correctly noting that under CPLR Erickson v. Kidder Peabody & Co., 166 Misc. 2d 1, 4-5, 630 7502(c), the only consideration in deciding whether to N.Y.S.2d 861 (Sup. Ct., N.Y. Co. 1995) (“By its terms, grant a preliminary injunction is whether ‘the award to CPLR 7502(c) replaces only the ‘grounds’ which must be which the applicant may be entitled may be rendered in- established for a grant of an attachment or injunctive re- effectual without such provisional relief’”). lief, which are set forth in sections 6201 and 6301, respec- County Natwest Sec. Corp. v. Jesup, Josephthal & Co., 180 tively. The remainder of those articles still apply. There- A.D.2d 468, 579 N.Y.S.2d 376 (1st Dep’t 1992) (“the stan- fore, a party seeking provisional relief under CPLR dard that governs in a case involving arbitration is 7502(c) must still establish, among other things, the exis- whether the award ‘may be rendered ineffectual without tence of a valid cause of action and grounds for relief.”). such provisional relief,’ and the standards generally ap- Schneider v. Helmsley-Spear, N.Y.L.J., Oct. 19, 1995, p. 25 plicable to attachments pursuant to 6201(3), such as sinis- (Sup. Ct., N.Y. Co.) (denying provisional relief under ter maneuvers or fraudulent conduct, are not required to CPLR 7502(c) because petitioners failed to show irrepara- be shown in an application pursuant to CPLR 7502(c)”). ble injury). See Habitations, Ltd. v. BKL Realty Sales Corp., 160 A.D.2d Saferstein v. Wendy, 137 Misc. 2d 1032, 523 N.Y.S.2d 725 423, 554 N.Y.S.2d 117 (1st Dep’t 1990), which reached a (Sup. Ct., N.Y. Co. 1987) (noting that “the limitation of conclusion similar to the Natwest finding. grounds in CPLR 7502(c) was not designed to make the 18. The following cases considered traditional factors in court a simple rubber stamp,” and thus considering the making decisions on CPLR 7502(c) motions: traditional threefold factors in deciding the CPLR 7502(c) motion). Leake v. Merrill Lynch, Pierce, Fenner & Smith, 213 A.D.2d 155, 623 N.Y.S.2d 220 (1st Dep’t 1995) (finding respon- 19. Index No. 11902/91 (Sup. Ct., N.Y. Co. Sept. 27, 1999). dent’s application for a preliminary injunction under 20. Id. at 6. 7502(c) should have been granted “due to the likelihood 21. Id. at 7. of respondent’s success on the merits, . . . and the preju- 22. Index No. 17013/99 (Sup. Ct., Westchester Co. Jan. 21, dice that would flow from denying this relief”). 2000). Hill v. Reynolds, 187 A.D.2d 299, 589 N.Y.S.2d 461 (1st Dep’t 1992) (denying provisional relief under CPLR 7502(c) on the ground that “irreparable harm has not been demonstrated”).

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38 Journal | September 2000 Trial Strategies Quick Voir Dire: Making the Most of 15 Minutes

BY THOMAS F. LIOTTI AND ANN H. COLE For art and science can not exist but in minutely organized particulars. William Blake, Jerusalem [1818-1820] To the Public

oir dire is a blend of art and science. During a To persuasively argue the defense case, you must be well-executed voir dire, trial attorneys use their able to paint a word picture of your case. You must first Vpresentation skills to glean as much information clearly define and distill the key issues and the key facts. as possible from prospective jurors while planting the At this point you may need to determine your prospects seeds of the case in the jurors’ minds. for essential nullification. If the law is bad for you, de- Lawyers must learn to search for sources of bias for termine whether something about the facts or the con- and against the client, when to stop asking questions of duct of your adversaries will make the jurors angry, so jurors believed to be favorable, how to rehabilitate a angry that they may overlook the letter of the law or juror the prosecution seems to have successfully re- purposely disregard it, providing your client with a moved for cause, and how to use a juror who will surely more equitable street justice. You can never start too be excused for cause as a foil to educate the rest of the soon to get the jury angry with your opponent. panel. And, of course, if the judge is not the fair and impar- As with most aspects of trial work, only practice can tial arbiter that he or she should be, you may want to get help an attorney turn voir dire into an art form. The sug- the jury angry at your judge as well, especially since he gestions here are designed to provide a framework for or she will make the legal rulings and charge on the law. lawyers preparing for jury selection. If a judge is late, get to the courtroom early. Get set up The late Cat E. Bennett was a pioneer in the field of jury selection,1 and all who have followed have tried to build upon her work. Much of what we write here ap- THOMAS F. L IOTTI, an attorney in Gar- plies to both civil and criminal trials. Ever since the den City, is the past president of the New York State Association of Crimi- Court of Appeals in People v. Jean2 approved time limits nal Defense Lawyers and a village jus- for voir dire of 15 minutes in the first round and 10 min- tice in Westbury. He is also vice chair utes in each round thereafter, lawyers have been forced of the NYSBA’s Criminal Justice Sec- to focus on what is really important and eliminate un- tion and editor of its Journal. He is a necessary questions. graduate of Adelphi University and Do your warm-up exercises before you begin voir Delaware Law School. dire. We recommend that you practice public speaking, preferably on controversial subjects so that you lose a ANN H. COLE is a jury and trial con- sense of self-consciousness and become more confident. sultant in New York. She has served as Practice engaging your audience, asking them questions a consultant to CBS on the O.J. Simp- and studying their reactions. Another good exercise is to son case and has been retained or re- engage strangers in conversation. Observe how long it ceived court appointments for the de- takes you to get them talking or answering your ques- fense in a number of important cases tions. The ride up to your office on the elevator is an op- including, the Oklahoma City bomb- portune time for such endeavors. Remember what you ing case. Together, the authors have selected many juries. said that elicited their responses. Adopt some of those questions or comments into your voir dire. The authors are grateful to Jason Spector, a law clerk in Mr. Liotti’s office, for his assistance in the research and Study the Case, Define the Objective Even before writing of this article and to Kathleen Murphy of Ms. specific voir dire questions are contemplated, read every- Cole’s office for her assistance. thing you can about the case and visit the scene.

Journal | September 2000 39 and be ready to go. Keep looking at your watch, shak- dumbest people that we could find. He assured us that ing your head. Jurors are taking time off from work. it would not be a problem in that particular county. They already think that the legal system is a big time Body Language Before engaging each prospective waster. Their time is valuable. You care about their time. juror in conversation, take a good look at all of them. Does the judge? Does your adversary? Stand in the well What are they reading, if of the courtroom looking anything? What does it like you are ready. Point to mean if a prospective juror is that courtroom clock. Point How do the potential jurors carry reading the New York Times back toward the judge’s themselves? as compared to the New York chambers. Shake your head Post? How are they dressed? some more. You can rein- Is one of them likely to be like It is said that you can tell force this later when you ask Henry Fonda in Twelve Angry everything about a man’s the jurors questions about wealth by his shoes. their work, their time and Men? Particularly for women, whether they will be able to do they have a modern or give their full attention to traditional haircut? Do they wear a lot of accessories? the case. Start with the basic premise that jurors do not A word of caution, always keep in mind that a want to be there and they view you as being a part of the prospective juror who works or does not work full time system that has interrupted their lives. You have to might not be dressed as he/she normally would be. show them that you care about their time, that you are Therefore, what does it say if a businessman wears a not a part of the system and that you too resent having suit and tie for jury duty? your time wasted and so does your client. How do the potential jurors carry themselves? Does Focus on the Goal Lines Do you want to get an acquit- this tell you if they will be a leader or a follower? Is one tal? Get divorced? Win a monetary award? Do you want likely to be like Henry Fonda in Twelve Angry Men? If punitive damages? When combined with the facts of necessary, will he/she stick to a position even if no one your case, each of these objectives will lead you to else feels a certain way? Don’t be afraid to ask. This may search for a particular type of person with particular bi- be your hold-out juror. A mistrial or hung jury may be a ases. victory in your case. For example, a plaintiff’s attorney will not want a Which jurors like you and your client? Which smile doctor on the jury of a medical malpractice case if the at you and laugh at your jokes? Can you make eye con- issue is a close judgment call. But, what if there was par- tact with each juror you are willing to sit? Does each ticularly egregious behavior on the part of the defen- look at your client? Or, do any sit with cold looks on dant doctor? You might very well want to have more their faces and arms crossed? competent colleagues who will come down on the defendant very hard. Background Information and Preparation In all likelihood, the court where your case will be tried will Profile Establish a profile ahead of time to determine have booklets that are given out to jurors. Become fa- what kind of jurors you want. Very often you want anti- miliar with the text. establishment, anti-authoritarian jurors. We are always mindful of Batson v. Kentucky.3 Deliberately try not to, Also, most courts now show a video to potential ju- even inadvertently, discriminate on the basis of race, rors to prepare for jury duty. Take a look at it. You can gender or national origin. ask questions about the jurors understanding of it, which will help you to glean information about their in- Thus, we do not establish a “cognizable group” that telligence, their level of information retention and their we favor or to which we are opposed. When prospective ability to communicate information to others. All are jurors are immigrants, we want to know what hurdles critical aspects of deliberation, and asking will help to they encountered in their assimilation. We are interested create a bond with the prospective jurors. in their attitudes, not the color of their skin. Every juror must be considered as an individual. Keep an eye out for monuments or other items Voir dire would be unnecessary if we simply general- around the courthouse that may be a source of initial ized about people or categorized them on the basis of pleasantries. For example, on a courthouse in Mineola their skin color. For example, generally we like jurors the words “Justice, God’s Idea, Man’s Ideal” are etched who are angry. A judge once asked us about a cogniz- at the entrance. Ask potential jurors what those words able group against which he thought we might be dis- mean to them. criminating. In that case we assured the judge, in a joc- Talk to the commissioner of jurors, who possesses a ular way, that our only cognizable group was to find the wealth of knowledge about the jury pool or typical se-

40 Journal | September 2000 lection procedures. You want to know more about jury For example, the typical question, “Is there any phys- service than your adversary or even the judge. Find out ical, emotional or mental reason why you cannot serve when and how much jurors get paid. For how long must as a juror?” You may not want to ask the question that their employers pay them? Look at the statutes that causes a juror to admit to a bladder problem or that allow jurors to be excused for health, hardship or other he/she was sexually abused as a child. reasons. You want to empathize with jurors and show Techniques This is not a science. Are you a good them that you care about them. judge of character? The lawyer should concentrate on To our surprise, on a recent case, we learned from the asking the questions while a juror consultant should commissioner of jurors that although our jury selection make the notes, preparing the basis for challenges, both was occurring mid-week, we would nonetheless be get- for cause and peremptory reasons. ting a fresh batch of jurors, not rejected or recycled from Because you have unlimited challenges for cause, the other cases. Often when you begin jury selection in the more jurors you can remove for cause the better. You middle of a week you are faced with jurors who have will have to determine what will impede their ability to been “rejected” during voir dire in another matter. You be fair and impartial, then ask those jurors questions de- must inquire whether this is the first panel each juror signed to elicit the desired response. has been on during this jury service. If it is not, inquire about the effects of the previous “rejection” and its possible impact on your case. There are some questions you Questionnaire The Office of Court Administration typically has a one-page questionnaire that jurors com- may not want to ask; appearance plete. Prepare blank questionnaires ahead of time so is everything. Therefore, you you can listen more than you write. Take careful notes on your prepared form. should request, in writing, The questionnaire tells of any prior jury service. If that the court ask those questions potential jurors deliberated to verdict, you may not want them. Why? Conviction rates are high. If they were for you. on a criminal case that went to verdict, they may have voted to convict. You have to ask if they were satisfied with their jury service. Were they fair to both sides? If You want to reveal some of the worst parts of your they say yes, then you may have a juror who voted to case to the jurors, but not all in the first round. You in- convict. If the juror, on the other hand, tells you about troduce the case incrementally and in pieces. If you give how they thought the police were shady or that they them too much in the beginning then you may shock distrusted them, that gives you a different perspective otherwise good jurors into disqualification. To win a on the juror’s attitude. challenge for cause, the attorney must get the juror to Additional Requests Before voir dire you must deter- say that he/she cannot be fair. It needs to come from the mine what you want to (and likely can) limit in the way juror’s mouth, not just the attorney’s. In the first part of of proof against your client. To limit the proof, you must voir dire you introduce the subject matter. Ask jurors: also curtail your voir dire, limiting your questions only • “Is there anything about that subject that offends to those topic areas that will be important at trial. you?” “Look at my client, look him in the eyes, If your case is complex or has received media cover- now in your heart of hearts, tell me if you presume age, you may want extra challenges or more time for him innocent?” voir dire. Make a written motion to that effect. Each • “Nowhere in the United States Constitution does judge will treat this request differently, so you must ask it say that the People are entitled to a fair trial. around if you lack personal familiarity. If the judge will Would you be satisfied with someone of your like not expand your time, consider posing particular ques- mind presiding as a juror in your own trial or that tions to the entire panel, and follow up with focused of a member of your family or a close friend?” questions to those who respond. Then ask the rest of the • “Is this a level playing field or is it already slanted panel how they feel about their follow-up responses. against my client before we even start?” Requests for Inquiries by the Court There are some • “How many of you would require my client to questions you may not want to ask; appearance is take the stand and testify in his own behalf?” everything. Therefore, you should request, in writing, • “How many of you would require that he vindi- that the court ask those questions for you. cate himself?”

Journal | September 2000 41 Seek Insights into the Jurors’ Thoughts Voir dire himself up. But, in looking at that statement, will means to “speak the truth.” How forward and rude. We you go beyond it? Will you have the courage to de- barely know these prospective jurors and we are asking termine whether the police overreached in dealing them to speak the truth about their private thoughts and with my client?” experiences. In a civil case, you might say: We have only 1.5 minutes per juror to put the juror at • “You will hear evidence in this case about my ease, get acquainted and try to find out what is really on client’s injuries and damages. I will be asking you their mind. Then we ask the jurors to do all the talking. for compensatory and punitive damages. Do you It is not a perfect system, but it is all we have. agree that people deserve to be compensated for Ask the jurors to talk to you, any time you get an op- their injuries resulting from negligence?” portunity to know them better, make requests: You must advocate for your client every moment you • “Talk to me now.” spend in front of the jury. In the end, the jurors you se- • “Help me out here.” lect will decide your client’s fate. Therefore, you must • “Can you be fair to my client?” invest some time and resources into preparing your jury • “Now can you follow this case wherever it may selection methodology. Proper preparation will allow lead?” you to maximize your time and efforts in front of the • “Can you be a trier of fact?” jury. • “Can you critique the evidence, evaluate it, turn it 1. See Bennett and Hirschhorn, Bennett’s Guide to Jury Se- inside-out in searching for the truth, in trying to lection and Trial Dynamics in Civil and Criminal Litiga- find out what happened?” tion, (1995). In a criminal case you might ask: 2. 75 N.Y.2d 744, 551 N.Y.S.2d 889 (1989). • “Are you afraid of the police?” “You will be forced 3. 476 U.S. 79 (1986). See also People v. Blunt, 162 A.D.2d 86, to look at police misconduct in this case. Can you 561 N.Y.S.2d 90 (2d Dep’t 1990); People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647 (1990); People v. Garcia, 217 A.D.2d do that?” 119, 636 N.Y.S.2d 370 (2d Dep’t 1995). • “I am telling you up front that my client allegedly made a confession. The police will say he gave

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42 Journal | September 2000 Litigation Strategies Reviewing Documents for Privilege: A Practical Guide to the Process

BY DANIEL A. COHEN

eviewing documents for privileged material is no information in a file memorandum for ready reference picnic; actually, it’s sheer drudgery. Compiling a as documents are reviewed. Rprivilege log to reflect privilege assertions is even In addition, for each potentially privileged docu- greater drudgery, but careful planning from the start can ment, if the relevant information is not otherwise deter- make the entire process more efficient and effective. minable, consult with your client about (1) who wrote A clear understanding of the grounds for asserting the document and for what purpose, (2) who received it, privilege in federal discovery proceedings is vital as the (3) what positions each author or recipient held, (4) how documents are reviewed. When a strategy for preparing the document fits into the chronology of relevant events, a suitable privilege log is also in place, the chances are and (5) its approximate date. good that the review can be completed without errors or The principal grounds for privilege assertions are at- needless duplication of effort. torney-client communications and attorney work prod- Although the temptation exists to plunge into the uct. Other privileges also apply, e.g., the federal self- 1 documents when they first arrive, the critical first step is evaluation privilege, or a privilege recognized under to prepare a full duplicate set. The originals are then set the state whose law governs the issue, e.g., the accoun- 2 aside in separate files, where they will be available for tant’s privilege. If a document is relevant both to state reference if a document is lost, accidentally destroyed or and federal claims, however, a privilege recognized 3 inappropriately marked during processing. only under state law will not prevent discovery. Where In determining whether a privilege applies, presume a document as a whole is not privileged or protected, that every privilege asserted as a basis for withholding but contains within it portions that are (e.g., portions of documents or producing them in redacted form will be corporate minutes that reflect communications with subject to challenge, and that ultimately the court will counsel), the correct course is to produce the document conduct an in camera review of every document at issue. in redacted form. While it is critical to be aggressive in protecting privi- Attorney-Client Privilege leged material that could adversely affect a client’s pres- A communication is privileged if made (1) between a ent and future litigation, it is also true that an inability client or his representative and the lawyer or his repre- to support privilege assertions can erode your credibil- sentative, (2) in confidence, (3) to facilitate rendition of ity with the court and tie up a client’s resources in liti- legal services.4 A client’s communications with outside gation. experts, e.g., accountants, when made at the attorney’s Therefore, it is vitally important to (1) have a good direction to facilitate rendition of legal advice, are simi- faith basis for every privilege assertion, and (2) scrupu- larly privileged.5 When an otherwise privileged com- lously maintain the relevant documents in an organized fashion that enables ready production for in camera review. DANIEL A. COHEN is a litigation associ- Rather than claiming privilege for anything that ate at Kornstein Veisz & Wexler, LLP, “looks” privileged and worrying about the details only in Manhattan and a former clerk for after challenges arise, speak with the client to obtain a the Hon. J. Edward Lumbard of the feel for the circumstances of the case and gather all the Second Circuit Court of Appeals. A relevant background information. This includes (1) the graduate of Princeton University, he also holds a degree in philosophy general chronology of events leading up to the litiga- from Oxford University, a master’s tion, (2) when the client first anticipated that litigation degree in philosophy from the Univer- might arise, and (3) the key players, i.e., in-house and sity of Michigan, and a J.D. from the University of Michi- outside counsel, investigative staff, and company em- gan Law School. ployees involved in pre-litigation activity. Preserve this

Journal | September 2000 43 munication has attachments, each relevant attachment documents created by or at the direction of a party as must individually satisfy the criteria for falling within a well as those created at the direction of counsel.18 claimed privilege.6 Thus, each attachment should ap- Ordinary and attorney work product Work prod- pear as a separate entry on the privilege log. uct includes both (a) “ordinary” work product,” i.e., Voluntary disclosure to a third party, including vol- facts gathered in the course of the investigation and untary production of privi- (b) “opinion” or “attorney” work product reflecting the leged documents in prior lit- “mental impressions, con- igation or regulatory clusions, opinions or legal proceedings, destroys the Investigative reports prepared theories of an attorney or privilege.7 However, the in the ordinary course of business other representative of a privilege may still attach if party concerning the litiga- 19 the prior disclosure was are not work product, even if tion.” Ordinary work compelled (e.g., pursuant to litigation ultimately ensues. product enjoys only quali- court order),8 or alterna- fied protection (i.e., is subject tively, was “inadvertent.”9 to a “substantial need” test), Further, disclosure to another party’s counsel under a while the prohibition against disclosing attorney work “common interest” or “joint defense” agreement may product is generally absolute. Communications that em- preserve the privilege.10 body counsel’s legal theories should be designated both work product and, if applicable, privileged attorney- The mere fact that an attorney has received or origi- client communications. nated a communication does not render it privileged. Work product protection attaches once the threat of Communications that do not qualify for privilege in- litigation is imminent.20 The protection may attach even clude: if the documents were prepared in anticipation of litiga- (1) Business Advice: Legal advice is privileged, but tion other than the current litigation.21 However, the pro- business advice is not.11 This test applies both to com- tection attaches only to documents created in anticipa- munications to or from in-house counsel and those to or tion of litigation or for trial, not to pre-existing from outside counsel.12 documents that were obtained or reviewed for that pur- (2) Lawyer’s Meeting Notes: A lawyer’s contempora- pose.22 neous notes of a client’s otherwise non-privileged meet- 13 Status of investigative reports Investigative reports ing with a third party generally are not privileged. prepared in the ordinary course of business are not (3) Factual Investigations: The mere fact that an at- work product, even if litigation ultimately ensues.23 To torney conducts a factual investigation does not render constitute work product, the report must have been cre- factual reports about the investigation privileged.14 But ated because of existing or expected litigation.24 the report may be subject to attorney-client privilege if The protection for such reports extends not only to the purpose was to provide legal advice, or to protection documents created in order to aid existing or prospec- as work product if it was prepared in anticipation of lit- tive litigation, but also to documents that “are intended igation. to inform a business decision influenced by the (4) “Cc” to Counsel: Merely “copying” a lawyer on prospects of the litigation.”25 However, documents that a document addressed to a third party, or transmitting would have been prepared in substantially the same an existing document to a lawyer, does not shield it form irrespective of the litigation are not protected.26 from disclosure.15 However, the fact that a document was Effect of waiver Voluntary disclosure of work prod- transmitted to counsel may be subject to privilege if the uct to a third party does not necessarily destroy the pro- transmittal was for purposes of obtaining legal advice.16 tection. The key issue is whether the disclosure “is in- Thus, transmittal letters to counsel may be withheld consistent with the maintenance of secrecy from the and, although the value is often marginal, “cc” lines re- disclosing party’s adversary.”27 flecting transmittal to counsel of non-privileged documents may be redacted. Thus, by voluntarily disclosing work product to the government, a grand jury target waives the protection, Work Product Protection while a party who has done so in the process of assist- Work product protection extends to (1) documents ing the government’s investigation of a common adver- and tangible things otherwise discoverable that are sary has not waived the protection in civil proceedings (2) prepared in anticipation of litigation or for trial (3) by against that adversary.28 Although voluntary disclosure or for another party or by or for that party’s representa- of privileged attorney-client communications normally tive.17 By definition, the applicable federal rule covers constitutes a “subject matter” waiver of all documents

44 Journal | September 2000 of like character, voluntary disclosure of work product When identifying subject matter, give a succinct de- generally waives the protection only for the items actu- scription that accurately characterizes the material but ally disclosed.29 do not disclose the contents of the communication. The objective is not to hide the ball, but to enable your ad- Creating Privilege Logs versary and the court to evaluate the privilege asser- A party who objects to some or all of a discovery re- tions intelligently. Both determining what privileges quest on privilege grounds must disclose what docu- may apply and describing a communication’s subject ments are being withheld “in a manner that, without re- matter usually involve fine legal judgments based on a vealing information itself privileged or protected, will close reading of the documents; they are therefore a enable other parties to assess the applicability of the lawyer’s responsibility, not a paralegal’s. privilege or protection.”30 Failure to identify such docu- Exceptions to document-by-document log Nor- ments and the basis for withholding them can result in mally, each document withheld must be identified. a finding of waiver of privilege.31 However, courts “retain some discretion to permit less Timing issues At least two federal courts, by local detailed disclosure in appropriate cases.”35 More limited rule, require service of the log at the time of the response 32 disclosure is appropriate “if (a) a document-by-docu- to the discovery request at issue. Some opponents may ment listing would be unduly burdensome and (b) the try to interpret the rule as meaning that the privilege log additional information to be gleaned from a more de- should be made available when objections are made to tailed log would be of no material benefit to the discov- the discovery requests themselves. The customary inter- ering party in assessing whether the privilege claim is pretation of the rule, however, is that the log is due well grounded.”36 when non-privileged documents are made available for inspection and copying. As is true for other litigation document, creation of the log should not be rushed. The privilege log will be The privilege log will be the focus of any subsequent privilege challenges, and the focus of any subsequent sloppy logs invite adverse rulings. Further, although you can always later amend or supplement the log or privilege challenges, and sloppy withdraw privilege claims, frequent revisions may af- logs invite adverse rulings. fect the log’s overall credibility. Therefore, if you require more time to complete the log, you should notify your adversary and obtain a suitable extension. For example, where a document request seeks pro- Log contents For each document withheld, the priv- duction of a law firm’s files pertaining to a litigation, ilege log should state (1) the document type (letter or blanket claims of attorney-client privilege and/or work memorandum), (2) general subject matter, (3) date, product would cover most documents created by the (4) author(s), (5) addressee(s), (6) other recipients, and firm and most communications with its client. In such (7) privileges asserted (including any privileges based circumstances, a court “may permit the holder of with- 33 on governing state law). held documents to provide summaries of the docu- Identify each addressee or recipient who is an attor- ments by category or otherwise limit the extent of his dis- ney (stating, for outside counsel, their law firm affilia- closure.”37 Similarly, parties commonly do not log tion, and whom they represent), either directly on the otherwise privileged documents relating to the litiga- log or in a cover letter. Normally, two separate logs tion that are created after its commencement. should be produced: one log for withheld documents, Interplay with other objections Ordinarily, privi- and a separate log for redacted documents. lege logs are furnished only for documents that fall The latter should identify the redacted documents by within discovery demands to which a party is otherwise “Bates”34 numbers and set forth the basis for the redac- responding. Where the party objects to an entire request tions. Numbering the documents on the log in sequence on other grounds, e.g., relevance, undue burden, or unwill enable the parties and the court to ascertain readily timeliness, common sense dictates—and common prac- which documents are being challenged. tice is—to reserve all privilege objections, and hold off Style and organization When creating a log, be con- producing a privilege log pending resolution of the sistent, e.g., characterize all documents of the same type more general objections.38 in the same way; use a consistent methodology for log- Record-keeping Even if the log you produce to ad- ging print-outs of chained e-mails that bear multiple versaries is not numbered, the log maintained at your dates, authors and recipients; describe all materials hav- firm should be. Each privileged document should go ing the same subject matter in a uniform fashion. into a file folder bearing the corresponding number, or

Journal | September 2000 45 be inserted behind a corresponding numbered tab in a 5. United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. document binder. 1989). For redacted documents, the folder or tab entry 6. Leonen v. Johns-Manville, 135 F.R.D. 94, 98 (D.N.J. 1990). should contain the document in both redacted and 7. Permian Corp. v. United States, 665 F.2d 1214, 1219-22 (D.C. Cir. 1981). unredacted form. If you create these folders or tabbed 8. Leonen v. Johns-Manville, 135 F.R.D. 94, 99 (D.N.J. 1990). binders at the same time you produce the log to your 9. Hydraflow, Inc. v. Enidine, Inc., 145 F.R.D. 626, 638 adversary, you will ensure that you can account for (W.D.N.Y. 1993). every document on the log before any privilege chal- 10. United States v. Schwimmer, 892 F.2d 237, 243-44 (2d Cir. lenges ensue. 1989). 11. United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995). 12. United States Postal Serv. v. Phelps Dodge Ref. Corp. 852 F. Conducting a privilege review Supp. 156, 160 (E.D.N.Y. 1994). 13. New Orleans Saints v. Griesedieck, 612 F. Supp. 59, 63 (E.D. involves four critical skills— La. 1985), aff’d, 790 F.2d 1986 (5th Cir. 1986). preparation, carefulness, 14. Diamond v. Mobile, 86 F.R.D. 324, 328 (S.D. Ala. 1978). 15. Phelps Dodge, 852 F. Supp. at 163-64 (E.D.N.Y. 1994). consistency and organization. 16. See Leonen, 135 F.R.D. 94, 98 (D.N.J. 1990) (motive for communication is relevant to privilege determination). Whenever a privilege log is sent to an adversary, put 17. Fed R. Civ. P. 26(b)(3). a copy in the “litigation binder,” to serve as a record of 18. 8 Wright et al., Federal Practice & Procedure § 2024, at 361 (1994). what log was produced at any given time for any given 19. Fed. R. Civ. P. 26(b)(3). adversary. 20. Occidental Chem. Corp. v. OHM Remediation Servs. Corp., Supplementation Upon further review, you may 175 F.R.D. 431, 438-39 (W.D.N.Y. 1997). find that the log inadvertently omitted some privileged 21. Jumper v. Yellow Corp., 176 F.R.D. 282, 286 (N.D. Ill. 1997). documents, or contained some mistaken information re- 22. Zucker v. Sable, 72 F.R.D. 1, 3 (S.D.N.Y. 1995). garding dates, authors, recipients, etc., or that some 23. Mission Nat’l Ins. Co. v. Lilly, 112 F.R.D. 160, 163 (D. Minn. privilege assertions were erroneous. 1986) (denying protection to reports prepared by attorneys in ordinary course of adjusting a “possibly re- When this happens, the best practice is to timely sistible” claim). amend or supplement the privilege log and, if appropri- 24. See United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998). ate, the document production to correct any errors. Sim- 25. Id. at 1197-98. ilarly, if a follow-up review shows that privileged mate- 26. Id. at 1202. rials were inadvertently produced, contact your 27. GAF Corp. v. Eastman Kodak Co., 85 F.R.D. 46, 51-52 adversary promptly to obtain their return. (S.D.N.Y. 1979). 28. Republic of Philippines v. Westinghouse Elec. Corp., 132 Conclusion F.R.D. 384, 390-91 (D.N.J. 1990). Conducting a privilege review involves four critical 29. Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir. 1997). skills—preparation, carefulness, consistency and orga- 30. Fed. R. Civ. P. 26(b)(5). nization. The process is also holistic, because the basis 31. Burns v. Imagine Films Entertainment, 164 F.R.D. 589, 594 for asserting (or not asserting) privilege for certain doc- (W.D.N.Y. 1996). uments often turns on their relationship to other docu- 32. See U.S. Dist. Ct. Rules S. & E.D.N.Y., Civil Rule 26.2(c). ments. 33. See U.S. Dist. Ct. Rules S. & E.D.N.Y., Civil Rule 26.2(a)(2)(A). Although taking a thoughtful, holistic approach does 34. The “Bates” terminology is a holdover from the days not guarantee that an adversary or the court will en- when it designed a hand-operated stamp that advanced dorse the privilege assertions, it will maximize the like- numbers automatically. This chore is now largely han- lihood of successfully defending those assertions that dled by photocopying machines that place a number on matter most. documents as the duplicates are made. 35. In re Imperial Corp. of Am., 174 F.R.D. 475, 477-78 (S.D. Cal. 1997). 1. See Sheppard v. Consolidated Edison Co., 893 F. Supp. 6 (E.D.N.Y. 1985). 36. S.E.C. v. Thrasher, 92 Civ. 6987, 1996 U.S. Dist. LEXIS 3327, at 2 (S.D.N.Y. Mar. 19, 1996). 2. Commercial Union Ins. Co. v. Talisman, Inc., 69 F.R.D. 490 (E.D. Mo. 1975). 37. Id. 3. Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 38. But see Burns v. Imagine Film Entertainment, Inc., 164 F.R.D. 100, 104 (3d Cir. 1982). 589, 593-94 (W.D.N.Y. 1996) (denying privilege assertions where responding party refused to furnish a log or ex- Weinstein’s Federal Evidence 4. Weinstein & Berger, 3 § 503.10 plain basis of its privilege assertions until court first ruled (2d ed. 1997). on relevance and burden objections).

46 Journal | September 2000 Charles E&F paralegals Work product product Work product Work Evan Eckert, Francis Fish. summary Jones investigation re product Work Jones investigation re product Work product Work * XYZ employees involved in pre-trial investigation include: XYZ employees involved in pre-trial Eckert Investigation of Jones product Work Eckert Draft complaint product Work XYZ Services Corp. v. Jack Jones XYZ Services Corp. v. Alan Adams, Beth Bing; Alan APPENDIX: SAMPLE PRIVILEGE LOG The law firm of Eckert & Fish (E&F) has acted as outside counsel. E&F attorneys include: XYZ in-house counsel involved in this matter include: * George Gray. George No. Date 1. 1/94 circa 2. Type Notes 1/15/94 3. Author 2/1/94 Coleman Report 4. 2/8/94 None Addressee Coleman 5. Letter 2/10/94 Other Recipients Adams 6. Memo Adams Adams; Bing; 2/10/94 Notes Topic 7. Fish Bing; Eckert 2/11/94 Memo Eckert; Fish 8. Gray 2/13/94 Draft Bing Fish Memo Bing; 9. Gray Gray None Jones investigation 2/13/94 None Adams; 10. Eckert 2/94 circa Letter Privileges Asserted Fish 11. Undated Eckert Attorney-client; Annotations N/A Potential litigation - Jones Fish Coleman Fish Chart Attorney-client; Eckert None Coleman N/A Adams; Bing of complaint Preparation Eckert N/A Conversation w/ Dietrich None product Work Attorney-client; Conversation w/ Dietrich Attorney-client; N/A Theories of liability Draft complaint Notes on draft complaint product Work product Work Attorney-client; Payments to Jones product Work Coleman, Dixie Dietrich. include:

Journal | September 2000 47 Reproduced on these two pages are the two sides of a new form issued OFFICIAL FORM by the Office of Court Administration for use when a Request for Judicial Intervention is needed.

48 Journal | September 2000 In many courts, failure to use this new form is now a basis for refusing to accept an RJI application.

Journal | September 2000 49 In Memoriam: Lawrence H. Cooke EULOGY 1914 - 2000

Following is the eulogy that Chief great-grandchildren—every one of Again, one of his life principles; and Judge Judith S. Kaye delivered at the fu- them a source of pride for him—and again, he was true to it. His leg- neral of former Chief Judge Lawrence H. of course to Alice, his “saintly wife” endary workday began at 4 a.m., I Cooke on August 21 at St. Peter’s (those are his words, not mine, but I am told. (I have to admit that I have Roman Catholic Church in Monticello, concur fully in the sentiment). Theirs this only on secondhand authority.) N.Y. was an incredible love story of more He believed that change, im- Judge Cooke was Chief Judge of the than 61 years. You just can’t speak of provement, betterment was possi- Court of Appeals from 1979 to 1985. He Larry without immediately thinking ble—whether of the individual, or served as a member of the Journal’s of that beautiful, gentle lady who the court system or society at large— Board of Editors from 1984 to 1997. He was his strength and his anchor. and he committed himself with died August 17 at the age of 85. These last few days since his pass- every fiber of his being to actually ing, we have been challenged to sum eaving New York City early this making things better. As the chief ex- up his greatest achievements, his morning, I thought of the many, ecutive officer of the court system, lasting contributions, the legacy of many times I have traveled he instituted dozens of bold reforms, L the rich and productive life of Chief these familiar roads coming home to from greater openness and effi- Judge Lawrence H. Cooke. Monticello—coming home from col- ciency, to community dispute resolu- lege and law school, coming home to My own instincts took me imme- tion centers, to upgraded facilities, to introduce Stephen, my husband, to diately to the record books, the vital measures assuring equal opportu- my mother and father, coming home statistics—that’s a lawyerly thing to nity. He was far ahead of his time in to celebrate the centennial of my do—beginning with his election as actively supporting and advancing high school, the retirement of our Town Supervisor, then a distin- women and minorities in the fabulous Chief Judge, the naming of guished trial and appellate judge, ul- courts—and as a personal benefi- the Lawrence H. Cooke Sullivan timately Judge and Chief Judge of ciary of those efforts I am most County Courthouse, and on and on. the state’s highest court, Chief Judge grateful to him. Invariably in coming home there has of the entire New York State court been a sense of excitement, anticipa- system, head of the National Center tion, joy. Always my heart beat just a for State Courts and nationwide Can anyone question little faster as we approached Sulli- Conference of Chief Justices. He van County, and Monticello, and served this state brilliantly to the that he lived out his Broadway, and encountered the very last minute permitted by law, father’s advice to the wonderful people, lifetime friends, then continued to contribute his here in my hometown. prodigious talents as counselor, law letter: “If in doubt, professor and Judicial Screening Today, of course, the emotions are Committee Chair. The vital statistics take the high road”? very different as my lifetime friends alone bespeak a life of public service, gather to bid farewell to a lifetime of rectitude and high integrity, a life hero, Chief Judge Lawrence H. dedicated to the law and the princi- Cooke, the Chief, or—as he was The books show us, too, that as a ple of justice for all. widely known—just plain “Larry.” judge Lawrence Cooke’s commit- As we each privately struggle with Can anyone question that he lived ment to fairness and justice was the our own sweet memories and sense out his father’s advice to the letter: core of his jurisprudence, whether of loss, what comes first to mind is to “If in doubt, take the high road”? Do constitutional rights, or protection of convey profound sympathies to the the right thing. free speech, or protection against people who were nearest and dear- You know, too, from a moment’s discrimination and arbitrary govern- est to him, to his children Edward, glance at the record books, that this ment action. As Chief Judge, he George and Lauren and their was a person of boundless energy helped to place the Court of Ap- spouses, to his grandchildren and and capacity. “Waste not, want not.” peals, as well as our court system

50 Journal | September 2000 generally, at the very apex of state ju- “His mission was to treat everyone diciaries. equally.” However high he rose in Truly an exemplary life. A life public life, however powerful he be- well lived. came, however long the list of his accomplishments, Larry treated every- But would any of us who lived one, everyone, with kindness and and worked alongside Larry sum up respect. The fact is, he changed a lot his greatest achievements, his legacy, of things, but some things never simply from the record books and changed. His hat size never vital statistics? I think not. Surely he changed. His concern for people would not have measured the signif- never changed, and he never devi- icance of his life that way. To speak ated from his own fundamental val- only from the cold records is to ig- ues. Always he took the high road. nore his amazing warmth, his through-and-through genuineness, Having been born and raised in humility and sincerity, the mar- Monticello, I cannot remember a day velous down-to-earth quality of his in my own life when I did not know, personality. His commitment to indi- and greatly admire, Larry, from the vidual justice was not abstract or time he and Alice shopped in our store—they were adored by my par- bookish, and it was not confined to Lawrence H. Cooke (1984 photo) the courts. At the center of all the ents—to the miraculous day I was things he did, whether professional appointed a Judge of the Court of or personal, was the simple fact that Appeals and served on the Court wanted to go home. Not long after, I he liked, and believed in, and cared with him—imagine, two citizens of learned that he had indeed gone about, people. People were impor- Monticello on the Court at the same home, that he had passed peacefully tant to him. time—to our last visit not long ago. just as he wished, at home, in the bosom of his loving family. So many of us here have stories of As the Court’s Junior Judge, I had his inexhaustible kindness and sen- the privilege of not only watching I agree with George Cooke’s sitivity, how he touched our lives in and learning from a master but also words quoted in the newspaper the some uniquely meaningful way, regularly receiving news from home, other day. You think you prepare for with a birthday card, a holiday like an illness in the Cooper family things like this—surely we’ve antici- greeting, a telephone call, a note or or a fire at Cohen’s Hardware. I can- pated this day for some time now— postcard, an appointment to a com- not begin to calculate, or acknowl- and still it is so hard. Hard for his mittee, a chat at the local diner over edge, the impact of this great man on wonderful family, and hard for all of a piece of pie, an evening with his my own life. I am confident that us. Hard to stop thinking about the cherished fellow volunteer firemen. many others feel the same about his remarkable person who is no longer He wasn’t just born with the love of impact on their lives. And isn’t that, with us—the trademark hat, the one- his community, he earned it every in the end, the most significant con- of-a-kind smile, the humor, the en- single day. tribution any of us can hope to ergy, the caring, the courage. Hard to make, the most lasting legacy of all? stop thinking about the lessons ex- Joe Traficanti years ago told me emplified by his life, lessons that will one of my favorite stories typifying I overstated a bit at the outset forever be with us: to apply your tal- Larry. It was about Barney and Ethel, when I said that always before today ents to the fullest to help others; treat who operated the service station in I felt a sense of joy coming home. all people equally, with kindness, Accord, where Larry often stopped Truth to tell, my last trip home was dignity and respect; walk the high for gas and ice cream on the trip be- to visit Larry at the hospital and, road, however difficult that may at tween Albany and Monticello. Even while we were happy to see one an- times be; stand up for what you be- as his license plate moved up from other, joy was not exactly the pre- lieve is right and fair; above all, be County Court to Supreme Court, to dominant emotion of the day. Oh, true to yourself. Court of Appeals Number One, to there were jokes and chuckles— Barney and Ethel he was always Larry’s twinkling wit, his great sense A life of love and family. Of kind- known as “Larry.” The Town Court of humor, his concern for his visitor ness and goodness to other people. Justice, by contrast, they called never left him. But it was clear that Of accomplishment and contribu- “Judge Lipton.” I think Tony Kane he was debilitated and in pain. tion to society. A life well lived. hit it right on the nose when he said, Above all, he simply, desperately Truly, a life well lived.

Journal | September 2000 51 NYSBACLE Publications Review and Reduction of Real Property Assessments in New York Third Edition

Authors up-to-date periodically by cumu- Harry O. Lee, Esq. lative supplements or new edi- Wilford A. Leforestier, Esq. tions, making Review and Reduc- Lee & Leforestier tion an even more valuable Troy, NY resource. Contents The answer to the question Valuation Methods and Theories of “How much are the taxes?” and Action inferentially, “What is the Proceedings Preliminary to Judicial amount of the assessment?” Review could be the deciding factor in “In an area of practice that is com- Pleadings and Preparation for Trial whether a sale of real property plex and highly technical, the au- even reaches the contract stage. Commencement of Proceeding and thors . . . have produced a book which Even if no sale is contemplated, Preliminary Devices is not only readable, but is extraordi- a successful challenge of an un- Trial narily useful to all practitioners.” fair assessment will ensure that Final Order, Costs, Allowances, Sanford J. Liebschutz, Esq. your client is not wasting valu- Refunds, Appeals and Referees’ Of Counsel able income on exorbitant taxes. Reports Chamberlain, D’Amanda, Review and Reduction of Real Prop- Some Unique Features of Certiorari Oppenheimer & Greenfield erty Assessments discusses step- Law Rochester, NY by-step the procedures for the Special Valuation Problems review of real property assess- Small Claims Assessment Review ments. To order Exemptions This edition covers all aspects Table of Authorities of real property assessments. Call 1-800-582-2452 The attorney unfamiliar with Biographies Source code: cl1166 this unique area of law will ben- 1988; Supp. 2000 • 635 pp., New York State efit from this book’s comprehen- hardbound • PN: 4220 Bar Association sive coverage and logical organi- List Price: $110 (incls. $8.15 tax) zation. For the specialist, all the Mmbr. Price: $85 (incls. $6.30 tax) rarified issues that can arise in complex litigation are laid out. (Prices include 2000 Supplement) Especially noteworthy are the introduction of the small claims About the 2000 Supplement procedure for homeowners, dis- cussion of major changes in Editors in Chief methods of proof allowed in tax Jon N. Santemma, Esq. assessment proceedings and ex- Lawrence A. Zimmerman, Esq. panded treatment of special valuation problems. The 2000 Supplement to Review and Reduction of Real Property Assess- ments in New York is now available. The 2000 Supplement updates and Cases from all districts in expands the coverage of the original volume. The editors and authors of New York State are cited. Review this supplement are leading real estate practitioners from the NYSBA’s and Reduction has been cited as Real Property Law Section. authority in over 30 cases, in- 2000 • 176 pp., softbound • PN: 52200 cluding the Court of Appeals List Price: $55 (incls. $4.07 tax) and several cases decided in other states. This text is brought Mmbr. Price: $45 (incls. $3.33 tax)

52 Journal | September 2000 Treatment Option for Drug Offenders POINT OF VIEW Is Consistent With Research Findings

BY ALAN I. LESHNER

he program that New York’s abusers with treatment when we have coddles criminals. On the contrary, an chief judge, Judith Kaye, has in- them in the relatively controlled cir- approach that integrates corrections Tstituted to give nonviolent cumstances of prison, probation, or pa- and recovery makes greater demands drug-addicted defendants the option role. It makes no sense to keep ware- on criminals than one that relies only to enter treatment programs instead housing and re-warehousing addicted on prison. When progress in treatment of being sentenced to prison sends offenders when we can break the re- is added to other conditions for parole, the clearest signal to date that we as cidivism cycle with strategically ad- individuals cannot simply wait out a nation are moving beyond the sim- ministered treatment interventions. their terms. When drug courts sen- plistic, false thinking that has long New York is not the first state to fol- tence nonviolent drug-addicted of- pitted criminal justice and treatment low the scientific evidence in this way, fenders to treatment, these individuals approaches against each other. It ap- although it is the first to do so compre- must fully comply with stringent treat- propriately treats public health and hensively. The blending trend started ment and monitoring requirements— public safety approaches to drug in 1994, when a dozen jurisdictions and make progress—or face penalties, problems as complementary strate- across the nation set up experimental including re-incarceration. gies, not incompatible alternatives. “drug courts” in an effort to shrink Another objection to treating drug- This policy is consistent with 20 overwhelming dockets of drug-related addicted offenders has been based on years of scientific research showing criminal cases. Drug courts handle the mistaken belief that prison inmates that drug treatment for addicted crim- only nonviolent drug-related crime, are poor candidates for treatment. This inals has yielded consistently high re- and route addicted criminals to appro- objection has been advanced by people turns for society. Drug-addicted of- priate treatment rather than prison. who think that addicts, and especially fenders who receive treatment during They have been so successful that au- prisoners, are weak-willed or funda- and after incarceration use 50% to 70% thorities have now established more mentally unwilling to change their fewer drugs than those who are un- than 300 drug courts, with hundreds ways, and so are unlikely to stay the ar- treated. Treated offenders are also 50% more in the planning stages. duous course to recovery. In fact, scien- to 60% less likely to end up back in At the national level, the blending tific research has documented that legal prison. Nor are these merely transient concept underlies a joint initiative of pressure for treatment—as an alterna- effects; they hold for at least four years Drug Czar General Barry McCaffrey, tive to incarceration, in exchange for a after release. Attorney General Janet Reno, and Sec- shortened sentence, or to keep a condi- The importance of these findings retary of Health and Human Services tional parole—can actually improve the becomes glaringly obvious in light of Donna Shalala. Titled “Breaking the likelihood of success in drug treatment. the huge correlation between drug Cycle,” the program uses treatment in- As we move forward with this abuse and crime. Studies from the Na- terventions to attack each link in the blended approach, however, it will be tional Institute of Justice show that chain that leads from addiction to critical that we stay completely consis- 50% to 80% of inmates in jails and pris- crime and incarceration, only to be re- tent with what the scientific evidence ons have drug abuse problems serious peated over and over again in many shows. This has not always been the enough to merit treatment. By helping individuals’ lives. The initiative, re- case. For example, a recent study many of these individuals to live law- cently presented to 900 state and local found that although 40% of U.S. jails abiding lives, appropriate treatment law-enforcement officials earlier this and prisons claim that they offer some can save the public tens of millions of year, includes special drug courts that form of drug treatment, many of these dollars annually. Treating an individ- handle cases involving nonviolent programs are too brief or use untested, ual on parole or probation costs only drug offenders, intensive drug moni- simplistic techniques. The scientific half as much as housing that individ- toring in the federal criminal justice studies show that drug treatment ual in prison—$10,400 versus $20,000. system, and a crash program to ex- needs to attend to the whole individ- Various studies show a cost saving of pand prison drug treatment programs. ual to be effective, whatever its setting. $4 to $7 for every $1 invested in drug This growing trend is a welcome In this respect, too, New York sets a treatment. sign that we are finally ready to go be- good example: its court-mandated Given these statistics, it is foolish yond naive and outmoded objections treatment will generally last two years not to blend criminal justice and treat- to the blending approach. One such ment approaches, providing drug objection is that drug abuse treatment CONTINUED ON PAGE 55

Journal | September 2000 53 Does May It Please the Court! explain scribed by Victor Yannacone, one of his the autobiographer’s huge success in adversaries in the Agent Orange litiga- LAWYER’S the law? The answer is yes. tion. OOKSHELF In this autobiography we meet a ELLIN M. MULHOLLAND was for many B lawyer of immense dedication and un- years a trial lawyer with Herzfeld & wavering determination. We observe a Rubin, P.C., in New York. man sure of his talent and unafraid to expend the hours, days, months and New York Zoning Law and Prac- ay It Please the Court! by sometimes years needed to learn the tice, 4th Edition, by Patricia E. Salkin, Leonard Rivkin with Jeffrey intricacies of his clients’ cases and to published by West Group, December Silberfeld, published by Car- M 1999, 1,878 pages, $350, three looseleaf- represent their interests to the best of olina Academic Press, Durham, N.C. his ability. Although Leonard Rivkin is bound volumes, bimonthly newsletter (www.cap-press.com), 2000, 437 pages, now retired from the active practice of and forms on disk, updated annually. $30, hardcover. Reviewed by Ellin M. law, we see that he still follows his own Reviewed by James F. Gesualdi. Mulholland. superb advice—he markets the firm All practitioners have certain books As one century ends and another that bears his name and he extols the they rely on for their core practice begins, the legal literature now in- advantages of a firm able to represent areas. Over the years, New York Zoning cludes the professional autobiography clients in litigation on a national basis. Law and Practice has been such a book of a lawyer whose career spanned the Proud of his accomplishments as for the land use practitioner. Although last half of the 20th century. only a lawyer who has achieved the regularly supplemented with new May It Please the Court! written by preeminence of the author should be, pocket parts, this venerable treatise Leonard Rivkin with his law partner, Leonard Rivkin does not hesitate to has until very recently been without a Jeffrey Silberfeld, details the life in the share with his readers the pain of a ju- comprehensive update and revision. law of the founding partner of the firm dicial inquiry into his practice, or the For nearly two decades, the first now known as Rivkin, Radler & Kre- joy when all charges against him were three editions of New York Zoning Law mer. Its main office is now in Union- dismissed by New York’s highest and Practice were written by Professor dale on Long Island. court, the Court of Appeals. He also Robert M. Anderson of the Syracuse The book is a fascinating work—far admits that, like every lawyer who University College of Law. They al- more gripping than the countless legal ever practiced, he did not win the ways served as a comprehensive, reli- novels that line the shelves of libraries hand of every prospective client he able and fairly user-friendly resource. and far more instructive than the “how courted. They were often a great place to start to” manuals that are offered as part of In this candid autobiography, research, verify findings or confirm the the continuing legal education courses Leonard Rivkin’s love of and respect validity of one’s own experience. now mandated for practicing attor- for the law shines forth. Fortunately, Given the myriad of changes in the neys in New York State. his unremitting hard work was re- land use field, those who have de- From humble beginnings in the 10- warded by the great satisfaction and pended on these volumes, as well as feet-deep back room of a storefront of- fun he enjoyed. Throughout, the au- others whose efforts would be aided immeasurably by frequent recourse to fice in Freeport to 94,000 square feet on thors memorialize and provide in- them, should welcome the freshly three floors in a magnificent office sights into some of the most fiercely minted Fourth Edition by Patricia E. complex in Uniondale, Leonard Riv- contested and difficult civil lawsuits of Salkin. kin’s practice has increased and multi- the last century: the Staten Island gas The author, associate dean and di- plied. Initially, he represented plain- tank disaster, the bank failure of Franklin National, the Agent Orange rector of the Government Law Center tiffs, injured parties on whose behalf herbicide used in the Vietnam War, of Albany Law School, has held lead- he brought lawsuits. As time went by, and the controversies concerning envi- ing roles in the governmental, plan- he was retained by defendants, corpo- ronmental and hazardous waste insur- ning and legal communities. Her var- rations, global manufacturers, banks ance coverage. ied and substantial experience adds a and insurance companies against May It Please the Court! does please, richness and universality to the trea- whom lawsuits were brought. and should please not only the courts tise’s already very readable text. It also Above all, Leonard Rivkin reveals and practitioners of the law but also comports well with the reality of himself as a litigator, a real-life trial anyone interested in reading the today’s multidisciplinary world of lawyer who handled, tried and settled history of American civil law and the land use regulation and practice. The some of the most significant lawsuits life of a lawyer of “grace, charm and important and diverse challenges in- of the past 50 years. class,” as Leonard Rivkin was de- herent in the regulation of land use, es-

54 Journal | September 2000 pecially through the zoning of numer- tion on the use of the Internet for land challenges in the land use area. Indeed, ous different localities, provides fertile use law research provides a thorough appropriate application of SEQRA to ground for attorneys, planners and overview of legal, planning and mu- zoning matters can be a powerful tool other professionals to grapple with a nicipal resources readily available via in a municipality’s review and/or re- seemingly endless array of issues. the Internet. There is also a new section shaping of an application. The new The three-volume, looseleaf-bound on the emerging area of telecommuni- edition does provide a full range of en- Fourth Edition contains 45 chapters, cations facilities and the Federal vironmental review forms for imple- together with appendices and tables. Telecommunications Act of 1996. menting various aspects of SEQRA. In The chapters include some of the foun- The new edition carries over and addition, a review of the Web sites that dational building blocks for land use expands upon the model forms in ear- New York Zoning Law and Practice lists practice, including sources of zoning lier editions. They include forms relat- for the Government Law Center of Al- authority, constitutional and legisla- ing to zoning administration, enforce- bany Law School and Pace Land Use tive limits on the zoning process and ment and subdivisions. Some of the Law Center leads to some potentially the substance of zoning, types of zon- updated forms take into account recent helpful articles on SEQRA. ing regulation, sample definitions and changes in New York State zoning-re- various zoning code provisions, and lated legislation by expressly incorpo- JAMES F. GESUALDI is a solo practi- municipal and regional planning. An- rating statutorily required elements in tioner in Islip, Long Island. He has other group of chapters focuses on spe- the forms themselves. Even if not used represented numerous land use applicants, community groups and has cific uses, including non-conforming directly, the forms provide a handy reference guide to items that a practi- served as municipal attorney for local uses, uses with unique relations to government boards. He is also a public welfare, commercial and indus- tioner’s own forms or documents should contain. Especially helpful are member of the American Planning trial uses, telecommunications facili- Association and the American Insti- the checklists for different types of sit- ties, gasoline stations, mobile and tute of Certified Planners. manufactured homes, exclusionary uations and/or reviews (e.g., zoning zoning/affordable housing, senior enforcement and subdivision review). CONTINUED FROM PAGE 53 housing, planned unit developments, All the model forms are also provided and participants will be monitored and signs. Subdivision controls are on computer disks. with repeated drug tests. also covered. Yet another cluster of Newly added statutory appendices chapters delves into zoning adminis- make it easy to find specific legislation State and local officials should follow this example and join in imple- tration and practice before building or particular provisions relevant to a menting the new blended approach to agencies and zoning boards with re- given situation. One identifies sources of technical assistance that are espe- drug problems throughout the nation. spect to variances and special use per- cially valuable in complex or novel sit- The message from the science is ab- mits, and before the courts with re- uations. These resources include the solutely clear. It is a mistake not to spect to the enforcement of land use NYSBA’s Municipal and Real Property treat addicts while they are under controls or challenges to the controls or Law Sections and the New York State criminal justice control. The sooner the other zoning decisions. The histori- Committee on Open Government, new strategy is deployed in every cally thorough text includes a number which provides assistance on issues in- community, the sooner we will reduce of increasingly important and some- volving the Freedom of Information the public health and safety conse- times controversial areas of zoning. Law and the Open Meetings Law. quences of drug abuse and addiction. A chapter has been added on the Two important areas that could be ALAN I. LESHNER has been director of evolving and increasingly important developed in future updates are the in- area of the mediation of land use dis- the National Institute on Drug terplay of zoning and land use regula- Abuse, one of the National Institutes putes. Communities, professionals and tion with environmental review under policymakers alike can greatly benefit of Health, since February 1994. Ear- the State Environmental Quality Re- lier, he had been the deputy director from an improved understanding and view Act (SEQRA), and zoning regula- and acting director of the National eventual adoption of conflict resolution tion of home offices or occupations Institute of Mental Health and had techniques. To the extent that such ini- and telecommuting beyond the tradi- held a variety of senior positions at tiatives are successful in addressing the tional analysis of home occupations. the National Science Foundation. Be- “fear of the unknown” that is often at Most municipalities and zoning codes fore joining the NSF, he was a professor of psychology at Bucknell Uni- the center of many land use actions, the remain ill-equipped to deal with chal- potential benefits are most appealing. versity. He received a degree in lenges inherent in the changing nature psychology from Franklin and Mar- The contents and format of the new of work and the workplace. shall College and his master’s and edition also reflect other societal and The use and proper administration Ph.D. degrees in physiological psy- technological advances. The new sec- of SEQRA remains one of the biggest chology from Rutgers University.

Journal | September 2000 55 “believable.” In contrast, credulous, these meanings appear in the noun ob- which means “naive or gullible,” is servation, others in observance. A com- LANGUAGE often used in a deprecatory sense. ment about something is an observa- Only people can be credulous; situation, but complying with a custom is TIPS tions or occurrences are often credible. an observance. Both adjectives are much more fre- Call the loss of distinctions “lan- quent in the negative. Incredulous often guage leveling” or “sloppy English,” B Y G ERTRUDE B LOCK means “skeptical” or “expressing dis- depending on your point of view. If the belief.” A plaintiff’s statement was “in- entire subject lacks interest, consider uestion: If you are watching a credible,” and the defense was “in- the question, “Do you believe that so- football game but are really not credulous” when it was made. ciety is suffering from ignorance and interested in it, are you “unin- Q Where has lend gone? Apparently apathy?” and the answer, “I don’t terested” or “disinterested?” into oblivion. The erstwhile noun loan know and I don’t care.” Answer: Ten years ago you proba- has become a verb, usurping the verb bly would have been “uninterested.” lend. Now loan is both a noun and a *Gertrude Block is a lecturer emeritus Today the odds are you would say you verb. What used to be, “Lend me the and writing specialist at Holland Law were “disinterested.” money; I’ll repay your loan when I Center, University of Florida, Unfortunately, the virtual disap- can,” has become “Loan me the Gainesville, FL 32611, and a consul- pearance of the adjective uninterested is money; I’ll repay your loan when I tant on language matters. She is the author of Effective Legal Writing, fifth one of the many distinctions that Eng- can.” Perhaps that distinction wasn’t lish has lost, with a concomitant loss of edition (Foundation Press, July 1999), important enough to retain, and its and co-author of Judicial Opinion Writ- the contrasts in meaning that make a loss is a gain in simplicity. language specific and colorful. The ing Manual (West Group for ABA, But lawyers should retain the dif- 1991). distinction between uninterested (hav- ference between foregoing (“going be- The author welcomes the submission ing no interest) and disinterested (being fore”) and forgoing (“giving up com- of questions to be answered in this without bias) has vanished, with disin- pletely, forsaking”). That difference column. Readers who do not object to terested being used for both meanings. applies to other words; the fore- prefix their names being mentioned should Because the meanings have merged, it means “before,” as in “foreordained” state so in their letters. E-mail: would no longer be judicious to call a or “forefront”; the less-common for- [email protected] judge “disinterested.” carries the sense of exhaustion or pro- The leveling of English grammar hibition, as in forgo or forbid. Yet many has been accompanied by a corre- print journalists have abandoned that sponding semantic leveling. It has oc- valuable distinction. Moving? curred, for example, in the word-pair Do you know the difference be- reluctant and reticent. In recent years, tween enormity and enormousness? Few Let Us reticent has come to mean reluctant, writers do, but the former is pejorative, with the loss of the former distinction the latter merely a factual statement. Know . . . in meaning of the two words. Dictio- While enormity describes something naries still define reluctant as “unwill- tremendously wicked, outrageous and If you change the address ing” or “averse,” often followed by exceeding moral bounds, enormousness where you receive your “to” and a verb: “She was reluctant to describes something tremendous in NYSBA mailings, be sure to testify,” or immediately preceding a size. Lawyers should also distinguish let us know so you can stay noun, “He was a reluctant witness.” forcible from forceful, the former de- informed. Send change of Now, however, people who ought scribing an action accomplished by address and/or phone to know better (journalists, for in- force, the latter meaning merely “full number to: stance) have decided that reticent is a of force or effective.” Unpleasant asso- synonym of reluctant. Dictionaries ciations dominate forcible. To describe a Records Department would inform them that it is not: reti- person with a strong personality, you New York State Bar Association cent means “characteristically silent or would use forceful not forcible. One Elk Street terse.” Remember “reticent Calvin Finally, the word-pair observation Albany, NY 12207 Coolidge”? and observance. Both nouns descend If you confuse credible with credu- from the verb observe, which can mean 518-463-3200 lous, you have lots of company, but “to watch or notice, to make a scientific e-mail: [email protected] you are still wrong. What is credible is comment, or to comply with.” Some of

56 Journal | September 2000 Mitchell J. Nadler Cyril Elliot Smith Stacey-Ann Richards Mohamed K. Nasrollah Michaell J. H. Smith Andrew Arthur Rowe Jeffrey D. Neuburger Edward Hudson Smoot Daniel W. Russo NEW Tamala Elayne Newbold Jennifer Fredi Sobol James R. Tartamella Vera Liza Noriega Nicholas Song Anthony W. Vaughn MEMBERS Constance Beth Oberle Stephanie Gae Spanja Jack Weissman Dennis Michael Obrien Stefan P. Stauder WELCOMED Mary Elizabeth O’Keefe Raymond Edward THIRD DISTRICT Amy Kathryn Orange Stauffer Angelique Bywater Benjamin Todd Orifici Deborah Karen Langdon C. Chapman Christina E. Paglia Steinberger Minoru Hata Lynne L. Pantalena Daniel Michael Steinman Jacklyn J. Kim FIRST DISTRICT Francisco Gonzalez Scott Wesley Parker Robyn C. Stern Shawn T. Nash Wendy Suzanne Abels De Cossio Heidi Parry Jeffrey E. Storch Michael J. O’Brien Wendell Adair Jeanne Patricia Grathwohl Edward Pascavage Christopher Bruce Storey Kelly A. O’Melia Adam R. Agensky Nancy M. Green Catherine G. Patsos Robert Alan Strent Sandramarie M. Scott E. Agulnick William Joseph Aram J. Pehlivanian Beth E. Sullivan Pemburn Lara Ancona Harrington Jodi D. Peikoff Richard David Sutton Theresa M. Ries Timothy W. Andrews Peter J. Harvey Margery H. Perlmutter Samera F. Syeda Kim Arestad David L. Heath Daniel M. Perry Alexandra C. Szekely FOURTH DISTRICT Margaret G. Axelrod Sarah Hine Novalie Indira Perry Raphael Adam Tawil John Breitenbach Kim Azzarelli Noah Abraham Farah Khan Pervez Alex Tchernovitz Michael J. Burke Lisa Meredith Babiskin Hochstadt Drew Corey Phillips Andrew Ray Thompson Susan P. Ciani Cara A. Baugh Michelle J. Hong Anne Sabra Plumer Renee E. Tirado Stephen G. Court Beverly G. Baughman Sadanori Ito Phyllis K. Poda Jenya E. Tolopko John DeLong Tamerlaine Meredith Tina Janssen-Spinosa Richard Benjamin Porter Peter C. Trimarchi Robert C. Miller Beattie Anthony Jones Matthew Eiichi Presseau Patrick Walter Vogel Christopher O’Brien Matthew Kyle Behrent Thomas Jay Jordak Vikki L. Pryor Victor Robert Waingort Cynthia L. Schrock Michael Stephen Bigin Shawn Kelly Eric J. Przybisiki Craig Philip Warnke Suzanne A. Solomon John T. Boxer Janine Y. Kim Paige Mauro Purcell John Bagnall Webb Andrea R. Brahms Judith Sun Kim Ana C. Ramirez David A. Weems FIFTH DISTRICT Wendy Lee Browder Maura King Gary E. Redente Mark J. Weinstein Ralph Stephen Jennifer Lynn Brown Jeffrey H. Knox Christopher J. Reitzel Andre Weiss Alexander Charles Luke Brussel Sue-Lynn Koo Vickie Reznik Heather Diana White Jodi Lynn M. Butler Eilish Mary Cahalan Allison Greer Kort Amie Kristen Riggle Troy Edward Wilson David V. Cirillo Brian Cameron Amirah Yair Kotler Jason Michael Rimland Alison J. Winick Lou Anne Coleman Christopher M. Caparelli Shinji Kusakabe Vitaly David Rivkin Norman Wise Amy J. Cross Reuven Louis Cohen Jzaneen Lalani Gaelle Isablle Rochenoir Cory Wishengrad Jeffrey D. DeFrancisco Marjorie Jean Cresta Wendy S. Lang Karen L. Rodgers Carolyn Michelle Wolpert Shirley K. Duffy Stephanie Cuba Andrew M. Lawrence Jose Rosendo Rodriguez Eric Wade Wooley Alex Generalow Anne M. Cunningham Chavie T. Levine Erik Jorn Romhild Barbara B. Wynne Adriana Del Pilar Lisa Beth Dalessio Kari Lichtenstein Patrick Gerard Rooney Joan Xie Guzman-Rouselle Ellen Beth Davidson Leonard Lichter Marisa K. Rosenthal Dorothea Yessios Gregory McPhee Michael K. Davis Benjamin L. Liebman Richard M. Roth Marc Joel Yoskowitz Mary C. Meyer Joseph John Depaolo Jennifer H. Lin Dana Brooke Rubin Avshalom Yotam Christopher Pelli Jennifer Antonietta Solomon Liss Gerald E. Rupp Tamir M. Young Anita K. Sharma D’Errico Lisa Ann Lofdahl Lisbeth Jean Sabol Ellen Yu Meade H. Versace Eugene Pasquale Wayne Loo Donna Saleh Bonita E. Zelman DeSimone Anthony Lopez Christopher Todd Sanders Matthew Ira Zik SIXTH DISTRICT Shelley Ann Detwiller Elizabeth Sarah Lynne Ian Jeremy Sandler Sharon Anne Zink Leland D. Schultz Nicole Aimee Diamant David Mitchell Marek Reena M. Sandoval Claudia Digiacomo Rebecca Hannelore Marek Jennifer L. Schatzman SECOND DISTRICT SEVENTH DISTRICT Jennifer F. DiMarco Yaniv S. Marom Cindy Michelle Schmitt Dorothy H. Ackerman Marc W. Brown Angela M. Donaghy Lisa Dale May Christine N. Schnarr Radmila Aliyeva Nancy J. Crawford Jason Scott Dougal Eugene Peter Mazzaro Anthony Henry Schouten Joseph J. Asterita Amy L. DiFranco Heidi Schwenzfeifer Melissa V. McClenaghan Neil F. Schreffler Carrie Anne Cavallo Stanimira Dimova DuBois Victoria McCool Bryan Schwartz Michael T. Conroy Kelly M. Donovan Katherine Bowlin DuBose Theodore James Mcevoy Antony John Scoles Alexandra Dolce Brian J. Gerling Michael Brody Dunn Alexandria A. McGuire Gail S. Seeram David R. Feinberg Jeff L. Hogue Derin Edip Natalie Ruth Medlicott Carrie Nicole Serwatka Michael J. Ficchi Alice H. Hsu Lamiaa E. Elfar Catherine M. Mennenga Mikhail Alexander Frank A. Gonzalez Mark E. Monaghan David Engel Craig Mersky Shedrinsky Craig M. Hazan Charles E. Moynihan Michael Joseph Fahy Robert Colby Milton Nora Catherine Sheehan Jonathan S. Horn Kevin M. Nasca Toni Lyn Ferrucci Jennifer Moore Jacob Yuet Hey Shek Michael F. Larkin Terry Jo Romine Laureen Forkas Joseph William Morledge Susan C. Shelton William G. Mead Alice L. Fradin Brook Sari Moshan Heather Dawn Simensen Laurie Ilene Moroff EIGHTH DISTRICT Suzue Fujimori Teresa M. Mozina Gwendolyn Dale Ari S. Neuberger Karen M. Aavik Thomas Francis Garrity Bryon John Mulligan Simmons Russell Olander Newbold Jason E. Abbott Roger E. Gold David P. Murgio Joanne N. Sirotkin Araya Loran Bommer Russell Spencer Goldstein Gavin David Murphy Meagen Russell Sleeper Teague Pryde Paterson Trina T. Chu

60 Journal | September 2000 Daniel R. Connors Robert F. Regan Tiffany Bianchi Michael Eugene Benjamin Rogoff Amy L. Derner Amanda Eileen Register Christine Natalie Bianco McChesney Eugene R. Ross Daniel J. DuBois Edward R. Rimmels Erik Bierbauer Klint J. McKay Robert C. Ross Gordon Gannon Linda C. Rosero Erin Hausladen Bishop Paul Meier Beth P. Sachs Melissa A. Golen Ian Sangenito Kevin T. Borrup Eddy Meiri Ana Simone Salper Deborah A. Hagen William Henry Scheurer Julie Bowker Carey A.M. Merrill Mark Winston Saltzburg Randall Inniss Robert S. Seward James Francis Brennan Jonathan Meyers Sayeh Sangoul Lisa R. Johnson Rodger W. Tighe John J. Caleca Walter R. Milbourne Alban Schaal Robert L. Kemp Melvin J. Tublin Ryan S. Carey Erik B. Milch David Schachter Lillian Kleingardner Gustavo L. Vila Chelo Zepeda Carter Gregory D. Miller Kara M. Schmitt Sheri N. Luscoe Tara Beth Wittrup John D. Clopper Steven J. Miller Michael B. Senape Ethan M. Lyle Christopher Gleen Zachry Naomi Cohen Zaheeda Mitha Scott D. Sherman Mindy L. Marranca Heather Curnutt Shahin H. Momenian Richard M. Shulman Paige Rizzo Mecca ELEVENTH DISTRICT Eslanda A. Dasher William E. Morlan Djaouida Siaci Bessie Michael Gregory T. Ambus Guillaume De Walque Alison Morpurgo Jeffrey L. Slutzky John M. Shane Adrienne J. Auryansen Mark S. Derby Sebastian C. Moyano Matthew C. Solomon Karen M. Velano Michael Bolduc Roberta Desio Arpita G. Mukherjeg Yannis Stamoulis Louis P. Violanti Edward M. Chapian Cheryl A. Dispoto Lorraine Theresa Sarah Stancati Annette D. Chase Sharon Dolovich Mullings Jotham S. Stein NINTH DISTRICT Huntae Cho David Dudley Joseph G. Murray Errol J. Tabacco Adele Bartlett William Crowe Philippe Dufresne Dominic M. Nagy Yukihiro Terazawa Anthony P. Carlucci Ivette De La Cruz Nwakego N. Eduzor Zeinab Nasser Mark Tribaldi Ching Wah Chin Raymond A. Dunn Lewis C. Evans Michael Joseph Newman Stephen Eric Turman Anthony S. Colavita Trevor M. Hochman Robert D. Ferguson Brian J. Newquist Alfonso Venegas Barbara J. Detkin Moon Hye Kim Patrick Ferland Caroline Pillsbury Oliver Kenneth R. Vennera Evan H. Echenthal Jie Lan Miguel Lopez Forastrez Rajesh Pahoja F. Javier Vergne-Morell Jason M. Edelstein Charles D. Lavine Renard Clement Francois John R. Parker R.A.U. Baron Von Christopher P. Gallagher Edward T. Moy Alexandra R. Gelber Nadine A. Payne Quast-Juchter Toby Gammill Juliet A.C. Onuigbo- John H. Gelety Pia Perez Cheryl M. Wallace Edmund E. Gibbs Enemchukwu Joshua Scott Goldwert Bradford L. Pierce Donna L. Wanser Morton M. Goldberg Rama S. Rai Neal Gordon Michael A. Piracci Sara C. Weinberg Shannon Anne Herron Christopher M. Romano Alfred Haas Randi F. Plevy David Wildman Patricia G. Kitson Danielle Scarano Jacqueline Haberer Aviva Poczter Pieter M. Williams Gary Maresca John Stebe David Hale Lisa M. Post Mark Windley John W.R. Murray Silvia M. Surdez Hadar Hannes Melissa J. Ralph Michael L. Wolf Michael O’Leary Charlotte A. Trocchio Samaa A.F. Haridi Jeneen Ramos K. John. Wright Martha L. Osorio Bozena Ziedalski Delphine Heenen Samuel N. Reiken Carol Ann Wynert Carl M. Perri Rebecca Susan Henry Henry J. Remmer Kristin Wynne Alison A. Rivard TWELFTH DISTRICT Michael J. Hershaft Matt Richards Kazuyasu Yamashita Diane P. Snyder Gia M. Cavellini Yong Hock Loon Maureen M. Richardson Ira L. Zebrak Karen Hillary Suk H. Hong Lilach E. Robinsohn- Shuang Zhao TENTH DISTRICT Charrington Nabil A. Issa Abergel Ni Zhu Julie A. Barovick Bernadette A. Connor Taehwan Jun Christine A. Robinson Joshua Zlotlow Steven C. Bellone Richard S. Heyman Rachel Susan Katz Jeffrey P. Rogers Robert S. Zuckerman Paul A. Burg Geneva Johnson Thomas G. Kay Michael Eric Carmen Martin B. Klein Nadim Z. Kayyali Robert Champness Rhonda Karrin Lowe Cristin J. Keenehan Margaret Victoire Desir Abigail Martas Younggyoon Kim William P. Fitzgerald Richard H. Newman Christopher M. Kolb Edward Patrick Flynn Kafahni Nkrumah Keith Krasny Michael J. Gabrielli Kendra Shanay Smith Dana R. Kulvin Julie A. Garcia Elizabeth Anne Walsh R. Scott Lafazia Katie F. Goldberg Zanna Lantzman In Matthew B. Hall OUT-OF-STATE Chiente Lee Nichele Marie Jackson Samantha Abeysekera Moonlake L. Lee Memoriam David A. Kelly Warren Abkowitz Young-Mee Lee William A. Kowalenko Adebayo Adesina Olga M. Lewnes Michael Corbett Mahoney Rashid Siddiq Alvi Natan Leyva Lawrence H. Cooke Joseph P. McGlinn Edward A. Maron Saeid B. Amini Vicente Lines Monticello, NY Suffern, NY Lori Ann McNeely Tala Arbabi Janet E. Lord Thaddeus W. Clark Richard E. Nolan Michael Anthony Mehm John-Henry Ayanbapejo Ada M. Lugo Jamestown, NY New York, NY Timothy Edward Lynch Henry T. Meyer Tankut Aydin Joseph L. Maceda John F. Nugent Ian Robert MacDonald Lori-Anne Mooney Sandy Baggett Brooklyn, NY New York, NY Karen E. Nethersole Rolf Baghdady Ramesh L. Maharaj Jeanine Ann Oberster Martha Bannerman Jackson Marcelin Wilfrido E. Panotes Antje Baumann Andrew S. Marshall Richard F. Schwerzmann Thomas P. Peacock Samantha Nicole Bazan Robert F. Martin Watertown, NY Robert A. Perrotta Colin Beaven Anna Martinez Susanne Portale Jason Bennett Arthur Masny Kristi Tumminello Prinzo Olga Berkovich Cindy S. Mazur

Journal | September 2000 61 Jean E. Nelson II, Associate Director, Emil Zullo, Assistant Director, [email protected] [email protected] HEADQUARTERS Jean Marie Grout, Staff Attorney, Lawyer Assistance Program [email protected] Ray M. Lopez, Director, [email protected] STAFF Leslie A. Fattorusso, Staff Attorney, Management Information Systems [email protected] John M. Nicoletta, Director, E-MAIL ADDRESSES Cheryl L. Wallingford, Program Manager, [email protected] [email protected] Ajay Vohra, Technical Support Manager, Daniel J. McMahon, Assistant Director, [email protected] Publications, [email protected] Paul Wos, Data Systems and Telecommunications Executive Staff Patricia B. Stockli, Research Attorney, Manager, [email protected] William J. Carroll, Executive Director, [email protected] Marketing [email protected] Governmental Relations Richard Martin, Director, John A. Williamson, Jr., Associate Executive C. Thomas Barletta, Director, [email protected] Director, [email protected] [email protected] Media Services and Public Affairs L. Beth Krueger, Director of Administrative Ronald F. Kennedy, Assistant Director, Bradley G. Carr, Director, Services, [email protected] [email protected] [email protected] Kathleen R. Baxter, Counsel, Graphic Arts Frank J. Ciervo, Associate Director, [email protected] Roger Buchanan, Manager, [email protected] Lisa Bataille, Administrative Liaison, [email protected] Amy Travison Jasiewicz, Editor, State Bar News, [email protected] William B. Faccioli, Production Manager, [email protected] Kathleen M. Heider, Director of Meetings, [email protected] Membership [email protected] Human Resources Patricia K. Wood, Director, [email protected] Accounting Richard V. Rossi, Director, Pro Bono Affairs Kristin M. O’Brien, Director of Finance, [email protected] Anthony Perez Cassino, Director, [email protected] Law Office Economics and Management [email protected] Anthony M. Moscatiello, Controller, Stephen P. Gallagher, Director, [email protected] [email protected] Continuing Legal Education Law, Youth and Citizenship Program Terry J. Brooks, Director, Gregory S. Wilsey, Director, [email protected] [email protected]

OURNAL OARD THE NEW YORK J B EMBERS BAR FOUNDATION M EMERITI

s a tribute to their outstanding service to 2000-2001 OFFICERS DIRECTORS Aour Journal, we list here the names of Richard J. Bartlett John P. Bracken, Islandia each living editor emeritus of our Journal’s President Cristine Cioffi, Niskayuna Board. 1 Washington Street Angelo T. Cometa, New York City P.O. Box 2168 Richard J. Bartlett Maryann Saccomando Freedman, Buffalo Glens Falls, NY 12801-2963 Coleman Burke Jules J. Haskel, Garden City Emlyn I. Griffith John C. Clark, III Vice President Paul Michael Hassett, Buffalo Angelo T. Cometa 225 North Washington Street John R. Horan, New York City Roger C. Cramton Rome, NY 13440-5724 Susan B. Lindenauer, New York City Maryann Saccomando Freedman William J. Carroll Robert L. Ostertag, Poughkeepsie Emlyn I. Griffith Secretary Maxwell S. Pfeifer, Bronx H. Glen Hall Charles F. Krause One Elk Street, Albany, NY 12207 Joshua M. Pruzansky, Smithtown Philip H. Magner, Jr. Randolph F. Treece Thomas O. Rice, Brooklyn Treasurer Wallace J. McDonald M. Catherine Richardson, Syracuse Office of State Controller J. Edward Meyer, III Alfred E. Smith Office Bldg. Hon. Shira A. Scheindlin, New York City Robert J. Smith Legal Services, 6th Floor Justin L. Vigdor, Rochester Lawrence E. Walsh Albany, NY 12236

62 Journal | September 2000 Members of the House of Delegates 2000-2001 First District Third District Eighth District Alcott, Mark H. Agata, Seth H. Attea, Frederick G. OFFICERS Auspitz, Jack C. Ayers, James B. Church, Sanford A. Baker, Theresa J. Bergen, G. S. Peter Dale, Thomas Gregory Barasch, Sheldon Cloonan, William N. Eppers, Donald B. Batra, Ravi Connolly, Thomas P. Evanko, Ann E. † Bing, Jonathan L. Copps, Anne Reynolds Freedman, Bernard B. † Bowen, Sharon Y. Flink, Edward B. †* Freedman, Maryann Saccomando Paul Michael Hassett, President Brett, Barry J. Friedman, Michael P. Gerstman, Sharon Stern Cashman, Richard Helmer, William S. Graber, Garry M. Buffalo Chambers, Hon. Cheryl E. Kelly, Matthew J. * Hassett, Paul Michael Christian, Catherine A. Kennedy, Madeleine Maney McCarthy, Joseph V. Steven C. Krane, President-Elect * Cometa, Angelo T. Kretser, Rachel O’Donnell, Thomas M. New York Davis, Evan A. LaFave, Cynthia S. Omara, Timothy DeFritsch, Carol R. Lagarenne, Lawrence E. Palmer, Thomas A. Frank M. Headley, Jr., Treasurer Eisman, Clyde J. Maney, Hon. Gerard E. Pfalzgraf, David R. Eppler, Klaus Murphy, Sean Webb, Paul V., Jr. Scarsdale * Fales, Haliburton, 2d Netter, Miriam M. Lorraine Power Tharp, Secretary Field, Arthur Norman Samel, Barbara J. Ninth District Finerty, Hon. Margaret J. Swidler, Robert N. Aydelott, Judith A. Albany Flood, Marilyn J. Tharp, Lorraine Power Berman, Henry S. * Forger, Alexander D. Tippins, Timothy M. Galloway, Frances C. Freedman, Hon. Helen * Williams, David S. Gardella, Richard M. * Gillespie, S. Hazard * Yanas, John J. Giordano, A. Robert Goldstein, M. Robert Golden, Richard Britt Gross, Marjorie E. Fourth District Headley, Frank M., Jr. Handler, Harold R. Eggleston, John D. Herold, Hon. J. Radley Handlin, Joseph J. Elacqua, Angela M. Klein, David M. * Heming, Charles E. FitzGerald, Peter D. Kranis, Michael D. Vice-Presidents Hirsch, Andrea G. Higgins, Dean J. Manley, Mary Ellen First District: Hoffman, Stephen D. Hoffman, Robert W. McGlinn, Joseph P. Stephen D. Hoffman, New York Horowitz, Steven G. Hoye, Polly A. Miklitsch, Catherine M. Jacobs, Sue C. Jones, Matthew J. * Miller, Henry G. Kenneth G. Standard, New York Jacoby, David E. Keniry, Hon. William H. Mosenson, Steven H. Second District: Jaffe, Barbara Tishler, Nicholas E. O’Keeffe, Richard J. Edward S. Reich, Brooklyn Kenny, Alfreida B. * Ostertag, Robert L. Kilsch, Gunther H. Fifth District Scherer, John K. Third District: * King, Henry L. Amoroso, Gregory J. Steinman, Lester D. James B. Ayers, Albany Kougasian, Peter M. Buckley, Hon. John T. Stewart, H. Malcolm, III Fourth District: † Krane, Steven C. Burrows, James A. Walker, Hon. Sam D. Krooks, Bernard A. DiLorenzo, Louis P. Wolf, John A. Matthew J. Jones, Saratoga Springs Landy, Craig A. Doerr, Donald C. Fifth District: Leber, Bernice K. Dwyer, James F. Tenth District James F. Dwyer, Syracuse Lieberman, Ellen Fennell, Timothy J. Abrams, Robert Lindenauer, Susan B. Getnick, Michael E. Asarch, Joel K. Sixth District: * MacCrate, Robert Gingold, Harlan B. †* Bracken, John P. Eugene E. Peckham, Binghamton Mandell, Andrew * Jones, Hon. Hugh R. Capell, Philip J. Seventh District: Minkowitz, Martin Klein, Michael A. Corcoran, Robert W. * Murray, Archibald R. Mawhinney, Donald M., Jr. Dietz, John R. A. Vincent Buzard, Rochester Opotowsky, Barbara Berger Priore, Nicholas S. Filiberto, Hon. Patricia M. Eighth District: * Patterson, Hon. Robert P., Jr. Rahn, Darryl B. Fishberg, Gerard Joseph V. McCarthy, Buffalo Paul, Gerald G. †* Richardson, M. Catherine Futter, Jeffrey L. Pickholz, Hon. Ruth Sanchez, Ruthanne Gutleber, Edward J. Ninth District: Quattlebaum, Poppy B. Uebelhoer, Gail Nackley Karson, Scott M. vacant Raubicheck, Charles J. Levin, A. Thomas Tenth District: Rayhill, James W. Sixth District Meng, M. Kathryn Reiniger, Anne Anglehart, Scott B. Mihalick, Andrew J. A. Thomas Levin, Mineola Rifkin, Richard Denton, Christopher O’Brien, Eugene J. Eleventh District: Rocklen, Kathy H. Drinkwater, Clover M. †* Pruzansky, Joshua M. Robert J. Bohner, Garden City Roper, Eric R. Hutchinson, Cynthia Purcell, A. Craig Rothberg, Richard S. Kachadourian, Mark Roach, George L. Twelfth District: Safer, Jay G. Kendall, Christopher Rothkopf, Leslie Steven E. Millon, Bronx Schaffer, Frederick P. Madigan, Kathryn Grant Spellman, Thomas J., Jr. * Seymour, Whitney North, Jr. Mayer, Rosanne Walsh, Owen B. Shapiro, Steven B. Peckham, Eugene E. Wimpfheimer, Steven Silkenat, James R. Perticone, John L. Sloan, Pamela M. Reizes, Leslie N. Eleventh District Members-at-Large of the Souther, Eugene P. Bohner, Robert J. Standard, Kenneth G. Seventh District Darche, Gary M. Executive Committee Stenson, Lisa M. Bleakley, Paul Wendell DiGirolomo, Lucille S. Mark H. Alcott Vitacco, Guy R., Sr. Buzard, A. Vincent Glover, Catherine R. Wales, H. Elliot Castellano, June M. James, Seymour W., Jr. Sharon Stern Gerstman Yates, Hon. James A. Dwyer, Michael C. Nashak, George J., Jr. Michael E. Getnick Getman, Steven J. Matthew J. Kelly Second District Heller, Cheryl A. Twelfth District Adler, Roger B. Lawrence, C. Bruce Bailey, Lawrence R., Jr. Bernice K. Leber Agress, Vivian H. †* Moore, James C. Friedberg, Alan B. Susan B. Lindenauer Cohn, Steven D. * Palermo, Anthony R. Kessler, Muriel S. Cyrulnik, Miriam Reynolds, J. Thomas Kessler, Steven L. Dollard, James A. Small, William R. Millon, Steven E. Doyaga, David J. Trevett, Thomas N. †* Pfeifer, Maxwell S. Fisher, Andrew S. * Van Graafeiland, Hon. Ellsworth Schwartz, Roy J. Lashley, Allen * Vigdor, Justin L. Torres, Austin Morse, Andrea S. †* Witmer, G. Robert, Jr. † Delegate to American Bar Association House of Delegates Reich, Edward S. Out-of-State * Past President †* Rice, Thomas O. Chakansky, Michael I. Sunshine, Hon. Jeffrey S. * Walsh, Lawrence E. Terrelonge, Lynn R.

Journal | September 2000 63 Does the FDA Have Jurisdiction RES IPSA JOCATUR Over “Miracles”?

BY JAMES M. ROSE lexandros Chemedes, the owner Al Chemedes also told his brother-in- warehouseman for its valuable Miricol of AlChemMe Pharmaceuticals law, Benny Fischel, an attorney, about product. The contract required him to AInc., had a dream one night. In it, Miricol. Benny had a best friend, Will keep the pills safe from all harm. Because a complicated chemical formula appeared Ling, who was dying of a disease caused of the FDA regulations, the contract in a visual diagram. He heard a deep by a virus. Benny begged Al Chemedes to strictly forbid him from consuming the voice say, “If you make it . . .” but he give the drug to his friend, but the Dross pills. It explicitly provided that he was not could not hear the rest. The substance law firm warned Chemedes that he could permitted to take the pills three times a kept cracking open small spherical shells not sell it or even give it away, and that no day with meals for two weeks. until the dream ended. doctor could prescribe it without first ob- If Ling took the pills and violated the He was aware of the dream that led taining FDA approval. No tests in which contract, exclusive jurisdiction to litigate Elias Howe to invent the sewing machine1 Ling could participate would be ready in the violation and impose damages was and the divine inspiration that caused time. If the drug were given away and vested in a specific arbitrator, Pete L. Bai- James Watson and Francis Crick to intuit worked, the results would be readily ap- ley, an attorney with the O. Fischel Law that DNA took the form of a double helix. parent. The publicity that would follow Firm of New York. The contract provided Al Chemedes believed his dream to be a such a violation of law would bring pres- that, in the event of breach, liquidated divine inspiration. He set upon manufac- sure on the FDA to civilly and perhaps damages would consist of the return of turing the formula he had envisioned. He criminally prosecute Chemedes, and this the $10 that the church had paid Will Ling then used it without success to try to might delay the approval of Miricol. to keep the pills safe and $100 in damages, crack open a variety of substances, in- Al Chemedes thought he had a solu- the amount that the church paid cluding walnuts, a bowling ball and a tion. He declared that the drug was di- AlChemMe Pharmaceuticals to produce stale bagel. One day while he was suffer- vinely inspired because it had appeared the pills. ing from a flu virus, he mistakenly in- to him in a dream, just as many prophets Will Ling took the pills three times a haled a powdered version of the sub- and biblical forefathers had been divinely day for two weeks and recovered from the stance and felt better within hours. inspired in their dreams. disease. He cheerfully paid the liquidated However, a senior partner in the Dross damages to the church. When FDA offi- Test confirmed that his concoction, firm opined that a First Amendment de- cials made inquiries, he told them that he which he named Miricol, could destroy fense to a charge under the Food and was simply a bad bailee who should not the tough outer protein shell, or capsid, of Drug Act would not be successful because be entrusted with anything valuable. a single virion. Tests on mice showed that of previous case law involving the Church it was a drug capable of killing all foreign of Scientology’s Hubbard Electrometer, or 1. In which Howe saw warriors carrying viruses in the body. This meant that Miri- “E-meter.”3 As long as the food or drug or spears with holes in the spearheads. He used that configuration to formulate the col could cure any disease caused by a device was intended for use in the body, it virus, including warts, flu, AIDS, rabies, sewing machine needle with a hole near would fall within the jurisdiction of the the front in 1846. polio, small pox, chicken pox and herpes. 4 federal watchdogs. 2. See 21 USC § 301-397 and 21 CFR Part He began to develop a protocol to Chemedes explained his predicament 866. apply for testing rights from the Food and to his brother-in-law and Benny’s twin 3. Founding Church of Scientology v. United Drug Administration. Since 1938, new States, 409 F.2d 1146 (D.C. Cir 1969). brother, Arty Fischel. Together, they prac- This case mentioned in dicta that adul- pharmaceuticals cannot be marketed ticed in the law firm started by their fa- terated food used by a religion would without extensive tests to assure that they ther, Oliver, and now known as the O. Fis- fall within the jurisdiction of the FDA. are safe and have no harmful side effects. chel Law firm of New York State. Their 4. For example, a tampon constitutes a After the 1962 Thalidomide tragedy, the clients included numerous parking lot medical device for purposes of regula- laws were tightened to provide a lengthy owners. tion and must be properly labeled with a warning sign about toxic shock syn- procedure for testing new pharmaceuti- Arty came up with novel remedy. He 2 drome, Moore v. Kimberly-Clark Corp., cals. AlChemMe Pharmaceuticals had on simply modified the bailment language 867 F.2d 243 (5th Cir. 1989), rehearing de- retainer a Washington, D.C., law firm that on the back of parking lot tickets given nied, 873 F.2d 297. specialized in complying with FDA regu- out by his clients. Will Ling was told that JAMES M. ROSE, a practitioner in White lations and in lobbying, Dross, Piffel, Ar- the Church of God the Biochemist was Plains, is the author of New York Vehi- cania and Vestibuhl. It was told to seek hiring him to be a warehouseman. The cle and Traffic Law, published by West speedy approval of the drug. church paid him $10 to act as a temporary Group.

64 Journal | September 2000