JULY/AUGUST 2009 VOL. 81 | NO. 6 JournalNEW YORK STATE BAR ASSOCIATION

The Caines Identities

The Faces of America’s First Also in this Issue Official Reporter An Insider Revisits Disney by Gary D. Spivey Arbitrating Commercial Issues: Do You Really Know the Out-of-Pocket Costs? The New York City Civil Rights Restoration Act Grows Teeth 866-FUNDS- NOW

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July/August 2009

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BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Annual Meeting Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello location has been Philip H. Dixon Albany Elissa D. Hecker Irvington moved— Jonathan Lippman New York City Eileen D. Millett New York City Gary A. Munneke White Plains Hilton New York Thomas E. Myers Syracuse John B. Nesbitt 1335 Avenue of the Americas Lyons Gary D. Spivey New York City Colorado Springs, Colorado Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon January 25-30, 2010 Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside

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EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS JULY/AUGUST 2009

THE CAINES IDENTITIES The Faces of America’s First Official Reporter by Gary D. Spivey 10 DEPARTMENTS 5 President’s Message 24 Plaintiff Expert Reports: 8 CLE Seminar Schedule An Insider Revisits Disney 20 Burden of Proof by H. STEPHEN GRACE, JR. by David Paul Horowitz 38 Point of View 30 Arbitrating Commercial Issues: by Robert W. Wood Do You Really Know the 43 Law Practice Management Out-of-Pocket Costs? by Gary A. Munneke 46 Environmental Law by RONALD J. OFFENKRANTZ by Philip Weinberg The New York City Civil Rights 49 Language Tips 34 by Gertrude Block Restoration Act Grows Teeth 50 Attorney Professionalism Forum by JYOTIN HAMID and MARY BETH HOGAN 56 New Members Welcomed 60 Index to Advertisers 60 Classified Notices 63 2009–2010 Officers 64 The Legal Writer by Gerald Lebovits

Cartoons © CartoonResource.com

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2009 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), 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 $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | July/August 2009 | 3

PRESIDENT’S MESSAGE MICHAEL E. GETNICK

The Membership Bottom Line: What’s in It for You

uring these tough economic The LPM Committee sponsors lun- times, when some of our mem- cheon telephone seminars on various Dbers have lost their jobs and topics, including marketing, social net- even more are struggling to save their working and practice management. The practices, it is imperative that lawyers seminars are geared toward those with find ways to maintain a high level of busy schedules and can be download- service while cutting costs. This is no ed from our Web site at any time. More easy task. The situation is especially than 400 members participated in the hard for solo and small firm lawyers, seminar on practice management and some of whom have seen certain parts the new Rules of Professional Conduct. of their practices completely dry up. The committee also presents live semi- would like to subscribe, simply visit As you, our members, try to do more nars, imparting advice on starting your the LPM Web site and request that you with less, I am well aware that you are own practice and risk management for be added to the distribution list. scrutinizing the value of every dol- solo and small firm lawyers. This is just a start. As I write this lar – even those set aside for your bar But there’s more. The LPM Web message, we’re anticipating the House membership dues. We’re working to site and Solo and Small Firm Resource of Delegates’ review on June 20, 2009, ensure that the payment of your State Center (visit these sites at www.nysba. of the report and recommendations of Bar dues is one of the best investments org/lpm and www.nysba.org/solo) our Special Committee on Solo and that you make this year. While you feature practice management tips and Small Firm Practice. The report con- focus on the bottom line, our focus is tools, including a vendor resource tains valuable insight as to how we can on you. Our leaders and staff are ask- guide and a compilation of forms and build upon current offerings for solo ing the same question: What’s in it for free publications on topics such as and small firm lawyers in the areas you, our members? model partnership agreements and of educational programs, publications, This year, under my agenda business continuity. Members can stay Internet resources, member benefits “Lawyers Helping Lawyers,” we are abreast of the latest practice manage- and networking opportunities. We are going to emphasize and bolster current ment news by frequenting two new marshalling all available resources to committees and initiatives that offer blogs – Smallfirmville.com, a blog provide lawyers with the assistance programs and services to members in for solo and small firm practitioners they need to succeed, even in these this down economy. Our Law Practice by Marshall Isaacs, and www.nysba. difficult times. Management Committee (LPM), org/lpmblog, an LPM Finance and We also are engaging our terrific chaired by Gary Munneke, already Management blog. In June, the LPM Committee on Lawyers in Transition, is producing valuable resources and Committee launched a new pub- ably chaired by Lauren Wachtler programs designed to ease the burden lication, NYSBA T-News, which is a (Mitchell Silberberg & Knupp), which of managing your firm’s business. We monthly e-newsletter that provides produced three free Webcasts this have a tremendous amount of use- information and updates on law prac- spring to provide expert guidance to ful tools and information that will tice technology. The first issue features lawyers who have recently lost their ease your daily practice of law – but articles on 2009 technology trends for jobs. Topics included networking, we’re learning that many members are solos, tips on how to get more from updating a resume, interviewing, and unaware of what is available to them your BlackBerry, and e-filing in New marketing your talents during a down through their State Bar membership. York State courts. There also is a link to economy. More than 1,200 lawyers Our Web site continues to be updated. a free guide titled “The Busy Lawyer attended these programs, which are all To ensure you are getting the full value Quick Computer Reference Guide for available for free downloading and of your membership, I am going to Outlook, Word and Powerpoint.” All highlight some of the many services members should have received the Michael E. Getnick can be reached at the Association provides. first NYSBA T-News. If you did not and [email protected].

NYSBA Journal | July/August 2009 | 5 PRESIDENT’S MESSAGE viewing directly from the committee’s stressful times is difficult for you to year, and you can too. Space does not Web site, www.nysba.org/lawyersin bear, please remember that you are allow me to list all of the tremendous transition. The site also features a blog not alone. The State Bar’s Lawyer benefits of State Bar membership – not and an ambassador/mentoring program Assistance Program provides free, con- to mention the numerous benefits of for lawyers in transition, a career center, fidential assistance to lawyers, judg- membership in one or more of our 25 and numerous additional resources to es, law students and their immediate sections. help lawyers move into a new job or families. The program brings together This is just a small sampling of what practice area. legal professionals who provide peer State Bar membership offers, what’s The State Bar also will continue to support to colleagues struggling with in it for you. We are always looking monitor policy and proposed legisla- alcoholism, addiction, depression, men- for ways to increase member benefits tion that affects your bottom line. This tal illness and debilitating stress. If you and to lower premiums and fees, and year alone we have opposed measures or someone you know is struggling I welcome your thoughts and ideas that would have increased certain with any of these issues, contact the about what you need to make State court fees, such as the cost for pur- LAP director, Pat Spataro, at the LAP Bar membership more relevant to your chasing an index number and the bar Helpline: 1-800-255-0569. everyday practice. You can send any exam fee. We also partnered with our In addition to these resources, the comments or suggestions to me at Real Property Law Section in opposing member discounts offered on cutting- [email protected]. legislation that would have prohibited edge CLE programs, Association- Of course, the State Bar also pro- lawyers from providing title insurance sponsored group insurance, including vides great opportunities to serve, to to their clients, and with our Trusts health and dental, reference books and give back to the profession and the and Estates and Elder Law Sections publications, legal research and legal public. We are rich with opportuni- to secure an extension of the effective software, can result in savings that ties for speaking, writing, leading, date for the new power of attorney leg- greatly exceed the cost of annual State mentoring, providing pro bono ser- islation. We will remain a strong voice Bar dues. We are seeking to provide vice, just to name a few. Now 76,000 for our members, using the vast exper- ever-expanding benefits at lower pre- members strong, the State Bar is a tise of our members to shape the public miums and fees. If you are not taking diverse body of lawyers with exper- policy debate on both state and federal advantage of these and other member tise in a wide range of practice areas. issues. We will be your best ally. benefits, you are not getting the full When we work together – lawyers Finally, if you’ve been laid off or if value of your membership. Some of our helping lawyers – we all reap the managing your practice during these members save more than $1,200 each benefits. ■ LPM Resources Get help. Get answers. Law Practice Management - New resources - Monthly e-Tech newsletter - Solo/Small Firm Blog - Quarterly LPM e-newsletter - Law Practice Management Blog - Technology Blog - Monthly luncheon CLE telephone seminars

Turn to www.nysba.org/lpm to improve your practice 518-487-5596

6 | July/August 2009 | NYSBA Journal

NYSBACLE Tentative Schedule of Fall Programs (Subject to Change)

The New York State Bar Association Has Been Certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.

“Search Engine Optimization”: How to Help Practical Skills: Purchases and Sales of Homes Potential Clients Find You on the Web November 10 Albany; Buffalo; Long Island; (12:00 pm – 2:00 pm Eastern Time) New York City; Rochester; August 5 Webinar (all sites) Syracuse; Westchester

New Section 457A Securities Arbitration September 17 New York City November 12 New York City

Bridging-the-Gap Handling Tough Issues in a Plaintiff’s Personal (two-day program) Injury Case September 23–24 New York City (live session) November 13 Buffalo; New York City Albany; Buffalo November 20 Albany; Long Island (video conference from NYC) Practical Skills: Basics of Civil Practice – Practical Skills: Basic Matrimonial Practice The Trial October 5 Albany; Buffalo; Long Island; November 18 Albany; Buffalo; Long Island; New York City; Rochester; New York City; Syracuse; Syracuse; Westchester Westchester

Public Utility Law Corporate Counsel Institute October 16 Albany (two-day program) November 19–20 New York City Law School for Claims Professionals October 16 Buffalo; New York City; Seventh Annual Sophisticated Trusts Syracuse and Estates Institute October 23 Long Island (two-day program) November 19–20 New York City Practical Skills: Introduction to Estate Planning October 19 New York City Construction Site Accidents October 20 Albany; Buffalo; Long Island; November 20 Buffalo Rochester; Syracuse; Westchester December 4 Albany; Long Island December 11 New York City; Syracuse Update 2009 October 23 Syracuse October 30 New York City

Practicing Matrimonial and Family Law in Chaotic Economic Times (9:00 am – 12:45 pm) October 23 Buffalo November 6 Long Island November 20 Syracuse December 4 Albany December 11 New York City

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount) NYSBA’s CLE Online ONLINE | iPod | MP3 PLAYER Bringing CLE to you... anywhere, anytime.

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Features Electronic Notetaking allows you to take notes while listening to your course, cut-and-paste from the texts and access notes later – (on any computer with Internet access). Audio Seminars complement the onscreen course texts. You control the pace, and you can “bookmark” the audio at any point. Bookmarking lets you stop your course at any point, then pick up right where you left off – days, even weeks later. MCLE Credit can be obtained easily once you’ve completed the course – the form is part of the program! Just fill it out and mail it in for your MCLE certificate. visit our Web site www.nysbacleonline.com For more information please call 800.582.2452 The Caines Identities The Faces of America’s First Official Reporter

By Gary D. Spivey

Research identifies three historically contemporaneous figures named George Caines and strongly suggests that they were the same person. (Artwork courtesy of Michael S. Moran.) GARY D. SPIVEY ([email protected]) is a graduate of Indiana University – Bloomington and its School of Law. He served as State Reporter and head of the New York State Law Reporting Bureau from 1999 to 2009. He is a member of the Board of Editors of the Journal.

is acknowledged as the first official reporter of judicial decisions on this continent and the most prolific legal writer of his time.

Yet, his biographies do not record his parentage, exact in New York. He married into society and began a date and place of birth, or much about his background career as a lawyer, author and reporter, interacting before he appeared in New York in 1801. And his repu- at least tangentially with such notables as Thomas tation has been tarnished by the writings of a contem- Jefferson, Alexander Hamilton, Martin Van Buren, porary, Chancellor James Kent, who was an influential Paul Revere and Washington Irving. judge. Kent criticized Caines’s judgment and morals, Perhaps tellingly, each George Caines in this chronology but the basis for those criticisms has never been fully disappears from the historical record when the next in the examined. sequence appears. The growing digital availability of previously obscure sources has made possible a more thorough examina- Caines of St. Kitts tion of Caines’s background and sheds new light on his The surname “Caines,” an English name of Norman competence and character. Research in these sources origin, was well known on the island of St. Kitts in identifies three historically contemporaneous figures by the British West Indies in the 18th and 19th centuries. the name of George Caines and strongly suggests that Charles Caines of St. Kitts, possibly a prosperous they were the same person. They are, in chronological merchant/trader,1 had a large family, including a fifth sequence of their appearance in the record: son named George, who was sent to England to study • A resident of St. Kitts (St. Christopher) in the British law. West Indies, educated at the Middle Temple in “George Caines, fifth son of Charles C., of the Island London but not called to the bar. He was named a of St. Christopher, in America, esq.,” was admitted to the defendant in a bank fraud case but was not appre- study of law at the Middle Temple in London on April 21, hended. 1780.2 His age at the time is not given but, assuming that • A supposed West Indian who suddenly appeared he was in his late teens, as seems typical, his year of birth in Bermuda and opened a law practice on the rep- would have been about 1761 or 1762. resentation that he had been at the Middle Temple The Middle Temple educated not only those preparing and was admitted to the English bar. He aroused the for a career in the law but also those who would require suspicions of the authorities, who thought him to some knowledge of the law in their careers.3 Thus it is be the unapprehended defendant in the bank fraud possible that the merchant Caines sent his son to the case. They revoked his law license and threatened Middle Temple to familiarize him with the law merchant, him with decisive measures if the criminal charges the legal system regulating the relationship of mariners were authenticated. and merchants. In any event, George Caines apparently • A reputed English advocate from the West Indies was not admitted to the English bar; instead, his life took who had practiced law in Bermuda before arriving a rather sinister turn.

NYSBA Journal | July/August 2009 | 11 Caines studied law at London’s Middle Temple. (Drawing by Thomas Shepherd.)

In 1793 Caines bent on them to take decisive measures, whenever the was named as a defen- Information shall be authenticated.”13 Shortly thereafter, dant in the prosecu- the authorities received the description of “Caney” from tion of a group of a defendant in the case. In January 1800, Caines’s license men charged with de- to practice law was revoked, and he soon departed from frauding a bank in Bermuda.14 Worcester, England. The fraud involved establishing a relationship with banks by exchanging valid Bank of Caines of New York England banknotes for local banknotes and later, having George Caines first applied established a pattern of legitimate transactions, present- for admission to the bar ing worthless paper to be discounted.4 An accomplice of the New York Supreme supplied a description of Caines, whom he knew as Court in the January term, “Caney.” 1801.15 He was reputed to be an “English advocate”16 Aged abt. 34[;] born in St. Kitts West Indies[;] about from the West Indies,17 who five feet 8 inches high[;] rather inclined to be corpu- lent[;] dark complexion – dark eyes and dark hair[;] had practiced in Bermuda was a student in the Temple but not called to the Bar – before coming to New deliberate and easy in his speech – Walks upright.5 York.18 James Kent, then an asso- The other defendants were captured and imprisoned, but ciate judge of the Supreme Caines was never caught. Court, wrote that Caines “was not then successful” Caines of Bermuda (perhaps because of citizen- James Kent’s criticisms have tarnished George Caines, described as “[a] plausible young man ship) “and so assumed the Caines’s reputation. (Portrait courtesy of 6 19 of good address,” arrived in Bermuda from New Business of reporting.” Court of Appeals Collection.) Providence, Bahamas, in 1797. If he was the same person Caines seems to have implicated in the Worcester bank fraud, as Bermudian been busy with the publication of a treatise titled An authorities later came to suspect, he may have first Enquiry into the Law Merchant of the United States; or, sought refuge in the Bahamas, where Methodist slavery Lex Mercatoria America, on Several Heads of Commercial reformer and future chief justice William Wylly – perhaps Importance, which covered the laws of navigation and a cousin – had a law practice in New Providence.7 shipping, subjects familiar to the Caineses of Bermuda. A “supposed West Indian,” Caines arrived in Bermuda Caines credited William Coleman – who had pub- aboard the sloop Experiment, a privateer – that is, a pri- lished decisions of the Supreme Court for the period 1791 vately owned vessel authorized to attack enemy merchant to 1800 in an unofficial work called Coleman’s Cases – for shipping.8 He bought a home, stated that he had been the manuscript reports of certain cases in his treatise. He admitted to the bar upon study at the Middle Temple and lamented Coleman’s retirement from the practice of law set up a law practice, which included the representation (to become editor of the New York Evening Post) and the of privateer owners.9 resultant “loss of a regular series of reports of cases in the Caines incurred the displeasure of Bermudian authori- Supreme Court of the State of New-York.”20 Caines may ties when he challenged their seizure of a capsized have recognized that Coleman’s retirement created a void American ship. He placed a notice in the New York that he might fill. Gazette criticizing the seizure and seeking to represent the owners or insurers of the vessel. This incident led to the Marriage to Cornelia Verplanck suspension of Caines’s law license and an investigation Lex Mercatoria was in the hands of the printer when Caines of his credentials.10 married Cornelia Johnston Verplanck at Trinity Church in The investigation concluded that Caines was “not of New York City on May 27, 1802. This may have been a any regular standing at the English Bar”11 and possibly second, or even a bigamous, marriage for Caines. The was the unapprehended defendant in the Worcester bank Worcester bank defendant who had described “Caney” case. The Governor of Bermuda characterized these accu- also stated that his accomplice had married a lady in the sations as those “of a most criminal nature indeed, and Blackheath section of London. But no record of the exis- [evidence of] the genius and talents of the Man, rendering tence or fate of the marriage has been found. it unlikely that he would do anything by halves.”12 Cornelia Verplanck was the widow of Gulian While the Governor and his Council did not consider Verplanck, former president of the Bank of New York. the criminal charges to be sufficiently authenticated at Verplanck had died in 1799, leaving seven children, about that time, they warned Caines that “it will be encum-

12 | July/August 2009 | NYSBA Journal seven to 14 years of age.21 Cornelia was born in 175722 Caines won a short-lived victory over and was several years older than Caines. fellow West Indian Alexander Hamilton in a celebrated libel case. (Portrait by The marriage to Cornelia catapulted Caines into the John Trumbull.) New York City social elite. A month after the marriage, Theodosia Burr Alston, daughter of Aaron Burr, then vice ary 1804. Caines argued for president of the United States under Thomas Jefferson, the prosecution in a case wrote to her husband: against a printer accused of We have this evening been to visit Mrs. Caines (late libeling President Thomas Mrs. Verplanck) at her country place. The marriage Jefferson. Alexander Ham- was thus published – Married, G.C., Esq., counsellor ilton – also of West Indi- of law, from the West Indies, and now having a work in an origin – argued for the the press, to Mrs., &c. That work has been the cause of defense. James Kent wrote a separate opinion favoring some curiosity and not a little amusement.23 the defense, but the decision went to the prosecution on a tie vote. The result was later overturned by legislation. In the same year, Caines published the arguments in Daniel Webster called Caines’ Reports “a valuable the case.29 Although the transcript purported to be “at full acquisition to the Country at large.” (Photo of 30 books in James Kent Law Book Collection, New length,” a six-hour oration by Hamilton was condensed. York State Library.) Caines has been described as a “political follower” of Jeffersonian Attorney General Ambrose Spencer, and The source of the amusement is when Spencer suddenly was named to the Supreme not clear. It may be an allusion to Court, he selected Caines to present the prosecution’s procreation,24 or it may just illus- case in Croswell.31 Caines’s role in this case, together trate some skepticism about the with his dedication of Lex Mercatoria to Jefferson, mysterious newcomer who had reveals his Jeffersonian leanings and provides a pos- so quickly won the hand of the sible explanation for the Federalist Kent’s animosity society matron. In any event, Lex towards him. Mercatoria was published. Caines Caines as Reporter Caines dedicated his commercial law treatise to Thomas On April 7, 1804, the New York State Legislature enacted Jefferson. (Jefferson portrait by Rembrandt Peale.) a statute32 that provided for the designation of an official reporter to publish the decisions of the Supreme Court of dedicated it to Thomas Judicature (Supreme Court) and the Court for the Trial Jefferson, who consent- of Impeachments and the Correction of Errors (Court ed to the dedication.25 of Errors). Caines – who already had commenced pub- It was America’s first lication of a volume of Supreme Court decisions – was commercial law treatise appointed to the position, becoming the first official and “by far the most reporter of judicial decisions on this continent.33 ambitious undertaking Caines eventually published three volumes of the of the kind ever issued decisions of the Supreme Court, covering 1803–1805 from the New York (Caines’ Reports), and two volumes of the decisions of the press.”26 Court of Errors, covering 1801–1804 (Caines’ Cases). The book was Kent was severely critical of the quality of Caines’s planned as the first work. He wrote in the margins of Caines’s first volume of of two volumes, but Supreme Court reports: apparently was not Mem.: I have penned this November & corrected some commercially success- Mistakes. I think the Reporter does not take Notes 27 ful, so the second volume was never published. Instead, very correctly & that the work is too full of Mistakes. Caines turned his attention to the practice of law, arguing The decisions of the Court when in writing, as most of 10 cases before the Supreme Court in 1803 to 1804, and to them are, appear correct and this source of accuracy the preparation of a volume of the decisions of the court stamps the whole value on the book, for without that in what would become Caines’ Reports. aid, I should have no reliance on the Reporter. His own annotations in the margin might well be spared. People v. Croswell However, as the first essay, the work deserves great The most celebrated of the cases argued by Caines in the indulgence.34 Supreme Court was People v. Croswell,28 heard in Febru-

NYSBA Journal | July/August 2009 | 13 Kent was also disdainful of Caines’s marginal annota- French of F. De Pons’s A Voyage to the Spanish Main (1806). tions. In one case commentary Caines opined that a refer- Caines’s knowledge of navigation presumably was useful enced case “seems by no means analogous.”35 In his copy in the translation of technical terms, but Irving’s biog- of the reports, Kent retorted: “We considered . . . the Case rapher dismissed the book as a “piece of hackwork.”44 . . . analogous, the remark of the Reporter to the contrary Caines planned to publish a treatise on bills of exchange notwithstanding.”36 and promissory notes, but this work apparently was Despite the “great indulgence” that Kent gave the never issued, possibly because of business issues with his first volume, his criticism of Caines’s work extended to bookseller, who later became insolvent.45 subsequent volumes and a note in his copy of the second Caines’s publishing activity came to an end, and he volume was especially sharp when Caines gave short turned his attention to the practice of law, “ultimately shrift to Hamilton’s last achieving a prominent position at the New York bar.”46 argument in the court.37 He argued more than 30 reported cases in the Supreme In 1804 Kent became Court and Court of Chancery between 1807 and 1823. Chief Justice, and in 1805 Perhaps indicative of his expertise in maritime law, he he arranged for Caines to also practiced in the New York City Marine Court. In be replaced by William one colorful case he successfully represented a passenger Johnson, a personal friend against members of the crew (posing as Father Neptune and fellow Federalist.38 and his acolytes) in a suit for an assault and battery that While Kent was critical took place on a British ship.47 of Caines’s work, others have been more favorable, Financial Difficulties one noting that his reports Despite his personal income and propitious marriage, An 1804 statute created the reporter position that Caines originally filled. “were distinguished by Caines seems to have struggled financially. Kent wrote brevity and accuracy, and that “since he ceased to be Reporter – in 1805, he had for long enjoyed a high reputation with both bench and never been prosperous.”48 Kent’s use of the epithet “the bar[,] . . . contain[ed] much important matter, display[ed] profligate Caines” seems to reflect his view that Caines much ability, and [were] esteemed authoritative.”39 Even was a spendthrift.49 Kent acknowledged the value of Caines’s reports, quot- Caines’s management of his wife’s financial affairs ing Daniel Webster’s view that the reports were “a valu- brought him into conflict with his stepchildren, who had able acquisition to the Country at large.”40 a remainder interest in their father’s estate under a plan drafted by Alexander Hamilton. Cornelia Caines had a Subsequent Career life estate in the real and personal property and could sell In the immediate aftermath of his service as reporter, the real property, but she was entitled only to the interest Caines continued publishing at a pace that earned him a earned on the proceeds, the principal being reserved for reputation as “by far the most prolific law writer of the the children.50 time.”41 He was a fixture in New York City’s literary and Caines arranged for the sale of a number of properties legal milieu. As one writer recalls: with Cornelia’s apparently freely given consent. In the In a pedestrian excursion through our then thinly pop- attestation to one deed executed on the sale of certain ulated streets, one might see . . . Caines, the deep-read property in Delaware County, the master in chancery reporter; Cheetham and Coleman, the antagonistic edi- recorded that “the said Cornelia [Caines] on being by me tors; Kent, afterwards the great Chancellor.42 [examined] privately and apart from her said husband confessed that she executed said deed freely and without In 1808, Caines published Coleman and Caines’ Cases; a any threats or compulsions from her said husband.”51 second edition of Coleman’s Cases, updated through 1805; In 1814, the children, who by then had reached adult- a practice manual titled Summary of the Practice in the hood, sued both their mother and stepfather over certain Supreme Court of the State of New York; and Practical Forms sale proceeds, seeking an accounting and appointment of the Supreme Court taken from Tidd’s Appendix. of a receiver, and the case came before Kent in the Court While those works were in process, Caines teamed of Chancery. The Caineses objected by demurrer to dis- with other writers on other publishing ventures. With covery of interest payments and the appointment of a Thomas Lloyd, reporter of the debates of Congress, he receiver. Kent agreed that the Caineses were not required transcribed in shorthand the Boston manslaughter trial to disclose the interest payments, but overruled the of attorney Thomas O. Selfridge. (Paul Revere was on the demurrer on a pleading point and reserved the issue of jury that acquitted Selfridge in an important case on the appointing a receiver.52 law of self-defense.43) He collaborated with Washington Irving on Irving’s first book, a translation from the Continued on Page 16

14 | July/August 2009 | NYSBA Journal

Continued from Page 14 Johnson that he was “mortified & extremely disgusted” During this same period, Caines suffered a financial by Caines’s “pretensions as an old original & persecuted setback when he was sued on a debt owed to his book- Reporter.”60 The Van Buren faction on the selection com- seller for law books sold and mittee chose Esek Cowen instead.61 Soon thereafter, delivered. In a case heard by Caines was appointed as a master in chancery, an office Kent in the Supreme Court that Kent himself had held early in his career and that and ultimately affirmed had provided an income sufficient to relieve Kent of his by the Court of Errors, own financial distress.62 Caines was unsuccessful Declining in health, Caines in 1825 decided to retire in attempting to set off his to Windham in Greene County’s Catskill Mountains, an claim against the insolvent area with which he was long familiar because Cornelia bookseller for a larger sum had property there. En route to that destination, he of money ($1,000) than that died suddenly in Catskill on July 10 and is buried in the sought by the plaintiffs.53 Thompson Street cemetery in that village. It was reported Perhaps illustrative of his that “[h]is remains were followed to the tomb by a large financial straits at that time, and respectable concourse of citizens, together with the Caines made a conditional members of the bar, who in respect of the deceased, wore assignment of his extensive Martin Van Buren acquired Caines’s the usual badge of mourning.”63 law library in satisfaction of a loan. law library, numbering 397 (Engraving by John Sartain, reproduc- He rests beneath a tombstone reading: titles, to state senator Martin tion of 1839 painting by Henry Inman.) Sacred Van Buren, the future presi- to the Memory of dent, to secure a loan of $6,000. Caines apparently later GEORGE CAINES, Esq. defaulted on the loan, and Van Buren gained ownership who departed this Life of the books.54 July 10, 1825, The state Legislature came to Caines’s financial succor aged in 1815, passing “An Act for the relief of George Caines, 64 Years64 late reporter of this state.”55 Acknowledging that Caines The gravestone inscription resolves a worrisome had prepared his first volume of Supreme Court reports discrepancy in the Caines biography. It gives his age at prior to his appointment as reporter, the act awarded him death as 64, which translates to a year of birth of 1760 a year’s salary ($850) for that work and $18 for each set of or 1761. Possibly through the reports supplied to certain counties. a typographical error, his Cornelia died that same year and the estate that she had obituary in the Catskill inherited from Gulian Verplanck passed to the Verplanck newspaper, copied in other heirs. Caines remarried, possibly as early as 1820.56 obituaries, gave his age at death as 54, translated by The Final Years his biographers to a year While remaining a communicant of St. George’s Church, of birth of 1771. The ear- an offshoot of Trinity Church (Episcopal) where he and lier date is more harmo- Cornelia were married, Caines in 1819 became a founder nious with an admission of the Missionary and Bible Society of the Methodist to the Middle Temple in Episcopal Church.57 Like William Wylly of the Bahamas, 1780, with the age estimate Caines may have been sympathetic to Methodism’s social given by the Worcester gospel. A hint of this ethos is found in Caines’s preface to accomplice in 1793 (“about Lex Mercatoria, where he protested English ethnocentrism 34”), and with the year of and urged “more tenderness for others.”58 birth of Cornelia Caines Caines is buried at the Thompson His ambitions were not extinguished, however. In (1757). Street cemetery in Catskill. (Photo courtesy of Sylvia Hasenkopf, Greene 1821, Caines was recommended for appointment to Apparently relying on County Historical Society.) a judgeship in the territory of Florida by a “Jonathan the published obituaries, Thompson,” presumably the Republican party leader and Kent used the 1771 date in a necrology. Hostile to the collector for the port of New York, but that appointment end, Kent’s piece concluded that Caines was “not greatly apparently did not materialize.59 respected either for sound Judgment or pure Morals.”65 Instead, Caines made an attempt to regain the report- ership, when Kent was facing forced retirement because Conclusion of age, and Kent’s friend William Johnson was oust- The reader is left to decide, and future researchers to ed as reporter (over Kent’s objections). Kent wrote to confirm or disprove, whether this narrative describes the

16 | July/August 2009 | NYSBA Journal life of a single individual named George Caines rather some redeeming qualities. But nothing can take away his than separate persons of the same name. Except for the distinction as New York’s – and the nation’s – first official year of birth discrepancy, all of the information presently reporter and progenitor of a system of law reporting that available supports the same-person theory, and no infor- has served our state and nation well for more than two mation contradicts it. centuries. ■ Assuming a single individual, the more difficult ques- tion is determining his competence and character. While 1. A “Charles Caines” is listed as a merchant of St. Kitts during the period 1776 through 1806 in Ingram, Manuscript Sources for the History of the West there is evidence to support Kent’s assessment, that Indies, Part C, ¶ SJH 878, at 473 (2000). assessment suffers from Kent’s questionable objectiv- 2. Register of Admissions to the Honorable Society of the Middle Temple ity. He detested Caines’s politics and probably the man from the Fifteenth Century to the Year 1944, at 389 (1949). A “Clement Caines,” himself, and he wanted his friend Johnson in the reporter possibly an older brother, was admitted to the Middle Temple in 1771. Id. at 373. Clement Caines of St. Kitts was a prominent planter, author, politician and role. Moreover, Kent held Caines to a standard that opponent of the slave trade. His publications are listed at 89 National Union neither Kent himself nor his political allies consistently Catalog Pre-1956 Imprints 263 (1970). achieved – as evidenced by the “almost unbelievably 3. Middle Temple History, available at http://www.middletemple.org.uk/ egregious mistakes” in Kent’s citation of foreign author- the_inn/History/The_Sixteenth_Century.html (last visited Mar. 30, 2009). ity66 and by Hamilton’s scandalous adultery.67 4. Brief in The King v. Freeman (Lent Assizes, Worcester 1793), as summarized in Letters from Governor George Beckwith of Bermuda to George Caines (United Nevertheless, there is evidence from critics other Kingdom National Archives catalogue ref. CO 37/48, folios 133–35 (hereinafter than Kent that Caines’s editorial work was sometimes “Beckwith to Caines”), at 133–34 (1799)), read in Council, Oct. 1, 1799. deficient. That said, his condensing the arguments of 5. Description of George Caines, also known as George Caney, obtained from the notoriously verbose Hamilton seems to have been Joseph Hardwick(e?), one of his associates (United Kingdom National Archives an exercise of good editorial judgment rather than a catalogue ref. C0 37/49, folios 248–49 (1800)). deficiency. In any event, Caines never claimed to be pro- 6. Henry C. Wilkinson, Bermuda from Sail to Steam 188 (1973) (“Wilkinson”). ducing great literature. He was satisfied to be a compiler, 7. A “Charles Caines” of St. Kitts was the uncle of William Wylly (Wylie), of transcriber, translator and annotator of the writings of the Bahamas (Buchanan, Genealogy of the Roberdeau Family 39 (1876)). On others. As he described his work on his first volume of Wylly, see Judges of New Brunswick and Their Times 56 n. 4 (Stockton ed. 1907); reports, his “exertions ha[d] been reduced to little more 1 Craton & Saunders, Islanders in the Stream: A History of the Bahamian People 203–204, 221–24 (1992). than arranging the materials received, and giving, in a 8. Jean Kennedy, Bermuda’s Sailors of Fortune 87 (1963) (“Kennedy”). summary manner, the arguments adduced.”68 9. Wilkinson, supra note 6 at 188; Kennedy, supra note 8 at 87. Despite his limitations, Caines produced reports of unquestioned value. To be sure, they take their value 10. Wilkinson, supra note 6 at 188. primarily from the importance of the opinions contained 11. Beckwith to Caines, at folio 134. therein and the prestige of the bench that rendered them, 12. Letter from Governor George Beckwith of Bermuda to Duke of Portland, Oct. 5, 1799 (United Kingdom National Archives catalogue ref. CO 37/48, folio rather than from the contribution of the reporter, but 139 (1799)). Caines deserves credit for his great enterprise in produc- 13. Beckwith to Caines, at folio 135, read in Council, Oct. 2, 1799. ing them, initially at his own expense and risk. 14. Wilkinson, supra note 6 at 189. As to Caines’s character, there are many troubling ele- 15. Memorandum by James Kent in his copy of 1 Caines (New York State ments in his biography, but the evidence of culpability is Library, Albany. N.Y., Manuscripts and Special Collections, James Kent Law inconclusive. We simply do not know the circumstances Book Collection (“Kent Collection”)). of his alleged involvement in the Worcester bank fraud. 16. 7 J.C. Hamilton, History of the Republic of the United States of America For now, as Caines himself wrote in a different context in as Traced in the Writings of Alexander Hamilton and of his Contemporaries 722 (1865). his preface to Lex Mercatoria, “God forbid that ever [we] 17. Unidentified newspaper article quoted in Letter from Theodosia Burr should, when ignorant of motive, charge the heart of any Alston to Joseph Alston, dated June 26, 1802, in 2 Davis, Memoirs of Aaron Burr one with a crime.”69 203 (1837). Moreover, we do not know what Kent was alluding to 18. New-York Evening Post, June 7, 1802. in his reference to Caines’s supposed lack of a reputation 19. Memorandum by James Kent in his copy of 1 Caines (Kent Collection). for “pure Morals.” It may – like Theodosia Burr Alston’s Caines was naturalized on Oct. 13, 1802, listing the United Kingdom as his former nationality. quip – be a reference to his sexual behavior. In any event, it seems probable that Kent disapproved of Caines’s man- 20. Lex Mercatoria Americana, Preface, at vii. agement of Cornelia’s estate and his disputes with her 21. Descendants of Gulian Verplanck (1698–1751), available at http://world roots.com/brigitte/royal/crommelin/gulianverplanckdesc1698.htm (last vis- children, but on this point it must be noted that Caines ited Mar. 30, 2009). seems always to have acted with Cornelia’s approval 22. Original Family Records (of Johnston of New York and New Jersey) in 5 even if not with Kent’s. New York Genealogical Biographical Record 173 (1874). In sum, George Caines, to a greater or lesser degree 23. Letter dated June 26, 1802, in 2 Davis, Memoirs of Aaron Burr 203 (1837). than his peers and his many successors in office, probably 24. Caines (and Cornelia?) had two daughters, one born in 1801, one year was a man with some faults – even serious ones – and prior to Caines’s marriage to Cornelia, and the other born in 1803, nine months

NYSBA Journal | July/August 2009 | 17 after the marriage. Reichler & Bigler, History of the Moravian Seminary for 55. 1815 N.Y. Laws ch. 126. Young Ladies 378 (1901). 56. New York County, Letters of Administration granted to Jane Caines (July 25. Letter from Thomas Jefferson to George Caines (Mar. 21, 1801), in Thomas 30, 1825). Jefferson Papers (Image 338), available at http://memory.loc.gov/ammem/ 57. Henry Anstice, History of St. George’s Church 485 (1911); 1 J.M Reid, mtjhtml/mtjhome.html (last visited Mar. 30, 2009). Missions and Missionary Society of the Methodist Episcopal Church 18 26. Morton J. Horwitz, Transformation of American Law, 1780–1860 150 (1879). (1977); Observations on the Particular Jurisprudence of New York, 23 Albany L.J. 58. Lex Mercatoria Americana, Preface, at vi. 386, 387 (1881). 59. 22 Territorial Papers of the United States 43 n. 40 (Carter ed. 1956); 27. J.G. Marvin, Legal Bibliography 169 (1847) (describing the work as a Frederick Diodati-Thompson, Family of Thompson, of the County of Suffolk, New “crude compilation”). York, in 22 New York Genealogical and Biographical Record 33, 41–43 (Jan. 28. 3 Johns. Cas. 337 (1804). 1891). 29. Speeches at Full Length of Mr. Van Ness, Mr. Caines, the Attorney General, 60. Roper, Necrologies 213 n. 23 (quoting Kent letter to William Johnson, April Mr. Harrison, and General Hamilton: in the Great Cause of the People against 22, 1823, Kent Papers, Library of Congress). Harry Croswell, on an Indictment for Libel on Thomas Jefferson, President of 61. Roper, “Cowen, Esek,” in 5 American National Biography 610–11 (Garraty the United States (Caines ed. 1804). & Carnes ed. 1999). 30. 1 Law Practice of Alexander Hamilton 793–94 (Goebel ed. 1964). 62. James Kent Horton: A Study in Conservatism 110–12 (1969). 31. Thomas J. Fleming, A Scandalous, Malicious, and Seditious Libel, in Stories of 63. Obituary, The Recorder (Catskill, N.Y.), July 15, 1825. Great Crimes & Trials, from American Heritage Magazine 152, 162 (1974). 64. Transcription by Sylvia Hasenkopf, Greene County Historical Society. See 32. 1804 N.Y. Laws ch. 68. also Minnie Cohen, Gravestone Inscriptions of the Catskill Village Cemetery, 33. H.W. Howard Knott, George Caines, in 3 Dictionary of American Biography Catskill, Greene County, New York 90 (1931). 404 (1921) (“Knott”). 65. Roper, Necrologies 212–13. 34. Memorandum by James Kent in his copy of 1 Caines, at 107 (Kent 66. “[H]e sometimes cites works that he has either not consulted or, at least, Collection). not on that occasion.” Alan Watson, Chancellor Kent’s Use of Foreign Law, in The 35. Seaman v. Drake, 1 Caines 9, 11 (1803). Reception of Continental Ideas in the Common Law World 1820–1920 45, 62 36. Memorandum by James Kent in his copy of 1 Caines, at 11 (Kent (Reimann ed. 1993). Collection). 67. Ron Chernow, Alexander Hamilton 362–70 (2004). 37. Memorandum by James Kent referencing Vandervoort v. Smith, 2 Caines 155 68. 1 Caines, Preface to the First Edition, at viii (1804). In the second volume, (1804) in his copy of 2 Caines (Kent Collection). however, he “began a little to dress the opinions of the judges in his own lan- 38. Langbein, Chancellor Kent and the History of Legal Literature, 93 Colum. L. guage” (1 Caines, Preface to the Second Edition, at v (1813)). Rev. 547, 578–79 (1993). 69. Lex Mercatoria Americana, Preface, at vi. 39. Knott, supra, note 33 at 404. See also Marvin, supra note 27 at 169 (“The Cases are stated with brevity, with method and perspicuity”). 40. Memorandum by James Kent in his copy of 1 Caines (Kent Collection). 41. Observations on the Particular Jurisprudence of New York, 23 Albany L.J. 386, 387 (1881). NYSBABOOKS 42. John W. Francis, Old New York; or Reminiscences of the Past Sixty Years 351 (1858). 43. Trial of Thomas O. Selfridge, Counsellor at Law, Before the Hon. Isaac New York Practice Monograph Series, Parker, Esquire: for Killing Charles Austin, on the Public Exchange, in Boston, August 4th, 1806 (Lloyd & Caines ed. 1807). 2008–2009 44. 1 Pierre M. Irving, Life and Letters of Washington Irving 219 (1864). Each book in the series covers the basics of a 45. Hall, Am. L.J. 391 (1808); see also text accompanying note 53, infra. different area of practice – ideal as a starting 46. Knott, supra, note 33 at 404, 405. point for new practitioners, or those new to a 47. Duffie v. Matthewson, 2 Am. St. Trials 901 (1814). 48. Donald M. Roper, The Elite of the New York Bar as Seen from the Bench: particular area of law. James Kent’s Necrologies, 56 N.Y. Hist. Socy. Q. 199, 212–13 (1972) (“Roper, Necrologies”). 49. As quoted in James Kent Horton: A Study in Conservatism 151 n. 85 New York Practice Forms on CD-ROM, (1969). However, “profligate” was a term that Kent frequently invoked against political enemies (“This county [Tioga] . . . now rivals Delaware county in 2008–2009 Democracy and profligacy”) id. at 127–28. Nearly 800 forms used in daily practice. 50. 26 Papers of Alexander Hamilton 234, 235 n. 4 (Syrett ed. 1979). 51. Sale to John Jones by Cornelia VerPlanck Caines – 29 July 1803 (Delaware County, N.Y. Deedbooks 1813–1824, Vol. F, at 83–85, available at http://www. phone: 1-800-582-2452 dcnyhistory.org/pdfs/deeds-jones.pdf (last visited Mar. 30, 2009)). fax: 1-518-487-5618 52. Verplank v. Caines, 1 Johns. Ch. 57 (1814). web: www.nysba.org/pubs 53. Alsop v. Caines, 10 Johns. 396 (1813), aff’d sub nom. Caines v. Brisban, 13 Johns. 9 (1815). 54. Calendar of the Papers of Martin Van Buren 23 (E. West ed. 1910); Kohan, Historic Furnishings Report for “Lindenwald”: Martin Van Buren National Historic Site 143 & App. E, F (1986).

18 | July/August 2009 | NYSBA Journal

BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected] or [email protected]) practices as a plaintiff’s personal injury lawyer in New York and is the author of New York Civil Disclosure (LexisNexis), the 2008 Supplement to Fisch on New York Evidence (Lond Publications), and the Syracuse Law Review annual surveys on Disclosure and Evidence. Mr. Horowitz teaches New York Practice, Evidence, and Electronic Evidence & Discovery at Brooklyn, New York and St. John’s Law Schools. A member of the Office of Court Administration’s CPLR Advisory Committee, he is a frequent lecturer and writer on these subjects.

“Pleeeease Talk to Me”

Introduction interviews were at issue in Niesig lar medical condition at issue in The 2007 decision by the Court of and Siebert, subject to the limitations the litigation.12 Appeals in Arons v. Jutkowitz1 resolved imposed by those two decisions.9 a split in the appellate divisions and The plaintiffs’ concern that defense Straub13 authorized the practice of defense coun- counsel would overreach during inter- The danger of overreaching may not sel interviewing a plaintiff’s treating views and obtain information beyond be so far-fetched. The requirement that physicians as a natural component of the scope of the limited waiver of the defense counsel present the treating an attorney’s trial preparation. Because medical privilege was subservient, in physician with a HIPAA-compliant of medical privilege and privacy con- the Court’s opinion, to the benefits of authorization is absolute, and has cerns under HIPAA, defense counsel “informal discovery.”10 “This is the been patent both pre- and post-Arons. required a HIPAA-compliant autho- same ‘danger of overreaching’ that we Nonetheless, a recent Third Department rization from the plaintiff in order for rejected explicitly in Niesig and implic- decision details how, during trial, a the physician to be permitted to talk itly in Siebert, finding it to afford no defense attorney conducted ex parte to defense counsel.2 Accordingly, the basis for relinquishing the considerable interviews with two of the plaintiff’s Court held that a plaintiff may, where advantages of informal discovery.”11 treating physicians without obtaining appropriate, be compelled to furnish a The Court relied upon its assump- and furnishing to the physicians the HIPAA-compliant authorization per- tion, set forth in Niesig, that interview- required authorization. A new trial mitting, but not compelling, a treating ing attorneys would “comport them- was ordered after a defense verdict physician of the plaintiff to be inter- selves ethically”: was returned: viewed by defense counsel.3 Again, we “assume[ ] that attor- During the course of the trial here, neys would make their identity defense counsel had ex parte con- “Informal Discovery” and interest known to interviewees versations with Anthony Sanito After chronicling the facts and history and comport themselves ethically.” and Lowell Garner, both of whom of the three cases before it, the Arons . . . Here, the danger that the ques- treated plaintiff, without obtain- Court began its analysis under the head- tioning might encroach upon privi- ing plaintiff’s authorization under ing “Informal Discovery of Nonparty leged matter is surely no greater HIPAA. This was in clear violation Treating Physicians.”4 In arriving at its than was the case in Siebert since of the law in effect at the time of holding, the Court framed the issue in the subject matter of the interview trial and plaintiffs’ counsel did not terms of a party’s right, via “informal discover it until that time. discovery,” to interview witnesses as or discussion – a patient’s con- part of trial preparation.5 The Court tested medical condition – will be Through these conversations, relied almost exclusively upon its prior readily definable and understood defense counsel obtained infor- opinions: the seminal decision in Niesig by a physician or other health care mation that he otherwise did not v. Team I,6 and the Niesig7 redux, and professional. In sum, an attorney have, which enabled him to elicit Siebert,8 decided earlier that year. who approaches a nonparty treat- testimony that was not only favor- Emphasizing the importance of ing physician (or other health care able to his client, but that came as “informal discovery,” the Court con- professional) must simply reveal a complete surprise to plaintiffs cluded that non-party treating physi- the client’s identity and interest, and which they were unprepared cians should not be treated any dif- and make clear that any discussion to rebut. . . . Inasmuch as such tes- ferently from the former and current with counsel is entirely voluntary timony was clearly prejudicial to employees of a corporate party, whose and limited in scope to the particu- plaintiffs’ case, we do not find that

20 | July/August 2009 | NYSBA Journal Supreme Court abused its discre- An objection based upon the tim- sel further averred that inclusion tion in setting aside the verdict and ing of the demand would have been of the challenged language in the ordering a new trial in the interest proper. authorizations themselves would 14 of justice. The Arons Court stated that “the fil- chill any cooperation and imply ing of a note of issue denotes the com- that the plaintiff preferred non- Porcelli pletion of discovery, not the occasion to cooperation, which he contended One issue not directly addressed in launch another phase of it. While inter- was especially true here, since the Arons was the specific language to views may still take place post-note of plaintiff highlighted the disput- be included in the required HIPAA- issue, at that juncture in the litigation ed language with yellow marker, compliant authorization, and an area of there is no longer any basis for judicial thereby conveying an “unmistak- dispute has been what, if any, language intervention.”17 Thus, absent “unusu- able message” that the plaintiff preferred non-cooperation.21 plaintiff’s counsel may insert into the al or unanticipated circumstances,” authorization and/or cover correspon- HIPAA-compliant authorizations must The trial court directed that the dence to alert the treating physician be demanded by defense counsel, and authorizations be exchanged with the that the authorization was being fur- any necessary motion practice to com- challenged language.22

The Second Department conducted an extensive review of Arons before plunging into the issue of the language contained in the authorizations. nished pursuant to court order, that the pel the exchange of authorizations On appeal, the Second Department interview was solely for the benefit of must be made prior to the filing of the conducted an extensive review of defendants, and that participation in note of issue or as part of a motion to Arons before plunging into the issue of any interview was voluntary. vacate the note of issue.18 the language contained in the authori- In the first appellate pronounce- Putting aside the timing of the zations: ment on the subject, Porcelli v. Northern demand, the Second Department The Court of Appeals noted that 15 Westchester Hospital Center, the Second addressed the plaintiff’s cross-applica- nonparty treating physicians were Department answered the question tion that the authorizations state: “The free to decline to participate in the of whether such language could be purpose of the requested interview with interview, as the authorizations only included in the authorization with a the physician is solely to assist defense ensured compliance with HIPAA 16 resounding “Yes!” counsel at trial”; and “The physician and the HIPAA Privacy Rule. The During pretrial proceedings the is not obligated to speak with defense Court of Appeals further noted that defendant learned that the infant counsel prior to trial. The interview is the orders in Arons and Webb erro- 19 plaintiff had received treatment from voluntary.” The authorizations the neously required defense counsel a number of medical providers. The plaintiff proposed to exchange were to turn over to the plaintiffs cop- defendant’s demands for Arons autho- annexed as exhibits to the plaintiff’s ies of all written statements and rizations came “[a]fter jury selection in papers, and the cautionary language notations from the treating physi- 20 the matter had been scheduled,” and was highlighted in yellow. cians, as well as any recordings, the plaintiff, in opposing the motion The defendant opposed the applica- transcripts, interview memoranda, that was subsequently brought by the tion: or notes, as such conditions were defendant’s seeking to compel produc- Quoting Arons, [the defendant’s] not required by HIPAA and were tion of the authorizations, “conceded counsel noted that the onus is on inconsistent with Niesig and Siebert. that [the defendant] was entitled, pur- defense counsel to provide the Accordingly, the Court reversed the suant to Arons, to interview the treat- admonitions expressed in the chal- orders of the Appellate Division in ing physicians.” The Porcelli decision is lenged language: “an attorney who all three of the cases before it, and silent as to whether any prior demand, approaches a nonparty treating granted the defendants’ motion to or court order, addressed Arons autho- physician (or health care profes- compel the plaintiffs to provide the rizations. The decision does not state sional) must simply reveal these HIPAA-compliant authorizations clients’ identity and interest, and whether the plaintiff objected that, “in accordance with this opinion.” while Arons authorizations are per- make clear that any discussion mitted, a demand made after jury with counsel is entirely voluntary Notably, although the Court of selection had been scheduled, and and limited in scope to the particu- Appeals expressed some prefer- presumably after the filing of the note lar medical condition at issue in the ence that defense counsel disclose of issue, was untimely. litigation.” [The defendant’s] coun- to the treating physician “the cli-

NYSBA Journal | July/August 2009 | 21 ent’s identity and interest, and cized the Supreme Court’s require- should, include the limiting language make clear that any discussion ment in Arons that the admonition, in approved by the Second Department. with counsel is entirely voluntary boldface type, be placed directly on Defense counsel will, no doubt, face and limited in scope to the par- the authorizations themselves,”24 the tougher threshold questioning from ticular medical condition at issue Second Department held the language the plaintiff’s treating doctors on the in the litigation,” it did not explic- was unlikely to have a chilling effect,25 issue of consenting to an interview itly strike down the conditions and concluded: (hence the plaintive “pleeeease” in the imposed by the Supreme Court in The overall tenor of the decision title). Whether Arons interviews war- Arons, requiring that the physician of the Court of Appeals in Arons rant all of the attention they have strongly suggests that it is of pri- sparked (the result in Straub notwith- The language was mary importance for the treating standing) is unclear, and is something physician (or other health care only an empirical study can answer. unlikely to have a professional) to be informed that Having pre-empted the scheduled 27 the purpose of the interview is to July/August column, “Not[e] Bene,” chilling effect. assist defense counsel during the in order to address the “ripped from litigation and that his or her par- the headlines” issue in Porcelli, Burden be informed by the plaintiff directly ticipation is voluntary. Providing of Proof will return next column to on the authorization itself, in bold- such information best ensures that practice issues surrounding the note face type, that “the purpose of the an individual who agrees to be of issue. Until then, I wish all readers interview is to assist the defendants interviewed will not unwittingly (both of you) a pleasant and relaxing in defense of a lawsuit and it is not disclose privileged information summer. ■ at the request of the plaintiff.” Nor regarding a medical condition not 1. 9 N.Y.3d 393, 850 N.Y.S.2d 345 (2007). did it state an express preference at issue in the litigation. Which 2. Id. for the condition in Kish v Graham, party conveys such message and which required the plaintiff’s in what manner is of second- 3. Id. at 409. HIPAA-compliant authorization to ary importance. Accordingly, we 4. Id. at 406. be accompanied by a cover letter hold that the method the plain- 5. Id. from defense counsel informing tiffs employed here – placing the 6. 149 A.D.2d 94, 545 N.Y.S.2d 153 (2d Dep’t 1989). the treating physician, inter alia, admonition directly on the HIPAA- 7. 76 N.Y.2d 363, 559 N.Y.S.2d 493 (1990). that “the physician is not obligat- compliant authorizations and high- 8. Muriel Siebert & Co., Inc. v. Intuit Inc., 8 N.Y.3d ed to speak with defense counsel lighting the language – is consis- 506, 836 N.Y.S.2d 527 (2007). prior to trial” and “[t]he purpose tent with Arons, as it clearly serves 9. Arons, 9 N.Y.3d at 409 (citing Dillenbeck v. Hess, of the requested interview with the the primary purpose of conveying 73 N.Y.2d 278, 287, 539 N.Y.S.2d 707 (1989)). physician is solely to assist defense the information in a manner that 10. Id. at 410. counsel at trial.” Indeed, in a foot- best prevents the accidental dis- 11. Id. note, the Court of Appeals stated, closure of privileged information. 12. Id. (quoting Niesig, 76 N.Y.2d at 376). While the information could also “[w]e take no issue with those por- 13. Straub v. Yalamanchili, 58 A.D.3d 1050, 871 have been conveyed to the treat- N.Y.S.2d 773 (3d Dep’t 2009). tions of the Arons and Kish orders ing physicians by defense counsel, 14. Id. (citations omitted). that required defense counsel to for example, by orally conveying 15. 2009 NY Slip Op 04881, 2009 WL 1636078 (2d identify themselves and their inter- Dep’t June 9, 2009). such information prior to the inter- est, to limit their inquiries to the view or in a written document 16. Arons, 9 N.Y.3d at 410. condition at issue, and to advise appended to the plaintiff’s authori- 17. Id. at 411. physicians that they need not com- zation, Arons does not require only 18. Id. ply with the request for an inter- defense counsel to be the messen- 19. Porcelli, 2009 WL 1636078 at *2. view. We believe that the execution ger of such information.26 20. Id. of a valid authorization and the fact 21. Id. that the physician, under HIPAA, Conclusion 22. Id. is permitted, but not required, to Until such time as another appellate 23. Id. at *5–6 (citations omitted). grant the interview will address division reaches a different conclu- 24. Id. at *6. 23 these concerns in the future.” sion than the Second Department’s 25. Id. in Porcelli, or until the Court of 26. Id. Emphasizing that the Court of Appeals weighs in on the issue, plain- 27. To be published in September “Burden of Appeals “neither disturbed nor criti- tiff’s counsel may, and undoubtedly Proof.”

22 | July/August 2009 | NYSBA Journal

H. STEPHEN GRACE, JR. ([email protected]) is principal of H.S. Grace & Co. of Houston, Texas. He holds a B.S. in industrial engineering from Lamar University, an MBA from the University of Chicago, and a Ph.D. in economics from the University of Houston. Before beginning his consulting business in 1985, Grace was senior vice president of finance and CFO of Century Corporation and Century Development Corporation. Part I is adapted from Mr. Grace’s article “An Insider Revisits the ‘Disney Case,’” published in Director’s Monthly, August 2008.

Plaintiff Expert Reports: An Insider Revisits Disney

By H. Stephen Grace, Jr.

Part I: The Corporate Governance “Case of the Century” which included gaining an understanding of Milberg The corporate governance “case of the century,” the Weiss’s allegations, analyzing certain plaintiffs’ expert shareholder derivative litigation in connection with Walt reports, and examining Walt Disney’s business invest- Disney Company’s hiring and subsequent termination of ment decisions to hire and, subsequently, to terminate Michael Ovitz, has concluded. Both the Chancery Court Michael Ovitz. and Delaware’s Supreme Court found in favor of the The article briefly reviews the Milberg allegations defendant directors. and sets out a summary of the findings of the plaintiffs’ The question addressed here is whether an examina- compensation expert. Next, Disney’s decision to hire and tion of the report of the plaintiffs’ compensation expert Disney’s subsequent decision to terminate Michael Ovitz offers insights that actually support the courts’ decisions are examined. These examinations provide a valuable for the defendants. Do the issues the expert chose to framework for analyzing the plaintiffs’ expert’s report. examine and those he chose not to examine speak to the factual issues of interest to the courts? Do the analyses The Milberg Weiss Complaint undertaken reflect on the strengths and weaknesses of the Milberg Weiss was counsel to the plaintiffs. The Plaintiffs’ plaintiffs’ allegations? Second Amended Consolidated Derivative Complaint The examination of the compensation expert’s report allegations included these charges: undertaken here supports the courts’ decision and, in an • Paragraph 3 – Michael Eisner, the CEO of Disney, interesting way, responds to those critics who charge that recruited Michael Ovitz as a result of their personal the Delaware courts failed to see important, highly vis- friendship. ible facts, and that their “pro-business” inclinations drove • Paragraph 3 – The hiring of Ovitz was facilitated by their decision. Irwin Russell in his role as chair of the compensa- This article draws on my involvement with the Disney tion committee. case – having served as the consultant to the primary • Paragraph 4 – The compensation committee “inade- directors’ and officers’ (D&O) carrier and its counsel – quately investigated the proposed terms of the Ovitz

24 | July/August 2009 | NYSBA Journal Employment Agreement (OEA).” The compensation For an example, one has only to examine the details committee and the old board paid insufficient atten- of the hiring of Gary Wendt to lead Conseco, Inc., where tion to the terms of the OEA. Wendt was paid a sign-on bonus of $45 million and • At the September 1995 meeting, more time was received various other forms of compensation. Conseco spent on Russell’s additional compensation for han- and Wendt separated only a few years after Wendt took dling the negotiations than on the terms of the OEA. over the leadership of Conseco. • Paragraph 5 – The compensation committee and Even when a formal contract is not in place, a compa- the old board “indifferently and recklessly, failed to ny may elect to make a significant payment to a departing obtain and consider all material information reason- executive. The payout that Doug Ivester, CEO of Coca- ably available to them and evaluate whether the Cola, received upon his severance from the company, is OEA was desirable from a corporate standpoint.” one example. Coca-Cola’s board determined that Ivester The allegations throughout the complaint are highly needed to step aside, and Ivester did not actually have an critical of the actions of Eisner and the Disney board. employment agreement that spoke to such an occurrence. Despite that, the severance he received was estimated to The Plaintiffs’ Expert Reports be worth $166 million.2 (Both Warren Buffet and Herb The compensation expert compared Ovitz’s expected Allen were on the Coke board at that time, and Allen compensation to that received by other “non-CEO presi- chaired the compensation committee.) dents” and concluded: • Ovitz’s cash and total compensation were far in The Decision to Hire Michael Ovitz excess of that received in 1995 by any non-CEO The growth in the Disney share price from the time president in the S&P 500; that Eisner and Frank Wells joined Disney in 1984 until • Ovitz’s contract was unusually generous in virtually the mid-1990s was outstanding. Ten thousand dollars all regards; invested in Disney stock in September 1984 was worth • Ovitz’s severance arrangements were unusually approximately $160,000 by July 1994, while a $10,000 generous in virtually all regards; investment in the S&P Index was worth $56,000. In a 1995 • Ovitz’s severance arrangements provided strong article, John Huey said, “Disney has consistently reported incentives to leave Disney early in his term, so long annual increases in profits and return on equity of more as his departure could be treated as a non-fault ter- than 20%, and Wall Street has rewarded it by driving its mination; and market value up from less than $2 billion in 1984 to more • The total cost of the non-fault termination to Disney than $28 billion today – bigger than Ford, for example.”3 was approximately $130 million. In 1994, Disney was hit with multiple significant personnel issues. Frank Wells’s death in April 1994 The Hiring and Termination of Michael Ovitz: was followed four months later by Eisner’s quadruple An Insider’s View bypass surgery. Jeff Katzenberg, who headed Walt Disney This overview of the hiring and the subsequent termina- Studios, departed. There had been three capable execu- tion of Michael Ovitz draws on Chancellor William B. tives; now there was only one, and he was recovering Chandler’s Opinion, trial-related information, other pub- from major surgery. lic documents and my work on this matter. Chandler’s Disney’s agreement to acquire CapCities, which would Opinion and the other documents address the well- add 60% to Disney’s size, was a further complication. understood risks associated with business investment Disney’s decision to seek the services of Michael Ovitz, decisions, including the hiring of senior executives, the who was widely recognized as the most powerful player factors at work that may have influenced Disney’s deci- in the content area, was sound. sion to seek the services of Michael Ovitz, the hiring pro- Ovitz was “in play.” Edgar Bronfman, chairman of cess, the terms of the hiring, the performance of Ovitz, the Seagram’s – which had acquired 80% of MCA from termination process, and the terms of the termination.1 Matsushita – was estimated by The Economist to have Business investment decisions involve risk. Mergers placed an employment package of between $250 mil- or acquisitions, systems development, sports and enter- lion and $300 million on the table to persuade Ovitz to tainment undertakings, or the hiring or termination of become the entertainment group’s new chairman.4 The senior executives all involve some degree of risk. Large MCA offer recognized Ovitz’s capabilities, as well as his front-end, sign-on bonuses, stock, restricted stock and estimated income of $20 to $25 million earned annually stock options, periodic bonuses, lucrative back-end pay- as CEO of Creative Artists Agency. When Ovitz declined ments, and other provisions are often components of the the MCA offer, The Economist speculated that “it is only contracts entered into with senior executives. Both hiring a matter of time before he (Ovitz) is offered yet another, a new executive and promoting a proven executive are more tempting media giant to run – without a young fraught with risk.

NYSBA Journal | July/August 2009 | 25 proprietor to second-guess him all the time. One would arrangement over the many years during which both be Time Warner . . . another could be Viacom.”5 stood as powerhouses in the industry. Ovitz’s compensation conformed to Disney’s compen- The Hiring Process sation structure. Ovitz received no front-end bonus, no The hiring process was well structured and incorporated stock awards, and no restricted stock awards. He received Disney’s “pay-for-performance” culture. The employ- a stock-option grant basically equivalent to that held by ment agreements of Eisner, Wells, Katzenberg, and others Frank Wells, his COO predecessor. The non-fault termi- reflected a careful adherence to this culture. There were nation provision was necessary to induce Ovitz to join no upfront signing bonuses, awards of stock, restricted Disney. Without this provision, Ovitz almost certainly stock or guaranteed annual bonuses. Base salary com- would have refused Disney’s offer, and Disney might pensation was reasonable; one stock option was awarded have had to entice him by offering a sizeable, more costly per multi-year employment contract; and annual bonuses front-end bonus. depended upon the achievement of defined performance Non-monetary considerations appear to have been a criteria. part of Disney’s negotiations with Ovitz. At trial, Ovitz

In comparison with other high-profi le, non-Disney executives, Ovitz’s compensation could not be considered excessive.

Disney’s pay-for-performance culture was recognized said he found interesting the opportunity to participate as creative, forward-thinking, and beneficial to share- on the “buy side” after having been on the “sell side” for holders. Corporate governance observer Nell Minow, in a many years. January 7, 2002, Fortune article on Eisner, said that prior to And Ovitz was strongly motivated to succeed. His 1996 she “applauded Eisner not just for reviving Disney, employment agreement, with no signing bonus or similar but for taking a modest base salary of $750,000” in what guarantees, was mostly option-based, and thus created she called a “truly credible pay plan based on escalated an incentive for him to succeed. Even though there was options.”6 the cash-termination benefit and the fact that his options Initial discussions with Ovitz involved Irwin Russell, would vest in the case of a non-fault termination, in leav- Disney’s compensation committee chair; Eisner; and ing CAA and declining the MCA offer, Ovitz left cash later on, Raymond Watson, former Disney chairman and flows far larger than the Disney cash-termination benefit. a member of the compensation committee. Having the Also, there was no assurance the vested options would chair of the compensation committee and another long- have any value. term board member head the negotiations ensured both In comparison with other high-profile, non-Disney compensation committee and board awareness of these executives, Ovitz’s compensation could not be consid- negotiations. ered excessive. Proxy data for Michael Armstrong, CEO A highly credible consultant, Graef Crystal, was quick- of AT&T; Carly Fiorina, CEO of Hewlett Packard; Gary ly involved in assisting Russell and Watson. The nego- Wendt, CEO of Conseco; Robert Nardelli, CEO of Home tiations were lengthy and contentious. Ovitz’s contract Depot; and Larry Johnston, CEO of Albertson’s; demon- terms changed during the course of these negotiations. strate that Ovitz’s termination payments were not out of The evidence indicates that the changes in the compensa- line. Assuming Ovitz and each of these executives were tion terms favored Disney. terminated within 15 months after hire and their respec- The Ovitz deal was arm’s length. Ovitz’s advisors tive share prices increased 25%, Michael Ovitz finished were capable and independent. The individuals leading fourth in terms of total compensation received over the the negotiations for Disney were “informed buyers of 15-month period. talent” who understood the parameters within which the Ovitz contract had to be structured. The Performance of Ovitz In many respects, the story of Ovitz at Disney is the story The Terms of Hiring of a clash of operating styles. Much has been written Both the investment community and the press responded about Ovitz’s operating style; it simply did not fit with in a strong, positive manner, pointing out the enormous Disney’s culture. Certainly, Ovitz was highly motivated synergies potentially achievable. While Eisner and Ovitz to succeed. He had the opportunity to exercise potentially were friends, they had not come to terms on any business significant influence at Disney, and personal failure was

26 | July/August 2009 | NYSBA Journal not, in his view, an option. Once the organizational prob- termination payment of $38.9 million. His three million lems at Disney were set out for Ovitz, he only doubled his shares vested, and at the time of the vesting, Disney’s resolve to be successful in his role, but the culture clash price had risen to $71 a share (the strike price was $57 a was too great. share). At the $71 share price, Ovitz’s three million shares had a value of $42 million (three million shares times $14 The Termination Process per share). This total is consistent with Ovitz’s statement A broad-based awareness developed that Ovitz did not fit to the press regarding his termination compensation, and well within the Disney operating structure. Ovitz appears contrasts with reported allegations that the termination to have been largely unaware of these fractures and con- compensation paid was $140 million.7 tinued to be committed to succeeding even after Eisner discussed with him the problems that were developing. Part II: Compensation Expert Report: An Insider’s View His termination was apparently based on business con- Professor Kevin J. Murphy was the plaintiffs’ compensa- siderations and contract driven. Disney made an effort to tion expert. Chandler states that determine whether to effect a “for cause” termination and Professor Murphy . . . presented expert testimony for concluded that its only business option was to proceed plaintiffs on the issue of damages together with an along the non-fault termination lines set out in Ovitz’s economic and reasonableness evaluation of Ovitz’s employment contract. compensation package. Professor Murphy concluded Eisner headed the separation negotiations. Such an that Ovitz’s compensation package was unreasonably arrangement is not unusual. Given that Ovitz was on excessive and orders of magnitude larger than the the board, it was not possible to hold any discussions compensation awarded to executives with arguably regarding his performance or his pending termination at equivalent responsibilities. In determining the reason- a board meeting. ableness of Ovitz’s compensation, Professor Murphy chose not to consider Ovitz’s past income at CAA and the effect that income would have on the remunera- The Terms of the Termination tion he would expect from any future employment. The monetary terms of Ovitz’s no-fault termination were As would be expected, Professor Murphy concluded set out in his employment contract. Ovitz received a cash that the most reasonable and appropriate assumptions

NYSBA Journal | July/August 2009 | 27 are those that would maximize the value of the OEA If the Yankees followed the approach that Murphy (Ovitz Employment Agreement) and corresponding appears to advocate in his report, their offer to Rodriguez cost of the NFT (Non-Fault Termination). Perhaps should have been based on an average of the salaries of Professor Murphy’s most pointed criticism of the Major League third basemen. After all, Rodriguez was OEA is that the Company was unable to reduce its moving into a new position where his skills were unprov- potential financial exposure because the OEA did not en, both on the field as a third baseman and off in terms of contain any provisions for mitigation or non-compete restrictions, but that criticism is not supported by the being able to fit into the “Yankee” culture. It would not be language of the OEA.8 difficult to imagine Rodriguez’s response to such an offer. Nor is it difficult to imagine Michael Ovitz’s response to The court’s analysis of Murphy’s report begins with a proposal under which he would move from his current Section I, “Introduction and Executive Summary.”9 position and spurn other offers (such as that from MCA) Interestingly, Murphy does not seem to have considered for compensation equivalent to the average of S&P 500 two basic factors to be addressed when attempting to per- company presidents. suade an executive to join a firm: (1) the need to make the executive “whole” relative to what he or she is currently earning; and (2) the need to create additional incentive, The New York Yankees’ acquisition thereby providing a basis for the executive to leave his or her existing situation, or forgo other alternatives, and join of Alex Rodriguez several years back this particular firm. provides an interesting analogy. Also notable was that Murphy did not examine how Michael Ovitz’s compensation fit into the Walt Disney executive compensation structure – that is, how Ovitz’s At a roundtable on corporate governance and execu- package would compare to those of Michael Eisner and tive compensation, Leo Strine, Vice Chancellor of the other senior executives. Murphy gave no reason for this Delaware Chancery Court, had this to say about senior decision. management compensation: “In the CEO marketplace, Murphy does, however, state in his report that he here is what you ought to ask a CEO that wants a big reviewed materials that both addressed and made clear raise: Did your phone ring? Is there someone that wants the importance of these issues. For example, he reviewed you that we have not heard about? Those are the ques- the August 12, 1995, letter from Graef Crystal to Irwin tions that real business people ask their other employees Russell, which set out Crystal’s thinking, as a leading when they set compensation.”12 Strine emphasized the expert on compensation, regarding the factors to be validity of allowing market forces to set the compensa- addressed in hiring and fairly compensating Michael tion of senior management. Murphy, apparently, chose to Ovitz.10 Among these is the compatibility of Ovitz’s overlook them. compensation with that of Eisner and other senior execu- The data Murphy presents in his effort to provide tives. a comparison between Ovitz and certain members of Whatever the reason, Murphy chose simply to “com- Disney senior management is inaccurate. Murphy shows pare Mr. Ovitz’s expected compensation to that received Frank Wells (the former president of Walt Disney) as only by other ‘non-CEO Presidents’”11 and did not consider the receiving a salary of less than $1 million in 1994 and as well-known facts that Ovitz’s current position involved having received no stock options in 1994.13 In fact, Frank compensation estimated at $25 million a year, that he had Wells’s stock options (three million shares) received enormous power, and that he had literally unlimited perks. under his 1989 to 1994 contract, vested in 1994, and were Further, Murphy overlooked MCA’s offer to Ovitz – a $250 worth $64 million. (Disney’s policy was to give a single million package. stock option grant at the beginning of the employment The New York Yankees’ acquisition of Alex Rodriguez contract period.) Murphy does not mention Wells’s three several years back provides an interesting analogy. million shares nor that this grant was for the five-year Rodriguez played shortstop for the Texas Rangers, was period. the American League’s Most Valuable Player, and was Murphy continues this tack in discussing Ovitz’s stock understood to have a salary contract with the Rangers option grant, comparing Ovitz’s grant for his five-year approximating $250 million. The Yankees sought the contract period with the amount received in one year by services of Rodriguez but already had a shortstop and the other CEOs, many of whom were receiving annual fine team leader, Derek Jeter, in place. They inquired as stock option awards.14 Murphy refers to Ovitz receiving to whether Rodriguez would be willing to play third a grant of five million shares, when two million of those base. As such, Rodriguez was being asked to take a shares were defined separately and would not actually new position, where his skills, at least in the field, were be granted until Ovitz completed five years of service at unproven. Disney.15 These two million shares did not vest in the case

28 | July/August 2009 | NYSBA Journal of a non-fault termination during the five-year contract could only achieve what Disney had to offer by succeed- period. ing at Disney. As an economist, Murphy understands the Also, Murphy does not consider the absence of front- importance of both monetary and non-monetary com- end incentives from Disney to Ovitz as part of his becom- pensation. ing employed by Disney or the potential costs associated with structuring the separation with Ovitz as, to use Conclusion Murphy’s words, a “resignation” or a “termination for The examination of the report of the plaintiffs’ compen- good cause.”16 Ovitz’s power and broad-based relation- sation expert revealed that (1) Murphy elected to omit ships with producers, directors and actors raise serious discussing certain evidence he had reviewed; (2) Murphy questions about the wisdom of Disney terminating its elected to omit discussing certain issues of customary relationship with Ovitz in a confrontational manner. practice when hiring senior executives; and (3) Murphy Disney’s role as a leading content provider mandated developed questionable comparisons of Ovitz with other that it evaluate carefully the quality of the relationship to executives. The issues overlooked, as well as the analyses be maintained with Ovitz going forward. undertaken, appear to reflect weaknesses in the plaintiffs’ Murphy does not factor in the possibilities of poten- allegations and, interestingly, to confirm the logic of the tially extended and costly litigation should Ovitz’s ter- Delaware courts’ findings. ■ mination have precipitated a confrontation. Indeed, Jeff Katzenberg’s separation from Disney in late 1994 pro- 1. See H. Stephen Grace, Jr., Ph.D., An Insider Revisits the ‘Disney Case,’ Directors Monthly, Vol. 33, No. 8, Aug. 2008. vided an important example of what can arise in the 2. Suzanne Koudsi, Why CEOs Are Paid So Much to Beat It, Fortune, May 29, case of an unfriendly separation. Disney’s litigation with 2000. Katzenberg was extensive and expensive, the settlement 3. John Huey, Eisner Explains Everything, Fortune, Apr. 17, 1995. was large, and an ongoing bitterness continues to exist. 4. No smoke. (Michael Ovitz will not move to MCA), Economist, June 10, 1995. Katzenberg’s loss represented a loss of his creative talent 5. Id. to Disney. The alienation of Michael Ovitz could poten- 6. Marc Gunther, Has Eisner Lost the Disney Magic? The company has been tially have cost Disney its working relationships with walloped by terror and recession. But its problems start at the top, Fortune, Jan. 7, numerous directors and actors. 2002. 7. David Pauly, $90 million just to quit Disney?, Chicago Sun-Times, Dec. 16, Murphy concludes that “these arrangements provided 1996. strong incentives [for Ovitz] to leave Disney early in 8. In re Walt Disney Co. Derivative Litig., 907 A.2d 693, 742–43 (Del. Ch. 2005), his term, so long as his departure could be treated as a aff’d, 906 A.2d 27 (Del. Sup. Ct. 2006). non-fault termination.”17 Yet Murphy did not take into 9. Id. at 743 (referencing Prof. Murphy Expert Report). account the context of Michael Ovitz’s decision to leave 10. Id. at 705 (referencing Letter from Crystal to Russell of 08/12/95). CAA and join Disney. Ovitz was highly motivated to suc- 11. Id. at 743 (referencing Prof. Murphy Expert Report). ceed at Disney for non-monetary reasons, and his subse- 12. Roundtable on Corporate Governance and Executive Pay: Problems and Solutions, quent activities focused on succeeding in a different place J. Applied Corp. Fin., Winter 2004, Vol. 16, No. 1, at 55. (than CAA). As Ovitz was separating from Disney, he 13. Walt Disney, 907 A.2d at 743 (referencing Prof. Murphy Expert Report). entered into discussions with Sony. Those discussions did 14. Id. (referencing Prof. Murphy Expert Report). not progress, and a short time later Ovitz bought Livant, 15. Id. (referencing Prof. Murphy Expert Report). a theatrical production group in Toronto, and commit- 16. Id. (referencing Prof. Murphy Expert Report). ted significant resources to that endeavor. Subsequently, 17. Id. (referencing Prof. Murphy Expert Report). Ovitz formed a new company, Artist Management Group, 18. Id. at 705 (referencing letter from Crystal to Russell of 08/12/95). in 1998. Graef Crystal, in his August 12, 1995, letter to Irwin Russell, discusses at length the unique attributes of both Michael Eisner and Michael Ovitz, and their demon- strated records of success.18 As Crystal states, they are unique among a small group of business leaders in their ability to command high levels of compensation. Murphy reviewed the Crystal letter; yet, he did not challenge Crystal’s assessment. Ovitz’s activities are characteristic of success-oriented business leaders – success for its own sake is important to them, and they want to remain in the game. Ovitz had a very high level of monetary compensation at CAA. What Disney offered was the opportunity to direct an “empire” as opposed to the “kingdom” he headed at CAA. Ovitz

NYSBA Journal | July/August 2009 | 29 RONALD J. OFFENKRANTZ ([email protected]) is a graduate of Brown University and the Columbia Law School. He is a member of Lichter Gliedman Offenkrantz PC, New York City, and the author of a number of articles relating to the practical aspects of arbitrat- ing commercial matters, includ- ing “Negotiating and Drafting the Agreement to Arbitrate in 2003: Insuring Against a Failure of Professional Responsibility,” 8 Harvard Negotiation Law Review 271 (Spring 2003) and “Arbitrating RICO: Ten Years After McMahon,” 1997 Columbia Business Law Review 45 (1997). Arbitrating Commercial Issues: Do You Really Know the Out-of-Pocket Costs?

By Ronald J. Offenkrantz

he concept that arbitration is a less expensive, more in the present environment, could well add hundreds of expeditious, substantial equivalent of litigation in thousands of dollars in arbitrator fees alone, an expen- Ta courtroom has been challenged in scholarly writ- diture that most clients, particularly in this economic ings, in reports of 50- (and more) day arbitration hearings climate, would find unacceptable. and multimillion-dollar awards, and in commentary by Arbitral and administration fees in a commercial arbitration practitioners.1 The concept that arbitration arbitration can exceed the amount in dispute – a fact also offers the singular benefit of fact finders with greater that has gone virtually unnoticed.5 To illustrate the expertise than that of the judiciary, and thus possibly point: a commercial claimant was recently driven to worth an additional cost, has been uncritically accepted seek bankruptcy protection in the U.S. Bankruptcy without any basic understanding of how high arbitrator Court for the Central District of California just to compensation might be. Whereas filing fees to initiate a avoid an anticipated $50,000 arbitrator advance retainer, claim in an arbitration and fees for ongoing administra- requested from the AAA for its share of fees for a three- tive services are known, or easily ascertained, the ulti- person arbitral panel (under rules applicable to disputes mate fees to be paid to the arbitrators are not.2 exceeding $1 million), over the claimant’s objection that The judicial system and its judges are, of course, paid all it could afford to pay was for the one arbitrator it by the state, local or federal government. Arbitrators, at thought appropriate to its claim.6 A Bankruptcy Court least in commercial matters, bill on an hourly basis and Order, just reversed on appeal with directions to hold an not just for the hour that each attends an evidentiary evidentiary hearing to establish the difference between arbitration hearing.3 Long gone is the era of an arbitra- costs of arbitration and litigation and to determine the tor, highly trained in a technical field, who will waive his ability of the bankrupt to pay, had shifted the burden entitlement to a fee as a matter of “public service.”4 to the non-bankrupt to pay five-sixths of the arbitrators’ It is the thesis of the author that the actual cost of fees as the condition for the lifting of the automatic stay. arbitrating is an overlooked but critical component in the Departing from the terms of the arbitration agreement decision to arbitrate. Arbitration of a commercial case, had been justified by the bankrupt on the grounds that

30 | July/August 2009 | NYSBA Journal One does not lightly seek “the Estate lacks the funds on hand to pay the arbitrators’ to renegotiate the fee with fees.”7 When a commercial agreement containing an arbi- the arbitrators. tration clause is negotiated, often it is by non-litigators unfamiliar with the arbitration process.8 Parties who Because the parties in most arbitrations are required to agree to arbitrate before a panel of arbitrators of the AAA, pay an estimated amount in advance under AAA, JAMS, JAMS Resolution Centers (JAMS), The American Health AHLA and other rules and to replenish that amount dur- Lawyers Association (AHLA), the International Chamber ing the course of the arbitration proceedings when the of Commerce (ICC) or a myriad of others, are unlikely advance runs low, concern has been voiced as to both the to contemplate that the out-of-pocket outlay can, within fairness of the sum requested, the need for the services a short period of time, easily reach six figures and be provided, and the avenues available to seek a reduction subject to reallocation to impose payment of the entire if a reduction is called for. fee on the losing party. The fact is, many of the corporate In the context of international arbitrations, one pre- attorneys drafting an arbitration provision are unaware eminent law professor and author observed in 2007: of the nuances of the rules of the entities chosen by them The issue of arbitrator fees has become a problematic to administer the arbitration. aspect of the business of transborder arbitration. It While members of preeminent law firms have recently is generally known that the going rate for ICC and opined that “this is the time to get rid of the billable other international arbitrators is (U.S.) $600/hour or hour,”9 that is precisely how an arbitrator today expects (U.S.) $5,000/day. * * * The enormous fees that can be to be paid, usually in advance and promptly, with one commanded by the international arbitrators place fur- major caveat: one does not lightly seek to renegotiate the ther pressure on the process. Arbitrators, unregulated fee with the arbitrators. except by contract, develop a monetary self-interest The issue of paying one’s own arbitration counsel, just that can conflict with both the ethical and practical as in any litigation, is taken for granted. That fee may be operation of the process. The exorbitant fees also dependent upon a number of matters, including the rela- could eventually deter commercial parties from hav- 15 tionship between litigant and counsel, but it is subject to ing recourse to arbitration. court oversight. Also in the international context, but relevant to Currently, arbitrators are unregulated (although licens- domestic arbitration as well, is the fact that recommen- ing has been suggested).10 Arbitrator fees and how they are dations were made in 2005 by the UNCITRAL Working set and/or collected will depend on the agreement between Group specifically to prevent direct contact between the the contract parties and the rules of the administering arbitrator and a party regarding payment of anticipated organization. The AAA Commercial Rules, for example, or outstanding arbitrator fees.16 offer more hands-on administration and require that the In a domestic arbitration, a slightly different concern estimated hourly arbitrator fees be paid to it for remittal has been expressed in connection with parties who may to the arbitrators, while the American Health Lawyers have the funds to pay arbitrators’ fees but refuse to do Association, which is more similar to an ad hoc arbitration, so. In a 2005 article published in the Dispute Resolution offers virtually no administration after the arbitrators are Journal,17 the authors observed that sworn and permits the arbitrators to bill their hourly charg- [a]n important arbitration issue that has not received es in non-detailed billings and collect from the litigants much attention in ADR or legal publications is that of directly. Contrast that with the ICC Rules where arbitrator the party who fails to advance required arbitration fees fees are determined as a percentage of the amount of the and arbitrator compensation. claim and governed by a minimum/maximum percentage, * * * dependent on complexity, as determined by the ICC.11 What happens when a party to arbitration fails to Would counsel or a client anticipate, before agreeing pay its shares of a required deposit covering arbitra- to arbitrate or filing an arbitration demand, that arbitral tor compensation and arbitration fees? Generally, the fees of three arbitrators for a shareholders’ dispute call- other party is faced with the choice of: ing for seven days of hearings under the AAA Rules (i) paying the nonpaying party’s share of the deposit would total $80,000?12 What of a joint venture/licensing and then later seeking to be reimbursed the sums dispute resulting in arbitrators’ fees of $468,000,13 or a advanced as part of the final award; or trademark license dispute requiring seven days of hear- (ii) filing an action in court to obtain an order requir- ings totaling $124,000 in arbitrator fees, or an employer/ ing the nonpaying party to advance the required employee dispute in which the three arbitrators awarded deposit; or fees, sanctions and costs of over $300,000?14 And what of (iii) discontinuing the arbitration and filing suit in the disputes where arbitrator fees alone can total $500,000 court, claiming that the nonpaying party has waived or more? the right to arbitrate.

NYSBA Journal | July/August 2009 | 31 The problem there stated, is that the contentious proceedings did not involve the estates 19 [t]hese alternatives may not be available in some cases at all. and, in some jurisdictions, courts are reviewing the Parties to an arbitration are reasonably free to chart alternatives. Where they are available, each alternative their own course and contain expenses. They do not have adds cost and delay to the resolution of the dispute to seek numerous rulings from the arbitrators regarding and deprives the party who commenced arbitration of non-substantive matters; they do not have to seek prelim- the main benefits of the process – that is, a faster, bet- inary relief or demand mini hearings to secure the status ter, cheaper solution to resolving disputes. The ability quo – which they might seek in court without incurring of a party to stymie arbitration through nonpayment arbitral fees as part of a court’s ancillary jurisdiction in 20 has the potential to discourage the use of arbitration arbitral matters – and they can resist the temptation to to resolve commercial disputes, thus undermining seek arbitrator involvement and telephone conferences the strong policy of encouraging arbitration that the on collateral matters when to do so is not cost-effective, courts have found to exist in the Federal Arbitration but certain adversarial conduct cannot be controlled. Act (FAA) and state arbitration laws. Moreover, the The problem faced by a commercial litigant in an arbi- options a party can use to resolve the nonpayment tration where costs begin to escalate beyond the means problem are not particularly advantageous,18 of a party to pay is seen in an Appellate Division, First Department decision, affirming an order vacating an ignoring the now-evident fact that it may well be the arbitration award. In that case, a party to a commercial claimant who cannot pay its own fee or fund additional arbitration administered by the AAA was called upon retainers as the arbitration progresses. to advance its 50% share of additional arbitrator fees of

In many complex commercial cases, arbitration will decidedly be more expensive than litigation and the results problematic.

Particularly in the complex commercial case – domes- $90,000, a precondition of going forward. Over the objec- tic or international – where litigation positions are taken tions of the party experiencing cash flow issues, the AAA based on “principled” or simply “take no prisoners” strat- had forwarded the correspondence claiming inability to egies by one or more of the parties, arbitral costs for the pay directly to the arbitrators who thereupon precluded actual hearing, preliminary matters relating to discovery, the party from participating in the last two days of hear- study and post-hearing consideration, and the drafting of ings and decided the dispute based on the evidence an award quickly explode. Another factor is that proving adduced by the party paying the fees.21 or defending against claims in complex commercial mat- The award against the nonpaying party was vacated ters in arbitration can be harder because of the difficulty in the “light of the appearance of impropriety created by of compelling attendance of witnesses across state lines, the involvement of the arbitrators in the parties’ dispute the severe limitations on prehearing discovery and the over prepayment of arbitration fees, a matter in which lack of judicial review. the arbitrators had a direct financial interest.” But what In Estate of Liebeskind, arbitrator fees and administra- of the party who, notwithstanding monetary constraints, tive costs approached the high six figures in a shareholder pays the amount even if it is believed to be exorbitant dispute involving mandatory buyback of stock issues on because the failure to pay may be thought to prejudice death, rights to insurance proceeds and matters related its position? to corporate governance in an arbitration administered In many complex commercial cases, arbitration will under the Rules of the AHLA. In that arbitration, which decidedly be more expensive than litigation and the included, as respondents, the estates of two deceased results problematic.22 It therefore behooves a party think- shareholders, the Surrogate’s Court, Nassau County, ing about arbitration to consider the benefits, consider New York, was unreceptive to the argument advanced the downside, and, to avoid the shock of arbitrator fees in support of a stay of arbitration: that the costs were disproportionate to the claim, consider the ultimate price prohibitive; that matters involving distribution of estates to be paid. Whether at the lower end of the range of were subject to the jurisdiction of the Surrogate’s Court; fees for three arbitrators (which provoked one claimant and that arbitrator fees charged against the estates were to seek bankruptcy protection because it could not pay based upon total arbitrator time, even though most of the $50,000 required of it by the AAA as its share of a

32 | July/August 2009 | NYSBA Journal $100,000 advance deposit), or the $600,000 invoiced by 10. Cameron L. Sabin, Note The Adjudicatory Boat Without a Keel; Private the arbitrators in the just-confirmed AHLA-administered Arbitration and the Need for Public Oversight of Arbitrators, 87 Iowa L. Rev. 1337 (2002). shareholder arbitration, or the JAMS advance fee demand 23 11. See Joyce J. George, The Advantages of Administered Arbitration When Going of $48,457 for a single arbitrator, arbitrator fees, which It Alone Just Won’t Do, Disp. Resol. J., Aug./Oct. 2002 at 66 (comparing AAA the losing party may have to pay in their entirety, will Rules to ad hoc arbitrations and reporting on manner of billing and paying for often be substantially higher than counsel or the client arbitrator fees). ever anticipated. ■ 12. See Bart v. Miller, 302 A.D.2d 379, 754 N.Y.S.2d 559 (2d Dep’t 2003) (con- firming the award in AAA No. 13168010799). 1. See Thomas E. Carbonneau, Arbitral Justice: The Demise of Due Process in 13. Seton Co. v. Lohmann GmbH & Co., No. 90 Civ. 1312, 1992 WL 80637 American Law, 70 Tul. L. Rev. 1945, 1959–60 (1996); Jens Damman & Henry (S.D.N.Y. Apr. 9, 1992). Hansmann, Globalizing Commercial Litigation, 94 Cornell L. Rev. 1, 31 (2008) 14. See G.T. USA Inc. v. American Legend Coop., 03 Civ. 6165 (S.D.N.Y. Sept. 30, (identifying numerous inadequacies in commercial arbitration and the advan- 2003) (confirming arbitration award in AAA No. 1341330132702); see also Polin tages of the courthouse); Tamara Loomis, Big Awards Counter Perception of v. Kellwood Co., 103 F. Supp. 2d 238 (S.D.N.Y. 2000), aff’d, 34 Fed. Appx. 406 Arbitration, N.Y.L.J., Aug. 22, 2002, p. 1, col. 3; Yusuf Ahmed Alghanim & Sons (2d Cir. 2002) (sanctions, costs and arbitrator fees awarded by arbitrators in Inc. v. Toys “R” Us, Inc., 126 F.3d 15 (2d Cir. 1997) ($46 million award); Sierra employment dispute); ReliaStar Life Ins Co. v. EMC Nat’l Life Co., 564 F.3d 81 (2d Rutile Ltd. v. Bomar Res., Inc., 90 Civ. 0835, 1992 WL 402961 (S.D.N.Y. Aug. 20, Cir. 2009) (upholding award of arbitrator fees, attorney fees and costs totaling 1992) ($56 million RICO award); Ronald J. Offenkrantz, Negotiating and Drafting $3 million as sanctions against respondent for bad faith conduct in arbitra- the Agreement to Arbitrate in 2003: Insuring Against a Failure of Professional tion). Responsibility, 8 Harv. Negot. L. Rev. 271 (Spring 2003); Cost of Arbitration: Executive Summary (May 1, 2002) (Report by Public Citizen), available at www. 15. Thomas E. Carbonneau, The Law and Practice of Arbitration 482 (2d ed. lawmemo.com/arb/res/cost.htm (“[a]rbitration costs will probably always be 2007). higher than court costs”); Arbitration Aggravation, Business Week, Apr. 30, 2007 16. James Costello, Report on The UNCITRAL Arbitration Working Group, Disp. at 38 (“While taxpayers pick up judicial salaries, arbitrators draw their big Resol. J. May/July 2008 at 8. paychecks from the parties who appear before them.”). 17. Richard Dewitt & Rick Dewitt, No Pay No Play: How to Solve the Nonpaying 2. The filing fee in a U.S. District Court in a multimillion-dollar litigation is Party Problem in Arbitration, Disp. Resol. J. Feb./Apr. 2005 at 27. $120. The filing fee for a $1 million claimant under the AAA rules requires a payment of $8,000 plus an additional $3,250 “Service Fee” before the first hear- 18. Id. at 28. ing. The fees are higher if the claim is greater and apply both to the claimant 19. Estate of Liebeskind, Sur. Ct., Nassau Co., File No. 346612 (unpublished and counterclaimant. decision and order denying stay of arbitration dated September 30, 2008). The 3. See Francis Gurry, Fees and Costs, Conference on Rules for Institutional subsequent arbitration award was confirmed in the Supreme Court, New York Arbitration and Mediation, World Intellectual Property Organization (January County, and an order entered granting the estate’s application to declare that 20, 1995), available at www.wipo.int/amc/en/events/conferences/1995/bond. the retention of jurisdiction by the arbitrators to “implement” the award was html (comparing various institutional rules, including WIPO, ICC, AAA and terminated and that the arbitrators were “functus officio.” Liebeskind v. Messina, others with regard to arbitrator compensation and administrative fees). The Index No. 111075/2007 (Sup. Ct., N.Y. Co. Mar. 27, 2009). AAA, ICC and AHLA rules are available at www.adr.org, www.iccwbo.org, 20. See Alison C. Wauk, Preliminary Injunction in Arbitrable Disputes: The and www.healthlawyers.org/resources/ADR, respectively. Case for Limited Court Jurisdiction, 44 UCLA L. Rev. 2061 (1997); Erving v. 4. N.V. Maatschappij Voor Industriele Waarden v. A.O. Smith Corp., 590 F.2d Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir. 1972) (enjoining Mr. 415 (2d Cir. 1978) (patent counsel of a Fortune 500 Company acting as neutral Erving from playing for other team pending arbitration); N.V. Maatschappij arbitrator waived his fee in lengthy patent and knowhow dispute since he and Voor Industriele Waarden v. A.O. Smith Corp., 532 F.2d 874 (2d Cir. 1976) his employer regarded service as an arbitrator as serving the public interest). (enjoining disclosure of confidential material pending arbitration). See also N.Y. Civil Practice Law & Rules 7502(c) (permitting injunctive relief to 5. It has not gone unnoticed in the context of contracts of adhesion, consumer maintain status quo). agreements, employer/employee claims and the like in which cost splitting, filing fee and other obstacles to arbitration have been invalidated. See, e.g., In 21. Coty Inc. v. Anchor Constr. Inc., 7 A.D.3d 438, 776 N.Y.S.2d 795 (1st Dep’t re American Express Merchants’ Litig., 554 F.3d 300 (2d Cir. 2009) (invalidating 2004), aff’g No. 601499-022003 WL 139551 (Sup. Ct., N.Y. Co. Jan. 8, 2003); class action waiver in arbitration clause as an impediment to ability to arbi- compare NTSC Commc’ns Inc. v. MCI Worldcom Int’l Inc., 17 Misc. 3d 1130, trate); Susan Randall, Judicial Attitudes Toward Arbitration and the Resurgence of 851 N.Y.S.2d 71 (Sup. Ct., N.Y. Co. 2007) (respondent in a JAMS arbitration, Unconscionability, 52 Buff. L. Rev. 185 (Winter 2004). to avoid the Coty problem, elected to pay petitioner’s share of $48,457, the single arbitrator’s fees, when petitioner refused to do so). Contrast the recent 6. In re Arundotech LLC, BK Case SV 08-11458-GM U.S. B. Ct. C.D. Calif. determination of the AAA to suspend administration and then terminate the (order dated 9/23/08 lifting stay filed Oct. 14, 2008); see Sam Koda, Arbitration arbitration in AAA No. 18 180 02486 06, when both claimant and respondent Law, The Effect of a Bankruptcy Filing, N.Y.L.J., Sept. 4, 1997, p. 3, col. 1. refused to pay the $53,000 invoiced by the AAA for arbitrator fees for three 7. Answering Brief of Appellee, Arundotech, at pp. 8–9, U.S. Bankruptcy arbitrators. See AAA letter to counsel dated March 26, 2009 (courtesy of Appellate Panel for the Ninth Circuit, BAP No. CC-08-1282. See unpublished Rosenberg Feldman Smith, LLP, New York City) and Brady v. Williams Capital Decision and Order filed May 4, 2009, in which the Bankruptcy Appellate Panel Group L.P., 2009 WL 1151322 (1st Dep’t Apr. 30, 2009) (cost-sharing provision of held in part that “if by proceeding with three arbitrators debtor’s costs would employment contract requiring employee to pay one-half of $42,300 arbitrator significantly exceed those debtor would incur by litigating *** in the bank- bill – leading to AAA suspension of the arbitration – held to be against public ruptcy court that is a justifiable rationale for the court’s decision to impose the policy and employer directed to pay the entire fee). [5/6] condition on the arbitration proceeding,” giving the Bankruptcy Court 22. Problematic notwithstanding Justice Clarence Thomas’s just-filed opinion discretion to direct that the dispute be litigated “via the adversary proceeding.” for the majority in 14 Penn Plaza, LLC v. Pyett, 129 S. Ct. 1456 (2009), attempting Id. at 13, 14. Available at www.ce9.uscourts.gov/bap (click on “Memoranda” to equate arbitration with the courthouse, even for complex claims, an equation and then “Arundotech”). that Professor Carbonneau had previously dismissed as both “incredible and 8. See Stephen K. Huber, Arbitration and Contract: What Are the Law Schools preposterous” and without “any understanding of the institution of arbitra- Teaching?, The Berkeley Elec. Press (2003), available at www.law.bepress.com/ tion” or its “actual operation.” Carbonneau, supra, note 1 at p. 1959. expresso/eps/31; Stephen K. Huber, Symposium: The Role of Arbitrator: Conflicts 23. See In re Arundotech LLC, BK Case SV 08-11458-GM U.S. B. Ct. C.D. Calif. of Interest, 28 Fordham Urb. L.J. 915, 919 (2001). (order dated 9/23/08 lifting stay filed October 14, 2008); Liebeskind v. Messina, 9. Jonathan D. Glater, Billable Hours Giving Ground at Law Firms, N.Y. Times, Index No. 111075/2007; NTSC Commc’ns Inc., 17 Misc. 3d 1130. Jan. 29, 2009 at 1.

NYSBA Journal | July/August 2009 | 33 The New York City Civil Rights Restoration Act Grows Teeth By Jyotin Hamid and Mary Beth Hogan

he protections afforded employees under the New given full effect to these legislative efforts. The full – and York City Human Rights Law (NYCHRL) are more potentially dramatic – import of the Restoration Act is Texpansive than those provided under analogous only now coming into focus with two 2009 court opin- provisions of Title VII of the Civil Rights Act of 1964. Most ions rejecting long-established principles of federal anti- employers in New York City (“City”) have long under- discrimination law in favor of more expansive rights stood that. Compared to Title VII, the NYCHRL covers a for employees under the NYCHRL and the Restoration wider range of employers, prohibits discrimination based Act. In Williams v. New York City Housing Authority,2 the on a lengthier list of protected characteristics, imposes no first appellate court decision construing the Restoration cap on compensatory and punitive damages, and does Act, the First Department held that the familiar “severe not require exhaustion of administrative remedies before and pervasive” standard for defining sexual harassment commencing a lawsuit. But New York City employers must now understand that even with respect to provi- JYOTIN HAMID ([email protected]), a partner in the New York office of sions of the City law that are identical to or substantially Debevoise & Plimpton LLP, received his undergraduate degree from Tulane the same as analogous provisions of federal law, the City University and his law degree from Yale Law School. MARY BETH HOGAN law may be interpreted more expansively. ([email protected]), a partner in the New York office of Debevoise The New York City Council has twice enacted laws & Plimpton LLP, received her undergraduate degree from Emory University intended to ensure that courts construe provisions of and her law degree from New York University School of Law. the City antidiscrimination law more broadly than ALISON J. PAGE ([email protected]), a litigation associate with the analogous provisions of federal law, most recently by firm, contributed to this article. She graduated from Princeton University passage of the Local Civil Rights Restoration Act of and received her law degree from Rutgers University School of Law. 2005 (“Restoration Act”).1 But until now courts have not

34 | July/August 2009 | NYSBA Journal Every provision must “be construed liberally for the does not apply to sexual harassment claims under the NYCHRL. In Zakrzewska v. The New School,3 the U.S. accomplishment of the District Court for the Southern District of New York uniquely broad and remedial held that the well-established Faragher-Ellerth affirmative defense to sexual harassment claims is unavailable for purposes thereof.” such claims brought under the NYCHRL. The Williams and Zakrzewska opinions are significant Sorrenti v. City of New York, the New York Supreme Court not only for their precise holdings, which render inap- recognized that the standard for defining retaliatory acts plicable to the NYCHRL long-settled concepts of sexual is different under City and federal antidiscrimination harassment law, but also for the broader trend they may laws.11 Specifically, the court held that “the City Council portend. In future, additional concepts of antidiscrimina- enacted a less restrictive standard to trigger a HRL viola- tion law with which employers have been familiar, based tion in that it is now illegal to retaliate in any manner,” in on federal precedents, may likewise be unsettled. contrast to the then-prevailing federal standard requiring a materially adverse employment action.12 The Restoration Act With the 2009 opinions in Williams and Zakrzewska, The Restoration Act of 2005 represents the New York City non-parallel treatment of NYCHRL claims has come to Council’s second attempt to distinguish City antidiscrim- fruition. ination law from its state and federal counterparts. The first attempt was in 1991, when the City Council adopted Williams v. New York City Housing Authority amendments to the NYCHRL in an effort to counteract In Williams, the Appellate Division, First Department what were perceived as unduly narrow interpretations affirmed summary judgment dismissing the plaintiff’s of antidiscrimination law being adopted on state and claims alleging a hostile work environment, disparate national levels.4 Commentators have observed that the treatment on the basis of her sex, and retaliation. Noting purposes of the 1991 amendments were never fully real- that “a distinct analysis is required to fully appreciate ized.5 After passage of those amendments, courts typi- and understand the distinctive and unique contours cally continued to hold that analogous provisions of the of the local law in this area,”13 the First Department City, state and federal antidiscrimination laws could all undertook a separate analysis of the plaintiff’s claims be construed as parallel.6 brought under the NYCHRL, using the guidance of the The Restoration Act seeks to prevent this parallel anal- Restoration Act. Reviewing the legislative history and ysis by mandating that “the provisions of [the NYCHRL] text of the Restoration Act, the First Department found are to be construed independently from similar or identical that the NYCHRL was intended to “meld the broadest provisions of New York state or federal statutes.”7 While vision of social justice with the strongest law enforcement courts may continue to consult interpretations of simi- deterrent.”14 larly worded state or federal statutes, the Restoration Act In light of this intent, the First Department deter- cautions that these interpretations should be viewed “as mined that the federal rule of Meritor Savings Bank v. a floor below which the City’s Human Rights law can- Vinson15 – that sexual harassment must be “severe or not fall, rather than a ceiling above which the local law pervasive” in order to be actionable – was inconsistent cannot rise.”8 In contrast to the 1991 amendments, the with the Restoration Act’s guidance that discrimination Restoration Act also amended the construction provisions should play no role in the workplace. Finding that the of the New York City Administrative Code, instructing “severe and pervasive” test ultimately “sanctioned a courts that every provision must “be construed liber- significant spectrum of conduct demeaning to women” ally for the accomplishment of the uniquely broad and and “reduce[d] the incentive for employers to create remedial purposes thereof,”9 regardless of whether state workplaces that have zero tolerance” for harassment and or federal laws have been so construed. The Restoration discrimination, the First Department determined that Act reminds courts that some provisions of the NYCHRL severity and pervasiveness may be relevant to the con- are textually distinct from their state and federal counter- sideration of damages, but not to the question of liabil- parts and makes clear that City claims are categorically ity.16 Instead, the court held, the appropriate question different from state or federal claims. is whether the plaintiff “has been treated less well than Since the passage of the Restoration Act, most courts other employees because of her gender.”17 construing the NYCHRL have at least noted the act’s The court acknowledged, however, that the NYCHRL requirement of an independent analysis of claims brought was not intended to operate as a “general civility code.” under the NYCHRL, though not every court affected thus Thus, it recognized an affirmative defense if the defen- far has actually conducted such an analysis.10 Some dant can show that the conduct complained of consists lower courts, however, have conducted a genuinely non- of nothing more than what a reasonable person would parallel analysis of NYCHRL claims. For example, in consider “petty slights and trivial inconveniences.”18

NYSBA Journal | July/August 2009 | 35 Finding that the defendant satisfied this standard in the Conclusion Williams case, the First Department dismissed the plain- As case law continues to develop following the mandate tiff’s claims. of the Restoration Act and courts analyze provisions of the NYCHRL independently from analogous provi- Zakrzewska v. The New School sions of state or federal law, it is likely that additional In Zakrzewska, the Southern District considered the settled expectations and assumptions about antidiscrimi- applicability of the so-called Faragher-Ellerth19 affirmative nation law will be found inapplicable to claims under defense to a plaintiff’s sexual harassment claim under the the NYCHRL. Employers will need to be mindful of the NYCHRL. Under Title VII, an employer has a Faragher- distinct and broader provisions of City law when they Ellerth affirmative defense that precludes employer liabil- adopt or amend employment policies and when they ity for sexual harassment committed by a supervisory assess their exposure arising from challenged employ- employee if the employer can prove that (1) no tangible ment actions. ■ employment action was taken as part of the alleged harass- ment, (2) “the employer exercised reasonable care to 1. 2005 N.Y.C. Local Law No. 85. prevent and correct promptly any sexually harassing 2. 61 A.D.3d 62, 872 N.Y.S.2d 27 (1st Dep’t 2009). behavior,”20 and (3) “the plaintiff employee unreasonably 3. 598 F. Supp. 2d 426 (S.D.N.Y. 2009). failed to take advantage of any preventive or corrective 4. N.Y.C. Admin. Code tit. 8 (1991). The 1991 Amendments resulted from passage of 1991 N.Y.C. Local Law No. 39. opportunities provided by the employer or to avoid harm 5. See, e.g., Craig Gurian, A Return to Eyes on the Prize: Litigating under the 21 otherwise.” Restored New York City Human Rights Law, 33 Fordham Urb. L.J. 255 (2006). Although the employer in Zakrzewska satisfied the 6. See, e.g., Mack v. Otis Elevator Co., 326 F.3d 116, 122, n.2 (2d Cir. 2000) (“Our requirements for the Faragher-Ellerth affirmative defense, consideration of claims brought under the state and city human rights law parallels the analysis used in Title VII claims.”) (quoting Cruz v. Coach Stores, the Southern District determined that the defense was Inc., 202 F.3d 560, 565 (2d Cir. 2000), cert. denied, 540 U.S. 1016 (2003)); Forrest not applicable to claims under the NYCHRL and denied v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382 (2004) (“The the employer’s motion for summary judgment. The court standards for recovery under the New York State Human Rights Law . . . are the same as the federal standards under Title VII. . . . Further, the human rights found that the “plain language” of the NYCHRL was provisions of the New York City Administrative Code mirror the provisions of inconsistent with the Faragher-Ellerth affirmative defense the [State Human Rights Law] and should therefore be analyzed according to in that the NYCHRL “creates vicarious liability for the acts the same standards.”) (citations omitted). of managerial and supervisory employees even where the 7. 2005 N.Y.C. Local Law 85, § 1 (emphasis added). employer has exercised reasonable care to prevent and 8. Id. correct any discriminatory actions and even where the 9. 2005 N.Y.C. Local Law 85, § 7 (revising N.Y.C. Admin. Code § 8-130). aggrieved employee unreasonably has failed to take advan- 10. See, e.g., Moore v. N.Y. State Div. of Parole, No. 06-CV-1973, 2008 WL 4394677, at *14 (E.D.N.Y. Sept. 23, 2008) (stating that claims under NYCHRL are not 22 tage of employer-offered corrective opportunities.” controlled by Title VII, but not conducting independent analysis); Morel v. ABM Recognizing that this conclusion was “not free from Co., No. 02 Civ. 3564, 2006 WL 3771006, at *7 (S.D.N.Y. Dec. 19, 2006) (noting 23 that NYCHRL claims are to be independently construed, but then applying doubt” and would have significant implications for Title VII standards). employers, the court certified its decision for interlocu- 11. 17 Misc. 3d 1102, *4, 851 N.Y.S.2d 61 (Sup. Ct., N.Y. Co. 2007). tory appeal to the Second Circuit and suggested that the 12. Id. (citing N.Y.C. Admin. Code § 8-107(7)) (emphasis added). Second Circuit might in turn certify the question to the 13. Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 64, 872 N.Y.S.2d 27 (1st New York Court of Appeals. As of this writing, there have Dep’t 2009). not been any subsequent developments. 14. Id. at 68 (citing Gurian, supra note 5 at 262). 15. 477 U.S. 57 (1986). 16. Williams, 61 A.D.3d at 76. One lower court reviewing the standards to establish a claim of sexual harassment came to the same conclusion. See Farrugia v. N. Shore Univ. Hosp., 13 Misc. 3d 740, 748–49, 820 N.Y.S.2d 718 (Sup. Ct., N.Y. Co. 2006) (holding that the severe or pervasive test was inconsistent with the NYCHRL and “liability should be determined by the existence of unequal treatment, and questions of severity and frequency reserved for con- sideration of damages”). 17. Williams, 61 A.D.3d at 78. 18. Id. at 80. 19. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). 20. Faragher, 524 U.S. at 807. 21. Id. 22. Zakrzewska v. The New Sch., 598 F. Supp. 2d 426, 435 (S.D.N.Y. 2009). 23. Id. at 437. In fact, the Court noted that various New York courts had either applied, or assumed the applicability of, Faragher-Ellerth in prior NYCHRL cases. Id. at 434.

36 | July/August 2009 | NYSBA Journal Make the Most of www.nysba.org with Publications/Forms

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Make the most of www.nysba.org by visiting Publications/Forms right away! POINT OF VIEW BY ROBERT W. WOOD

ROBERT W. WOOD ([email protected]) practices law with Wood & Porter, in San Francisco, and is the author of Taxation of Damage Awards and Settlement Payments (3d ed. 2008) and Qualified Settlement Funds and Section 468B (2009), both available at www.taxinstitute.org. This discussion is not intended as legal advice and cannot be relied upon for any purpose without the services of a qualified professional.

Should False Imprisonment Damages Be Taxable?

Section 104 Authorities cal injuries in such case.4 It is unclear The Internal Revenue Code has exclud- how important it was to the reason- ed personal injury damages from ing of the ruling that the victim was income for 80 years. For most of this a minor at the time of the abuse and time, damages for any personal injury had reached the age of majority when (or for sickness) could be excluded he received a settlement. Arguably, it from income, whether or not the injury should be irrelevant, as the situation or sickness was physical. In 1996, the could be just as compelling without statute was narrowed, with the new the age factor. Yet one senses that the laims for false imprisonment requirement that the personal injuries Service was trying to eke out a narrow may be brought in various ways or sickness must be “physical” to give exception from its “we must see it” Cunder federal or state law. An rise to an exclusion. mantra. individual who has been wrongfully Since 1996, Section 104 has excluded Significantly, the Service failed to incarcerated may sue under 42 U.S.C. from gross income damages paid on back off on the notion that Section 104 § 1983 for a violation of his or her con- account of physical injuries or physical requires an outward sign of injuries. stitutional rights. The individual may sickness. The Internal Revenue Service Nevertheless, it still gave the taxpayer also sue under state tort law, making (IRS or the “Service”) has interpreted relief on an unquestionably sympa- claims for the traditional torts of false this rule as requiring observable bodily thetic fact pattern. In essence, the IRS imprisonment, malicious prosecution, harm in order for an exclusion to be ruled that at least under some circum- or abuse of process. Furthermore, available.2 In appropriate cases, how- stances, while it would not dispense many states now expressly provide a ever, the IRS is willing to presume the with its view that one must be able to statutory scheme for addressing false existence of observable bodily harm. observe the bodily harm, one could imprisonment claims. Thus, in Chief Counsel Advice occasionally presume the injuries. That At the root of all these causes of Memorandum 200809001,3 the IRS con- is clever. It may appear to be a tiny action is a fairly common fact pattern: sidered the tax treatment of a settlement step, but it is also a significant step. a plaintiff is arrested or convicted, for sex abuse. The abuse had occurred spends time behind bars, is later exon- while the plaintiff was a minor, and the Is False Imprisonment Physical? erated, and then seeks redress for these settlement was paid by the institution It is hard to imagine a more obvious injuries. Prosecutorial misconduct may many years later, by which time the degree of physicality than being physi- or may not be involved. Although abuse victim had reached the age of cally confined behind bars. Even if there may well be nuances between the majority. Not surprisingly, by that time no bruises or broken bones befall the differing legal bases upon which such there were no physical signs of any plaintiff while behind bars, it seems a claim may be brought, I have argued abuse, injury or sickness. axiomatically physical to be physically that the commonality of this fact pat- Nevertheless, the IRS ruled that the confined. But is it a physical injury or tern should mean that such recover- entire settlement was excludable under physical sickness? ies should be excludable from income Section 104. Although the taxpayer I argue yes. First, I note that it is under Section 104 of the Code.1 I will had failed to demonstrate any signs of almost a certainty that there will be not re-state all of those arguments here, physical injury, the IRS found it rea- ancillary claims in any long-term false but will endeavor to summarize them sonable to presume there had (at some imprisonment case. Whether charac- briefly. point) been observable signs of physi- terized as assault, battery, medical mal-

38 | July/August 2009 | NYSBA Journal POINT OF VIEW practice, etc., most long-term inmates to virtually every situation. It was no • not made as a payment for ser- have had altercations that can provide secret that most damages seemed to be vices.6 the proverbial physical hook on which labeled as “emotional distress” in view The GWE is intended to exempt one can hang the more general depri- of the obvious tax advantages such from taxation amounts the govern- vation of liberty claim. Invariably, the nomenclature imported. ment pays for the general welfare. The presence of such ancillary claims makes The Service’s rigidity in its view IRS has applied the GWE to various the case easier for treating the recovery today may be explained by taxpayer government payments, ranging from as excludable under Section 104. sins of the past. That is unfortunate, housing and education to adoption Yet even in the hypothetical case of for there is nothing whatsoever abu- and crime victim restitution.7 It is rea- someone who is wrongfully incarcer- sive about a recovery for long-term sonable to believe that payments from ated and claims no abuse, battery, or wrongful incarceration being afforded the government to make a victim of medical malpractice, in my opinion, tax-free treatment. Taxable or not, no false imprisonment whole should be Section 104 should clearly apply. If a amount of money can ever make such within the scope, purpose, and terms taxpayer is raped, that physical trauma victims whole. of the GWE. may or may not be visible. Even if tears Nevertheless, the IRS appears to or bruising do not appear, in my opin- have concluded that the authorities Recent Case ion a recovery for that rape should be dealing with recoveries by civilian Despite my arguments, there has been excludable under Section 104. The act internees or prisoners of war (which no tax case discussing the application itself manifests injury. False imprison- we might collectively call the “intern- of either Section 104 or the general ment, at least serious and long-term ment authorities”) should no longer welfare exception to a significant false cases thereof, should be the same. be relied upon. Indeed, in the Service’s imprisonment case in which the plain- Historically, helpful authority can be view, the “physical” requirement inter- tiff spent years wrongfully behind bars. found concerning the tax treatment of posed into Section 104 in 1996 under- There is, however, a recent case involv- payments made to Japanese-Americans cuts these internment authorities. In ing a type of false imprisonment that placed in internment camps during Revenue Ruling 2007-14, 2007-12 IRB could well skew the law in an inap- World War II. There are also authorities 747, the IRS “obsoleted” all of these propriate direction. The case is Daniel J. regarding payments made to survivors revenue rulings, ostensibly due to the and Brenda J. Stadnyk v. Commissioner.8 of Nazi persecution, to U.S. prisoners 1996 statutory change to Section 104. In Stadnyk, the taxpayer received of war in Korea, and so on. At one time The IRS does not state publicly exactly a settlement of $49,000 in 2002, and or another, all these types of recoveries why it obsoleted these internment rul- the question was whether that settle- were held to be nontaxable as pay- ings. ment was excludable from her income. ments for a deprivation of liberty.5 My off-the-record understanding, The settlement resulted from a rather In all of these historic cases, these however, is that the Service felt that the involved set of facts relating to the persons were treated as receiving dam- 1996 legislation said “physical” and purchase of a used car. When the tax- ages for a loss of personal liberty. The meant “physical.” Being wrongfully payer was unhappy with the car and payments in each case were therefore locked up – without more anyway – could not obtain satisfaction from the held to be nontaxable. There was no just isn’t physical. Yet I believe wrong- dealership, she placed a stop payment wage loss claim or anything else to ful imprisonment is by its very nature order on the check she tendered to pay make the payment in such circum- physical. The fact that the internment for the car. stances appear even arguably to be tax- rulings pre-date the 1996 statutory Although the stop payment order able. The IRS can be forgiven for being change should be irrelevant. listed the reason for the stop payment skeptical of personal physical injury as “dissatisfied purchase,” the bank allocations in many employment cases, General Welfare Exception (Bank One, which later would become where the nature, severity, and conse- Quite apart from Section 104 of the a defendant) incorrectly stamped the quences of the physical contact and Code, it is independently arguable that check “NSF” – the customary label resulting physical injuries are often the general welfare exception (GWE) for a check with insufficient funds – modest. Long-term false imprisonment shall apply to false imprisonment and returned it to the used car dealer. is entirely different. recoveries. The GWE exempts from The dealership filed a criminal com- After all, we ended up with the 1996 taxation payments that are plaint against the taxpayer for passing changes to Section 104 precisely because • made from a governmental gen- a worthless check. Several weeks later, of abuses in employment cases, where eral welfare fund; at 6:00 p.m. one evening, officers of the wage versus non-wage dichoto- • made for the promotion of the the Fayette County, Kentucky, Sheriff’s my was patent. In employment cases general welfare (that is, on the Department arrested the taxpayer at preceding the 1996 amendments, the basis of need rather than to all her home. They did so in the presence emotional distress moniker was added residents); and of her husband, her daughter and a

NYSBA Journal | July/August 2009 | 39 POINT OF VIEW family friend. She was taken to the She did not report the payment on her looked primarily to the complaint and Fayette County detention center, hand- 2002 tax return, and eventually landed to the fact that, in Tax Court, the tax- cuffed, photographed, and confined to in Tax Court. payer was relying heavily on the false a holding area. imprisonment claim as a way to sup- Several hours later, she was hand- Pure Confinement port her claim of excludability under cuffed and transferred to the Jessamine In considering the appropriate tax Section 104. Yet this complaint – like County Jail, where she was searched treatment of the payment, Judge Goeke so many others in the real world – con- via pat down and with the use of of the Tax Court noted that the plaintiff tained multiple claims. an electric wand. She was required did not suffer any physical injuries Indeed, the Tax Court pointed out to undress to her undergarments, to as a result of her arrest or detention, that the taxpayer had also alleged the remove her brassiere in the presence save that she was physically restrained torts of negligence and breach of fidu- of police officers, and to don an orange against her will and subjected to police ciary duty against Bank One. The IRS

Although Bank One did not initiate the criminal proceedings against her, its erroneous marking of her check had actually precipitated her arrest. jumpsuit. At approximately 2:00 a.m. arrest procedures. Indeed, the taxpayer argued that those claims were based the next morning, she was released stated that she was not grabbed, jerked on contract and were simply not tort on bail. Several months later, she was around, bruised, or physically harmed claims. The Tax Court seemed to be indicted for theft by deception as a as a result of her arrest or detention. favoring the taxpayer, noting that it result of the check, but the charges She did visit a psychologist approxi- was not as clear as the IRS postulated were subsequently dropped. mately eight times over two months that a lawsuit relating to a bank and Most of us would be pretty upset as a result of the incident. The costs customer relationship was based on by such a course of events. Not sur- of these visits were covered by her contract alone. Admitting of the pos- prisingly, the taxpayer eventually filed insurance. She did not have any out-of- sibility of tort claims, the Tax Court suit against the dealership and its pocket medical expenses for physical even noted that it was possible that the owners for breach of fiduciary duty. injury or mental distress suffered as a bank’s actions with respect to the check She also sued the bank. She sought result of her arrest and detention. had proximately caused her arrest. compensatory damages and special In analyzing the applicability of To the Tax Court, that made it damages, including damages for lost Section 104, the Tax Court recited the incorrect to view the woman’s com- time and earnings, mortification and usual authorities and the nature of the plaint against Bank One as solely a humiliation, inconvenience, damage to claims that had to be reviewed. One of contract claim. The Tax Court also reputation, emotional distress, men- the inevitable discussions was over the didn’t view it solely as a claim over tal anguish, and loss of consortium. two-tier requirement of Commissioner the wrongful dishonor of a check. In She also sought punitive damages and of Internal Revenue v. Schleier,9 which fact, the Tax Court pointed out that alleged counts for malicious prosecu- imposed two thresholds in order to the taxpayer was suing Bank One not tion, abuse of process, false impris- bring an amount within the exclusion merely because of the alleged mishan- onment, defamation and outrageous provided by Section 104. First, the pay- dling of her check; rather, she sued conduct. ment must be made to satisfy a claim Bank One because of the ordeal she After a mediation, the taxpayer set- for tort or tort-type rights. Second, the suffered as a result of her arrest and tled her case. At the mediation, every- payment must be made on account of detention. one seemed to agree that the modest personal physical injuries or physical This kind of approach sounds rooted $49,000 settlement would not represent sickness. Despite its Supreme Court in common sense. It seems to recognize income to the plaintiff and would not provenance, this test has proven to be that – cutting through the formalities be subject to tax. Indeed, the attorney more tautological than helpful. of multiple causes of action – this was for the taxpayer, the mediator and the The Tax Court in Stadnyk lamented a suit over one incident and one set attorney for the defendant Bank One the fact that although there had been a of damages. Although Bank One did all stated rather definitively at the time mediation, there was no record of the not initiate the criminal proceedings that the settlement proceeds would not mediation to show precisely what the against her, its erroneous marking of be taxed. Nevertheless, the taxpayer parties were focusing on during the her check had actually precipitated her received a Form 1099 for the payment. mediation process. Indeed, the court arrest. Moreover, the Tax Court found

40 | July/August 2009 | NYSBA Journal POINT OF VIEW that when Bank One settled the case, the alleged false imprisonment against recovery as taxable. I do not agree with it entered into a settlement agreement Mrs. Stadnyk did not cause her to suf- this argument, but reasonable minds with an intent to resolve her claims fer any physical injury, which a Section can differ. But are the Tax Court’s for tort or tort-type rights. The Tax 104 exclusion would require. platitudes about false imprisonment Court therefore concluded that the first The court nevertheless found that correct? prong of the Schleier test was met. Mrs. Stadnyk was not liable for Section I believe one must answer that ques- 6662 penalties. The Tax Court acknowl- tion with a resounding “no.” Whatever Physical Injury or Physical edged that Mr. and Mrs. Stadnyk had a Kentucky state court may have said Sickness? not sought tax advice concerning the about the nature of a false imprison- Unfortunately, Mrs. Stadnyk was not recovery. It nevertheless seemed rea- ment claim, there is nothing mental so lucky with respect to the physical sonable to rely upon the parties to the about being locked behind bars and injury or physical sickness require- mediation and the various lawyers. All subjected to the physical confinement ment enunciated by Schleier. The Tax of them said with little equivocation it entails. Put another way, although it Court commenced its analysis with a that they expected the recovery to be may well lead to mental damages, the discussion of the legislative history of tax free. Thus, although Mrs. Stadnyk primary thrust of a false imprisonment the 1996 statutory change. The terms had to pay the tax and the interest, claim is not mental. Even if you are “physical injuries” and “physical sick- there were no penalties. handled with kid gloves, confinement ness” do not include emotional distress is physical. (except for damages not in excess of Bad Case; Bad Law Yet even if we acknowledge that the cost of medical care attributable to Stadnyk is an unfortunate case, wheth- Mrs. Stadnyk’s recovery is not physi- that emotional distress). er or not one views it as correct. It can cal enough to be tax free, one must In fact, Mrs. Stadnyk had admitted certainly be argued that the Tax Court be able to draw lines. Clearly, no one that she did not suffer any physical was right to analyze this particular would want to spend from 6:00 p.m. harm during her arrest or detention. She is to be commended for her hon- esty. She did not try to spin her story as involving even a technical battery; she was not grabbed, jerked around, or bruised. She did argue that physical restraint and detention by itself con- stitutes a physical injury, but the Tax Court disagreed. It said baldly that [p]hysical restraint and physical detention are not “physical injuries” for purposes of Section 104(a)(2). Being subjected to police arrest procedures may cause physical discomfort. However, being hand- cuffed or searched is not a physi- cal injury for purposes of Section 104(a)(2). Nor is the deprivation of personal freedom a physical injury for purposes of Section 104(a)(2).10

The Tax Court found language from a Kentucky state court case to the effect that the tort of false imprison- ment protects one’s personal interest in freedom from physical restraint.11 The same Kentucky court went on to say that the injury from false imprison- ment is “in large part a mental one,” and that the plaintiff can recover for mental suffering and humiliation. The Tax Court therefore concluded that

NYSBA Journal | July/August 2009 | 41 POINT OF VIEW to 2:00 a.m. in jail as Mrs. Stadnyk did. ery should be taxed, it does not follow 10 years but is fortunate enough to be Nevertheless, that period of eight hours that all false imprisonment recoveries able to state (as Mrs. Stadnyk did) that (during some part of which she was should be taxed. The Tax Court’s broad she endured no pushing, no shoving, being processed and transported, and and unnecessary dicta in Stadnyk, going no bruising, no rapes, no assaults, no thus apparently was not confined in a on about all false imprisonment recov- batteries, no medical malpractice, and cell), hardly compares with spending eries is, to my mind, simply wrong. so on. In my view – even without the months or years locked behind bars. One way to distinguish the seri- presence of the customary ancillary Can anyone seriously compare ous false imprisonment case involving claims for separate torts, and even Mrs. Stadnyk’s experience to that of long tenure in prison from a case such without the customary damages usu- an exonoree who was wrongfully con- as Mrs. Stadnyk’s relates to ancillary ally accompanying those torts – such victed and wrongfully imprisoned in a claims. Mrs. Stadnyk herself indicated a false imprisonment recovery should penitentiary for, say, 10 years? I think that she experienced no roughing up itself be tax-free. not. I recognize that qualitative deci- and no physical injuries, no medical Stadnyk is, in my opinion, an unfor- sions are not easy. claims, and so on. She suffered indigni- tunate and probably an incorrect deci- Arguing that serious false imprison- ties, but she was not bruised, pushed, sion, even on its facts. As a technical ment cases should be treated differently or manhandled. matter, of course, a Tax Court memo than non-serious ones is analytically dif- A true long-term incarceration case decision is non-precedential.12 Quite ficult and perhaps impracticable. Exactly is vastly different. Almost always there apart from that, neither taxpayers nor where one draws the line between triv- are incidents of physical trauma, often the government should put too much ial and serious false imprisonment is leaving permanent scars. There are stock in the broad statements made by subjective. Indeed, one could reasonably often battery claims, medical malprac- Judge Goeke in Stadnyk. ■ conclude that Mrs. Stadnyk’s recovery tice claims, and more. Yet as a matter too should be tax-free. of analytical purity, it is worthwhile to 1. See Robert W. Wood, Are False Imprisonment Recoveries Taxable?, Tax Notes, Apr. 21, 2008, p. 279. I do not think it is inconsistent to ask what would happen if the tax con- 2. Perhaps the best illustration of the IRS’s view agree that Mrs. Stadnyk’s recovery can sequences of a payment in settlement on this point is the so-called “bruise” ruling, Private be taxable and yet to argue forcefully of a wrongful long-term incarceration Letter Ruling 200041022 (PLR), Oct. 13, 2000). that a serious and long-term exonoree case were considered in isolation. 3. Issued Nov. 27, 2007; available at 2008 WL should receive tax-free treatment. Line- That is, consider the rare (and per- 543985 (IRS CCA) (Feb. 29, 2008). drawing may not be easy, but even if haps even unimaginable) case in which 4. See further discussion in Robert W. Wood, “IRS Allows Damages Exclusion Without Proof of one agrees that Mrs. Stadnyk’s recov- a person is wrongfully incarcerated for Physical Harm,” Tax Notes, March 31, 2008, p. 1388. 5. See Civil Liberties Act of 1988, Pub. L. No. 100- 383, 102 Stat. 903. See also Rev. Rul. 56-462, 1956-2 C.B. 20 (dealing with Korean War payments); Rev. Rul. 55-132, 1955-1 C.B. 213 (exempting from tax payments made to U.S. citizens who were prisoners Find us on the Web! of war during World War II); Rev. Rul. 58-370, 1958- 2 C.B. 14; Rev. Rul. 56-518, 1956-2 C.B. 25 (providing tax-free treatment for payments by Germany and Just a click away: Austria for persecution by the Nazis). 6. See ITA 200021036. See also Robert W. Wood & The NYSBA Journal is available to you anytime at all. Richard C. Morris, The General Welfare Exception to Log in as a member: Gross Income, Tax Notes, Oct. 10, 2005, p. 203. 7. See Rev. Rul. 76-373, 1976-2 C.B. 16; Rev. Rul. Membership gives you access to current issues and the Journal archive on HeinOnline. 74-205, 1974-1 C.B. 20; Rev. Rul. 76-395, 1976-2 C.B. The archive offers the Journal in a word-searchable format, beginning with the first 16; Rev. Rul. 75-271, 1975-2 C.B. 23; PLR 200409033 issue in 1928. (Nov. 23, 2004); Rev. Rul. 74-153, 1974-1 C.B. 20; Rev. Rul. 74-74, 1974-1 C.B. 18. Find an article: 8. T.C. Memo 2008-289, 2008 WL 5330828 (U.S. Our word-searchable index lists all Journal articles from 2000 through present. Tax Ct. 2008). 9. 515 U.S. 323 (1995). Let us know: 10. Stadnyk, T.C. Memo 2008-289 at p. 17. Comment on any article you’ve read, topics you’d like addressed or the issues facing 11. See Banks v. Fritsch, 39 S.W.3d 474 (Ky. Ct. App. today’s practitioners through the editor’s blog. 2001). 12. See Nico v. C.I.R., 67 T.C. 647, 654, aff’d in part, The Journal at www.nysba.org/barjournal. rev’d in part on other grounds, 565 F.2d 1234 (2d Cir. 1977) (“we consider neither Revenue Rulings nor The Editor’s blog at http://nysbar.com/blogs/barjournal/. Memorandum Opinions of this Court to be control- Click on “comments.” ling precedent”).

42 | July/August 2009 | NYSBA Journal LAW PRACTICE MANAGEMENT BY GARY A. MUNNEKE

Recessionary Road

he popular legal press has ness; but if we read the stories in the Without analyzing this phenom- devoted countless lines to the legal press and talk to lawyers on the enon in depth, it should be apparent Timpact of the 2008–2009 reces- front lines, it may be possible to glean that many of these newly unemployed sion on law firms. A particular fasci- some useful, if not iconic, insights lawyers would enter the domain of nation with layoffs at large firms has about what the recession means for solo and small-firm practice. They fueled a barrage of articles describing the lawyer on the street. Here are some would seek jobs as partners, associates the termination of associates, support observations. and contract attorneys in smaller orga- staff and even partners. According nizations, competing with an exist- to some estimates, several thousand Mega-Firms and Lawyer Layoffs ing pool of applicants for a declining layoffs have plagued the AmLaw 500, The phenomenal transformation of number of opportunities. And many portending an equally dismal situa- large firms into mega-firms that has would take money from their termina- tion for much of the rest of the law taken place over the past few years tion payments, partnership shares and firm world. After all, aren’t the largest to meet the demands of an expand- retirement plans to open their own firms the most successful practices? If ing globalized economy may not have solo practices. In some areas already these firms are laying off lawyers, the served these firms well when the econ- saturated with lawyers, the new com- logic goes, aren’t the less successful omy collapsed. Such growth depended petitors would put even greater strain medium-sized and smaller firms even on a perpetually growing economy. on pre-existing solos. To their disad- more likely to be struggling? As the economy slowed down and vantage, many of the large firm émi- Certainly the legal profession is not the amount of legal work declined, grés bring no clients with them from immune to the economic cycle. When many firms realized that they had too their former employers and know little times are good, the practice of law is many lawyers and not enough clients. or nothing about running a law firm. good; when the economy turns sour, Large firms traditionally play a num- But, the interlopers are smart, well-cre- lawyers, with the exception of those bers game by hiring more legal talent dentialed and used to billing whatever in a few counter-cyclical practice areas than they need and weeding out the it takes to get the work done. Pundits like bankruptcy and collections, suffer less productive practitioners over time. might debate how much this competi- with their clients and the rest of society. The recession provided an opportunity tion will affect solo and small-firm We also recognize that an economic to clear out the underbrush of unpro- lawyers, but there is little doubt that downturn varies in intensity, depend- ductive lawyers at all levels within it will have an impact and will hurt ing on the geographic area, industry these firms. marginal practices the most. and available resources. With prob- lems in the real estate and financial sector driving the current recession, it GARY A. MUNNEKE ([email protected]) is a professor of law at Pace Law School in White should come as no surprise that law- Plains, where he teaches Professional Responsibility, Law Practice Management, and Torts. Professor yers and law firms have been hard hit. Munneke is the Chair of the New York State Bar Association’s Law Practice Management Committee, But not all law firms represent clients Co-Chair of the New York Fellows of the American Bar Foundation, and a member of the Board of in the financial sector and not even all Governors of the American Bar Association. Professor Munneke is a graduate of The University of financial clients are in crisis.1 Texas at Austin and The University of Texas School of Law. The views expressed in this article are Making generalizations about the solely those of the author and do not represent the views or policy of the American Bar Association impact of the recession on the practice or its Board of Governors. of law may be a somewhat risky busi-

NYSBA Journal | July/August 2009 | 43 Mega-Firms and Staff Layoffs averse as a general matter. So when ingness to expand, the recession may Large firms have been forced to lay they do add personnel, whether law- generate opportunities that did not off staff as well as lawyers. Many yers or support staff, these firms are exist when times were flush and cor- smaller firms may find it appealing to doing more than hiring employees; porate clients paid their bills without hire trained paralegals and secretar- they are changing their firm’s culture. blinking. ies who have worked in larger firms. Moreover, growth in a smaller firm These people are more likely to hit the often impacts its ability to serve exist- Low Overhead ground running than new hires that ing clients. In a firm of two lawyers, Simply put, solo practitioners and small lack experience working with lawyers both of whom bill 1,500 hours each to firms can get by on less. They have and clients. A problem that small firms client matters, taking on a new client less money invested in office space, may face in trying to hire support staff who will require 300 hours of work equipment, furnishings, and employ- with large-firm experience is that these represents a 10% growth factor. In ees. They devote fewer resources to employees may also be used to large- order to hire a new associate, a firm marketing, client development, train- firm salaries. It is axiomatic to say that needs approximately 1,000 hours of ing, and administration. Conventional the pay scale in small firms usually “new” work in the first year. Most wisdom suggests that with economies does not match that in larger organiza- small firms do not experience this kind of scale large firms should be more effi- tions, and some of these individuals of growth in a single year but, rather, cient than small firms, because larger may opt for positions in business and over several years, during which the organizations can spread costs across industry outside of the practice of law lawyers work harder each year until a larger number of people; in practice, if they believe that solos and small they decide to add staff to lighten the however, large firms are less efficient, firms will not pay them what they load. In the two-lawyer firm described because they pay for a pricier office think they are worth. To the extent that above, if the lawyers each work 100 lifestyle than their smaller firm col- other sectors of the business world are more hours every year for five years, leagues. Moreover, smaller organiza- feeling the economic pinch, however, they will be billing 2,000 hours per tions are often more adaptable than some applicants may be disappointed year, but they will also have generated larger ones, because they can make by the opportunities available outside enough new work to support a new cuts or change course more nimbly. If the law. At least in the legal world, lawyer. Whether they decide to hire clients faced with financial adversity their skills and experience are likely to another lawyer is a separate question, are unable to pay their legal bills, or if be transferable. because it affects the lawyers’ vision for payments are simply slow, in a solo or the firm, their ability to serve existing small-firm practice there is much more Small-Firm Culture clients and their own workload. Rather likely to be a personal relationship Smaller firms are likely to approach the than adding new people, some firms between the lawyer and the client, and economic downturn differently than may decide to refer out new work, the lawyer can identify billing issues larger firms. In smaller organizations upgrade their client list by replacing and respond quickly. where everyone knows everyone else, less attractive clients with more attrac- and the culture is more familial than tive ones, or just continue to put in Conclusions . . . to Be Continued institutional, the owners of the firm are more hours. This no-growth philoso- All these observations suggest that more likely to avoid dealing with the phy is common in a good economy, the recession has not been as tough on financial setbacks through employee but in an economy that is stagnant or solos and small firms as it has for the layoffs. These firms are more likely declining, solos and small firms are large firms we read about in the legal to seek ways to ride out the storm by even less likely to opt for growth. press. Lawyers in small organizations tightening their belts and reducing may have experienced some decline in costs if they possibly can. Although Large-Firm Clients Are Hiring business or sluggish payment of bills. staff reductions can cut costs dramati- Small Firms Those who practice in fields hard hit cally, small firms are often reluctant to Many large-firm clients are looking by the economic downturn, such as exercise that option. for lower-cost alternatives to big-firm real estate, may be struggling. Those bills. Although some legal matters may who work in communities that have To Grow, or Not require so many hours that smaller been heavily impacted by the reces- In a tight economy, small firms may firms cannot handle the work, smaller sion, for example, lawyers in a town choose not to hire new people or may cases – both litigation and transac- where the only manufacturing plant decline to replace staff who leave tional work – can be farmed out to closed, may be hurting. At the same through ordinary attrition. Many solo smaller firms, which could include time, the desire of clients to reduce practitioners and small firms have either medium-sized firms or small legal costs has created new opportuni- made a strategic decision not to grow, boutiques. Thus, for some small firms ties for some lawyers. For those small- which makes them somewhat growth- with the right practice mix and a will- firm lawyers who have seen a decline

44 | July/August 2009 | NYSBA Journal A new member service of the New York State Bar Association: in income, short-term belt tightening is often possible. In addition, small firms can make a variety of internal management decisions, from recover- Career and Employment ing receivables to postponing capital improvements, which allow them to Resources for NY Attorneys react to the economic downturn with agility. And when the recessionary Go to www.nysba.org/jobs for road runs its course, they will be ready to shift gears again to enter the recov- Career Listings ery highway. > Including private, state and federal positions The issue is that no one knows for sure what is going on outside the world of large firms, because no one NYSBA Committee on Lawyers in Transition is really looking. Consider these num- > Resources for attorneys re-entering the workforce bers: Out of 142,287 lawyers in New York in 2000,2 97,181 were engaged in Law Practice Management and Solo/Small Firm Resources the private practice of law; of these, > Guidance and CLE programming relating to the workplace 67,456 practiced alone or in a firm of > Tools and assistance for those considering opening their own practice 10 lawyers or less, including 54,423 solo practitioners, while the remain- Lawyers Assistance Program der practiced in 3,938 firms of two to 10 members. Whereas large law firms > Confi dential hotline access and resources for those facing stress are found in large cities (especially management, time management and drug or alcohol concerns New York City), solos and small firms are located everywhere, from the Big Lawyer Referral Program Apple to the smallest hamlet in the > Listing of attorneys receiving client referrals from the New York state. The point of reciting all these State Bar Association numbers is threefold: First, it is much more difficult to make generalizations Pro Bono, Public Service, Assigned Counsel and Volunteer Programs about a category as diverse as solo > Pro bono opportunities and the Empire State Counsel designation and small-firm practitioners. Second, it is easy to forget that, despite the > Committee on Attorneys in Public Service – resources for those seeking public service opportunities media coverage, large firms represent a smaller and narrower segment of > Assigned Counsel (18B) Application Form for New York State Courts the legal profession than solos and > The Offi ce of Court Administration’s Volunteer Attorneys Program small firms. Third, it is time to offer to assist pro se litigants offers free training and CLE credit some thoughts about a different reces- sionary road – Main Street, not Wall Law School Careers Centers ■ Street. > Links to law school career center offerings

1. It is easy to forget that during the Great Depres- sion of the 1930s, when unemployment in the Unit- New York State Department of Labor ed States reached 30% – certainly a shocking num- ber – 70% of the population remained employed. > Links to the Department of Labor for unemployment and My own grandfather, for example, always had a job job listing resources during the Depression, but the Dust Bowl forced him to leave one job in Oklahoma for another in Iowa. (John Steinbeck chronicled the travails of less Networking Tools to maximize your opportunities fortunate displaced Okies, who migrated to Califor- > At www.nysba.org/LinkedIn start connecting to other nia to find a better life in The Grapes of Wrath, which NYSBA members offers iconic revelations about the plight of millions of Americans who suffered through those difficult > Lawyers in Transition blog times.) > Go to www.twitter.com/NYSBA to follow Bar news or 2. See Clara Carson, 2004 Lawyers Statistical Report (American Bar Foundation). www.twitter.com to establish your own online presence

Career and Employment Resources for New York Attorneys are a member service of the New York State Bar Association. If you are not currently a member, please visit our Membership pages to learn more about how the NYSBA benefi ts its members and to access an online membership application. ENVIRONMENTAL LAW BY PHILIP WEINBERG

PHILIP WEINBERG ([email protected]), a professor of law at St. John’s University School of Law and former chair of the New York State Bar Association’s Environmental Law Section, was in charge of the Environmental Protection Bureau at the New York State Attorney General’s Office from 1970 to 1978 and contributed to the formulation and enactment of the Tidal Wetlands Act and Freshwater Wetlands Act. He also served on advisory committees named by the State Department of Environmental Conservation to recommend improvements in enforcing those statutes.

Safeguarding “An Invaluable and Irreplaceable Resource” The Genesis of New York’s Wetlands Laws

nce regarded as worthless servation Commissioner Henry Dia- would be disastrous to New York’s fish breeding grounds for mosqui- mond, Suffolk County Executive John and shellfish industries” and that this Otoes and disdained as marshes Klein, and several other Long Island “destruction . . . has rapidly increased and swamps – useful only if filled officials and legislators. Three notable in recent years, and more than half in – tidal and freshwater wetlands and articulate allies were Assembly- of the state’s million acres of marshes are now recognized as vital to our man (later State Supreme Court Jus- have been lost.”6 environment and are protected by law. tice) Herbert A. Posner, State Senator According to the memorandum, But this awareness, and the resulting Bernard C. Smith, and Aurora Gareiss, the legislation provided for an inven- safeguards, did not occur overnight. an impassioned conservationist from tory of tidal wetlands by DEC (pres- New York State’s legislation to pro- Douglaston, Queens. ent Environmental Conservation Law tect its wetlands has a complex his- The New York Legislature rec- § 25-0201), a moratorium on altering tory, culminating in enactment of the ognized the need to safeguard tidal wetlands during the inventory (ECL Tidal Wetlands Act1 in 1973 and the wetlands in 1972 and passed a bill § 25-0202), and the requirement of a Freshwater Wetlands Act2 two years that year, which Governor Nelson A. DEC permit (ECL § 25-0403), to be later. Rockefeller vetoed.3 Like the present issued in accordance with “the public Scientific recognition of the vital statute, it mandated a permit from the policy of this state to preserve and importance of wetlands for habitat, State Department of Environmental protect tidal wetlands, and to prevent water quality, and storm and flood con- Conservation (DEC) for alteration of their despoliation and destruction, giv- trol preceded the enactment of these such wetlands. The Governor’s veto ing due consideration to the reason- laws. Books like Life and Death of the Salt message expressed concern over the able economic and social development Marsh, by John and Mildred Teal (1969), bill’s supposed “imbalanced approach, of this state” (ECL § 25-0102). This last for example, highlighted this. Fully half making the preservation of all wet- language was added to meet objections of the wetlands that existed in what is lands an absolute value” and failing to that the act lacked sufficient balance now the United States at the time of first “recognize [ ] that there may be occa- between environmental and economic European contact are gone – dredged sions on which that value should not concerns. out or filled in. This has led to flood- be paramount.”4 Sponsoring senator Bernard C. ing, storm damage, and severe loss of Smith submitted a similar memoran- fish, shellfish and bird habitat, together Tidal Wetlands Act dum to the Governor strongly recom- with reduced water supply. The State Assembly’s sponsor, Peter mending the legislation to “bring the Costigan, reintroduced the bill in full power of the State into the essen- Task Force 1973, with some modifications to tial fight to preserve our dwindling Conservation groups and New York meet the Governor’s objections, and wetlands, while at the same time main- State Attorney General Louis J. Lefkow- the Tidal Wetlands Act became law taining the necessary balance between itz formed a task force in 1971 to engage that year.5 Costigan’s memorandum environmental and economic needs public support for legislation to protect in support of the measure credited and priorities.”7 tidal wetlands. They were joined in the Attorney General’s task force and Despite opposition from Long this effort by State Environmental Con- noted that “[d]estruction of wetlands Island developers, some local officials

46 | July/August 2009 | NYSBA Journal and some state agencies such as the the state acquire additional wetlands threshold – the seemingly odd limit Department of Transportation and under its Environmental Quality Bond is equal to five hectares in the met- Public Service Commission, Governor Act.15 The bond act, which went into ric system universally used by scien- Rockefeller signed the bill on June effect in 1972 following a popular vote, tists – has repeatedly been criticized. 22, 1973, noting that it “will provide made $1.15 billion available for envi- Legislation to remove this limit passed the balanced protection of the State’s ronmental purposes, of which $350 the Assembly in 2006 and 2007, though imperiled tidal wetlands that is so million was allocated to “preserving, not the Senate.20 urgently needed.”8 enhancing, restoring and improving In addition to these restrictions on The moratorium on altering tidal the quality of land.”16 Most of the DEC’s jurisdiction, wetlands in the wetlands pending completion of DEC’s committee’s salient recommendations Adirondack State Park (which includes inventory was upheld by the courts.9 have been adopted. At the committee’s much privately owned land) are also Following the inventory and notice to recommendation, penalties for viola- beyond DEC’s authority (ECL § 24-0801) landowners, the regulation and per- tions were greatly increased by a 1989 and are instead regulated by the mit programs took effect, and DEC amendment (ECL § 71-2503). Adirondack Park Agency, which con- adopted its Part 661 rules spelling out trols land use in that region generally.21 which activities are to be allowed.10 Protection for Freshwater As the Attorney General’s memoran- Activities in areas adjacent to wetlands Wetlands also require a permit.11 The regula- However, the Tidal Wetlands Act failed tions divide tidal wetlands into various to protect the state’s freshwater wet- Localities may, classes, depending on their location, lands, vital for water supply as well vegetation and environmental value. as habitat and flood control, and locat- of course, regulate These include coastal fresh marshes, ed, unlike tidal wetlands, throughout both tidal and intertidal marshes, coastal shoals, and the state.17 This gap was finally filled the like – indistinguishable to the unso- by legislation passed in 1975, which freshwater phisticated but different enough to sci- became the Freshwater Wetlands Act. wetlands within entists to mandate differing permitted Governor Hugh Carey, in approv- activities.12 ing the act, noted that “vast acreage of their borders. Owners’ claims that denial of a freshwater wetlands in this State have permit prevents them from all reason- been lost, despoiled and impaired by able economic use of their property unregulated activities, such as dredg- dum to Governor Carey noted, more are dealt with in ECL § 25-0404. If a ing and draining, and our remain- comprehensive legislation, which taking is proven, the statute requires ing wetlands are in jeopardy for the failed to pass, would have closed some that the state either grant the permit same reasons.” He pointed out that of these loopholes.22 or buy the parcel, in order to avoid these wetlands “are an invaluable and The act contains a provision, like a possible unconstitutional taking of irreplaceable resource and the protec- that in the Tidal Wetlands Act, designed property. For example, in Lucas v. South tion offered by the provisions of this to avoid landowners’ claims that their Carolina Coastal Council,13 the United bill is long overdue.”18 The memo of property is denied all economic use States Supreme Court found that a its sponsors, Senator Fred Eckert and (ECL § 24-0705(7)). In a leading deci- shorefront owner was deprived of vir- Assemblyman William Hoyt, empha- sion, Spears v. Berle,23 the Court of tually all value. But such claims are not sized that “[w]ith this act, New York Appeals ruled a landowner entitled to easy to prove, especially as to property State will establish a national landmark a trial in Supreme Court as to whether acquired after the law was in effect. As in protecting and conserving freshwa- the denial of a permit amounted to an the New York Court of Appeals held in ter wetlands.”19 unconstitutional taking. Gazza v. DEC,14 an owner’s reasonable Localities may, of course, regulate expectations of value were reduced Restrictions to the Acts both tidal and freshwater wetlands once the law existed. The Freshwater Wetlands Act fol- within their borders. Each of the acts Some years later, a 1987 adviso- lows much of the format of the Tidal contains provisions so specifying.24 ry committee on the act, named by Wetlands Act, but with two stark A unique problem on Staten Island Governor Mario Cuomo, criticized exceptions: freshwater wetlands are resulted in 1987 legislation allowing DEC’s lack of vigorous enforcement protected only if 12.4 acres or larger, or private landowners there to challenge and insufficient staffing. It also recom- of “unusual local importance” for flood freshwater wetland designations by mended greater training for environ- control, habitat, water supply and the DEC that were otherwise time-barred.25 mental conservation officers, the state’s like (ECL § 24-0301). Agricultural uses This stemmed from the department’s prime witnesses in cases of asserted of wetlands are exempt from regula- failure to originally map some parcels violation of the act, and urged that tion (ECL § 24-0701(4)). The 12.4-acre as wetlands. The amendment provided

NYSBA Journal | July/August 2009 | 47 those owners an opportunity to review adopted. The wetlands’ continued sur- 13. 505 U.S. 1003 (1992). those belated designations where they vival depends on sufficient resources, 14. 89 N.Y.2d 603, 657 N.Y.S.2d 555, cert. denied, 522 U.S. 813 (1997). had relied on the state’s earlier map- and penalties, being deployed to pro- ■ 15. An Evaluation of New York State’s Tidal ping. tect them. Wetlands Program, Final Report of the Tidal As with the Tidal Wetlands Act, Wetlands Advisory Committee of the N.Y. State an advisory committee named by 1. N.Y. Environmental Conservation Law art. 25 Dept. of Envtl. Conservation (Feb. 10, 1987). (ECL). Governor Cuomo reported in 1989 16. ECL § 51-0103(3); see generally ECL art. 51. 2. ECL art. 24. its recommendations to make this act 17. ECL art. 24. 3. N.Y. Assem. 9046 (1972). more effective. It urged repeal of the 18. 1975 N.Y. Laws, p. 1763. 4. N.Y. State Leg. Ann. 1972, p. 388. arbitrary 12.4-acre threshold, addition- 19. N.Y. State Leg. Ann. 1975, p. 219. 5. 1973 N.Y. Laws ch. 790. al permit and enforcement staff, better 20. See N.Y. Assem. 2048 (2006), 7133 (2007) (N.Y. training, and higher penalties for vio- 6. Memorandum of Assemblyman Peter Costigan, Leg. Digest 2006, 2007). reprinted in 1973 N.Y. Laws ch. 790. lations.26 In recent years, and notably 21. See N.Y. Executive Law §§ 800–820. 7. Id. since DEC Commissioner Alexander 22. Memorandum of Attorney General Louis J. 8. Memorandum of Governor Nelson A. Lefkowitz, reprinted in 1975 N.Y. Laws ch. 614. Grannis has headed the department, Rockefeller, reprinted in 1973 N.Y. Laws ch. 790. 23. 48 N.Y.2d 254, 422 N.Y.S.2d 636 (1979). staff and training have indeed been 9. N.Y. City Hous. Auth. v. Comm’r of Envtl. Conserv., 24. See ECL §§ 24-0501, 25-0401(1). augmented. 8 Misc. 2d 89, 372 N.Y.S.2d 146 (Sup. Ct., Queens Co. New York’s tidal and freshwater 1975). 25. ECL § 24-1104, which expired in 1992. wetlands remain a vital and irreplace- 10. 6 N.Y.C.R.R. pt. 661. 26. See New York State’s Freshwater Wetlands Controls: A Resource in Jeopardy, Report of the 11. 6 N.Y.C.R.R. § 661.8. able resource, as was noted over three Freshwater Wetlands Advisory Committee to the decades ago when these acts were 12. 6 N.Y.C.R.R. §§ 661.4(hh), 661.5. N.Y. State Dept. of Envtl. Conservation (July 3, 1989). Are You feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.

We understand the competition, constant stress, and high expectations you face as a lawyer, judge or law student. Sometimes the most difficult trials happen outside the court. Unmanaged stress can lead to problems such as substance abuse and depression. NYSBA’s LAP offers free, confidential help. All LAP services are confidential and protected under section 499 of the Judiciary Law. Call 1.800.255.0569

NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM

48 | July/August 2009 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: I am confused about In fact, the modern possessive form prevalent, however, that eventually it the proper use of it, its, and its appeared along with the masculine may become acceptable. A seeming Qit’s in the drafting of legal singular his for many years. Even in exception occurs with the noun lot, documents. May I have your guidance the 17th century, the spelling of its was a grammatical singular that carries on this subject? still unsettled, and the Oxford English a sense of plurality. So “There are a Answer: This e-mail, sent by Dictionary cites a 1634 quotation that lot of problems with that solution” is Pennsylvania attorney Christopher indicates the earlier his instead of its: correct. Junker, deals with a subject that con- “Boston is two miles north-east from Question: Which is correct, de mini- fuses many people. The easiest of his Roxberry: His situation is very pleas- mis or de minimus? I nearly came to questions is how to use it, the neu- ant.” Calling a ship her instead of it blows with an old supervisor over tral personal pronoun. The pronoun is a remnant of the feminine pronoun this; “de minimus” causes a “nails-on- it is used to refer to corporations, still in use today to refer to inanimate blackboard” effect for me. firms, businesses, courts, administra- objects. Answer: The correct spelling is de tions, committees, and similar groups The contraction it’s (or it is) can minimis (no u). The entire Latin sen- of individuals working together as an be used as an anticipatory subject in tence in the limerick below means entity, often with authority to act as a a statement like “It’s hot and humid “The law does not concern itself with single individual. When the reference outdoors,” “It’s hard to know who trifles.” is to one or more individuals in such a is to blame.” In that type of state- There was a young lawyer named group, however, the pronouns he and ment it behaves like the expletive there. Rex they are used. Compare “There’s no time to go” with English speakers are probably more “It’s too late to go.” Who was sadly deficient in sex. concerned about whether to add an We need it and there in those sentenc- Arraigned for exposure, apostrophe to the possessive its and es because English grammar requires He said with composure, whether to punctuate its when it means that a subject appear in the subject-slot “it is.” If you use its to indicate posses- of a sentence. Either it or there can sat- “De minimis non curat lex.” sion, do not add an apostrophe. That isfy that syntactic requirement; neither Larry Wilde, The Official Lawyers rule is relatively easy to remember, it nor there adds any meaning to the Joke Book 20 (1982) for no apostrophe is needed for any of sentence. The sentences would have the possessive forms of the personal the same meaning if they were stated Incidentally, readers have also pronouns I, you, she, he, it, we, and they. as, “The outdoors is hot and humid.” expressed their irritation about the All possessive pronouns are spelled “Who is to blame is hard to know.” common misspelling of another Latin without punctuation – yours, hers, his, Either it or there adds emphasis to the phrase, In Memoriam, often misspelled its, ours, and theirs. real subject ahead. In Memorium. Neither misspelling But do add an apostrophe to indicate It and there are called grammatical bothers most people, however, because the contraction of it is (it’s). Contrast expletives (not the kind your moth- Latin is no longer being taught in high the possessive form in, “Its color is er washed out your mouth for using schools. purple” (possessive form: no apostro- when you were young). They fill the phe) with the contraction of it is, “It’s subject-slot, while pointing ahead to Potpourri a nice day.”) the real subject toward the end of the National Public Radio commentator The neutral pronoun it has a var- sentence. Properly used, there has no Daniel Schorr once commented on ied etymology. In Old and Middle number. It becomes either singular or why compound terms are so popular English, until about the middle of the plural depending on the number of the in print journalism. He said that jour- 14th century, it was spelled hit; so the noun it points to. nalists began to substitute compounds singular neutral pronoun hit began Thus, it is correct to say and write: for verb-adverb constructions because with an h, just as did the other two “There’s only one candidate for the Continued on Page 61 singular pronouns, his and her. The h position,” and “There are numer- of hit began to disappear during the ous candidates for the position,” but, GERTRUDE BLOCK is lecturer emerita at the 14th century, but its spelling did not “There’s numerous good candidates University of Florida College of Law. She is the become stabilized for a long time, for the position” is ungrammatical. It author of Effective Legal Writing (Foundation and both hit and it were used indis- is correct to say, “There’s a problem Press) and co-author of Judicial Opinion Writing criminately. The possessive form its with this arrangement,” but to say, (American Bar Association). Her most recent did not appear until the 16th century “There’s problems with this arrange- book is Legal Writing Advice: Questions and after the initial h of hit finally disap- ment” is incorrect. Substitute “There Answers (W. S. Hein & Co., 2004). peared. are problems. . . .” The error is so

NYSBA Journal | July/August 2009 | 49 ATTORNEY PROFESSIONALISM FORUM

To the Forum: its premises and method of operation for one or both of the clients. Finally, I have been representing a client in which, if disclosed to the buyer or the if a complaint is filed with the dis- negotiating the sale of his business. licensing authority, could have a neg- ciplinary authorities because one of The business is of a type that requires ative impact on the processing of the the clients becomes dissatisfied with a state license in order to operate, and application, and even on the ultimate how things develop, you will have to in my practice I have assisted many cli- issuance of the license. There is also defend your actions, and hindsight ents in obtaining such a license. After the possibility that the representation is always 20/20. Looking back, con- the contract was signed, the purchas- of the buyer may interfere with your flicts may appear much more obvious er’s attorney asked me to represent his exercise of independent profession- than when you decided to proceed or client in connection with obtaining its al judgment on behalf of the seller. when you made decisions during the own license. Finally, the possibility of a continued course of the representation. The contract closing is conditioned representation of the buyer is an ele- So, while it may be ethically possi- on the purchaser obtaining a license ment of a personal interest conflict ble to undertake the representation, it within an agreed period of time. Even that you must seriously consider. is submitted that professionalism dic- if I represented the purchaser and it NYRPC Rule 1.7, however, does tates that you not represent the buyer obtained the license, I would not rep- allow you to undertake the proposed in connection with its license applica- resent the purchaser at the closing of representation if (1) you reasonably tion as long as you represent the seller title. However, there is a good chance believe that you will be able to pro- in the transaction, even if both parties that I would represent the purchaser vide competent and diligent repre- are fully informed and are willing to after closing, but only with respect to sentation of each affected client, (2) the provide consent in writing. matters unrelated to this particular representation is not prohibited by The Forum, by purchase and sale, and not adverse to law, (3) the representation does not M. David Tell the interests of my current client. The involve the assertion of a claim by Wantagh, NY partner of my firm who brought in the one client against another client rep- current client is very anxious for me resented by you in the same litigation to undertake the representation of the or other proceeding before a tribu- purchaser in getting its license. Our nal, and (4) each affected client gives current client also agrees that I should informed consent in writing. do it, because he thinks that my repre- It will also be necessary, as required The Attorney Professionalism Committee senting the purchaser will ensure that by NYRPC Rule 1.6, to obtain written invites our readers to send in comments the purchaser gets its license and the informed consent from both seller or alternate views to the responses deal can close. Can I do this? Should and buyer to the disclosure of con- printed below, as well as additional I do this? fidential information of each as that hypothetical fact patterns or scenarios to Sincerely, information relates to the preparation be considered for future columns. Send Puzzled and processing of the license applica- your comments or questions to: NYSBA, tion. One Elk Street, Albany, NY 12207, Attn: Dear Puzzled: Nevertheless, even if you meet the Attorney Professionalism Forum, or by Representing the seller in connec- conditions mentioned above, which e-mail to [email protected]. tion with the sale of its business and ethically would permit you to under- This column is made possible through the buyer in obtaining the business take the representation, the advice the efforts of the NYSBA’s Committee on license, upon which the closing of here in answer to your second ques- Attorney Professionalism. Fact patterns, title is conditioned, clearly involves tion – Should I do this? – is that you names, characters and locations presented current client conflicts of interest should not. If you do, you very well in this column are fictitious, and any resem- under Rule 1.7 of the New York Rules may be subjected to a constant tug blance to actual events or to actual persons, of Professional Conduct (NYRPC). of conflicting loyalties, which will living or dead, is entirely coincidental. These While both the seller and the buyer make the exercise of your profes- columns are intended to stimulate thought presently have a common interest sional judgment difficult and will and discussion on the subject of attorney in the buyer’s timely acquisition of require continuous soul-searching to professionalism. The views expressed are the license, business conditions may justify your professional decisions. those of the authors, and not those of the change and might favor the buyer if Remember, also, that if you decide Attorney Professionalism Committee or it delays processing the application. to proceed with the representation, the NYSBA. They are not official opinions Also, in preparing the application you and the conflicts issues turn out to on ethical or professional matters, nor may learn information that is adverse be more complex than anticipated, should they be cited as such. to the interests of the seller. You may withdrawal may become a necessity, also have information about the seller, which can have adverse consequences

50 | July/August 2009 | NYSBA Journal QUESTION FOR THE When I began my practice in 1970, duty to reveal to a tribunal client fraud New York had just adopted the Code, or perjury. NEXT ATTORNEY and there was some concern about the Shortly thereafter, the New York PROFESSIONALISM FORUM: uneasy relationship between a lawyer’s State Bar Association (NYSBA) agreed. duty to maintain the sanctity of client In 1976, NYSBA’s House of Delegates I’ve been a New York litigator for confidences and secrets and a lawyer’s adopted virtually the same proviso almost 40 years, and in those decades duty of candor to a court. Like the ABA to DR 7-102(B)(1), confirming that the I’ve seen, heard, and thought a lot Model Code on which it was based, duty of confidentiality was more impor- about the litigator’s role. But just last the New York Code did not expressly tant to the adversary system of justice month, I was shocked by what I heard resolve that conflict: while Disciplinary than the duty of candor. See NYSBA at a CLE ethics presentation about the Rule (DR) 7-102(B)(1) required a law- Op. 454 (1976). In fact, it was so impor- new New York Rules of Professional yer who knew about a client’s fraud tant that in 1980, when the NYSBA Conduct (“Rules”) that became effec- upon a tribunal – for example, perjured Committee on Professional Ethics tive on April 1, 2009 – litigators are testimony – to rectify it by, if necessary, considered whether DR 7-102(B)(2), now supposed to “rat out” their cli- revealing the fraud to the tribunal, which required a lawyer to reveal to ents if they testify falsely! This is so DR 4-101(B) prohibited a lawyer from the court client confidences or secrets completely contrary to the New York revealing or using client confidences or in order to rectify the fraud of a non- litigator’s traditional role as a zealous secrets to anyone, including a tribunal. client upon a tribunal, but lacked advocate that I wondered whether I had Those of us who believe whole- the proviso, the Committee overrode just heard an April Fool’s Day joke. heartedly in the adversary system of that omission by reading the proviso Unfortunately, however, this was no justice took the position that partisan- into DR 7-102(B)(2). NYSBA Op. 523. joke. Rule 3.3(a)(3) provides that “[i]f a ship shaped the very nature of the That Committee reasoned that in New lawyer, the lawyer’s client, or a witness litigator’s role and that, therefore, a liti- York “the balance is struck by favoring called by the lawyer has offered material gator should never be forced to dilute the personal interest of the client in evidence and the lawyer comes to know the zeal with which he or she repre- preserving his confidences and secrets of its falsity, the lawyer shall take rea- sented a client by pointing out perjured against the relatively impersonal obli- sonable remedial measures, including, testimony. In our view, the duty of con- gation of the lawyer to secure the sys- if necessary, disclosure to the tribunal.” fidentiality trumped the duty of candor tem of justice against fraud.” Rule 3.3(b) provides that “[a] lawyer and it did so because, as litigators, our I realize there were litigators and who represents a client before a tribunal most important duty was to our client. other lawyers across the country who and who knows that a person intends to Note the now-famous words of Lord did not agree with this resolution of engage, is engaging or has engaged in Brougham: “[A]n advocate, in the dis- the conflict between the duty of con- criminal or fraudulent conduct related charge of his duty, knows but one fidentiality and the duty of candor to to the proceeding shall take reasonable person in the world, and that person a tribunal, and that they won out in remedial measures, including, if neces- is his client.” In other words, zealous 1983, when the ABA adopted its Model sary, disclosure to the tribunal.” Rule representation made the adversary Rules, including Rule 3.3. But New 3.3(c) then says that the duty to rem- system work, and if opposing counsel York lawyers – litigators and others – edy such false testimony or misconduct was not good enough at cross-exam- always preferred the New York Code applies “even if compliance requires ination – in Wigmore’s words, “the and, among other matters, the priority disclosure of information otherwise greatest engine ever invented for the it gave to the duty of client confiden- protected by Rule 1.6,” the Rule regard- discovery of truth” – to demonstrate tiality. In 1985, the NYSBA House of ing the lawyer’s duty not to reveal my client’s false testimony, well, then, Delegates rejected a proposal to adopt or use client confidential information shame on him. the Model Rules. Even when the Code (i.e., what the old Code of Professional History shows that the profession underwent wholesale revisions in 1990 Responsibility (“Code”) used to call agreed with our view. In 1974, the and 1999, incorporating provisions and “confidences” and “secrets”). In effect, ABA House of Delegates amended DR concepts from the ABA Model Rules, Rule 3.3 requires lawyers to disclose 7-102(B)(1) to resolve the conflict. It New York lawyers did not alter the pri- confidential client information to a tri- qualified the lawyer’s duty to “reveal ority of client confidentiality preserved bunal – and that includes arbitrators the fraud to the . . . tribunal” by adding in DR 7-102(B)’s proviso. as well as judges – if such disclosure the proviso “except when the informa- In short, New York lawyers con- is necessary to remedy any false testi- tion is protected as a privileged com- sistently have chosen that litigators mony or intentional misconduct by a munication.” This amendment to DR should not betray their clients’ trust by client related to the proceedings. 7-102(A)(1) made it clear that the duty identifying them as perjurers or fraud- In my view, Rule 3.3 represents a of a lawyer to preserve a client’s confi- paradigm shift for New York litigators. dences and secrets prevailed over the Continued on Page 61

NYSBA Journal | July/August 2009 | 51 The Legal Writer Continued from Page 64 journals, law-review articles, news- Use italics to stress parts of quo- papers, newsletters, legal and other tations, although it’s best to do so statutes that you’ve already used in periodicals,34 and the title or topic sparingly. Both the Bluebook and the your document. Use a short citation of legal-encyclopedia entries.35 ALWD Tanbook recommend noting only instead. Bluebook example: “Matar, 500 example: “67 Am. Jur. 2d Robbery § 80 added emphasis, not when the empha- F. Supp. 2d at 285.” (2008).” sis appears in the original quotation.40 The Bluebook, ALWD, and the Under the Tanbook, italicize the Emphasis in original (Bluebook): “In Tanbook vary on whether to italicize title of periodicals, newspapers, and Hamdi, Justice O’Connor noted that titles of books, treatises, articles, leg- American Law Reports Annotations, Justice Scalia ‘largely ignores the con- but not book titles.36 Tanbook way to text of this case: a United States citizen cite a book: “Kerry Colburn & Rob captured in a foreign combat zone.’” Capitalizing legal Sorensen, So, You Want to be Canadian: Hamdi v. Rumsfeld, 542 U.S. 507, 522 All About the Most Fascinating People (2004) (quoting 542 U.S. at 523 (Scalia, words is a capital in the World and the Magical Place J., dissenting)). Emphasis not in the origi- offense. They Call Home, at 4 (Chronicle Books nal (Bluebook): “Mobbs then set forth 2004).” what remains the sole evidentiary sup- The Bluebook is the only source port that the Government has pro- islative materials, reports, other non- that has different citation rules for vided to the courts for Hamdi’s deten- periodic materials, and periodicals. footnotes and endnotes in journal pub- tion.” Hamdi, 542 U.S. at 512 (emphasis The Bluebook differentiates between lications.37 To cite cases in footnotes added). ALWD recommends that you journal citations (used in journal arti- and endnotes, use ordinary roman note when you’ve added or deleted cles) and non-journal citations (used type for case names in full citations; emphasis. When quoted material con- for all other legal documents such however, always italicize procedur- tains several instances of emphasis, as legal memorandums and briefs).26 al phrases. Example: “Matar ex rel. v. both added and included in the origi- For journal publications under the Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. nal, indicate which alterations were Bluebook, italicize the titles of commit- 2007).” For books, use large and small made.41 Emphasis added and in original tee hearings and periodical materials capitals for names of authors and titles. (ALWD): “Further, Justice Scalia largely like law-review articles, magazine arti- Example: “Laurel Currie Oates & ignores the context of this case: a United cles, newspaper articles, proceedings, Anne Enquist, Just Briefs 73 (2d ed. States citizen captured in a foreign com- regular publications by institutes, and 2008).” For periodicals, italicize article bat zone.” Id. at 522 (first emphasis newsletters.27 Bluebook example: “César titles and use large and small capitals added; second emphasis in original). de Castro, Outside Counsel, Sorting for periodical names. Authors’ names Out the Law on Homicide Prosecutions should appear in ordinary roman type. 5. Capitalizing. Against Corporations, N.Y. L.J., Mar. 19, Example: “J. Herbie DiFonzo & Ruth Don’t write a document with all the 2009, at 4.” C. Stern, Addicted to Fault: Why Divorce letters capitalized.42 The uniform size For journal publications using the Reform Has Lagged in New York, 27 Pace of capital letters makes them indistinct; Bluebook, don’t italicize the titles of L. Rev. 559 (2007).” the reader will have difficulty process- books, reports, and other non-periodic According to the Bluebook and ing the document.43 materials.28 Use large and small capi- ALWD (no corresponding Tanbook Always capitalize the pronoun “I.” tals instead of ordinary roman type.29 rule exists), use roman type rather Example: “The judge and I watched Mr. Bluebook example for journal publica- than italics when the words or phras- Smith enter the courtroom.” tions: “Terese Loeb Kreuzer & Carol es within italicized material would Always capitalize the first letter in Bennett, How to Move to Canada: themselves have been italicized.38 the first word of a sentence. Example: A Primer for Americans 21 (2006).” Bluebook example: “Celia Goldwag, The “Make sure to edit the brief.” If you’re writing any other legal docu- Constitutionality of Affirmative Defenses Capitalize peoples’ names. Example: ment, the Bluebook requires italics for After Patterson v. New York, 78 Colum. “Chief Judge Jonathan Lippman.” book titles, articles, essays, and legisla- L. Rev. 655 (1978).” Italics emphasize. Capitalize areas, buildings, and tive materials; don’t use large and small Nothing will stand out if you italicize ships: Examples: “Tribeca,” “Empire capitals.30 Bluebook example: “Bryan A. everything. State Building,” “the USS Abraham Garner, The Redbook: A Manual on Legal All the authorities forbid italicizing Lincoln.”44 Style 69–74 (2006).” the comma after a case name.39 Incorrect Capitalize personifications: “He’s Under ALWD, italicize case (Tanbook): United States v. Polouizzi, invisible, a walking personification of names,31 the title and bill number of 564 F.3d 142 [2d Cir. 2009]). Correct the Negative.”45 congressional hearings,32 book titles,33 (Tanbook): (United States v. Polouizzi, 564 Capitalize regions. Example: “Sitting treatises, other non-periodic materials, F3d 142 [2d Cir 2009]). in Housing Court is different from

52 | July/August 2009 | NYSBA Journal sitting on a beach in the South of prepositions that have four or fewer let- ter in brackets when changing a letter France.” ters (“at,” “for,” “from,” “into,” “on”). from uppercase to lowercase, or vice Capitalize calendar terms, such as Capitalize the first and last word of versa, in a quoted sentence fragment days of the week, months, and holi- a title and the first word after an em or after “that.” Correct: “The juror kept days. Examples: “Wednesday,” “March,” dash — also called a long dash — or a saying that ‘[m]urder is murder!’”51 “Martin Luther King, Jr., Day.” colon, even if the word is an article, a Don’t capitalize an indirect quotation. Don’t capitalize seasons. Correct: conjunction, or a preposition.48 Example Correct: “Despite the evidence, the “The trial started in the fall of 2008 and of capitalizing after a colon: “Lucille A. defendant stated he was innocent.” ended in the spring of 2009.” Jewel, Bourdieu and American Legal Capitalize the first letter of a direct Capitalize historical events, impor- Education: How Law Schools Reproduce question even if the direct question tant eras, and documents. Examples: Social Stratification and Class Hierarchy, doesn’t begin a sentence. Example: “the Vietnam War,” “the Renaissance,” 56 Buff. L. Rev. 1155 (2008).” Example of “The stenographer asked the witness, “the United States Constitution.” capitalizing after an em dash: “Kathleen ‘What’s your name, sir?’” An indirect Capitalize the names of governmen- Reilly, Making a Killing in Real Estate: question in the middle of a sentence tal departments, agencies, and offi- Solving the Mystery of Murder’s Effect on shouldn’t begin with a capital lat- cials.46 Examples: “the Federal Bureau Tenancy by the Entirety in New York — A ter. Correct: “The stenographer asked of Investigation,” “Assistant District Legislative Solution, 82 St. John’s Law you whether you would restate your Attorney,” “the FDA.” Review 1203 (2008).” Example of capital- name.”52 Capitalize the names of organiza- izing “the” after a colon: “Daniel M. Levy, When an independent clause fol- tions and institutions: “The Lesbian, Defending Demaree: The Ex Post Facto lows a colon, capitalize the first word Gay, Bisexual & Transgender Law Clause’s Lack of Control over the Federal immediately after the colon. Example:

Produce a document free of mechanical glitches with all nuts ’n’ bolts fi rmly tight and in place.

Association of Greater New York Sentencing Guidelines After Booker, 77 “You have two options: Go to trial (LeGaL)” and “Benjamin N. Cardozo Fordham L. Rev. 2623 (2009).” or settle.” When a dependent clause School of Law, Yeshiva University.” Capitalize nouns, adjectives, partici- follows a colon, don’t capitalize the Capitalize brand and trademark ples, and prefixes in hyphenated com- first word immediately after the colon. names. “Apple,” “Nike,” “Starbucks,” pounds. Example: “The Post-Rehnquist Example: “You have two options: trial and “Tony the Tiger.” Supreme Court.” Don’t capitalize or settlement.”53 Capitalize words derived from articles, prepositions, or coordinating Capitalize compass points, but only proper names. Example: “New Yorker.” conjunctions after a hyphen.49 Example when identifying a specific area, not Capitalize only the adjective in a of conjunction “and”: “He’s known as when referring to a direction.54 Example proper adjective. Example: “Judges use Mr. Love ’Em-and-Leave ’Em.” Don’t of specific area: “More students apply to certified court interpreters to under- capitalize after a hyphen in hyphen- law schools in the Northeast than in stand Mandarin- and Cantonese- ated single words.50 Example: “The the Southeast.” Example of direction: speaking litigants.” defendant murdered John Johnson at “The best judges come from the north, Capitalize titles of statutes, books, 92 West Ninety-second Street.” like Canada, for example.” and articles.47 Bluebook example of a stat- Capitalize the first letter in a quo- Capitalize all the letters in acro- ute: “N.Y. Penal Law § 98 (McKinney tation if the first letter is capitalized nyms — words formed from the ini- 1998).” To cite books under the in the original and if the quotation is tial letters of other words. Example: Bluebook, either use the first author’s an independent clause. Correct: “The “NATO is the acronym for the North name followed by “et al.” or list all of defendant screamed, ‘You’re a liar. You Atlantic Treaty Organization.” Don’t the authors’ names. Bluebook example of know I didn’t do it!’” Don’t capitalize capitalize all the letters in a false acro- citing a book: “Veda R. Charrow, Myra the first letter in a quotation if the quo- nym — words in which the letters K. Erhardt & Robert P. Charrow, Clear tation is a sentence fragment or is intro- don’t stand for other words. Correct: and Effective Legal Writing 281 (4th ed. duced by “that.” Example of sentence “Fax” or “fax,” not “FAX” (facsim- 2007).” Also correct: “Veda R. Charrow quotation fragment: “According to the ile). Don’t capitalize acronyms that et al., Clear and Effective Legal Writing witness, the scene was ‘gruesome, cha- have become commonly used words. 281 (4th ed. 2007).” In titles, don’t otic, and horrible.’” Example of “that”: Correct: “scuba” (self-contained under- capitalize articles (“a,” “an,” “the”), “The officer testified that ‘the suspect conjunctions (“and,” “but,” “or”), or was armed.’” Enclose the altered let- Continued on Page 54

NYSBA Journal | July/August 2009 | 53 The Legal Writer Continued from Page 53 According to the Tanbook, whose in “defendant” when submitting to a advice on this issue contradicts other court a document that refers to a specific water breathing apparatus); “laser” authorities, capitalize short-form refer- party in the case.67 Bluebook and ALWD (light amplification by the stimulated ences to a specific “judge” or “justice.”63 examples: “Plaintiff denies Defendant’s emission of radiation).55 Tanbook example: “During oral argu- affirmative defense.” But: “In that case, Capitalize the first letter of the ments, the Judge chided the attorney the plaintiff alleged that the defendant words “act” and “code” when refer- for chewing gum in the courtroom.” was not a permanent statutory ten- ring to a specific act or code. Example: Otherwise, don’t capitalize general ref- ant.” Under the Redbook, capitalize “After September 11, 2001, Congress erences to a “judge” or “justice” unless party designations when referring to enacted the PATRIOT Act.” Example: referring to a “judge” or “justice” of a a specific party if the designation isn’t “The Uniform Commercial Code named court. Correct: “More than 10 preceded by a “the.”68 Redbook exam- binds the court.” Under the Bluebook, judges have written on this issue.” Also ple: “Defendant argued that Plaintiff ALWD, and the Tanbook, lowercase correct: “More than 10 Judges of the had a motive to lie.” But: “The defen- “act,” “statute,” and “code” when New York Civil Court, Housing Part, dant argued that the plaintiff had a standing alone.56 Example: “Nothing have written on this issue.” motive to lie.” Under the Tanbook, in the statute supports the plaintiff’s All authorities recommend capital- always lowercase “appellant,” “defen- argument.” izing “justice” when referring to a dant,” “plaintiff,” “respondent,” and Lowercase the names of statutes Justice of the U.S. Supreme Court. “petitioner.”69 Tanbook example: “Here, and rules that exist today only as legal For capitalization rules on titles of plaintiff alleges that defendant acted doctrines. Examples: “rule against per- honor or respect, see ALWD and the in bad faith.” petuities,” “statute of frauds,” and Redbook.64 Capitalize titles that pre- According to ALWD and the “statute of limitations.” cede proper names. No correspond- Redbook, capitalize terms you’ve Capitalize “court” when referring to ing rules exist for the Bluebook or defined in a contract.70 Example: “Buyer a court by its full name.57 Examples: “The the Tanbook. Examples: “Senior agreed to purchase 100 Shares from New York City Civil Court,” “Albany Court Attorney Jane Smith,” “Senior Seller.” City Court.” Under the Bluebook, capi- Director James Roe,” “The Reverend Capitalize and spell out the section talize the word “court” when naming Billy Graham.” Titles that go after a symbol (§) at the beginning of a sen- any court in full or when referring to name aren’t capitalized unless the tence. Incorrect: “§ 21 of the employee the U.S. Supreme Court.58 Example: “In title is important. Examples: “Professor handbook provides that all attorneys the Flood case, the Court held that base- Nadine Strossen was the president of at Smith and Smith, P.C., submit to ball’s reserve clause is exempt from the the American Civil Liberties Union for mandatory arbitration if a dispute Sherman Antitrust Act.” Under ALWD, 18 years.” “Billy Graham is a rever- arises.” Becomes: “Section 21 of the capitalize the word “court” when end.” But: “Joe Smith is the President employee handbook provides that all (1) naming the court in full; (2) refer- of the United States but would rather attorneys at Smith and Smith, P.C., ring to the highest court in any jurisdic- be a Supreme Court Justice.” submit to mandatory arbitration if a tion once you’ve identified it by its full Lowercase titular appositives. dispute arises.” name; (3) referring to the U.S. Supreme Incorrect: “Convicted Murderer Bobby Don’t capitalize applications, Court or the highest court in a state; or Joe Lee was sentenced to life impris- orders, papers, or motions.71 Incorrect: (4) referring to the court to which onment without parole.” Correct: “Defense counsel filed a Motion to you’re submitting the document (i.e., “Convicted murderer Bobby Joe Lee Vacate the Default.” Correct: “Defense “this Court”).59 ALWD recommends was sentenced to life imprisonment counsel filed a motion to vacate the not capitalizing the word “court” without parole.” default.” Incorrect: “The attorney filed when referring to any other court by Capitalize the words “state” and an Order to Show Cause to Appoint partial name or to lower courts in gen- “commonwealth” when part of a state a Guardian.” Correct: “The attorney eral.60 Under the Tanbook, capitalize title (New York State), when used as filed an order to show cause to appoint the word “court” when standing alone an adjective (the State bird), or when a guardian.” Incorrect: “The court to refer to the U.S. Supreme Court, it’s a named litigant (Commonwealth v. required her to submit three copies of New York’s Appellate Division, or a Smith).65 her Brief.” Correct: “The court required jurisdiction’s highest court.61 Under the Bluebook, capitalize her to submit three copies of her brief.” Under the Bluebook and ALWD, party designations when referring Incorrect: “The respondent moved for capitalize the word “judge” or “jus- to a case’s specific parties.66 Bluebook Summary Judgment.” Correct: “The tice” when referring to a judge or jus- examples: “Plaintiff,” “Defendant,” respondent moved for summary judg- tice by name.62 Example: “He appeared “Appellant,” “Appellee,” “Petitioner,” ment.” before Judge Able.” “Respondent.” Under ALWD, capital- Capitalizing legal words is a capi- ize the “p” in “plaintiff” and the “d” tal offense. Incorrect: “Plaintiff did not

54 | July/August 2009 | NYSBA Journal prove the claim by a Preponderance of 4. Black’s Law Dictionary (9th ed. 2009). 37. Bluebook R. 2.1, at 54–56. the Evidence.” Correct: “Plaintiff did 5. Bluebook R. 7(b), at 75. 38. Bluebook R. 16.2, at 139; ALWD R. 1.6, at 14. not prove the claim by a preponder- 6. ALWD R. 1.8, at 15. 39. Bluebook R 2.1(f), at 56; ALWD R. 1.4, at 14; Tanbook R. 2.1, at 9–10; ance of the evidence.” Don’t capital- 7. Tanbook R. 13.7, at 88, and Appendix 5, at ize proceedings unless they’re named 127–135. 40. Bluebook R. 5.2 (d)(iii), at 70; Tanbook R. 11.1(f), at 78. after a case. Incorrect: “The court 8. Bluebook R. 7(e), at 75. 41. ALWD R. 48.5(b), at 350. conducted a Suppression Hearing.” 9. Bluebook R. 2.2(a)(i), at 56; ALWD R. 1.3(3), at Correct: “The court conducted a sup- 13; Tanbook R. 2.2(a)(1), at 10. 42. For more on capitalizing, see Gerald Lebovits, The Legal Writer, Uppercasing Needn’t Be a Capital pression hearing.” Correct: “The court 10. Short-form citation may be used after a full Crime, 75 N.Y. St. B.J. 64 (May 2003). granted defendant’s application for a citation appears in the document if (a) the short Ventimiglia hearing.” citation tells the reader clearly what’s being refer- 43. See id. enced, (b) the full citation falls in the same general 44. See Bluebook R. 8(b)(i), at 76; ALWD R. 3.2(c), at Don’t capitalize foreign words. discussion, and (c) the full citation can be located 21–22. Incorrect: “He handled the case Pro in the document easily. Don’t use a short citation if Bono.” Correct: “He handled the case doing so will confuse the reader. In a new section of 45. Ralph Ellison, available at http://www.the a brief, repeat the full citation before short-form cit- personification.com/home.html (last viewed June pro bono.” ing within that section. For short-form citing rules, 5, 2009). Capitalize languages, religions, see Bluebook R. B5.2, at 11; ALWD R. 11.2(b)(2), at 46. Bluebook R. 8(b)(i), at 76; ALWD rule 3.2(b), at nationalities, countries, and races but 52–53; Tanbook R. 1.3, at 5–6. 21; Tanbook R. 10.1(b)(1), at 65–66. not colors (“black,” “white”). Examples: 11. Bluebook R. B 5.1.5, at 10, and Table 8, at 340. 47. Bluebook rule 8(a), at 76; ALWD rule 3.1(b), at “English,” “European,” “the United 12. ALWD R. 12.8(a), at 87–89. 19; Tanbook rule 10.1(a), at 65; Redbook R. 2.6, at 56. States,” “African American.” 13. Tanbook R. 2.2(a)(5), at 11–12, and Appendix 3, at 118–119. 48. Bluebook R. 8(a), at 76; ALWD R. 3.1(b)(4), at 19; Tanbook R. 10.1(a), at 65. Conclusion 14. Bluebook R. 1.2(a), at 46–47, and R. 2.1(d), at The Bluebook, ALWD, the Tanbook, 55; ALWD R. 1.3(1), at 13, and R. 44.6(b), at 326; 49. Redbook R. 2.10(c), at 59. and the Redbook, among other author- Tanbook R. 1.4(a), at 6–7. 50. ALWD R. 3.1(c), at 19–20; Redbook, R. 1.56, at ities, have various rules for numbers, 15. Bluebook R. 1.2, at 46–47; ALWD R. 44.3, at 38, and R 1.57, at 38–39. 324–325; Tanbook rule 1.4(a), at 6–7. numerals, figures, typographic sym- 51. Bluebook R. 5.2(a), at 69; ALWD R. 48.1, at 348; Redbook, R. 2.4, at 55. bols, abbreviations, italicizing, under- 16. Bluebook R. 1.2(a), at 46, and R. B4.3, at 5. lining, and capitalizing. Sometimes 17. ALWD R. 44.3, at 325. 52. Redbook R. 2.5, at 55–56. the authorities agree with one another; 18. Tanbook R. 1.4(a), at 6–7. 53. For more on this topic, see Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal-Writing 19. Bluebook, R. 4.1, at 64; ALWD R. 11.3(c), at 55; sometimes they’re at odds. Whichever Punctuation — Part I, 80 N.Y. St. B.J. 64 (Feb. 2008). authority you use, be consistent: Tanbook R. 1.3(d), at 6. 54. See Redbook R. 2.13, at 60–61. Produce a document free of mechani- 20. Bluebook R. 2.1(f), at 56; Redbook R. 3.10, at 55. Redbook R. 2.11, at 59–60. cal glitches with all nuts ’n’ bolts 74. firmly tight and in place. ■ 21. Bluebook R. 2.1(f), at 56. 56. Bluebook R. 8(b)(ii), at 76–78; ALWD R. 3.3, at 23–27; Tanbook R. 10.1(j), at 70. 22. Bluebook R. 2.1(d), at 55; ALWD R. 44.6(b), at 326; Tanbook rule 1.4(b), at 7. 57. Bluebook R. 8(b)(ii), at 76–78; ALWD R. 3.3, at 23–27; Tanbook R. 10.1(h), at 68. GERALD LEBOVITS is a judge at the New York City 23. Bluebook R. 1.6, at 52. 58. Bluebook R. 8(b)(ii), at 76–78. Civil Court, Housing Part, in Manhattan and an 24. ALWD R. 46.4, at 337. 59. ALWD R. 3.3, at 25. adjunct professor at St. John’s University School 25. Bluebook R. 3.5, at 63, and R. 4.1, at 64; and of Law. For their research help on Parts I and II ALWD rule 10.3(c), at 50; Tanbook R. 1.3, at 5–6. 60. Id. of this column, he thanks Alexandra Standish, 26. Bluebook R. B13, at 23-2 and R. 2, at 54. 61. Tanbook R. 10.1(h), at 68. his court attorney, and St. John’s University law 27. Bluebook R. 13.3, at 116, and R. 16.2, at 139. 62. Bluebook R. 8(b)(ii), at 78; ALWD R. 3.3, at 26. student Jamie Bunyan. Judge Lebovits’s e-mail address is [email protected]. 28. Bluebook R. 15.3, at 132. 63. Tanbook R. 10.1(i)(1), at 68–69. 29. “Small capitals” — a typographic feature — are 64. ALWD R. 3.2(a), at 21; Bryan A. Garner et al., capital letters that have the same height as sur- The Redbook: A Manual on Legal Style R. 2.15, at rounding lower-case letters. Using “large capitals” 62–63 (2d ed. 2006). is synonymous to uppercasing, or capitalizing, the 1. The Bluebook: A Uniform System of Citation 65. Bluebook R. 8(b)(ii), at 77–78; ALWD R. 3.3, at letters. (Columbia Law Review Ass’n et al. eds., 18th ed. 23–27. 2005). 30. Bluebook R. B13, at 24. 66. Bluebook R. B.10.6.2, at 21. 2. Darby Dickerson & Association of Legal Writing 31. ALWD R. 1.3, at 13–14. Directors, ALWD Citation Manual: A Professional 67. ALWD R. 3.3, at 23–27 32. ALWD 15.7(c)(4), at 130. System of Citation (3d ed. 2006). 68. Redbook R. 2.15(f), at 62. 33. ALWD R. 22.1(b), at 204. 3. New York Law Reports Style Manual (Tanbook) 69. Tanbook R. 10.1(l), at 71. (2007), available at http://www.nycourts.gov/ 34. ALWD R. 23.1(b), at 218–219 reporter/New_Styman.htm (html version) and 70. ALWD R. 3.2(h), at 22; Redbook rule 2.9, at 58. 35. ALWD R. 26.1(c), at 235–236. http:// www.nycourts.gov/reporter/NYStyleMan 71. Tanbook R. 10.1(m), at 71. 2007.pdf (pdf version) (last visited June 6, 2009). 36. Tanbook R. 7.2, at 49–50; R. 7.5, at 53.

NYSBA Journal | July/August 2009 | 55 NEW MEMBERS WELCOMED

FIRST DISTRICT Jeris Diana Brunette Miles A. Epps Adam Christopher Guzik Monica Ann Kolinsky Lindsay Margaret Giovanni Battista Bruno Yunpeng Fan Daniel Enrique Guzman Zachary Alexander Addison Michele Nicole Buckley Jennifer Lynn Farace Basima Hafiz Kolkin Ramin Afshar-Mohajer Katherine Anne Nasim Farjad Terence Christopher Cara Marie Koss Jeeson Ahn Burghardt Jordan Rachel Fasbender Hagerty James Steven Roberto E. Alejandro Sarah M. Burleson Shamus Frances Sahar Sarah Hakakian Koumanakos Eric Allen Alexis Ilagan Caloza Featherstone Sarah Jean Hale Etai I. Kramer Heidi Rachel Altman Sarah Marie Calvert Yonah E. Feder Jill Taylor Hamer Eryck Nathan Kratville Lilly Altshuler Felipe Ribeiro Luz Eric Noah Feldman Margaret Laura Hanson Jaime Barker Kraybill Sonja Joy Andersen Camara Frank Filopei Sarah Barnes Hargrove Martin Simon Krezalek Jude James Andre Maria Sylvia Campigotto Chantalle Nicole Rachel Robert Foster Harmon Rajalakshmi Krishnan Catherine Jean Archibald Mitchel Ryan Carbullido Fish Naomi Hauptman Brian Joseph Krist Stella Argyrou Seth Leventhal Cardeli Zachary Michael Fishman Naina M. Hedge Asad Ismail Kudiya Naja Regina Armstrong- Rosario Celedon Forster Regina Fitzpatrick Oren Meron Henry Tobias Kuehl Pulte Eunice J. Chang Timothy Daniel Robert James Hesketh Michael Kuntz Joshua Paul Arnold Wayne Ren Chang Fitzpatrick Owen Patrick Heslin Chia-hao La Patricia Astorga Jamie B. Chapman Katie Michelle Flaherty James Ormerod Theodore Brendan Lacey Michael Thomas Avent Courtney Marie Charity Laura Reiter Fleischner Heyworth Brandon Philip Ladoff Lior Avraham Avneri Sabrina Martha Charles Andrew Scott Francis William George Hicks Nicole Ningran Lai Megan Elizabeth Kellin Maurine Chatfield Timothy Edward Franklin Douglas Mitchell George Lam Awerdick Joyce H. Chen Tybe Goldberg Franklin Hillebrandt Rocco Lamura Robert Corso Baca Dannie Cho Sima Gavriella Fried Lee Eiger Hochbaum Christopher Lanzalotto Zoe Hart Badger Chang Won Choi Alanna Juanita Frisby Michael Davis Hoenig Emily Justine Larrimer Chirag Gopal Badlani Charlene Choi Daniel Nathan Frost Jeanhee Hong Shira Laskin Ross M. Bagley Jacqueline Lai Chung Morton H. Fry Hiroyasu Horimoto Jennifer Anne Lazo Katrina Lynne Baker Seung Min Chung Weining Gao Adam Dmitri Hosmer- David Ung Lee Anjali S. Balasingham Daniel Louis Clausen Manuel Garcia Henner Evan Todd Lee Anne Balla Diana C. 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Duchesne Jaclyn Dawn Greenstein Sarah Radcliffe Kirby Logan Ross Marc Daniel Jarvis Brown Damion Ricardo Dunn Adam Caskie Griffin Nicholas Edward Klein Jennifer Ellen Marcovitz Jason Philip Brown Nicholas Allan Durham Jared Matthew Gross Jane Moulton Klinger Vannesa Martinez Katherine Marie Brown Beth Nicole Dwyer Philip Joseph Gross Robert George Kofsky Richard Scott Matarese Rebecca Solomon Brown David Matthew Ebenstein Jonathan Eric Grossman Matthew James Kohley Elizabeth Diane Mattern Verley Ainsworth Brown David Benjamin Edwards Yu Gu Ksenia Vladimirovna Ohad Mayblum Kevin David Browning Helen Zajac Eichmann Patricia I. Folan Gump Kokareva Owen William McCarthy

56 | July/August 2009 | NYSBA Journal Alexander P. McBride Jullian Marie Owens Kathryn Anne Rumsey Robert Vanneman Spake Jenna Lauren Watson Shaun David McElhenny Jared Eric Paioff Donna Marie Russo John Wesley Spears Ilana Dvora Waxman Kelly Dawn McIntyre Phoenix Sung Pak Gina Lauren Russo Kenneth William Start Narissa Webber Naila Bayo Mckenzie Wesley Harling Pang Benjamin Adam Ruzow Andrew Brian Steinberg Julia Marie Wesley Hadley Alexandra Simeon George Rachel Anne Samuels Andrew K. Steinman Joy Josephine Kaplan McLoughlin Papacostas Jeremy Edward Sanchez Mark D. Stenseth Wildes Suzanne Bermann Patrizia Francesca Heath Andrew Sandak Jonathan Daniel Stoian Benjamin M. Williams McMillan Papaianni Hugh Daniel Sandler Diana Strasburg Karen F. Winner Stuart Craig McPhail Michael J. Parello Samuel Walker Saunders Mark David Stumer Cody Lee Wright Kevin Arthur Meehan Jean Y. Park Nathan Andrew Schacht Lila Christine Judy Wu Hiral Deepak Mehta Christopher William Eric Stewart Schaer Subramanian Mindy How Wu Adam Murphy Melnick Patton Reginald Bryce Schafer Minjung Suh Karina Yamada David Stuart Meshkov Nicholas Laird Pazich Alison Brooke Schary Xiaolei Sun Woorahm Yoo Aaron John Meyers Adam Pekor Matthew Sean Schneider John Suwatson Kristina Ann Yost Alexander Michaels Christian Manuel Pena Benjamin Miller Schreiner Katherine Swan Sunni June Yuen Katinka Ilonka Ralph Edward Perez Daniel David Schudroff Matthew William Jonathan Jaime Zanger Middelkoop Caldas Denise Andrea Schulman Swinehart Xin Liang Zhu Anna Mikhaleva Adrian Joseph Perry Jaime M. Schwartz Pawel Szaja Sharon Jessica Zinns Melanie Lynn Persich Nicholas Mark Schwartz Neal Taber Barry L. Miller SECOND DISTRICT Francesco Pezone Jannelle Marie Seales Neal Matthew Taber Stefan Michael Miller Joseph Walter Canovas Ashley Collins Pfeiffer Jean May Sedlak Lauren Elizabeth Taigue Frederick C. Millett Christine Irene Bertolano Daniel M. Philion Mark Steven Sedlander Yi Tyng Tan Sara Katherine Mills Dacumos Laura A. S. Phillips Yitzchok Segal Stephania Tani Trent Hobert Joseph John Paul Deverna Gustavo Mathias Alves Laura Elizabeth Seidl Naomi Masha Taub Mohney Carmencita-mia Quesada Pinto Jaime Lynne Semensohn Jonathan Francis Taylor Daniel Molina Fulgado Julia Diane Pizzi Rebecca Eve Sendker Jill Skylar Teehan Kerry Ann Monaco Heather Janis Gaw Hilary Anne Platt Vidhi Rajesh Shah Jessica Denise Thomas Leonard Adam Monfredo Jared Goldberger Michael Kevin Plumb Sherli Shamtoub Nikki Renee Thomas Chung Joo Moon Ariella Gail Goldstein Bianca M. 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Traunstein Saee Mona Muzumdar Snowden Yelena Rapoport David Victor Simunovich Leigh Anne Tuccio Nari Hae-seung Na Jared Matthew Tankel Michael Max Rappaport Rajanpreet Singh Clinton Robert Uhlir Matthew Evan Jose Juan Zalduondo Nadworny Matthew Paul Rasmussen Rajeev Prasad Siripurapu Peter Michael Vaglio Svetlana Meyerzon Rasika Rathi Christopher Thomas Jennifer Kathleen THIRD DISTRICT Nagiel David Rausnitz Slimm Vakiener Christopher Jude Gariel Sands Nahoum Clemens Rechberger Benjamin Jacob Smith Glenn Charles Vallach McCarthy Saivandana Nakka Christianna Marie Lamb Kristen Elizabeth Smith Mikhail Zucconi Vanyo John Anthony Musacchio Chad Alan Naso Reed Nathan Granger Elizabeth Anne Veit Shuya Wang Lindsay Nasshorn Steven Ryan Reeder Soderstrom Mahesh Venkatakrishnan FOURTH DISTRICT Abby Helaine Natelson Scott Rembrandt Erica Sollie Jeffrey Grant Vernon Michael Salvatore Ciaccio Pragati Ramakrishna Jakob Rendtorff Jonathan Sebastian Zahida Virani Bruce James Donadio Nayak Alexis Taylor Renvoize Solorzano Christine Ann Walsh Lloyd George Grandy Christopher Marquis Gavin Gardiner Reynolds Cynthia Sonnenblick Brent R. 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NYSBA Journal | July/August 2009 | 57 SIXTH DISTRICT Scott Jonathan Miller Kyle Gordon Newman Kyoung Ye Cho Frances Marie Guadalupe Luke Zachary Fenchel Jordan Scott Palatiello Michael Gene Nunley Shailja Chopra Jason Stanley Gubi Nicholas Herbert Serena Celeste Richards Chang-ning Chou James Patrick Habel EIGHTH DISTRICT Peterson Nicole Marie Woods David Charles Chu Ellen Ann Hackett Lauren Fitzgerald Christopher Joseph Ashish Chugh Marla Nikole Hadad Matthew Christopher OUT OF STATE Pogan Kyo-hwa Liz Chung Katherine Leigh Halliday Landreth Aymen Aboushi Mark A. Radi Yoon Joo Chung Mark Fitzgerald Ammar Ziad Abu Zayyad NINTH DISTRICT Carl Andrew Rosner Jessica Gloria Lynn Hamilton Victoria Josette Adornetto Susette Lucia Acocella Melissa Anne Scannell Clarke Michael James Hampson Patrick James Alberts Tanja Marie Beemer Shauna Lee Segelke Raphael Joshua Cohen Neal Curtis Hannan Alexander B. Albu John Daniel Boyle Michael Joseph Stanton Franciska Anqonette Masakazu Hara Tetsu Amakata Jeffrey D. Buss Brooks Wilson Taylor Coleman Peter Leonard Harsy Matthew Stephen Ameika Linda M. D’Agostino Todd Scott Unger Dionne Alexia Coley Ferzana Hashmi Alexandra Arneri Robert Howard Drechsler Gabrielle Loren Watson Philip M. Colicchio Jaan Mihkel Haus Takao Asai Lesly A. Garcia Vincent Peter White Elizabeth A. Colombo Fang He Sayaka Asano John Anthony Giacobe Steven P. Winter Mark B. Conlan Fei He Antonio Assumpcao Lisa Peck Goldberg Richard S. Yapchanyk Margaret Lois Cowan Whitney K. Henschel Khatiya Asvat Patel Michael Doron Arthur Yermash Michael Patrick Crafton Donna Geraldine Oritseweyimi O. Ayu Goldklang Michelle Christine Croft Hopkins ELEVENTH DISTRICT Erika Lothlorian Ban Lissa Nyla-ziemkowski Scott Anthony Ikuko Horikawa Patrick Abohwo Lei Bao Grewal D’Ambrosio Scott Alan Hovanyetz Isaac Cheng Karime Vergueiro Barry Mary Kathryn Guccion Louis Francis D’Onofrio Ray Neal Hsieh Edward Joseph Chiha Zeenat Basrai Tiffany Melen Hall Jennifer Lynn Dacosta Maciej Huzior Rosann Feller John James Battisti Deborah Lynn Heller Courtney Ann Darts Chu-yuan Hwang Barry Michael Jordan Roy Beckerman Elizabeth Anne Hume Carolyn Marie Dellatore Shimrit Itay Frankenstein James Matthew Belger Danielle Bifulci Kocal Amedeo Delmedico Jennifer R. Jacobus Michael Gasi Kimberly Jayne Bell Gina Marie Muccio Vikas Kishor Desai Laura Marie Jacque Janine Alexia James Cara Anne Beneditti Carl J. Nelson Jerome Charles Dickinson Vanita Jegathesan Athena Kalogiannis Detravius Antomone Danielle Margaret Roper Gary Matthew Didieo Janet Shan Jiang Valerie Katsorhis Bethea Vincent Sayegh Benjamin Michael Craig Jorgensen Lesya Krivina Probal Bhaduri Heather Ann Schiavone Diliberto Benjamin Gordon Joseloff Manana Kull Mona Bhide Melissa Louise Steinberg Kevin Ross Doherty Alec George Karakatsanis Stephanie A. Laterza Jennifer Ann Bingham William Joseph Stock Leigh Westwood Duffy Gabriela Kejner Sandra Yoon Lee Michael Lloyd Binns Maria S. Vazquez-Doles Eve Duminy Meaghan Alyssa Kelly Megan Eileen Logsdon Nicole Christine Bishop Jonathan Matthew Victor Eryk Dziadykiewicz Paul J. Kelly Michelle Anne Masone Aaron David Borg Ruby C. Wake Daniel Patrick Elliott Sean Patrick Kelly Julie Marie Milner Erin Elizabeth-ann Jason Irving Epstein Ciara Maria Kennedy TENTH DISTRICT Chanjoo Moon Boylan Gregory Rogers Evans Chaeho Kim Nicole Tanya Alexis Emiliano Perez Jonathan Scott Brantz George Exiomo Eugene Hae Kim Rudolph Max Baptiste Orlando Perez Celine Emmanuelle Ibeakolam Kwame Gi Sik Kim Danielle Elyse Biber Michael J. Prior Brassart Ezurike Jerry Kim Lauren Elizabeth Burbol August Sangese Julie Danielle Breau Mahmoud Imad Mun Su Kim David Choi Afzaal Muhammad Sipra Alissa Ammon Brice Fadlallah Yutaka Kimura Brian Stuart Condon Charles Sanford Smith Thomas Robert Brophy Marco Antonio Falcon Konsam Kiran Elexis Zoe Damianos Nicole Ann-marie Spence Alison Elaine Buckley Erin Mary Fay Stephen Robert Paul T. Davis Jason C. Strauss John Francis Burke Daniele Ferretti Kirschenbaum Nicholas N. Di Salvo Demetrios Konstantinos Mary Elizabeth Ross Jennifer Lynn Fisher Doreen Klein Nicholas Noel Disalvo Tsatis Burner Michael P. Flammia Michael David Klippert Jordan Scott Fensterman Jia Yu Paige R. Butler Juliette Estelle Forstenzer Dermot Beresford Paul Joshua Eric Fingold Chang Zhang Mathias Cabour Connie Adel Fortin Knight Patrick Joseph Finley David Hauser Cameron TWELFTH DISTRICT Brian Andrew Fowler Toshio Kobayashi Bethany Kathleen Green Christopher Daniel Bridget Kristine Barbera Andrea Carol Frey Nisha Pramod Koradia Michael R. Greenberg Carlson Jennifer M. Becker Brian Thomas Frutig Anna Maria Kowalczyk William R. Greenspan Robin Aurora Pelkey Abigail Downer Bray Eiji Fujimoto Nadia Krolikowski Douglas E. Hommel Carolan Diana Marie Cuozzo Dana Lindsey Gale Kristina Kulle David Saeyoung Jung James Robert Carpenter Mark Andrew Dellaquila Pierre-Marie Galland Jordan Scott Berman Mehreen Khan Jennifer Luann Carrier Jesse Diamond Jerome Laroza Garciano Lang David H. 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58 | July/August 2009 | NYSBA Journal Wonhee Lee Gabrielle Maureen Wendy Jarelle Singletary Sarah Alison Leevan Patrick Benjamin Todd Siracusa Bryan Adam Levine Brent Robert Pohlman Hillman Gerald Samuel Levine Jason Frank Poplaski Frank E. Sisson Jinnan Li Alyson Denise Powell James Paul Sizemore Foundation Memorials Yan Liang Junqin Qian Douglas D. Skierski Matthew Ryan Lichtman Vesna N. Rafaty Joan Ellen Solaini David Gavin Steib Muk Lin Jenifer Rajkumar fitting and lasting tribute to a Thomas Chi-hwa Liou Kathryn Leigh Rakoczy Mark Isaac Steinman Lisa Wen-hui Liu Erin Nedenia Reid Shelita Meredith Stewart A deceased lawyer can be made Yawei Liu Conor Adams Reidy Emily Kirsten Strunk through a memor ial contribution to The Scott Richard Lovernick Adrienne Nicole Reina Weilin Sun Spencer Joseph Lucas Dewi Savitri Reni Ria Anne Tabacco New York Bar Foundation. This highly Robert Kwei Lum Rachel Anne Rintelmann Yung-yu Tang appropriate and meaningful gesture on Cillian Macdara Lynch Norman Robbins Alexander Steven Von the part of friends and associates will Jason Ryan MacLean Timothy Francis Robbins Elten Bendita Cynthia Malakia Marie Virginie Stephen Charles Walls be felt and appreciated by the family of Jared Lee Malman Emmanuelle Roche Hongpeng Wang the deceased. Heidi Ingeborg Malmberg Gillian Alina Rooney Bjoern Waterkotte Scott Albert Malyso Michael Louis Adam Craig Weiss Contributions may be made to The Thomas Joseph Manzo Rothenberg Chris Adam Wenger Robert Craig Martin Gary Matthew Rubin David John Whitford New York Bar Foundation, One Elk Stephanie Martinier Paul Sherman Samson Anna Rene Williams Street, Albany, New York 12207, stating Meghan Ann McCaffrey Erica Sellin Sarubbi Marc Andrew Williams in whose memory it is made. An officer Patrick Ryan McGee Garrett Tucker Scheck Thomas Michael Wilson Kyler Evan McGillicuddy Beth Ellyn Schleifer Katrine Leana Witrow of the Foundation will notify the family Katherine Lea McKnight Matthew Scott Schoen Adam Jacob Wolkoff that a contribution has been made and Adam Michael McLain Ari Justin Schwartz Rebecca Jane Wright by whom, although the amount of the Susan Marie McMillin Amy Senier Katsuo Yagura Thomas Howard McNutt Reuben James Sequeira Rei Yamauchi contribution will not be specified. Nazly Mehrad Sweta Chopra Sethna Soong Ki Yi Matthew Daniel Ming Shao Nicholas John Zaita All lawyers in whose name contri- Melewski Phillip Gordon Sharp Linhong Zhang butions are made will be listed in a Teresa Olaya Mendez Jeramy Alice Shays Yan Zheng Florez Michael Thomas Shelton Mitchell Evan Zipkin Foundation Memorial Book main- Mariya Gocheva Nicholas Osvaldo Sidelnik tained at the New York State Bar Center Mihaleva John Lawrence Miller in Albany. In addition, the names of Kanae Miyahara deceased members in whose memory Arava Mohar bequests or contributions in the sum Aurelie Vanessa Moine MOVING? Erin Marie Monahan of $1,000 or more are made will be per- Raul Morales manently inscribed on a bronze plaque Kenneth James Moy let us know. mounted in the Memorial Hall facing the R. Muralidharan Naomasa Nakagawa Notify OCA and NYSBA of any changes to handsome courtyard at the Bar Center. Christian Fernando your address or other record information as Navarro soon as possible! Fumiko Niimura Uchechukwugaeme OCA Attorney Registration Onyekachi Nwamara PO BOX 2806, Church Street Station Sandro Geremias Ocasio New York, New York 10008 Samuel O. Ollunga TEL 212.428.2800 Franz Eliot Paetzold FAX 212.428.2804 Creighton Kirkpatrick Email [email protected] Page Dania Aniek Palanker New York State Bar Association Josephine Anda Paltin Stephanie Marie Panico MIS Department Juliana Louise Pape One Elk Street, Albany, NY 12207 Bonnie Caroline Park TEL 518.463.3200 Jae-Sung Park FAX 518.487.5579 Anjali Bipin Patel Email [email protected] Vipul Bhikhu Patel

NYSBA Journal | July/August 2009 | 59 CLASSIFIED NOTICES

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60 | July/August 2009 | NYSBA Journal Pro Bono Opportunities Guide Now Online Language Tips Attorney Professionalism www.nysba.org/volunteer Continued from Page 49 Continued from Page 51 Looking to volunteer? This easy-to- the cost of a cablegram depended on sters if they testify falsely or commit use guide will help you find the right the number of its words. Hyphenated other intentional misconduct in pro- opportunity. You can search by county, words were counted as single words, ceedings before a tribunal. The extent by subject area, and by population so hyphenation could significantly cut of that loyalty to a client, reflected in served. the cost of a cablegram. Therefore, the lawyer’s duty to preserve client Questions about pro bono put off soon became off-put; play down confidentiality, has been a constitu- service? Visit the Pro Bono Dept. became down-play; and other new tive element of a New York litigator’s Web site for more information. compounds emerged. He recalled one identity since well before I started liti- www.nysba.org/probono editor chiding a journalist whose story gating. See ABA Formal Op. 287 (1953). (518) 487-5641 was too long, “For Christ’s sake, off- Why are we changing that now? [email protected] lay!” Schorr ended his piece saying, Respectfully submitted, “This is Daniel Schorr off-signing.” ■ A Longtime Litigator ■

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NYSBA Journal | July/August 2009 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

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62 | July/August 2009 | NYSBA Journal 2009-2010 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

MICHAEL E. GETNICK FIRST DISTRICT Golinski, Paul A. Schraver, David M. Aaron, Stewart D. Hall, John G. Smith, Thomas G. President Abernethy, Samuel F. Hernandez, David J. Tilton, Samuel O. Utica Abramowitz, Alton L. Kamins, Hon. Barry * Vigdor, Justin L. †* Alcott, Mark H. Longo, Mark A. * Witmer, G. Robert, Jr. STEPHEN P. Y OUNGER Alden, Steven M. Lonuzzi, John A. EIGHTH DISTRICT Anello, Robert J. McKay, Hon. Joseph Kevin Bonarigo, Benjamin J. President-Elect Badner, Lisa Ray Park, Maria Y. Chapman, Richard N. New York Badway, Ernest Edward Romero, Manuel A. Convissar, Robert N. Bailey, Lawrence R., Jr. Shaikh, Heena Effman, Norman P. Baum, Simeon H. Sunshine, Hon. Jeffrey S. C. BRUCE LAWRENCE Fisher, Cheryl Smith Berke-Weiss, Laurie Szochet, Diana J. * Freedman, Maryann Saccomando Secretary Blanchard, Kimberly S. THIRD DISTRICT Gerstman, Sharon Stern Rochester Bohorquez, Fernando A., Jr. Ayers, James B. * Hassett, Paul Michael Bransten, Hon. Eileen Barnes, James R. Manias, Giles P. Brown, Earamichia Nake Baynes, Brendan F. O’Donnell, Thomas M. SEYMOUR W. JAMES, JR. Brown, Peter Casserly, Timothy E. O’Reilly, Patrick C. Treasurer Burns, Howard W., Jr. Costello, Bartley J., III Sconiers, Hon. Rose H. Chang, Vincent Ted Davidoff, Michael Seitz, Raymond H. New York Chin, Sylvia Fung DeFio Kean, Elena Shaw, James M. Cohen, Carrie H. Doherty, Glen P. NINTH DISTRICT BERNICE K. LEBER Collazo, Ernest J. Farley, Susan E. * Cometa, Angelo T. Amoruso, Michael J. Immediate Past President Fernandez, Hermes Burke, Patrick T. Di Pietro, Sylvia E. Glasheen, Kevin P. New York Draper, Thomas G., Jr. Burns, Stephanie L. Greenthal, John L. Byrne, Robert Lantry Drayton, Joseph Michael Hanna, John, Jr. Finerty, Hon. Margaret J. Cusano, Gary A. VICE-PRESIDENTS Higgins, Patrick J. Dohn, Robert P. * Forger, Alexander D. Hurteau, Daniel Joseph † Fox, Michael L. Fedorchak, James M. FIRST DISTRICT Kahler, Annette Ingrid Fontana, Lucille A. Gallagher, Patrick C. Liebman, Bennett M. Gesinsky, Loren Goldenberg, Ira S. Claire P. Gutekunst, New York Meislahn, Harry P. Marwell, John S. * Gillespie, S. Hazard Miranda, David P. Glanstein, Joel C. Miklitsch, Catherine M. Susan B. Lindenauer, New York Pechenik, Stephen A. * Miller, Henry G. Goldberg, Evan M. Privitera, John J. Gredd, Helen A. Nachimson, Steven G. SECOND DISTRICT Roberts-Ryba, Christina L. * Ostertag, Robert L. Green, Prof. Bruce A. Ryan, Rachel Gutekunst, Claire P. Rauer, Brian Daniel Barry Kamins, Brooklyn Salkin, Prof. Patricia E. Sanchala, Tejash V. Gutheil, Karen Fisher Schneider, Eric Haig, Robert L. Sandford, Donald K. THIRD DISTRICT Schofield, Robert T., IV Selinger, John Hawkins, Dennis R. * Yanas, John J. Harry P. Meislahn, Albany Hayden, Hon. Douglas J. †* Standard, Kenneth G. Ho, John Si FOURTH DISTRICT Starkman, Mark T. Coffey, Peter V. Stone, Robert S. OURTH ISTRICT Hoffman, Stephen D. F D Hollyer, A. Rene Rene Fernandez, Henry A. Strauss, Barbara J. Patricia L. R. Rodriguez, Schenectady James, Hon. Debra A. Ferradino, Stephanie W. Strauss, Hon. Forrest Kanter, Gregg Herbert Haelen, Joanne B. Van Scoyoc, Carol L. Kennedy, Henry J. Herrmann, Diane M. TENTH DISTRICT IFTH ISTRICT F D Kera, Martin S. Lais, Kara I. Asarch, Hon. Joel K. David M. Hayes, Syracuse * King, Henry L. Martin, Trinidad Block, Justin M. † * Krane, Steven C. Onderdonk, Marne L. * Bracken, John P. Larson, Wallace L., Jr. Pelagalli, Paul Chase, Dennis R. SIXTH DISTRICT Lau-Kee, Glenn Rodriguez, Patricia L. R. Cooper, Ilene S. David A. Tyler, Ithaca †* Leber, Bernice K. Stanclift, Tucker C. Fishberg, Gerard Leo, Robert J. Sterrett, Grace Franchina, Emily F. Lesk, Ann B. Vanier, Stephen A. Gann, Marc SEVENTH DISTRICT Levy, M. Barry Watkins, Patricia E. Good, Douglas J. David M. Schraver, Rochester Lieberman, Ellen Wood, Jeremiah Gross, John H. Lindenauer, Susan B. FIFTH DISTRICT Gruer, Sharon Kovacs * MacCrate, Robert Fennell, Timothy J. Hendry, Melanie Dyani EIGHTH DISTRICT Martin, Edwina Frances Fish, Marion Hancock Karabatos, Elena Sharon Stern Gerstman, Buffalo McEnroe, Diane Crosson Gall, Erin P. † * Levin, A. Thomas Miller, David S. † Getnick, Michael E. Levy, Peter H. Miller, Michael Gigliotti, Louis P. Luskin, Andrew J. NINTH DISTRICT Millett, Eileen D. Gingold, Neil M. Makofsky, Ellen G. John S. Marwell, Mount Kisco Minkowitz, Martin Greeley, Kristin B. McInerney, Christine Marie Morgan, Hadaryah Tebach Hartnett, Elizabeth A. Mejias, Linda Kelly Morril, Mark C. Hayes, David M. * Pruzansky, Joshua M. TENTH DISTRICT Morton, Margaret S. Howe, David S. Purcell, A. Craig Nathanson, Malvina Larose, Stuart J. * Rice, Thomas O. John H. Gross, Hauppauge Nelson, Lester Longstreet, Ami S. Robinson, Derrick J. O’Neill, Paul J., Jr. Ludington, Hon. Spencer J. Winkler, James R. LEVENTH ISTRICT E D * Patterson, Hon. Robert P., Jr. Mitchell, Richard C. ELEVENTH DISTRICT David Louis Cohen, Kew Gardens Plevan, Bettina B. Peterson, Margaret Murphy Cohen, David Louis Prowda, Judith B. * Richardson, M. Catherine Gutierrez, Richard M. Reed, Thomas A. Stanislaus-Fung, Karen James, Seymour W., Jr. TWELFTH DISTRICT Rosenthal, Lesley Friedman Tsan, Clifford Gee-Tong Lee, Chan Woo Lawrence R. Bailey, Jr., Bronx Rosiny, Frank R. Virkler, Timothy L. Lomuscio, Catherine Rosner, Seth SIXTH DISTRICT Nizin, Leslie S. Rothstein, Alan Barreiro, Alyssa M. Terranova, Arthur N. THIRTEENTH DISTRICT Russell, William T., Jr. Denton, Christopher Vitacco, Guy R., Jr. Jonathan Bruce Behrins, Staten Island Safer, Jay G. Fortino, Philip G. Walsh, Jean T. Schindel, Ronnie Grayson, Gary J. Wimpfheimer, Steven Sen, Diana Sagorika Lewis, Richard C. TWELFTH DISTRICT MEMBERS-AT-LARGE OF THE * Seymour, Whitney North, Jr. †* Madigan, Kathryn Grant Masley, Hon. Andrea Sherwin, Peter J.W. Mayer, Rosanne * Pfeifer, Maxwell S. EXECUTIVE COMMITTEE Sigmond, Carol Ann Pogson, Christopher A. Price, Hon. Richard Lee Timothy J. Fennell Silkenat, James R. Sheehan, Dennis P. Quaranta, Kevin J. Smith, Hon. George Bundy Tyler, David A. Sands, Jonathan D. Sonberg, Hon. Michael R. Hermes Fernandez SEVENTH DISTRICT Schwartz, Roy J. Spiro, Edward M. Brown, T. Andrew Summer, Robert S. Glenn Lau-Kee Syracuse, Vincent J. Burke, Philip L. Weinberger, Richard Tesser, Lewis †* Buzard, A. Vincent Ellen G. Makofsky Wachtler, Lauren J. THIRTEENTH DISTRICT Gould, Wendy L. Wolff, Adam John Behrins, Jonathan Bruce Eileen D. Millett Harren, Michael T. Yates, Hon. James A. Mattei, Grace Virginia Jackson, La Marr J. Yavinsky, Hon. Michael J. Sieghardt, George A. David P. Miranda Kingsley, Linda S. † Younger, Stephen P. Sipp, Thomas A. Kurland, Harold A. Peter J.W. Sherwin Zulack, John F. UT OF TATE Laluk, Susan Schultz O - -S Lauren J. Wachtler SECOND DISTRICT Lanzafame, Ross P. Bartlett, Linda G. Adler, Roger B. Lawrence, C. Bruce Elder-Howell, Andrea M. Bonina, Andrea E. Lightsey, Mary W. * Fales, Haliburton, II Cohn, Steven D. McKeon, Hon. Michael F. Kurs, Michael A. Dollard, James A. * Moore, James C. Ravin, Richard L. Doyaga, David J., Sr. * Palermo, Anthony R. Torrey, Claudia O. * Walsh, Lawrence E. † Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | July/August 2009 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

Nuts ’n’ Bolts: Legal-Writing Mechanics — Part II

n the last column, the Legal Writer case names in short-form citations.10 The Bluebook, ALWD, and the discussed numbers, numerals, and Example: Polouizzi, 564 F.3d at 143. Tanbook recommend not italicizing figures; typographic symbols; and Italicize case history. Bluebook exam- “see” and “see, e.g.,” when the signal I 11 22 abbreviations. We continue with itali- ples: “aff’d,” “appeal denied,” “appeal serves as the verb of the sentence. cizing, underlining, and capitalizing. dismissed,” “cert. denied,” “cert. grant- Bluebook example: “For a discussion of ed,” “modified,” “rev’d,” “rev’d on other violence against works of art, see M.J. 4. Italics and Underlining. grounds,” “vacated.” ALWD examples:12 Williams, Framing Art Vandalism: A Use italics for foreign words and phras- “appeal filed,” “mandamus denied,” Proposal to Address Violence Against es not commonly used in legal English. “modified,” “overruled,” “superseded,” Art, 74 Brook. L. Rev. 581, 582 (2009).” Example: “Ignorantia legis neminem excu- “vacated,” “withdrawn.” Bluebook and ALWD example: “For a discussion of sat.” If you’re using the Bluebook, con- ALWD example: Matar v. Dichter, 500 F. violence against works of art, see M.J. sult rule 7(b).1 For ALWD, consult rule Supp. 2d 284 (S.D.N.Y. 2007), aff’d, 563 Williams, Framing Art Vandalism: A 1.8.2 If you’re using the Tanbook, New F.3d 9 (2d Cir. 2009). Tanbook examples:13 Proposal to Address Violence Against York’s style manual, read Appendix “affd,” “affd on other grounds,” “cert Art, 74 Brook. L . Rev. 581, 582 (2009).” 5 for the italicization rules for foreign denied,” “cert granted,” “lv denied,” “lv Tanbook example: “For a discussion of words and phrases.3 When in doubt dismissed,” “lv granted,” “mod,” “revd.” violence against works of art, see M.J. about whether to italicize a Latin Tanbook citation: (Matar v Dichter, 500 F Williams, Framing Art Vandalism: A word or phrase, consult Black’s Law Supp 2d 284 [SD NY 2007], affd 563 F3d Proposal to Address Violence Against Art Dictionary.4 9 [2d Cir 2009]). (74 Brook L Rev 581, 582 [2009]).” Don’t italicize Latin words and for- Italicize citational signals.14 Examples: Different rules determine whether eign phrases commonly used in legal “accord,” “but cf.,” “but see,” “cf.,” “compare to italicize words and phrases intro- writing. Bluebook examples: “amicus . . . [and] with [and] . . . ,” “contra,” “e.g.,” ducing related authority. Under the curiae,” “certiorari,” “corpus juris,” “see,” “see also,” “see generally.”15 Only Bluebook, italicize words and phras- “de jure,” “e.g.” (if you use “e.g.” as a the Bluebook requires a comma, as in es introducing related authority.23 signal, italicize it), “en banc,” “habeas “e.g.,” after the period in “e.g.”16 The Examples: “available at,” “in,” “reprint- corpus,” “i.e.,” “mens rea,” “modus comma is not required under ALWD17 ed in.” Under ALWD, don’t italicize operandi,” “prima facie,” “quid pro and the Tanbook.18 words and phrases introducing related quo,” and “res judicata.”5 ALWD exam- Always italicize “id.” and the period authority.24 Examples: “reprinted in,” ples: “ad hoc,” “in rem,” “quantum after the “id.”19 “cited in,” “reviewing,” and “cited meruit,” and “de facto.”6 Tanbook exam- Don’t italicize periods, opening or with approval in.” No corresponding ples: “ad hoc,” “coram nobis,” de mini- closing parentheses, or other punctua- Tanbook rule exists. mis,” inter vivos,” “quantum meruit,” tion marks that aren’t part of the itali- Italicize internal cross-references — “scienter,” and “sub judice.”7 cized matter.20 references to other parts of a docu- Italicize mathematical formulas and Only the Bluebook requires italiciz- ment — such as text, endnotes, foot- variables.8 Bluebook examples: “E=mc²” ing the comma after “see” in “see, e.g.”21 notes, appendices, and other internal and “a>2b.” Bluebook example: “See, e.g., Matar v. material.25 Examples of cross-referenc- Use italics for case names. Italicize Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. es include “infra” (below) and “supra” the parties’ names and “v.,” “in re,” or 2007).” No commas are required under (above). Example: “For a discussion of “ex rel.”9 Italicize a case name when ALWD and the Tanbook. ALWD exam- capitalization rules, consult infra Part the case name appears in a textual ple: “See e.g. Matar v. Dichter, 500 F. 5.” Don’t use internal cross-references sentence. Example: “In Smith, the jury Supp. 2d 284 (S.D.N.Y. 2007).” Tanbook to cite outside sources like cases or found the defendant guilty of bur- example: “(See e.g. Matar v Dichter, 500 F glary in the second degree.” Italicize Supp 2d 284 [SD NY 2007]).” Continued on Page 52

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