New York State Bar Association

JANUARY 2011 VOL. 83 | NO. 1 JournalNEW YORK STATE BAR ASSOCIATION

Youth Courts The Power of Positive Peer Pressure

A special issue on youth courts NEW YORK STATE BAR ASSOCIATION

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EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS JANUARY 2011 YOUTH COURTS The Power of Positive Peer Pressure by Judith S. Kaye 10

12 Youth Courts: A Chance to Build Hope by SHAY BILCHIK Something Old, Something New: 15 The Bethlehem Youth Court Community Garden. Flowers and A Personal Story of Youth Court Origins vegetables harvested from the Bethlehem Youth Court are donated by WILLIAM R. SHAW to the local food pantry and seniors’ groups. 18 Teen Courts – Do They Work and Why? 48 After Burns v. Varriale: Essential Lessons by JEFFREY A. BUTTS and JENNIFER ORTIZ for Workers’ Compensation Third-Party 22 Youth Court Alumni Reflect Action Attorneys Upon Their Experiences by JUSTIN S. TEFF 26 Keeping Kids in School and Out of Court DEPARTMENTS A School-Justice Partnership 5 President’s Message by KATHLEEN DECATALDO and TONI LANG 8 CLE Seminar Schedule Youth Court Member Personal Essays 45 Burden of Proof 30 by David Paul Horowitz 34 An Interview With Judy Wolfe: 53 Book Review School Courts Use Positive Peer by Judith S. Kaye Pressure to Change Behavior 56 Sustaining Members 60 Classified Notices by ROBERT V. W OLF 60 Index to Advertisers 38 Youth Court – An Untapped Resource 61 Language Tips by NANCY FISHMAN by Gertrude Block 63 2010–2011 Officers Youth Courts: A Judicial Perspective 42 64 The Legal Writer by SHARON S. TOWNSEND and ANN F. A RNOLD by Gerald Lebovits

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 © 2011 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. Library subscription rate is $150 annually. 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 | January 2011 | 3

PRESIDENT’S MESSAGE STEPHEN P. YOUNGER

New York Youth Courts: Harnessing the Power of Positive Peer Pressure

t is an honor for me to contrib- shoplifting. Sanctions from these courts ute to this Journal issue, which is typically include community service, Idevoted to youth courts. The con- writing essays or letters of apology, tinued success and expansion of New and counseling. The courts are over- York’s youth courts is an issue that, in seen by volunteer judges, attorneys, my view, is critical not just to the State educators, and law enforcement offi- Bar but to our state as a whole. It is cials and use positive peer pressure to involving youths between the ages of so important that, last June, I created ensure that young people who commit 10 and 19. In recent years, that court a Special Committee on Youth Courts these minor offenses give back to the has seen a 100% successful completion to review best practices for devel- community and avoid further involve- rate for participants, including thou- oping effective youth courts around ment in the justice system. sands of hours of community service the state. Spearheaded by Chief Judge Youth courts offer a number of ben- performed at many local not-for-profit Emeritus Judith S. Kaye and Patricia efits to our legal system and to the organizations. L. R. Rodriguez, the special committee public at large. First, they provide an In the nearby Town of Colonie, a will also examine the role that the legal important early intervention for teens youth court has been in operation since profession can play in promoting and who have committed low-level offenses. 1995. Of the more than 1,000 cases that financing youth courts and will help Moreover, youth courts educate young have been adjudicated since its incep- identify locations where new youth people about and instill respect for the tion, 99% of young offenders have courts can be established. rule of law and encourage a greater completed their sanctions. In total, I created this special committee sense of civic engagement. By providing more than 43,000 hours of community because we owe it to our young people an alternative to incarceration, youth service have been performed, benefit- to do all we can to provide a nurturing courts also lessen the burdens placed on ing a myriad of local organizations, atmosphere where they can become probation and correctional services by including food shelters, local clean-up active participants in our society. We reducing the rates of recidivism among projects, and various fundraisers to know that sometimes peer pressure teens and by relieving state and local raise awareness of diseases such as can have a negative effect on our chil- courts of significant docket burdens. cancer and AIDS. dren and can lead to behaviors that, By any measure, youth courts have But perhaps more important, our if not addressed early and corrected proved to be a tremendous success State’s youth courts have had a power- properly, can result in more severe in addressing adolescent delinquency ful impact on the lives of young people problems down the road. If peer pres- issues. For example, national statistics across the state. sure can lead young people into delin- show that kids who go through the The success of these youth courts quency, then peer pressure can be a youth court process are less likely to has been an integral part in the cam- part of the solution in keeping them get into trouble with the criminal jus- paign to establish a youth court in out of delinquency. tice system again than those who are New York’s capital city of Albany. This More than 100 youth courts are processed through the conventional October, the State Bar Association host- currently operating in New York. courts. On the local level, a youth court ed an informational forum sponsored Participating teens are trained to has been in operation in the Town of by the special committee at the State serve as jurors, judges and attorneys; Bethlehem in Albany County for more Bar Center, which brought together they hear real-life cases of their peers than 15 years. During this time, the involving minor offenses such as tru- Bethlehem Youth Court has handled Stephen P. Younger can be reached at ancy, school fighting, vandalism, and approximately 35 to 40 cases per year [email protected].

NYSBA Journal | January 2011 | 5 PRESIDENT’S MESSAGE several leaders of the legal, law enforce- and doing more things for the commu- The State Bar is proud to support ment and education communities in the nity on my own.” Raising children to youth courts and their mission of pro- Capital Region. The outstanding turnout become thoughtful, active participants viding a juvenile justice alternative at this forum gives us hope that we will in our society is vital to the future that is operated for and by young someday in the near future have another of our country. Youth courts provide people. I am confident that our Special youth court success story in our state. an important outlet to assist parents, Committee on Youth Courts will have Youth courts can transform lives. In teachers, and members of the legal com- great success in furthering the mis- the words of one participant who expe- munity in achieving this goal, and they sion of these innovative courts and rienced the process, “youth court has give profound opportunities for service spreading the word about both their made me more responsible and made to all the young people who participate efficiency and efficacy. ■ me think about college, my future, in these innovative programs.

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6 | January 2011 | NYSBA Journal

NYSBACLE Tentative Schedule of Spring Programs (Subject to Change)

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† Real Problems, Real Answers (video replay) Ethics and Civility February 10 Jamestown (9:00 am – 1:00 pm) April 15 Long Island; Rochester CPLR Update April 29 Albany; Buffalo; New York City February 11 Albany (1:00 pm – 5:00 pm) February 12 Syracuse (9:00 am – 12:00 pm) 15th Annual New York State and City Tax Institute February 16 New York City (6:00 pm – 9:00 pm) April 27 New York City February 28 Long Island (6:00 pm – 9:00 pm) March 18 Buffalo (1:00 pm – 5:00 pm) Ethics for Business and Transactional Lawyers (9:00 am – 1:00 pm) Basics of Intellectual Property May 2 Long Island March 3 New York City June 1 New York City March 10 Albany June 7 Albany

Legal Malpractice Commercial Litigators – Bridge the Gap (9:00 am – 1:00 pm) (two-day program) March 4 New York City; Syracuse May 5–6 New York City March 11 Albany; Long Island; Rochester March 18 Westchester Health Care Decision Making and New Legislation May 6 Albany Bridging the Gap 1 May 13 New York City (two-day program) May 20 Buffalo March 8–9 New York City (live session) Albany (video conference from NYC) Securities Law Primer: What You Need to Know May 11 New York City † 7th Annual International Estate Planning Institute Starting Your Own Practice (two-day program) May 20 New York City (live session) March 24–25 New York City Albany (video conference from NYC)

LPM Marketing Program (12:00 pm – 5:00 pm) March 25 New York City Coming this Spring: Hot Topics in Elder Law and Special Needs Planning March 28 New York City Practical Skills: March 29 Rochester Family Court Practice (Custody) March 30 Albany; Westchester April 1 Long Island Basic Elder Law Practice Basics of Bankruptcy Practice † Hot Topics in Real Property Law (video replay) (9:00 am – 4:35 pm) How to Commence a Civil Lawsuit March 31 Jamestown

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JUDITH S. KAYE, formerly Chief Judge of the State of New York, is now Of Counsel to Skadden, Arps, Slate, Meagher & Flom. She is the Issue Editor for this special edition of the Journal. She expresses her profound thanks to her Skadden colleague Shari Graham for her extraordinary assistance in, and commitment to, putting together this special edition, start to finish.

Judge Kaye at Staten Island Youth Court’s first graduation ceremony, December 2008. Youth Courts – An Introduction to the January 2011 Journal

By Judith S. Kaye

Why Youth Courts? sentation and did not learn the details.) His plea of guilty For me the story begins – of all places – in Anchorage, was his ticket entry into youth court. The courtroom was Alaska, at the Summer 2008 meeting of the Conference orderly and well staffed by his contemporaries, plus his of Chief Justices and Conference of State Court parents and a lawyer were there to assure due process. Administrators. The meeting opened with a warm This was, after all, a criminal charge referred by the welcome from then-Anchorage Mayor, today Alaska’s District Attorney. After hearing the evidence, the three Senator, Mark Begich. But instead of the Official Greeter’s robed teenage judges retired to confer privately and then usual palaver about our host city and state, Mayor Begich announced the recommended punishment – restitution, spoke glowingly of Anchorage’s youth court, a stun- community service, letters of apology and behavioral ningly successful “second chance” Alaska offers teenag- modification classes. The offender conferred with the ers in trouble. lawyer and accepted the sentence in full. Chief Administrative Judge Ann Pfau and I exchanged The message the young judges then solemnly deliv- excited glances, and at the session’s conclusion, instead of ered to him – eye to eye – included the following: They going to the next scheduled program, we headed across began by pointing out their common ground – what he the street and knocked on the door of the Anchorage had done diminished all teenagers in the eyes of the Youth Court. We were not disappointed. public. They then explained youth court to him, pointing What we ultimately saw (after signing a confidential- out that he would be welcome to return there in any role ity agreement) was an actual youth court proceeding, but one. He could be the judge, prosecuting or defend- conducted in a courtroom, involving a 16-year-old who ing lawyer, community advocate or court attendant. But had taken a car. (We arrived only after the factual pre- he could never again be in youth court as the offender.

10 | January 2011 | NYSBA Journal This was his one chance, his opportunity to turn his life interest centers on the outrageous, intolerable failures of around. If he did not fulfill his sentence, or if he commit- our juvenile justice system. The media are ablaze with the ted another crime, he would be punished with a convic- atrocities of New York’s juvenile placement facilities; the tion that would follow him all the rest of his life – when United States Department of Justice even threatened to he applied to school, or for a job, or for housing, anything. sue New York if something isn’t done here. I have never The choice was entirely his. Powerful. No wonder their seen greater political will, leadership or commitment to success rate is high. improving our juvenile justice system. When Judge Pfau and I returned to New York my first And think for a moment: Should it really be our incar- call was to Dan Donovan, Staten Island District Attorney, ceration statistics that distinguish us as a nation, that we then President of the District Attorneys Association. And lock up more young people, and destroy more young after I sputtered out the story, still emotional from hav- families, than any other nation in the world? Today, more ing personally witnessed the proceedings, his first words than two million children have an incarcerated parent, were, “Great. Let’s do it in Staten Island.” And so we 50% more than a decade ago. Two out of three incarcer- began. I’m proud of our Staten Island Youth Court, now ated mothers were the sole custodial parent before incar- in its second year. ceration, and two out of five incarcerated fathers were My Anchorage story plainly shows several of the living with their children prior to prison. The New York immediate benefits offered by youth courts. The “kids” Times has called this the “incarceration generation.”1 This administering the court were magnificent. Their par- is America? ticipation in youth court afforded them a first-class And boy, do we have statistics! Take my word for it: education in civics and in public service, too often lack- the relationship between being a school drop out and ing among their peers. The offender and his family got being incarcerated has been established beyond all ques- important lessons too. Only contemporaries could have tion. Yes, we need the research, but we need more than delivered the message so meaningfully, both through the research. We need to focus our efforts on keeping kids in questions they asked and the sentence they imposed. It schools and out of courts. When we talk about juvenile really hit home. The courts, and the schools, are benefi- justice today, education is becoming at least as important ciaries too. Court dockets are crowded enough. Kids defi- a subject as punishment. It’s about time. nitely need to be punished for offensive conduct – even So why not youth courts now? Why not take a full- “typical” adolescent misbehavior like school scuffles, fledged, enthusiastic stab at interrupting the School to vandalism, petty thefts, graffiti and writing on desks Prison Pipeline with youth courts in schools, in courts, should be redressed. But does conduct like that need to be and in police and probation departments? Why not sec- criminalized? When possible, kids should be kept in their ond chances for deserving offenders to avoid the lifetime schools and with their families, not arrested, prosecuted scar of arrest and conviction? Why not healthy programs and sent to faraway out-of-home facilities. Do we really in civic education and public service for youth court need to keep feeding the “School to Prison Pipeline”? We members? This is not a tired old idea gone sour. It’s a know all too well the grim statistics that follow school tried-and-true idea that simply needs new juice, new sup- dropouts. Can’t we do better for kids, for ourselves, and port, new commitment. for the future of our nation? And isn’t this the perfect kick-off? Our great State In the days, months and years since that fateful visit Bar President Steve Younger certainly thought so when to Anchorage – where they are so rightly proud of their he constituted a Special Committee on Youth Courts, youth court initiative – I have learned a lot about youth co-chaired by Patricia Rodriguez and me, with a stellar courts. Most surprising, I learned that the idea is decades membership. Aren’t we – members of the esteemed New old, and that it continues to function fabulously in sev- York State Bar Association, readers of this great Journal, eral places around the state and country. And wouldn’t lawyers, judges, academics, students, policymakers, con- you know – the Anchorage Youth Court actually had cerned citizens – aren’t we the perfect people to carry this its origins right here in New York State, with a young idea to fruition? There is a role for each of us in accom- Alaskan who was attending Cornell Law School! Even plishing this, I promise. more surprising to me, however, is that the idea has lost In the ensuing pages we have selected the very best its zip, its contagion – and not unrelatedly, federal finan- people to tell the story of what has been done and what cial support and other resources. Which brings us to this needs to be done. Now only one task remains. ■ special Journal issue. 1. Erik Eckholm, In Prisoners’ Wake, a Tide of Troubled Kids (Jul. 5, 2009), available at http://www.nytimes.com/2009/07/05/us/05prison.html?_ Why Not Youth Courts Now? r=1&ref=erik_eckholm. This is the moment, this is the time, to reformulate and re- energize the idea of youth courts. It is a moment unique in my own decades as a lawyer and judge when public

NYSBA Journal | January 2011 | 11 Allegany County Youth Court Prosecuting Attorney Tad Johnson addresses the Jury on a case involving Criminal Trespass 2nd Degree as Judge Brad Palmer and Bailiff Joel Common look on. Youth Courts: A Chance to Build Hope By Shay Bilchik SHAY BILCHIK is the founder and s parents and as members of society we want our children’s lives to be filled Director of the Center for Juvenile with love, opportunity and hope. We want them to love and be loved in a Justice Reform at Georgetown Ahealthy way; to have opportunities, particularly for skill-building and mean- University Public Policy Institute. ingful work; and to have hope that things can get better, that today isn’t the best that From 2000 to 2007, Mr. Bilchik was life can be. This is what we want in our own lives, and it is what we strive to help our the President and CEO of the Child most disadvantaged youth have in their lives. This desire is no less intense for youth Welfare League of America (CWLA). Prior to his tenure at CWLA, he involved with the juvenile justice system. headed up the Office of Juvenile Rabbi Harold Kushner, in his book Living a Life That Matters, said, “We don’t have to Justice and Delinquency Prevention do great things, headline grabbing deeds, to matter to the world. Everyone who puts (OJJDP) in the U.S. Department of in an honest day’s work, everyone who goes out of his or her way to help a neighbor, Justice from 1994 to 2000. From everyone who makes a child laugh, changes the world for the better.”1 In the same 1977 to 1993, Mr. Bilchik was an book, he quotes Dr. Dean Ornish, “Our survival depends on the healing power of love, Assistant State Attorney in Miami, intimacy and relationships.” Our caseworkers in juvenile justice and other human Florida, where he served as a trial services may not provide these things directly, but they can and often do provide the lawyer, juvenile division chief, and connections to them – and, ultimately, to hope. In juvenile justice, these connections Chief Assistant State Attorney. include both treatment and positive, pro-social influences.

12 | January 2011 | NYSBA Journal A Robust Toolkit exposure to pro-social peers and the protective impact Creating these connections requires the creative use of a they provide. variety of tools. As Abraham Maslow said, “[i]f the only tool you have is a hammer, you tend to see every problem Disconnection From Family as a nail.”2 Our challenge, therefore, is to develop a rich, This need for pro-social connections has become evident robust toolkit in order to be successful with the youth with in our work at the Center for Juvenile Justice Reform at whom we come in contact. The tools we need are ones Georgetown University’s Public Policy Institute, where that relate to the various domains of youths’ lives – fam- we focus on youth who are involved in both the child ily, school, peer and community – as well their individual welfare and juvenile justice systems. These youth tend to development and present even high- needs. As described er levels of risk, elsewhere in this Youth courts are an essential tool – providing translating directly Journal, one can see into a greater need how youth courts both accountability and the opportunity for for the protective can help us anchor factors that help to our work in these exposure to pro-social peers and the protective offset the risk pres- domains. This arti- impact they provide. ent in their lives. cle elaborates on Abuse and neglect the application of make up a signifi- youth courts to these domains and how their use fits cant risk factor associated with later delinquent behav- within current trends in juvenile justice policy and prac- ior.4 While this higher probability of delinquent behavior tice. may be directly and immediately related to the family domain, it is also true that in removing many of these History youth from their homes and their abusive or neglectful An analysis of the history of juvenile justice policy and caretakers in order to protect them from further harm, we practice in this country reveals an ebb and flow in how also disconnect them from positive family members (sib- we have treated juveniles. The juvenile justice system has lings, grandparents and other kin), as well as pro-social moved back and forth between responses that have been individuals within their schools and communities. more punitive in nature and ones that have been more This is exacerbated by the fact that the average length balanced in providing accountability and developmental of stay in foster care is more than two years,5 often with opportunities, including the greater or lesser use of insti- numerous changes in placement. While this time is often tutional care and community-based services. There is an spent with foster families that can provide protective increasing body of knowledge on effective practices, and factors, the lack of stability in placement is troubling. the research speaks to the need to look, in each domain, at Too, these youth are often placed in group-care settings, the risk factors that are present in the life of a youth, those that are contributing to negative or delinquent behavior along with those protective factors that are serving, or An analysis of the history of juvenile could serve, as buffers against that behavior.

Influence of Peers justice policy and practice in this An example of this relationship between risk and protec- country reveals an ebb and flow in tive factors that is relevant to youth courts and delinquent youth can be found in the peer group domain. how we have treated juveniles. Association with an anti-social or delinquent peer group can greatly increase the probability that the youth will also engage in delinquent behavior.3 This risk factor can be offset by protective factors within this domain (such as which can lead to contact with youth who present high association with pro-social peers) or other domains (such levels of mental health disorders and substance abuse as a teacher or positive youth development activity in problems, introducing an additional risk factor into their school or a youth leader at a Boys and Girls Club). These lives and highlighting the need to provide every possible factors can make the difference in the balance between opportunity for pro-social activity and a connection to risk and protection in a youth’s life, which is then asso- pro-social peers while youth are in foster care. This need ciated with either a pro-social or delinquent lifestyle. was supported in recent research that found that one of The youth court is an essential tool in this dynamic by the covariates associated with youth placed in foster care providing both accountability and the opportunity for engaging in delinquent behavior and entering the juve-

NYSBA Journal | January 2011 | 13 nile justice system is a lack of social bonding opportuni- ity that helps to enhance the resilience of our youth. The ties while in care.6 We need to provide as many pro-social notion underlying Butts’s work in this area is that all young people can develop positively when connected to the right opportunities, The response has included the greater or lesser use the right support and the right relationships. In order of institutional care and community-based to maximize a youth development opportunity we services, an evolution informed by an increasing must provide two stages of potential growth: (1) the body of knowledge on effective practices. learning and doing phase and (2) the attaching and belonging phase. The learning and doing opportunities as possible while these youth are in care, as phase involves developing new skills and competencies well as once they come in contact with the juvenile justice and using the new skills; taking on new responsibilities; system. and developing self-efficacy and personal confidence.7 In many ways, this mirrors how the initial youth court Positive Development experience prepares the youth to move from “offender” Youth courts should be one of the tools we use in this status to “member” status. The attaching and belonging regard; they provide an opportunity for civic engagement phase reflects the youth becoming an active member of and positive youth development, while also providing this pro-social group, developing the sense of belonging, the accountability we require as part of our response to valuing service to others and being part of a larger com- delinquent behavior. Used as either a diversionary or dis- munity. This describes a transition from negative behav- positional option, youth courts bring the youth together ior and association with an anti-social peer group, to one with youth involved in pro-social behavior. Perhaps most connected to opportunity and hope for the future. important, this exposure is not limited to an individual This is perhaps the true promise of having youth event but is linked to the more in-depth developmental courts in our juvenile justice toolkit – a tool that weaves opportunity youth courts provide, which distinguishes together our need for a system response to delinquency youth courts from many other options available within that requires accountability, while at the same time creat- the juvenile justice toolkit. ing a pro-social development experience. If used effec- This is not to say that the impact of the initial youth tively, it is an experience that can better connect youth to court experience is not positive in and of itself. Indeed, the opportunities and hope we want them to have in their facing one’s “peers” and experiencing the youth court lives. ■

1. Harold S. Kushner, Living a Life That Matters: Resolving the Conflict We need to provide as many pro-social Between Conscience and Success (2001). 2. Abraham Maslow: Father of Modern Management, “Maslow Quotes,” opportunities as possible while these http://www.abraham-maslow.com/m_motivation/Maslow_Quotes.asp. 3. Gail A. Wasserman, Kate Keenan, Richard E. Tremblay, John D. Coie, Todd youth are in care, as well as once they I. Herrenkohl, Rolf Loeber & David Petechuk, Risk and Protective Factors of Child Delinquency, Child Delinquency Bulletin Series. Office of Juvenile Justice and come in contact with the juvenile justice Delinquency Prevention (Apr. 2003). 4. David J. Hawkins, Todd I. Herrenkohl, David P. Farrington, Devon Brewer, system. Richard F. Catalano, Tracy W. Harachi & Lynn Cothern, Predictors of Youth Violence, Juvenile Justice Bulletin, Office of Juvenile Justice and Delinquency Prevention (2000). 5. U.S. Dep’t of Health & Human Services, Administration for Children and process is a rehabilitative experience as well as an exer- Families, Administration on Children, Youth and Families, Children’s Bureau, cise in accountability. What increases its impact, however, The AFCARS Report: Preliminary FY 2009 Estimates as of July 2010 (2010), is that the experience is enhanced through the ongoing available at http://www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/ report17.pdf. involvement it provides for the many youth who remain 6. J.P. Ryan, M.F. Testa & F. Zhai, African American Males in Foster Care and the involved with the work of the youth court. This is youth Risk of Delinquency: The Value of Social Bonds and Permanence, 87 Child Welfare 1: development activity that provides the ongoing protec- 115–40 (2008). tion from further delinquent behavior. 7. Jeffrey A. Butts, Gordon Bazemore & Aundra Saa Meroe, Positive Youth As Jeffrey Butts, a leading researcher in the area of Justice: Framing Justice Interventions Using the Concepts of Positive Youth Development (2010). youth development has suggested, it is this sort of activ-

14 | January 2011 | NYSBA Journal HON. WILLIAM R. SHAW, Cornell ‘73 (JD & MPA), is a general practitioner in Ithaca, N.Y., and a part-time Town Justice in his hometown of Covert.

On May 3, 2010, during the Harlem Community Justice Center’s annual “Law Day Celebration,” participants of the Harlem Youth Court recite an oath of confidentiality during a mock hearing.

Something Old, Something New: A Personal Story of Youth Court Origins By William R. Shaw

ike most good ideas, the youth court idea is county-wide referenda were held in the schools, with borrowed, not new. It can be traced back to the more than 4,000 youth voting overwhelmingly in favor of late 19th century, when William “Daddy” George the concept of a county youth court and of a constitution L 1 founded his George Junior Republic in Freeville, New for the Tompkins County Youth Court. This novel idea York. Among its tenets was self-government by the young was launched to handle delinquency cases referred from men who came there, including legislating and enforcing local city and town courts, county probation, even fam- rules by the “citizens” of the Republic. The citizens also ily court. The youth members would prosecute, defend, developed a court system that provided for prosecution judge and sentence convicted teenagers. No other process of violations, youth representation of those charged, and of this kind was known to exist.2 a youth court with teen judges and juries to determine guilt or innocence and impose penalties. Off and Running Malcolm J. Freeborn, Jr., George’s son-in-law, later Selected youth and community leaders were appointed began promoting the broader application of this youth by the local family court judge. Training was provided court concept in the Tompkins County community, devot- by volunteer members of the Tompkins County Bar ing countless hours to discussion with adult and youth Association and local District Attorney Richard B. Thaler. leaders throughout the county. He made clear, however, In October 1962, after a 10-week training course and that, while premised on youth initiative and leadership, passing a “bar exam,” the first contingent of attorneys the youth court would require adult endorsement. was sworn in by then-presiding County Judge Norman After months of meetings, back in 1962 a core group G. Stagg. Under the constitution, these 15 youth became of county-wide youth began drafting, publicizing and the Tompkins County Youth Court Bar Association. I was conducting presentations in five area high schools. Two a proud 14-year-old member of that group. We were 14 to

NYSBA Journal | January 2011 | 15 18 years old, from several area high schools, with various tion of the youth court. While that consent waived certain backgrounds and interests.3 legal rights, the waiver could be withdrawn at any time. We relied on those first attorney volunteers to train Virtually none did. and guide us further to serve as judges, prosecutors and While adult attorneys or law students were available defense lawyers, clerks and bailiffs. We attended and to provide advice, they did not make the decisions of guilt witnessed local courts and met with local judges. Several or innocence. The youth court judges decided the nature

Among the Republic’s tenets was self-government by the young men who came there, including legislating and enforcement of rules by the “citizens” of the Republic. mock trials were held to practice the skills we had been of the crime and meted out the degree of punishment. taught. Meanwhile, “Mal” Freeborn lobbied city and When I reached the age of 16, I was selected to serve as a county officials for courtroom space, equipment and fur- youth court judge, then chief judge. We sat as a panel of niture for the youth court to conduct its training and its three judges, with one presiding. The option of returning sessions, and we received access to and use of the historic the case to the “referring agency”4 was available to both Old County Courthouse in Ithaca. We were conceived as the judges and defendants, although rarely used. The a community program, independent of school adminis- sentences were an array of community service alterna- trators and totally youth run. tives, performed over time, up to a maximum of 50 In December 1962, Lansing Town Justice Fred Spry, hours. convinced of our viability, sent us our first three cases. Faculty from Cornell University (from what is now its Defendants were arraigned, advised of their rights, School of Human Ecology) studied and reported on the provided with trained youth counsel, and prosecuted impact on defendants, participants and the community by peers. Based on the evidence, and testimony of wit- as a whole.5 For the most part, they observed invalu- nesses and victims, the youth jury found the defendants guilty and imposed a sentence of community service. Thus, peer adjudication for teenagers was established The youth court members would in New York. prosecute, defend, judge and Youth Court Procedure Each defendant referred to the youth court was provided sentence convicted teenagers. with the same basic rights available in other courts, including assignment of a defense attorney, the opportunity to cross-examine witnesses, the opportunity to able opportunities and education for the members of the produce evidence or defense witnesses, and a right to an youth court but had mixed opinions on the impact on appeal. Defendants and their parents had to sign a con- defendants. Recidivism for youth court defendants was sent form for their case to be transferred to the jurisdic- exceedingly low (one known case in the first decade) but very hard to document. Youth defendant records are sealed both in family court and often in municipal courts. The concept of peer adjudication was also debated. Some This novel idea was launched felt that the socio-economic background of the youth court members did not match those of the defendants. to handle delinquent cases Others felt it compared well with adult jury peers.

referred from local city and Spread of the Idea town courts, county probation, The youth court relied on volunteers at its outset. Facilities and support by the County District Attorney were fol- even family court. lowed by offices and courtroom space made available in the Old County Courthouse and a modest operating budget from the Ithaca Youth Bureau. A part-time coor-

16 | January 2011 | NYSBA Journal dinator position was created in 1967–68, which I filled, Youth Bureau support was invaluable, that support also while a junior at Cornell University. Legal advisors were waned, as financial strain impacted the city’s youth ser- typically law students from Cornell, as well. (I performed vices budget. that role in 1969–70.) During 1977–78, I served as chair of the newly cre- After early success and interest from youth in the ated Tompkins County Youth Board and sought greater nearby Village of Trumansburg, a “district court” was county support, but only very limited resources were created for that school district. The constitution had available to support the county youth court. It contin- provided for such an option. They created their own bar association and conducted their own district court, No other process of this kind was known to exist. which conducted its own training, and convened its own cases. However, its cost and limited caseload led to ued under the auspices of the City Youth Bureau, but by its cessation in the early ’70s. 1984, the youth court was sharing space and competing During the late ’60s and early ’70s, caseload refer- for funds with an Ithaca neighborhood youth activities rals tapered off, especially from the County Probation center (known as GIAC). When GIAC was compelled to Department. As a result of concerns regarding the legal reduce its budget, the county-wide youth court program authority to refer cases, Tompkins County Assembly- was dropped. Without staff, space or resources, the woman Constance E. Cook worked on drafting Assem- Tompkins County Youth Court was discontinued. bly Bill A-5992.6 While the bill passed overwhelmingly The 1990s saw the emergence of youth courts in in the Assembly, it never was voted out of the Senate counties and states across the country. It is ironic Judiciary Committee. The prevailing view was that that Tompkins County, which started the program 50 express authority for “youth conducted procedure” was years ago, has not been able to re-launch its program. unnecessary since there was already broad authority Meanwhile, in Anchorage, Alaska, young attorneys under the informal intake procedures operating state- launched a youth court, inspired by a Cornell law stu- wide. dent who learned of the idea during her three years in As a result of the novelty and publicity of the Tompkins County. Tompkins County Youth Court, inquiries were received The Office of Juvenile Justice and Delinquency from other parts of New York and other states. I recall Prevention, within the U.S. Department of Justice, working with interested leaders in Western New York, established the National Youth Court Center in 1999. Fort Leonard Wood, Missouri, and our neighboring That Center provides advice, services and sample docu- states of Pennsylvania and Ohio. I attended a conference ments nationwide. Sadly, a review of its documents and of the National Youth Councils of Civic Affairs in Dallas, articles on the history of youth court did not reveal any Texas, in 1967, where the youth court concept found reference to its genesis at George Junior Republic and interest and support nationwide. Later inquiries came Tompkins County, New York. Currently nearly 1,000 from other countries, including Germany and Sweden. youth courts are operating in the United States. Perhaps Tompkins County, the home of youth court, will be the next. ■

1. The constitution adopted in 1962 is available from the author. It was re- Each defendant referred to the submitted to the youth of the county after five years and again received an overwhelming vote of support in another county-wide referendum. It was later youth court was provided with revised in 1971. 2. The concept of youth juries had existed in Hamburg, New York (where the same basic rights available Town Justice Ron Tills presided) but they served an advisory role only. 3. During 1962, 44 enrolled in the Bar course, and 22 completed it. In sub- in other courts. sequent years between 25 and 115 took the course and over 250 were sworn in during the first 10 years of operation. Most cases were for charges of petit larceny, vehicle and traffic violations, and criminal mischief. 4. Referrals came from town, village and city court, as well as the County Budget Stresses Probation Department. The Tompkins County Youth Court found its bureau- 5. The Tompkins County Youth Court, 1964, by Prof. Edwin Devereux. cratic home in the City of Ithaca’s Youth Bureau, 6. I served as her Legislative Intern during this time and contributed to the which provided space, staff, equipment and supplies effort to enact this legislation. through the early ’80s. However, support by the County Probation Department was inconsistent. While the City

NYSBA Journal | January 2011 | 17 Greenpoint Youth Court members in front of the John Jay College of Criminal Justice after touring the facilities and speaking with professors.

Teen Courts – Do They Work and Why? By Jeffrey A. Butts and Jennifer Ortiz

Introduction When judged by the straightforward metric of prolif- Teen courts (also known as youth courts or peer courts) eration, teen courts are clearly a success. The number of are specialized diversion programs for young offenders teen court programs in the United States grew quickly that use court-like procedures in courtroom settings. The over the past two decades. Although fewer than 100 pro- typical delinquent youth referred to teen court is prob- grams existed prior to 1990, recent surveys suggest that ably 12 to 15 years old, in trouble for the first time, and more than 1,200 programs are in operation today.1 charged with vandalism, stealing or other non-violent offense. Teen court offers a non-binding, informal alternative to the regular juvenile court process. In most cases, young offenders agree to participate in teen court as a JEFFREY A. BUTTS, PH.D., is executive director of the Justice Research and way of avoiding formal prosecution and adjudication in Evaluation Center at John Jay College of Criminal Justice in New York City. juvenile court. If they agree to participate, but then refuse to comply with teen court sanctions, young offenders JENNIFER ORTIZ is a research assistant and Ph.D. student at the John Jay risk being returned to juvenile court to face their original College of Criminal Justice. charges.

18 | January 2011 | NYSBA Journal Despite their popularity, there are many unanswered convenience sample, drawn from a neighboring county, questions about the effectiveness of teen courts. The over- and the cases were not matched on a case-by-case basis all impression one gets from the evaluation literature is with the teen court sample, as was true in the other three positive, but researchers have yet to identify exactly why sites. For these reasons, the Urban Institute described the teen courts work. Most important, studies have not yet Maryland findings as inconclusive. investigated whether some teen court models are better Still, the Maryland results suggested that when most than others. aspects of another kind of diversion program are similar to that of teen court – i.e., when teen court cases and What Does Research Tell Us? comparison group cases receive similar sanctions and The most recent, most comprehensive investigation of teen services – there may be little difference in recidivism. The court effectiveness was conducted by the Urban Institute.2 evaluators inferred from these results that the real value The project studied teen courts in four jurisdictions: of teen courts might be their ability to ensure the deliv- Alaska, Arizona, ery of meaningful Maryland and sanctions for first- Missouri. More Teen courts are believed to reduce recidivism time delinquent than 500 teen offenders, the type court cases from by tapping the power of positive peer influence. of youth usually the four sites were ignored by the tra- compared with ditional juvenile similar cases handled by the traditional juvenile justice justice process. In jurisdictions unable to provide mean- system. In three of the four study sites, recidivism was ingful interventions for these youth, teen court may offer lower among youth handled in teen court. In Alaska, for an effective alternative. example, recidivism for teen court cases was 6%, com- Another interesting aspect of the Urban Institute pared with 23% of cases handled by the traditional juvenile study was the courtroom models used by each study site. justice system and matched with the teen court sample on The Alaska and Missouri sites used teen court models variables such as age, sex, ethnicity and offense history. In that relied heavily on youth themselves for courtroom Missouri, the recidivism rate was 9% in teen court and 27% management (even youth judges). The Arizona and in the traditional process. The difference among Arizona Maryland programs used models in which adults were youth (9% vs. 15%) trended in the same direction, although largely responsible for managing the court process and the difference was not large enough to reach the level of the courtroom dynamics (youth may question the defen- statistical significance. In these three sites, teen courts were dant, but an adult judge determines sentencing). Thus, compared with the average juvenile justice response in the sites with the strongest findings that favored teen cases involving matched cases of first-time offenders. The court were those that used courtroom models in which young offenders in the comparison group were not offered youth themselves performed all the key roles. The study special services or sanctions. They received whatever was was not designed to test the effect of different court- typical for first-time offenders in that jurisdiction, includ- room models on recidivism, and the disparities in the ing warning letters, informal adjustments and outright dismissals. In the fourth site (Maryland), teen court was compared with a proactive, police diversion program in a neighboring county. The police program provided many of the same services and sanctions offered by teen courts. Young offenders were ordered to pay restitution, perform community service, and write letters of apology, just as they would in a teen court, but without a court hearing or any peer-to-peer justice. The entire process was managed by police officers and a police department social worker. Recidivism among the Maryland comparison group was slightly lower than it was among teen court cases (4% vs. 8%), although the size of the difference was not statistically significant. One could argue that the evaluation design in Maryland was a more rigorous test of teen court effectiveness, because it came closest to isolating the effects of peer-to-peer justice in a courtroom setting. The comparison group in Maryland, however, was a

NYSBA Journal | January 2011 | 19 Adolescents crave peer acceptance and peer approval. The teen court process takes advantage of this naturally powerful incentive.

recidivism comparisons could be due to the nature of the with antisocial friends and associates are more likely to comparison groups themselves more than the program be delinquent themselves. effects, but the pattern at least suggested the need for The theory of differential association posits that crimi- further investigation. nal behavior is learned through direct and repeated interactions with people who have attitudes or beliefs favor- What Does Theory Tell Us? able to deviance.5 Through social interaction, uninitiated Teen courts are an appealing alternative to traditional youth are taught criminal techniques as well as defini- juvenile court processing, but why? What is the theory tions favorable to violating the law. The central tenet of behind the effectiveness of teen courts? differential association theory is that “a person becomes Juvenile justice interventions are often compatible with delinquent because of an excess of definitions favorable more than one theory of delinquency. In its 2002 evalua- to violation of law over definitions unfavorable to violation of teen courts, the Urban Institute proposed several tion of law.”6 Criminological theory suggests that reduc- variants of theory that seemed to be consistent with teen ing teenagers’ antisocial interactions and increasing their courts as a method of reducing future recidivism.3 Of exposure to the influences of non-delinquent, pro-social all the theoretical perspectives identified by the Urban peers is a plausible approach to delinquency prevention. Institute – peer influence, procedural justice, deterrence, Every parent who worries about a child “hanging out labeling and restorative justice – only the first, peer influ- with the wrong crowd” knows this as well. ence, seemed to be uniquely suited to teen courts. Teen courts are believed to reduce recidivism by tapping the Which Kind of Teen Court Is the Most Effective? power of positive peer influence. Adolescents crave peer Not all teen courts are alike. They vary in how they handle acceptance and peer approval. The teen court process cases and in the extent to which they assign responsibility takes advantage of this naturally powerful incentive. Just to youth. Some include youth in prominent roles; others as association with deviant or delinquent peers is com- do not. Some involve youth judges; others permit only monly associated with the onset of delinquent behavior, adults to serve as judge. Are these differences important? pressure from pro-social peers may propel youth toward Do they affect the ability of teen courts to reduce recidi- law-abiding behavior. vism? Do they shape the experiences of youth, either volunteers or defendants? In more than half of all Just as association with deviant or delinquent peers teen courts today, adults manage the courtroom is commonly associated with the onset of delinquent process and decide all sentences. Young people are behavior, pressure from pro-social peers may restricted to the lesser roles of attorney, clerk and bai- propel youth toward law-abiding behavior. liff. To some observers, this seems to contradict the very The idea is not new. Researchers and practitioners spirit of teen courts – the idea that youth will learn greater have for decades used pro-social peer pressure in delin- respect for the law when they are judged by their peers. quency prevention programs, including Guided-Group To others, however, an adult presence may seem vital to Interaction, Positive Peer Culture and Peer Group maintaining order during teen court proceedings. Some Counseling. All of these programs are based upon a practitioners worry that the impact of teen court may be common principle: If peer-group influences lead to delin- diminished by the disorder and frivolity that may occur quency, peer-group influences might also be used to pre- without adult supervision. vent delinquency. For more than 50 years, social scientists When viewed through the lens of the juvenile justice have found that delinquent acts are disproportionately system, the particular courtroom model used in a teen committed by groups of juveniles rather than by lone court may not seem to be a critical issue. Juvenile justice offenders.4 Numerous studies have found that youth professionals may express a preference for the adult judge model simply because it is thought to ensure a

20 | January 2011 | NYSBA Journal greater degree of order and control – and because it takes showed for the court was obvious to any observer. One less time to prepare youth for their roles. Certainly, it is of the principal conclusions of the Urban Institute study easier to recruit and train youth volunteers for an adult- was that youth-run programs deserve closer attention operated program. Young people are not expected to from policymakers and practitioners. manage the courtroom process; they do not have to be as responsible, or as prepared. Many teen court program Conclusion directors believe firmly in the superiority of the adult-run There is sufficient research evidence to believe that teen model, but is this simply a matter of convenience? courts have meaningful benefits for youth participants, their families and communities, yet many questions Social scientists have found that delinquent acts remain. One particularly vital question overlooked by are disproportionately committed by groups researchers is whether communities are better served of juveniles rather than by lone offenders. by teen courts that rely on youth rather than adults to manage the court process. During the Urban Institute’s study of teen courts, As New York moves further ahead with its teen courts, investigators were told many times by advocates of the hopefully this question will be resolved by rigorous eval- adult-run model that the presence of an adult on the uation research, which will additionally serve the larger bench is a critical ingredient of program effectiveness. interests of teen courts throughout the nation. ■ This comment was often accompanied by descriptions of how chaotic courtrooms can be when an adult judge 1. J.M. Schneider, Youth Courts: An Empirical Update and Analysis of Future Organization and Research Needs, Hamilton Fish Institute (George Washington must leave the room even for a few moments. Adult University 2008), available at http://hamfish.org/Publications/Serial/HFI_ supervision is necessary to restrain the natural tendencies Youth_Courts_Reports.pdf. of teenagers to “goof around.” The underlying message 2. J.A. Butts, J. Buck & M. Coggeshall, The Impact of Teen Court on Young in these comments is that young people cannot learn to Offender (The Urban Institute (2002), available at http://www.urban.org/ uploadedpdf/410457.pdf. be responsible. 3. Id. at 8–10. Research suggests this is not true. The Anchorage 4. See, e.g., M. Warr, Age, Peers and Delinquency, 31 Criminology 17–40 program was run entirely by youth. The adult program (1993). director recruited the volunteers for the court, managed 5. See R.L. Akers, Criminological Theories: Introduction, Evaluation and the office, scheduled the courtrooms, and monitored Application (Los Angeles: Roxbury 3rd ed. 2000). whether defendants completed their assignments and 6. E.H. Sutherland & D.R. Cressey, Principles of Criminology (J. B. Lippincott Co. 1974). Numerous studies have found that youth with antisocial friends Follow NYSBA and associates are more likely to on Twitter be delinquent themselves.

sanctions. These tasks, however, were all out of the public eye. The public aspects of the program – those witnessed by young defendants and their parents – were managed entirely and exclusively by young people. Teens managed the courtroom process, presided over all hearings, deliberated on appropriate sanctions for each defendant, and announced their findings in open court. The Urban Institute study showed that a youth-run teen court can run like clockwork. Courtroom procedures visit www.twitter.com/nysba and click the were orderly and timely. Participants behaved profes- link to follow us and stay up-to-date on the sionally. The entire process was conducted with great latest news from the Association seriousness. The respect that both defendants and parents

NYSBA Journal | January 2011 | 21 Youth Court Alumni Reflect Upon Their Experiences

Aaron T. Frazier (Rochester Teen Court) in the young defendants in whom Rochester Teen Court “Have you heard about teen court?” seeks to cultivate the values of education, accountability This question changed my life. Like most sophomores and service. This positive peer pressure approach to curb- in high school, I had only a rudimentary idea of what I ing teen crime is powerful. wanted to do with my life, informed mostly by the depic- In a world as complex as ours, where empirical stud- tion of the various professions I saw on television and ies suggest more and more that preteen and teen misbe- in the movies. I particularly enjoyed legal shows and havior is less a reflection on the competence of parents films. My parents noticed my interest and suggested I or on the ill will of youth and more a reflection on the spend my spring break watching some real cases at the courthouse in my hometown, Rochester. That seemed reasonable enough, so I spent my April vacation in 2004 watching misdemeanor and felony trials. A bailiff soon The genius of the positive peer inquired into my daily presence. I shared with him my interest in becoming an attorney, and he asked me the pressure approach of Rochester simple but life-changing question that began this essay. After learning of Rochester Teen Court from the bailiff, I Teen Court is that it beats the very immediately went to the program’s office and signed up for attorney training. Weeks later, I was representing real social energy that corrupts so clients before real judges in the alternative sentencing tri- many of our youth at its own game. als for juvenile offenders that comprise a Rochester Teen Court session. My service to Rochester Teen Court began that wonderful spring in 2004 and continues to this very day. In the six years I have been volunteering for the program, susceptibility of youth to social forces, positive peer pres- I have had the opportunity to play many different roles, sure truly is the answer to saving our youth and in turn including that of prosecutor, defender, and judge. In each our communities. The genius of the positive peer pres- of those roles I have been fortunate enough to see prog- sure approach of Rochester Teen Court is that it beats the ress in myself as a citizen and aspiring lawyer, and also very social energy that corrupts so many of our youth at

22 | January 2011 | NYSBA Journal its own game. For so many urban youth, conformity with My assumption was wrong and my client proved to the unfortunately all-too-visible negative forces in their be far from the budding burglar that appeared on paper. schools and neighborhoods is the best way to quench I learned that he had worked at this establishment dur-

For so many urban youth, conformity with the unfortunately all-too-visible negative forces in their schools and neighborhoods is the best way to quench the thirst for acceptance that is characteristic of human nature.

the thirst for acceptance that is characteristic of human ing the prior summer. He did not have a phone in his nature. So many of them don’t believe they can be suc- home and as an employee was allowed to place personal cessful and accepted “where they come from.” calls on the pizza shop’s phone. On the day of his arrest, Rochester Teen Court presents troubled youth with he wanted to call a relative. He found the pizza shop an alternative force that by comparison makes the was closed, but the front door was unlocked and he did social forces urging them toward crime quite unap- not think the owners would disapprove of his using pealing. Young defendants who come to Rochester the phone. As it turned out, the owners did object and Teen Court see that diligence and integrity are hon- pressed charges. ored by other youths, and all that is necessary to gain the acceptance and respect of one’s peers is an honest attempt at being a mature, responsible and productive member of society. It never ceases to amaze me how fair, forgiving, and encouraging the volunteer teens Over ten years later, this who serve as jurors are as they sentence the young defendants for their crimes. case still reminds me that Rochester Teen Court truly does change lives. It gives countless at-risk youths a second chance to live as a lawyer my job often is to their fullest potential and become assets to their community. It has given me the courage, insight, professional network and discipline necessary to become to find and present an the first of my nuclear family not only to attend law school – at Cornell no less – but also to graduate from unexpected side of the college – from Harvard no less. As an African-American male from humble beginnings, my journey through the story. Ivy League was an unlikely possibility, but the richness of my experiences with Rochester Teen Court and the encouragement of the program’s staff made my journey not simply probable, but actual. The youth court jury, after hearing his version of the Aaron is a first-year law student at Cornell University. events, returned a sentence of 17 hours, far fewer than the He graduated from Harvard College in 2010 with a degree in 100 hours requested by the prosecutor. Philosophy. Over ten years later, this case still reminds me that as a lawyer my job often is to find and present an unexpected Melissa Rifkin (Bethlehem Youth Court) side of the story. When I am tempted to draw a conclu- While my participation in youth court did not involve sion about a matter upon first glance, I tell myself that an strict adherence to or even knowledge of courtroom pro- undiscovered fact may alter its outcome. cedure, it instilled in me an important lesson of advocacy, Melissa is a 2003 graduate of Carleton College, and she namely to learn and impart a client’s story. received her law degree from American University in 2006. She As a high school senior, I was assigned to defend a currently works at the General Counsel’s Office of the Fund client who had pleaded guilty to breaking and entering a for the Public Interest where she practices employment and pizza shop. Upon reading his file, I did not see any viable tax-exempt law. defense argument. I assumed that at best he had acted hugely foolishly.

NYSBA Journal | January 2011 | 23 Sabrina Carter (Red Hook Youth Court) runs the program, it shows that hard work and dedica- I am from the Red Hook community and I know that Red tion really do pay off. Youth court members look up to Hook has come a long way from how bad it used to be staff, so I try to set good examples for them. I tell them in the ’80s and ’90s. Red Hook was notorious for drugs, it is because I always stayed focused, used the Red Hook violence and gangs. Once, when I was young, from my Community Justice Center as a networking tool, and bedroom window I saw a man shot and killed in front of worked my butt off. I definitely still want to study law, the store across the street from my house. But it wasn’t but I also would like to help the youth of this generation. until my elementary school principal, Patrick F. Daly, was It is very important that we make a positive impact on gunned down while walking a sick child home early from them, because not only are they our future, but they too school that the community was up in arms and ready for will be setting examples for the next generation. change. Sabrina is the Program Coordinator of the Red Hook Youth Court. She has also worked as a Program Associate for the Staten Island Youth Court and an AmeriCorps volunteer. Sabrina obtained a Bachelor’s Degree in Criminal Justice from Once, when I was young, from my John Jay College for Criminal Justice in May 2009. bedroom window I saw a man shot Javy Martinez (Colonie Youth Court) and killed. . . . But it wasn’t until my The highest sentence of community service ever assigned elementary school principal, Patrick F. Daly, to an offender through Colonie Youth Court is 302 hours. At age 13, I was that offender. Due to my actions on was gunned down while walking a sick Halloween 2001 during the height of the national anthrax child home early from school that the scare, I committed a Halloween prank with what I call “flower bombs” and was charged with two counts of community was up in arms and criminal tampering and criminal nuisance. ready for change. Over the next 18 months, I attended my community service on Tuesday nights listening to a variety of educational classes and five hours every Saturday morning engaging in a variety of constructive community projects. I strongly believe that the Red Hook Youth Court has I found community service both extremely educational had a strong impact on the community. This court gets and humbling. I learned there will always be conse- the youth from the neighborhood involved in something quences for one’s negative actions. I learned life lessons, positive, and gives them professional skills and a great especially from a victim impact panel, which was one of experience to put on a college application. In addition, it the most emotional and moving presentations I have ever gives youth who come through the youth court as respon- heard. dents a second chance. Yes, you made a mistake but that doesn’t make you a bad person. And if there is something the respondent needs that we can’t I have learned that early intervention is help with directly, we can make refer- crucial in deterring future criminal acts. rals and try to keep the kid engaged in other positive ways. I served on the Red Hook Youth Court for two-and-a- half years and I enjoyed every minute of it. During my pursuit of a master’s degree, I earned an After I graduated high school I joined the Red associate’s degree with high honors in criminal justice Hook Public Safety Corps program, and served as an and applied for the Colonie Youth Court program assis- AmeriCorps member for two years. Then I was hired by tant position, which I have held for the past two years. I the Center for Court Innovation to help start the Staten have learned that early intervention is crucial in deterring Island Youth Court. During that time, I am proud to say I future criminal acts. So I share my story with every youth attended John Jay College for Criminal Justice and gradu- who comes through this program, in hopes that I can save ated with a Bachelors degree in Criminal Justice. a life the same way that this program, and Violet Colydas, Now, here I am eight years later, and I am the Director of Colonie Youth Court, saved mine. Coordinator of the Red Hook Youth Court, ecstatic that I Javy is currently the Program Assistant at Colonie Youth can serve my community directly with the youth I know Court and a senior at SUNY Albany, majoring in Criminal so well. When someone who grew up in the Red Hook Justice. ■ Community and is a former youth court member actually

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Mention code: PUB0969 when ordering. KATHLEEN DECATALDO, ESQ., is the Executive Director of New Keeping Kids in School York State’s Permanent Judicial Commission on Justice for Children. and Out of Court TONI LANG, PH.D., is the Commission’s Deputy Director. A School-Justice Partnership Mayor Bloomberg with the inaugural class of Staten Island By Kathleen DeCataldo and Toni Lang Youth Court members.

oday, too many school-aged children are spend- system also is becoming involved to help promote these ing critical time in court, on school suspensions or outcomes and reduce the flow of students entering the Texpulsions, or in juvenile justice facilities. This hin- courts. The education and justice systems do not simply ders their educational, social and personal development, refer to schools and courts as they reflect the political, which is so essential to their becoming self-reliant and economic and social forces that help define the school productive adults. Our advancing technology increas- environment and disciplinary policies and practices. The ingly relies on human capital – the knowledge, informa- links between these systems have often had detrimental tion, ideas, skills and health of individuals. Now, more consequences for our children’s educational trajectories. than ever, education – quality education – is an essential The current discourse is bringing these forces together key to opportunities. to find and initiate alternative disciplinary policies and Not only are schools across the country being called practices that will keep kids in school and out of court. upon to re-think their education systems to help produce A symposium was convened last fall by former better outcomes for students – including higher test Chief Judge Judith Kaye, chair of the New York State scores and increased graduation rates – but the justice Permanent Judicial Commission on Justice for Children,

26 | January 2011 | NYSBA Journal in collaboration with the Commission, Skadden Arps and brought against youth for things such as fighting, writing Advocates for Children, regarding innovative practices on desks and other actions that in an earlier day would to ameliorate punitive school discipline policies. Judge have resulted in only a trip to the principal’s office. The Kaye envisioned a collaborative school-justice focus to criminalization of school behaviors – also known as the improve outcomes for children by finding creative solu- School-to-Prison Pipeline – has in some cases flooded the tions to decrease the number of our youth dropping out juvenile and criminal courts with cases that originated in of school and entering the revolving door of the criminal school incidents. justice system. Representatives from the Mayor’s Office, Not surprisingly, research shows that first arrests can city agencies, the New York City Family Court, the have unintended negative consequences for school-age Department of Education, the Police Department and youth: a first arrest during high school almost doubles advocates came together to hear presentations regarding the odds of the youth dropping out of school. For youth positive behavioral interventions and supports, school- who have a court appearance following the first arrest, police arrest protocols and youth courts in schools. the odds of dropping out are nearly quadrupled.4 This article continues that vital discussion, beginning with the now-established fact that the current punitive Suspensions and Expulsions model is not working, and addresses the next step: How Out-of-school suspensions and expulsions – the form can a partnership among school administration, law of punishment longest relied on by schools – are almost enforcement, the court system and the community help equally as harmful as arrest in their longer-term effect to increase graduation rates while decreasing school sus- on students. Suspension and expulsion are known to pensions, expulsions and arrests? increase the propensity for school disconnectedness, academic problems, delinquency, criminal activity and Zero Tolerance substance abuse – the opposite of the desired effect. School policies and disciplinary practices that discour- Out-of-school suspensions are linked to falling behind age students from remaining in the classroom often lead in school, failing a grade, dropping out of school, com- to schools directly and indirectly “pushing” students mitting a crime and becoming incarcerated as an adult.5 out of school. “Pushout” policies and practices include If students receive multiple suspensions the effects are zero tolerance and ineffective misbehavior prevention exacerbated. Students who are suspended three or more and intervention policies, as well as the lack of student- times by the 10th grade are five times more likely to drop school engagement. Growing out of the now discarded out than students who have never been suspended.6 The drug interdiction policies of the late 1980s, zero-tolerance long-term consequences of suspensions and expulsions policies – meaning mandatory consequences applied indicate higher rates of future antisocial behaviors and to school rules violations without regard to individual involvement in the justice system.7 circumstances – became widespread in schools with the passage of fed- Having long-term consequences, suspensions and eral laws such as the Gun-Free Schools Act expulsions are actually related to higher rates of of 1994 (GFSA), itself a response to several of future antisocial behaviors and involvement in the widely publicized, trag- ic school shootings.1 justice system. The GFSA required one-year school expulsion for any student caught bringing a gun to school. Gun Out-of-school suspension can also make the com- cases are now the smallest category of school discipline munity less safe, leaving youth unsupervised in the cases and students are being expelled, suspended and community. A recent statement by Fight Crime: Invest arrested for a variety of behaviors including minor stu- in Kids, a non-profit organization of 5,000 police chiefs, dent behaviors and rule infractions.2 sheriffs, prosecutors and other law enforcement lead- Instituting a ban on hats, immediate suspension for ers, acknowledged the need to maintain school safety any school disruption and increased use of law enforce- and remove truly dangerous students from the school ment, in 1989 Yonkers, New York, became one of the first environment but noted “suspension and expulsion often school districts in the country to adopt a zero-tolerance provide troubled kids exactly what they do not need: approach to students who caused school disruption.3 an extended, unsupervised hiatus from school that With greater use of school resource and safety officers, increases their risk of engaging in substance abuse and criminal charges are more easily and more frequently violent crime.”8

NYSBA Journal | January 2011 | 27 Studies have shown that suspension is often used for adults. Together, we need to examine our school disci- less serious offenses. Although school-time fights and pline policies and practices and develop strategies that aggressive acts by students are the leading causes for lead to a school climate that fosters youth development suspension, the next ranking causes include abusive lan- and learning, increases student engagement and provides guage, attendance issues such as cutting class, tardiness positive child-centered strategies for remediation of indi- and truancy, followed by disobedience and disrespect vidual student misbehavior. and general classroom disruption.9 Suspension has been Our course of action can benefit from the national, used as a vehicle to push out students who are frequently state and community organizations that are now chal- disruptive or are bringing down test scores. Research has lenging the systemic problem of pushout. For example, confirmed that academic skill can be a strong predictor of the Dignity in Schools Campaign – a national and com- school exclusion.10 munity-based campaign – brings together educators, students, parents, advocates and others to reframe the school discipline discourse around a framework of human rights that respects every child’s right to an education and School-justice partnerships springing advocates for child-centered reform to keep children in school instead of school discipline that favors and relies up across the country are demonstrating on the punishment and pushout of children. benefits that are not only child-related There are also school-based frameworks and practices that can help inform this discussion. For example, but also school- and community-related. the school-wide Positive Behavioral Intervention and Supports (PBIS) is a decision-making framework which brings in the entire school culture. It is premised on using data collection to guide decisions and identify issues, con- Perhaps more disturbing, studies have consistently tinuous monitoring of student progress and achievement demonstrated that children of color, in particular Black to evaluate outcomes, development of evidence-based children, are referred for discipline more frequently and academic and behavioral interventions and supports, and for less serious offenses, tend to be suspended for longer changing the school teaching and learning environment periods of time, and are more often subject to suspen- to address current, and to prevent future occurrence of, sion and expulsion compared to their White peers.11 problem behavior. PBIS is grounded in a system that teaches Regardless of whether poverty and other demographic and encourages pro-social skills and behaviors for both factors are considered in the analysis, racial and ethnic students and staff. When intervention for behavior issues disproportionality in disciplinary practices has consis- is warranted, there is a three-tiered approach in which all tently been observed.12 children receive supports at the primary tier. When stu- School administrators, parents and communities struggle dents do not respond, more intensive behavioral supports with the need to balance the safety of students and staff with are provided at the intermediate tier, with the third tier of the appropriate effective interventions to create a safe and individualized intensive plans reserved for those students productive learning environment. If the goal is to reduce whose behavior warrants that approach. Throughout this bullying, violence and disruptive behavior in schools, it school-wide system, the emphasis is to maximize academic would appear that the strategies used most often today are engagement and achievement for all students.14 at best ineffective and at worst exacerbate a student’s disen- School-justice partnerships springing up across the gagement with the school community, eventually leading country are demonstrating benefits that are not only to the student’s dropping out. Clearly there must be a shift child-related but also school- and community-related. from over-reliance on out-of-school suspension, which has For example, in Clayton County (Atlanta), Georgia, the so many unwanted consequences. Researchers have con- school-justice community developed a model protocol cluded that what is needed is a “strong but caring discipline to address student school-based offenses. The protocol that works to inculcate good behavior, while resorting to provides that arrest is reserved for only the most serious out-of-school suspension only rarely.”13 offenses and an array of options for discipline for lower level offenses is provided. Following these changes, A School-Justice Approach Clayton County graduation rates rose 21% while juvenile So how can a partnership among school administration, felony rates decreased 51%. By reducing school referrals law enforcement, the court system and the community to the juvenile justice system, there was a 38% decrease help to increase graduation rates while decreasing school in the number of youth of color referred to the juvenile suspensions, expulsions and arrests? As a community, justice system.15 we are charged with seeking the best outcomes for our There is an alternative. The education and justice children to enable them to become successful, productive systems can work together outside of the courthouse to

28 | January 2011 | NYSBA Journal Recent New York City School Suspension Findings* partnership – that allows the full development of each student, protects students from discrimination, uses disci- Between the 2002/03 and 2007/08 school years, pline opportunities to teach students about their rights and the number of suspensions in New York City schools the rights of others and provides a quality education that more than doubled – jumping from 31,880 to 72,518, prepares them to thrive in today’s challenging world. ■ respectively. More than one in five (22%) of the students sus- 1. The Gun-Free Schools Act of 1994, Pub. L. No. 103-382, 108 Stat. 3907, reauthorized by § 4141 of the Elementary and Secondary Education Act of 1965 pended during the 2007/08 school year in New York (ESEA), Pub. L. No. 89-10, 79 Stat. 27, as amended by the No Child Left Behind City had a superintendent’s suspension, which can (NCLB) Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425. last for up to one year. Principal’s suspensions can last 2. American Bar Association Juvenile Justice Committee, Zero Tolerance Policy (2001), available at http://www.abanet.org/crimjust/juvjus/zerotolre- from one to five days. port.html; U.S. Human Rights Network Working Group on Juvenile Justice, Suspensions disproportionately affect Black stu- Response to the Periodic Report of the United States to the United Nations Committee on the Elimination of Racial Discrimination (2008), available at http://www.ushr- dents. During the 2006/07 school year in New York network.org/files/ushrn/images/linkfiles/CERD/8_Juvenile%20Justice.pdf. City, Black students accounted for 53% of the suspen- 3. R. Skiba & R. Petersen, The Dark Side of Zero Tolerance: Can Punishment Lead sions, but made up only 32% of the student popula- to Safe Schools?, 80 Phi Delta Kappan 9, 372–82 (1999). tion. 4. Gary Sweeten, Who Will Graduate: Disruption of High School Education by Arrest and Court Involvement, 23 Justice Quarterly 4, 462–80 (2006). Suspensions disproportionately affect students 5. The Advancement Project, Opportunities Suspended: The Devastating receiving special education services. During the Consequences of Zero Tolerance and School Discipline (Jun. 2000), available 2006/07 school year in New York City, students receiv- at http://www.advancementproject.org/sites/default/files/publications/ opsusp.pdf; The Advancement Project Test, Punish, and Pushout: How “Zero ing special education services accounted for 28% of Tolerance” and High-Stakes Testing Funnel Youth Into the School-to-Prison Pipeline the suspensions, but only made up 9% of the student (2010), available at http://www.advancementproject.org/sites/default/files/ population. publications/rev_fin.pdf. 6. M.E. Goertz, J.M. Pollack & D.A. Rock, 1986. Who Drops Out of High School * Source: NYC Department of Education response to Advocates for and Why?: Findings From a National Study, 87 Teachers C. Rec. 3, 357–73 (1986). Children and DLA Piper December 2007 & January 2008 Freedom of 7. C.A. Christle, K. Jolivette & C.M. Nelson, Breaking the School to Prison Information Law (FOIL) Requests; NYC Department of Education. Pipeline: Identifying School Risk and Protective Factors for Youth Delinquency, 13 School Demographics and Accountability Snapshot SY2006–SY2009, Exceptionality 2, 69–88 (2005); V. Costenbader & S. Markson, School Suspension: http://print.nycenet.edu/accountability/default.htm. A Study With Secondary School Students, 36 J. School Psych. 1, 59–82 (1998); Sheryl Hemphill, John Toumbourou, Todd Herrenkohl, Barbara McMorris & Richard Catalano, The Effect of School Suspensions and Arrests on Subsequent Adolescent Antisocial Behavior in Australia and the United States, 39 J. Adolescent hold youth accountable for their actions while promoting Health 5, 736–44 (2006). civic responsibility. Youth and student courts, like other 8. Fight Crime: Invest in Kids, Comments Pursuant to Notice of Proposed efforts mentioned earlier, are based on restorative justice Information Collection Request (Nov. 10, 2009). practices and can be ideal in the learning environment 9. D.J. Losen & R.J. Skiba, Suspended Education: Urban Middle Schools in of schools. Student courts offer the opportunity to dem- Crisis, Southern Poverty Law Center (Sept. 2010), available at http://www. splcenter.org/get-informed/publications/suspended-education. onstrate to offenders the harm their behavior has caused 10. G.M. Morrison & B. D’Incau, The Web of Zero Tolerance: Characteristics of while also giving young offenders the chance to explain Students Who Are Recommended for Expulsions From School, 20 Educ. & Treatment their particular and, perhaps, extenuating circumstances of Children 3, 295–315 (1997); Skiba & Petersen, supra note 3. that led to the infraction. Penalties and sanctions are 11. Russell J. Skiba, Robert S. Michael & Abra Carroll Nardo, The Color of designed so the offender can repair the harm caused by Discipline: Sources of Racial and Gender Disproportionality in School Punishment, 34 Urban Rev. 4, 317–42 (2002), available at http://www.advancementproject. the offense or otherwise contribute to the school com- org/sites/default/files/publications/rev_fin.pdf; The Advancement Project, munity through service opportunities. Sanctions often Education on Lockdown: The Schoolhouse to Jailhouse Track (Mar. 2005), available at include a requirement to return and participate as a jury http://www.advancementproject.org/sites/default/files/publications/fina- leolrep/pdf. member in future youth court proceedings. Through civ- 12. American Psychological Association Zero Tolerance Task Force, Are ics education – the training provided to student court Zero Tolerance Policies Effective in the Schools? An Evidentiary Review and volunteers and active participation in the process of the Recommendations, 63 Am. Psychol. 9, 852–62 (2008); Skiba, Michael & Nardo, trial and sentencing – students, including offenders, have supra note 11; J.M. Wallace, Jr., S. Goodkind, C.M. Wallace & J.G. Bachman, Racial, Ethnic, and Gender Differences in School Discipline Among U.S. High School the opportunity to learn about the law or rules that were Students: 1991–2005, 59 Negro Educ. Rev. 1, 47–62 (2008). broken and how our court procedures protect an indi- 13. Losen & Skiba, supra note 9. vidual’s right to due process. 14. Positive Behavioral Intervention & Supports (PBIS), What is PBIS? It’s time to overhaul a counterproductive approach to http//:www.pbis.org/school/what_is_swpbs.aspx. discipline in the schools that is related to higher rates of 15. The Annie E. Casey Foundation, As Suspensions, Expulsions and poor academic performance, school dropout, future mis- Juvenile Arrests Grow, JDAI Sites Push Back, available at http://www.aecf. org/MajorInitiatives/JuvenileDetentionAlternativesInitiative/Resources/ behavior, and juvenile and criminal justice involvement, May10newsletter/FeatureStory.aspx. 16 and less satisfactory ratings of school climate and seize 16. The Advancement Project, Opportunities Suspended, supra note 5. this emerging strategy – a collaborative school and justice

NYSBA Journal | January 2011 | 29 Southampton Town Youth Court Swearing-In Ceremony 2010. Youth Court Member Personal Essays

EJ Feld, Huntington Youth Court I can still clearly remember my first Huntington Youth spend as many Wednesday nights as I could spare being Court meeting, just over three years ago. I had only present at trials, at the expense of nearly all my other shown up because, a few weeks prior, my mom showed activities. And I certainly never expected that I would me a brochure about the program and urged me to join become a member of the Youth Advisory Board, serving so I would have more extracurricular activities when I as a role model for new inductees, a leader in discussing eventually applied for college. I had absolutely no inter- and implementing objectives to better the program as est in becoming a lawyer, and I didn’t know a single other a whole, and a reliable trial attorney to fill in at the last person from my school that would be attending the first moment. training session aside from myself. To be honest, I didn’t My involvement with the Huntington Youth Court has become my fondest memory of high school. I have The youth court has helped made incredible friendships and developed long-lasting relationships with peers and supervisors that I will cher- me grow immeasurably – as ish for years to come. The youth court has helped me grow immeasurably – as a courtroom attorney, a leader, a courtroom attorney, a leader, a a person, and a friend. It has instilled in me a sense of hard work, dedication, and community devotion that person, and a friend. will undoubtedly be with me for the rest of my life. From walking through the entire town of Huntington on a even know what a “youth court” was – let alone what my Saturday afternoon collecting donations for the program, responsibilities would be as a member. As I awkwardly to borrowing my dad’s four-wheel-drive SUV so that I sat my 10th-grade self down in a row all by myself and could make it to a trial on a snowy mid-January evening, waited disinterestedly for someone to start talking at the to rushing home after track practice for a three-minute front of the room, I had no idea what to expect. shower and a three-minute dinner before the night’s first I never could have imagined that in three years, I trial, I have developed an intense love for Huntington would learn the skills necessary to conceptualize court- Youth Court. room arguments, cross-examine witnesses, construct and Call me a cliché, but I can say with complete honesty deliver opening and closing statements, become an effec- and pride that if it weren’t for the youth court, my friends tive public speaker, and think quickly and improvise on and my community, my life would not have been the my feet. I never would have anticipated that I would same.

30 | January 2011 | NYSBA Journal Mikaela Suders, Warren County Youth Court I never could have imagined Every so often in life, everyone sits back and reflects on where they’d be if something hadn’t happened, and that in three years, I would they can’t even fathom the thought of it. For myself (and many others, I’m sure), youth court is one of these things. learn the skills necessary I cannot even imagine what my life would be like at this point (almost three years later) if I had never signed up to conceptualize courtroom for Youth Court. What’s maybe most amazing is that I joined Youth Court on a whim – my interest in criminal arguments, cross-examine law told me, “Hey, why not? Sounds interesting enough.” I decided to try it out, had a friend sign up with me, and witnesses, construct and we’ve been deeply involved with youth court ever since. deliver opening and closing I could never have expected such a small decision would have impacted my life so much. statements, become an effective I joined youth court at a vital point in life: junior high school. During this time period, adolescent brains are public speaker, and think quickly still developing; they are easily impressionable and often have difficulty saying ‘no’ to peer pressure and differen- and improvise on my feet. tiating right from wrong. These are a few reasons why positive influence is crucial to youth. Fortunately, I did not fall to peer pressure or get into statements. I am still working on trying to muster up the trouble; youth court has helped me to form my own views confidence to ask the questions during a trial, and I am and opinions, it has helped me become more social, it has sure that once the senior members move on and pass the made me more comfortable and confident vocalizing my torch, after learning from them and being mentored by thoughts, and it has given me a way to give back to the them, I’ll be ready to do just that. Working together in this way, as well as on the jury, we all learn teamwork, as well as respect for others’ opinions. I believe we make a difference when we give offenders This program showed me their sentence, and once they complete it, they often opt to stay with youth court and volunteer alongside those who there are different ways sentenced them. I have even become friends with one such case. One girl has gone from an offender to one of our to handle problems, and most dedicated members, participating in everything and it can change a child’s life volunteering at most of our community service activities – which is quite an undertaking, considering that we have with just one sanction. multiple service activities each week. I have volunteered at a few of these service days and they were hard work; mostly beautifying our community by raking all the leaves from community. Youth court has given me so many real-life experiences and numerous opportunities – to present my Youth court has helped me to form abilities and who I am – that have really helped to shaped my own views and opinions, it my character. There are many components that join together to has helped me become more social, make a good courtroom, and ours is no different. Our courtroom is set up the same as any other: we are the it has made me more comfortable attorneys, the jury, the judge, the bailiff, you name it, we do it. I’ve worked my way up from juror to jury fore- and conﬁ dent vocalizing my person, learning to express myself and my opinions to others and becoming a leader amongst my fellow jurors, thoughts, and it has given me a way to prosecution, all the way learning respect for the law, for the courtroom, for my peers, and for myself. The years to give back to the community. I have participated have increased my confidence and my public speaking skills. I have also improved my writing a few trails, planting flowers, getting rid of graffiti, and one and critical thinking skills while working as second chair of my favorites, painting a mural at a playground in one for the prosecution and developing opening and closing of our local rural communities. The effort and dedication

NYSBA Journal | January 2011 | 31 of all the youth, offenders and volunteers goes a long way Sasha Harrington, Red Hook Youth Court towards making our community a nicer place to live. I was a former respondent for a case of assault. The jury Youth court is the combined force of all the youth believed I deserved the sanction of five hours’ commu- working together in different ways. I believe youth court nity service and conflict resolution. I thought about it and is vastly important to our respective communities and what if it wasn’t five hours’ community service – it could provides a fantastic opportunity for youth to find them- have been five months or five years in jail, gone from selves. Quite simply, youth court changes lives. everybody I love and care about. This program showed me there are different ways to handle problems, and it can We give offenders their sentence, and once they complete it, change a child’s life they often opt to stay with youth court and volunteer with just one sanction. I know it did for alongside those who sentenced them. One girl has gone from me. I went through training and became an offender to one of our most dedicated members. more involved in the program. Working in Youth Court gives me Carter Jones, Town of Babylon Youth Court a feeling of accomplishment, the feeling of knowledge, Surrounded by lots of negative activity such as fighting, and the feeling of a good deed being done, and I would gangs and other kids with poor self images, I was in need never trade those feelings in for anything in the world. of positive ways to get the attention and acceptance that As a new Youth Court member, I have become a better I craved. . . . Youth court gave me the chance to meet new person in my community. ■ people and take part in the effort to change the way young people, like myself, view the criminal justice system.

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Mention code: PUB0970 when ordering. JUDY WOLFE has worked extensively with youth courts for nearly 14 years and is currently the Program Supervisor for the Syracuse City School District Student Court Program. She is also the President of the New York State Youth Court Association and a trustee with the National Association of Youth Courts.

ROBERT V. WOLF is the Communications Director at the Center for Court Innovation.

An Interview With Judy Wolfe: School Courts Use Positive Peer Pressure to

Syracuse University College of Law fellow, Ali Benchakroun, advises Chris Change Behavior Mothersell and Howard Manning-Logan, members of the prosecution team from Fowler High School Student Court, as they prepare for a case. By Robert V. Wolf

obert Wolf: I wanted to talk to you about the stu- and the courts and law. They get to think on their feet, dent courts that you are operating in the Syracuse and it allows them a say in what’s acceptable behavior RCity School District. Is there a difference between in the school. a “student court” and a “youth court”? Robert Wolf: You run the student court as a class Judy Wolfe: What makes our student court differ- where students come during a certain time of day, just ent from a youth court is that in the schools we hear like any class? only disciplinary cases involving school misbehavior, Judy Wolfe: Yes. In the high schools it’s a business violations of the school code of conduct. We handle law class or a government class, but the focus is the stu- the lower-level offenses. We don’t handle weapons dent court. In our middle schools we are more of a club charges. We don’t handle anything sexually related. We design, which meets during the school day. We work don’t handle drug dealing and stuff like that. And we very closely with third-year law students on fellowship stay away from gang-related offenses or the more seri- from Syracuse University. They help teach life skills, and ous charges where a student can actually be removed give students an introduction to college and law school. from a school. We do field trips to the law school, the courts and to the In both school- and community-based courts, how- Onondaga County Justice Center, which is our county ever, we’re trying to hold young people accountable early jail. And we have guest speakers from different criminal on, trying to correct the behavior, give them the services justice agencies to speak with the students. Working with that they need, and hopefully get them on track to be the law fellows has been such a rewarding experience for successful. the younger students. And a number of law fellows have Robert Wolf: One hopes that it’s enriching and a posi- remarked that out of the three years they’ve had in law tive experience for the respondents, but it must also be an school, the most memorable and rewarding time has been enriching experience for the youths who are participating working with the students in our district. in the court and playing the various roles. What kind of Robert Wolf: How old are the students in the class? training do they get? Judy Wolfe: We are working with three of our high Judy Wolfe: In the Syracuse schools, we’re totally schools this year, and classes consist of 11th and 12th youth-run. We train all year long in public-speaking skills graders. We are also in the process of expanding to four

34 | January 2011 | NYSBA Journal middle schools – two are already training students. Our judges submit some questions that they’d like Student members are 7th and 8th graders. to ask based on what they see on the discipline referral, Robert Wolf: How many kids are in the class? and our prosecution advocates think in terms of how the Judy Wolfe: It varies. Two classes have over 20 stu- student has harmed other students in the classroom, not dents, whereas another has 13. The middle school groups only themselves. have around 15 students. It takes eight students to oper- We are in schools where the students are having a lot ate a court session. of difficulty getting to the point of graduation. If we can Robert Wolf: And when you have a hearing, the help them understand how they’re hurting themselves, if respondent comes into the classroom and these eight are we can get them to feel good about coming to school, and then performing the function of the hearing while the rest if we can get them the services they need, our hopes are of the class is observing? that the graduation rates will start going up.

Working with the law fellows has been such a rewarding experience for the younger students.

Judy Wolfe: They’re observing and then we talk about Robert Wolf: How quickly does a trial take place? it at the end and give constructive criticism. I have had Judy Wolfe: There’s a quick turnaround. We can often instances where we’ve held two courts at the same time hold a trial on the same day the administrator makes the in different classrooms. It just depends on if I have extra referral. The hearing takes place during an 80-minute adult help. class. Later on I’ll meet with the student, pull the stu- Robert Wolf: So you always have an adult in the room dent out of class, and sit down and see how things are too, observing? going. That’s how we check if they’re running into any Judy Wolfe: There is usually myself, the teacher or problems. advisor, and at least one law student with us, so we can all help to keep things running smoothly. Robert Wolf: Give me an example of a kind of charge that would be brought to the court’s attention – and walk A number of law fellows me through the various steps to show how it’s handled. Judy Wolfe: A typical charge might be inappropri- have remarked that out of the ate behavior in a classroom. The teacher would make a three years they’ve had in law discipline referral to an administrator. The administrator – typically a dean of students – would determine whether school, the most memorable it’s a good case for the student court. If they decide the case is appropriate, the dean sits down with the student and rewarding time has been and offers them the student court program, instead of the traditional route. So instead of spending a day at in- working with the students in school suspension or being sent home, they would have an opportunity to be heard in front of a court of their our district. peers. Robert Wolf: When the student is sent to the peer court, what happens next? Robert Wolf: And the hearing is not to determine Judy Wolfe: The administrator calls the student’s guilt. parent or guardian to get their consent. Then we call the Judy Wolfe: Right. The respondent has to admit guilt student out of class and explain what’s going to happen. upfront to participate. Our defense advocates talk to that student in private and Robert Wolf: So then the focus of the hearing becomes get their view of what happened and find out a little bit this dialogue discussing the impact of the infraction, or about them, what they’re involved with, where they are the impact of the negative behavior, and then the mitigat- struggling in school, how their grades are, is this some- ing circumstances, from the perspective of the respon- thing that’s been going on for a long time, what do they dent? think they need to do to get back on track, and just do Judy Wolfe: Exactly. Oftentimes we’ve found that the kind of a general interview. students appearing in student court are much more open

NYSBA Journal | January 2011 | 35 to people closer to their age than they would be to an Judy Wolfe: Typically the conventional route is being adult. So our student court uses positive peer pressure. sent home, being suspended, or being sent to the in- The students on the court talk about how they overcame school suspension room for a day where they’re not their own problems, or how they dealt with a particular getting general classroom instruction. Student court is a teacher that a respondent might be having difficulty quicker way to deal with the charge. And although par- with. ticipants may not realize this going in, it’s also a way to Robert Wolf: Have any of the student court participants – those playing the roles of judge, prosecutor, defense advocate – themselves gone through the student We are in schools where the court as respondents? Judy Wolfe: Every year I’ve had maybe a handful of students are having a lot of students who have actually gone through the system, which is great. We want them to become part of the solu- difficulty getting to the tion rather than the problem. Robert Wolf: Often when people talk about peer pres- point of graduation. sure it’s spoken of as a negative, and when we raise our kids, we tell them not to judge others. I think it’s interesting that in student court, there’s an inversion: you’re get extra help. If we can get to them to really let us know putting peer pressure to good use. what they’re going through and how they’re feeling, we’ll Judy Wolfe: I’m amazed at how accepting the stu- get them involved in something that’s going to help them dents are of students who have differences. During the go back into that class and do well. Robert Wolf: That doesn’t entirely explain to me what the incentive is If we can help them understand how they’re for the student because it sounds easier just to get hurting themselves, if we can get them to feel a day off from school. If you were an unmotivated good about coming to school, and if we student would you really be eager to go before your can get them the services they need, our hopes peers and get all of this great help? are that the graduation rates will start Judy Wolfe: Not all of them want to be kicked going up. out of school. Sometimes kids feel very safe in their school, especially if they’re coming from neighbor- training I tell them that this is not a put-down session, hoods that are really having a lot of challenges with violence. that the respondent will take you much more seriously if Schools are a safe haven. If a student successfully completes you act very professional. If respondents walk into a sol- the sanctions set forth by student court there is no record of emn situation where the students are taking it seriously, that incident on their permanent disciplinary record. they’re going to really listen. Robert Wolf: In addition to keeping kids in school Robert Wolf: Do students ever express discomfort and helping link them to services, do student courts have playing these roles that require them to judge or disci- other benefits? pline their peers? Judy Wolfe: Yes. For the teachers and the school Judy Wolfe: Probably one of the most common ques- administrators, it’s a much more meaningful way to tions that people have is about retaliation. Are kids afraid address negative behavior. It allows the schools to focus that kids are going to retaliate against them? The answer on the more serious offenders while the smaller offenses is no. We train them to stay professional, and the student come through us. And if we intervene early, hopefully coming in understands that the students are playing a there will be a reduction in behavioral problems down role in a discipline process. the road. As far as the respondent is concerned, they get Robert Wolf: Why would a student, a respondent, a more meaningful consequence. The sanction is tailored participate in this rather than just take the conventional to them instead of just a cookie cutter thing that applies route? to everybody.

36 | January 2011 | NYSBA Journal Robert Wolf: What are some typical sanctions? for the school district to grasp. Sometimes there’s a resis- Judy Wolfe: It depends on the charge. A lot of times it’s tance to change but lately it’s become a more acceptable very positive things like tutoring, hooking them up with way of handling some of the low-level cases. I think part mentors. It might be an apology letter to the teacher or the of the problem is that administrators are so busy with all person that was offended. We’ve had students write essays kinds of other stuff, especially being in an urban district, based on their charges. We’ve had kids do book reports and just one more program is hard for them to grab onto. about someone that they really admire and write a book This year, with an increased number of schools participat- report about them. We’ve also sentenced kids to join youth ing, I expect our caseload to double. programs. We had one student who had a lot of learning Robert Wolf: You mentioned that the number of youth disabilities write a rap song about the incident. Occasionally courts has actually dropped a bit recently mainly due to respondents are sentenced to community service. funding problems. What does the future look like from Robert Wolf: And if someone isn’t compliant, is there your perspective as the President of the New York State another level of discipline that then occurs or some other Youth Court Association? consequence? Judy Wolfe: From the phone calls I get from around the Judy Wolfe: Yes. It goes back to the administration country, it is something people are extremely interested and the traditional way of dealing with things. in putting in their own areas. And I think with strong Robert Wolf: In your student courts in Syracuse, how financial support, New York State programs that are closed many cases do you handle generally a year? might be able to open again. But the interest is out there. Judy Wolfe: In a typical school between 50 and 60, It’s become a worldwide diversion program. ■ which is low in my opinion. It has not been an easy thing

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NYSBA Journal | January 2011 | 37 NANCY FISHMAN is the Project Director for Youth Justice Programs at the Center for Court Innovation. The Center for Court Innovation, an award-winning public private partnership between the New York State Unified Court System and the Fund for the City of New York, currently operates four youth courts in New York City as part of an overall effort to support innovative approaches to reducing delinquency and encouraging positive youth development.

Jury members of the Red Hook Youth Court weigh in on sanction options during deliberations. Youth Court as an Option For Criminal Court Diversion By Nancy Fishman

outh courts in New York State, like the over 1,000 that the youth court option remains relatively unknown youth courts around the country, accept referrals among criminal court judges and practitioners. Yfor diversion from a range of sources. Police offi- The experience of jurisdictions that have made use of cers send young people, usually first-time offenders, to youth courts for criminal court cases demonstrates that youth courts instead of arresting them and sending them these courts represent an untapped resource for respond- on to probation. Probation officers use youth courts as a ing effectively to low-level offenses by older teens. Youth reason to adjust a case, to give a teenager an opportunity courts, whose volunteer members generally range in age to answer for a bad judgment call before a petition can from 13 to 18, require young people cited for a variety of be filed in family court and a more damaging record misbehaviors to answer to a court of their peers. In New established. Schools use youth courts as an alternative for York, these courts are dispositional only: they do not school disciplinary matters, holding students accountable determine guilt or innocence and young people opting for problematic behavior without suspension or other to participate must first accept responsibility for their exclusionary disciplinary actions. actions. Youth court members, serving as judge, jury and Virtually unique to New York, however, are referrals advocates, use a hearing to understand what happened to youth court from criminal court. In a survey of New and determine an appropriate sanction, based generally York State youth courts conducted by the Center for on the nature of the offense, the respondent’s understand- Court Innovation in 2009, only eight of the 58 courts that ing of its effect on others, and the respondent’s needs, responded indicated that they accepted cases of 16- to talents and aspirations. Sanctions can include community 18-year-olds referred by criminal court judges. (New York service, jury duty for the youth court, workshops, and is one of only two states left in the country where youth letters of apology. Respondents are held accountable but between 16 and 18 are automatically under the jurisdic- are afforded the chance – by peers whom they respect – tion of the adult criminal court. North Carolina is the to move beyond the kind of bad decisions that are not other.) The fact that these referrals are unusual suggests uncommon in teenagers. After completing their sanc-

38 | January 2011 | NYSBA Journal tions, respondents are often recruited to become youth were not at all averse to youth court, having already seen court members themselves. youth under 16 having shoplifting cases adjusted and Criminal courts, particularly in high-volume juris- being required to perform community service. With the dictions, have limited ability to respond effectively to addition of leadership and support from Staten Island’s low-level offenses by first-time offenders. Youth courts in criminal court judges, the program was under way. these cases may actually expect more of respondents, but The Staten Island Youth Court now accepts both those who comply do not end up with a criminal record, criminal court referrals and probation adjustment and which can limit their future educational and employment violations cases. The number of criminal court cases has opportunities, among other things. And youth court gradually increased as all of the justice system partners sanctions are restorative, focused on engaging youth in have become more confident in the program. These refer- their communities. The court system benefits as well, rals now make up almost half the docket. The types of in that these less-serious cases are handled outside the cases are generally the same regardless of their referral regular docket. source, primarily petit larceny, graffiti and possession There is no section in New York law that specifically of marijuana. Cases appropriate for the youth court are provides for diversion to youth court, but judges have identified in advance by the District Attorney’s office, made use of their discretion to adjourn cases in con- and then the option is discussed by the prosecutor with templation of dismissal (an ACD), either before or after the youth and his or her defense counsel, using materi- youth court participation. While defendants must accept als provided by the youth court. If the defendant wants responsibility for the actions underlying the charges as to participate in the court, and the judge is willing, the part of participating in youth court, the referring criminal court grants an ACD, with participation in the youth courts have agreed that statements made in youth court court included as an explicit condition. The defendant is cannot be used should the case end up before the crimi- not required to make a formal admission of responsibil- nal court. If a young person does not complete the youth court sanction or is arrested during the six-month ACD period, the case will be sent back to the referring court for regular processing. According to the youth court staff and The experience of jurisdictions that participating judges, this is a rare occurrence. Below I describe how criminal courts have worked have made use of youth courts for with youth courts in several jurisdictions, including how the youth courts in each case began to accept criminal criminal court cases demonstrates court referrals, how the process works, and what is known about outcomes. One of the great strengths of that these courts represent an the youth court model is its flexibility: programs can be shaped to fit the context of a particular jurisdiction. These untapped resource to respond three programs demonstrate how this variation works in practice. effectively to low-level offenses by older teens. Staten Island Youth Court The Staten Island Youth Court was opened in 2009 by the Center for Court Innovation, as part of the Staten Island Justice Center, which also includes an alternative to deten- ity in the criminal court but must do so in the context of tion, a program known as Project READY (Richmond participating in the youth court hearing. Engagement Activities for Determined Youth). The youth Staten Island uses a youth judge model, with youth court component was suggested by former New York court members rotating through the roles of judge, bai- State Chief Judge Judith Kaye, who was struck by the fact liff, juror, youth advocate and community advocate. The that New York did not have a youth court that addressed youth advocate meets with the respondent on the day of older youths at risk of a criminal record. The Staten Island the hearing and is responsible for presenting the case to District Attorney’s office joined as a program partner, but the jury. The community advocate serves as the prosecu- had no history of offering ACDs as an opportunity for tor, but focuses his or her statements on the impact that diversion for young defendants. They were concerned the offense has had or could have on the community, that business leaders wouldn’t be amenable to youth rather than on the particular failings of the respondent. court as an appropriate response to shoplifting, one of the The jury members are responsible for questioning the most common charges bringing youth into the criminal youth. The court does not question other witnesses. After court. The Center met with business owners and secu- closing statements, the jury deliberates and reaches a rity personnel at the local mall and discovered that they consensus on an appropriate sanction. Sanctions include

NYSBA Journal | January 2011 | 39 community service, essays, letters of apology, and work- and violations. Primarily, these are cases involving petit shops. Youth court staff will also connect the young per- larceny, criminal trespass, low-level drug possession, and son and/or the family to community services as needed. criminal mischief. A teen court staff member conducts a Respondents who complete their sanctions and stay out preliminary intake interview immediately after arraign- of trouble for the time remaining on their six-month ACD ment to assess the appropriateness of the case for teen will have their charges dismissed. court disposition and provide information to the youth The court is on track to complete 160 cases in 2010. and his or her parent or guardian. Staff members make a According to Melissa Gelber, Director of the Staten Island recommendation to the judge, at which point the defen- Youth Justice Center, 90% of youth court respondents dant and his or her parent or guardian, defense counsel complete their sanctions successfully, and the rate for and the prosecutor sign an agreement, in which the criminal court referrals is even higher. Among former defendant accepts responsibility for the actions that led to respondents, the older teens are most likely to apply to the referral. The defendant receives an ACD, with charges become members of the youth court after they have com- dismissed upon successful completion of the teen court pleted their sanctions. process within six months. In Rochester, an adult judge presides over the hearings, and teen court The Rochester Teen Court is the only youth court in members assume all other courtroom roles, New York to focus solely on young people aged including prosecutor and defense attorney, bailiff, 16 to 18 referred by the criminal court. Established deputy and juror. The in 1997, the idea was the brainchild of Rochester’s adult judge model, which predominates in youth then-Mayor, William Johnson, following a Youth Summit courts nationally but is less common in New York addressing issues facing young people in the city. State, was chosen because the planning committee believed that defendants would take the proceed- Rochester Teen Court ings more seriously, according to Judge Frank Geraci, The Rochester Teen Court is the only youth court in New who was part of the committee and now serves as one York to focus solely on young people, aged 16 to 18, of the youth court judges. Since the Center for Youth referred by the criminal court. Established in 1997, the idea took over the teen court and increased its capacity, the was the brainchild of Rochester’s then-mayor, William caseload has doubled and now some cases, typically the Johnson, following a Youth Summit addressing issues less complicated ones, are instead referred to a trained facing young people in the city. With leadership from the attorney facilitator, who works with all of the parties – top, the initial planning team included judges, probation defendant, parent or guardian, teen advocates – to reach officers, law enforcement, the Jury Commissioner, court a suitable disposition. personnel and representatives from the school district Teen attorneys receive case assignments at least one and other city agencies, and the program has continued week before scheduled hearings, which occur twice per to have considerable support from the criminal justice month. They are expected to contact their clients and system and the City of Rochester. Initially structured as prepare their cases in advance, and are responsible for an initiative within the City of Rochester, the program making opening and closing statements and question- shifted around for several years, funded fitfully by the ing witnesses. Teen court respondents always testify and city, before landing at the Center for Youth, an indepen- their parents or guardians sometimes testify as well. The dent not-for-profit. Being at the Center for Youth has youths serving as defense and prosecution attorneys may enhanced the social service component of the program as also call law enforcement officers and victims to testify. well as its stability, making private fundraising possible The jury, composed of youth volunteers and sanc- to help sustain and expand the program. tioned defendants, deliberates immediately following the The Rochester program hears cases referred by the hearing and must reach a unanimous decision regarding Rochester City Court and town courts from a number sanctions, which must include at least jury service and an of suburban communities surrounding the city. Judges assessment conducted by social work staff at the Center refer first-time offenders between the ages of 16 and 18 for Youth. Other sanctions include performing com- who have been charged with non-violent misdemeanors munity service, enrolling in educational programming,

40 | January 2011 | NYSBA Journal drug screening, writing essays and letters of apology, and attending one of two behavioral workshops. The sanctions chosen by the jury have to be approved by the judge. The Rochester Teen Court has heard, on average, 105 cases per year, but that number has grown considerably and the program now aims to serve 300 cases in the coming year. While it has not been formally evaluated, program staff report that sanction completion rates exceed 80%.

Town of Colonie Youth Court The Town of Colonie Youth Court was established in Youth Judge Jamie Manhertz presides over the Greenpoint Youth Court. 1993. The youth court began hearing cases of youth up to and including age 18 from the very beginning, and the planning team engaged the town’s three justices on an counsel are expected to prepare theirs client in advance advisory board where they helped develop the criteria of the hearing, and victim advocates are expected to com- for cases that would be referred by the town court to the municate with any victims. youth court. Initially an independent not-for-profit, it was As in Rochester, the respondent and his or her par- taken over by the Town of Colonie in 2004. Located in the ent or guardian usually testify at hearings, and victims same building as the police department, the program is are encouraged to testify. Youth serving as the defense now funded by the town through the police department’s and prosecution question the witnesses, make opening budget. Referrals from the town court now make up and closing statements and recommend sanctions to the about 60% of all of the youth court’s cases. The remain- jury and the presiding youth judge. The jury deliberates der are referred by the Albany County Department of immediately after the hearing and must reach a unani- Probation and the Colonie Police Department. mous verdict regarding sanctions. Sanctions typically Cases coming through the town court are pre-screened include community service, jury service, and writing by youth court staff who identify those that fit the criteria essays and letters of apology. All respondents attend a based on the defendant’s age and the type of offense. two-hour educational class, addressing issues like shop- At the time of the first appearance in town court, staff lifting prevention and resisting peer pressure. Youth conduct an intake with the youth and his or her parent court hearings are closed to the public. or guardian, and then make a recommendation to the The Town of Colonie conducts approximately 75 to judge as to whether the case is suitable for youth court. 85 hearings annually. Program staff report that the sanc- The town court can refer first time non-violent misdemeanors or violations. The The Town of Colonie conducts approximately 75 to 85 most common charges are hearings annually. Program staff report that the sanction petit larceny and marijuana possession. The parent or completion rate for all youth court cases is 99%. guardian of the youth must be present and sign a release form, and the defendant tion completion rate for all youth court cases is 99%. must acknowledge responsibility for the conduct under- According to Judge Peter Crummey, who has been a lying the charge. Violet Colydas, the program’s director, town judge since 1999, the recidivism rate during the estimates that 98% of those offered the youth court option six-month ACD period (which in Colonie begins after the accept it. Those who do not generally cite transportation youth court process is complete) is “next to nil.” issues or conflicting school activities. These examples suggest that youth courts are a viable The Town of Colonie uses a youth judge model, with option for criminal courts to address offenses commit- youth court members serving in all courtroom roles and ted by older teens. A well-run youth court provides a jury drawn from a larger pool of volunteers and respon- age-appropriate, thoughtful sanctions as well as links to dents. The program averages over 100 members annually, services, while helping young people avoid a criminal who are assigned to six-person teams. The teams receive record that can be a lifetime scar. Judges in courts that case assignments on four-week rotations. At least one refer to youth courts have been pleased to have this week before the hearing, the teams are provided with additional tool to respond to young offenders appearing information about the case, including a detailed descrip- before them. Finally, these programs also help lighten the tion of the incident, and other basic information regarding burden on criminal courts, with no apparent reduction in the respondent. The youth advocates serving as defense public safety. ■

NYSBA Journal | January 2011 | 41 Supreme Court Judge SHARON S. TOWNSEND is a former Erie County Family Court Judge and former Administrative Judge for the Eighth Judicial District, and is currently Vice Dean for Family and Matrimonial Law of the New York State Judicial Institute. ANN F. ARNOLD is a Senior Attorney with the Office of Court Administration Eighth Judicial District.

An Amherst Youth Court hearing, with Judge Jason Keefe presiding.

Youth Courts: A Judicial Perspective By Sharon S. Townsend and Ann F. Arnold

magine entering a courtroom and looking around, without paying for it. While admonishing the young only to see that the average age of the prosecutor, the man, the judge also showed compassion and empathy for Idefender, the judge, jurors and court staff is 16. This the youth. She sentenced him to community service and is a youth court in session, a real-life case, and the young to write a letter of apology to the store. people in the courtroom are specially trained to function I was struck by how sensitive and insightful the judge as their adult counterparts from the court system. They was in handling the responsibility at such a young age. will hear arguments from the prosecution and listen to Her words were similar to those I have said many times, the youth’s defense. They will ask questions. They will after many years of experience, to young offenders who deliberate thoughtfully and decide upon a sanction befit- appeared before me in family court. It was obvious to me ting the offense. that her words were even more meaningful because of her age in relation to that of the respondent. A Win-Win for Everyone The respondent’s mother also spoke up at the sen- I witnessed for myself the power of youth court in my tencing, an unusual event in youth court, I was told. She own hometown of Amherst, New York. On a recent pleaded for help for her son before he got into more trou- Saturday morning, a 15-year-old appeared with his father ble. The family, who did not live in the same household, before the Amherst Youth Court, held in the Amherst was referred by the youth court for counseling. After Town Court, on a charge of petit larceny for stealing a the session, I was impressed by the help the youth and shirt from the local mall. He approached the bench with the family had received from these very mature young his defense attorney and the prosecutor, both students people. At the same time, the experience that the youth from local high schools. The judge, another student court members had gained by dealing with a scenario wearing a black robe, asked the respondent very direct that repeats itself every day in family court is invaluable. questions about why he felt he needed to take the shirt It was a “win-win” for everyone.

42 | January 2011 | NYSBA Journal Currently, New York has approximately 80 youth cases in court on Saturday morning. Half the time at courts operating across the state. Each court has its the end of the day [the judges] were tired, but we were own characteristics, governed largely by the needs and re-energized by being with the kids. Their enthusiasm resources of the community it serves. “As youth courts was impressive. continue to be established across the state people are beginning to realize the importance of early intervention,” In the City of Buffalo model, all referrals to the court said Michael Torillo, past president of the Association of are made by the Erie County Probation Department. The New York State Youth Courts. Juvenile Probation Officer refers matters to the youth court in lieu of charges in family court. Offenses range Benefits All Around from violations to misdemeanors; the offense may be Why do these courts tend to be more successful than for such matters as property damage, curfew violations, traditional juvenile justice settings? Youth courts hold assault and vandalism. young people accountable by requiring them to take Respondents participating in youth court must first responsibility for their actions and restore the harm admit guilt and then submit to the sentence imposed by done to the community. The young offenders are linked with community services The average age of the prosecutor, the defender, the such as tutoring, mentoring and conflict resolution class- judge, jurors and court staff is 16. This is a youth court es. Youth court sanctions emphasize restoration and in session, a real-life case, and the young people in encourage respondents to the courtroom are specially trained to function as their make amends through such actions as writing letters of adult counterparts from the court system. apology or writing essays, paying restitution, attending victim impact panels and performing community service. their peers. Sentences can range from community service There are also multiple benefits to the public. Each and restitution to attending counseling. The youth court youth court varies in response to the needs and the acts as a team, working together in the offender’s best resources of its particular community, but the prevailing interest. Offenders pick up on this, which is one of the view is that the court brings “restorative justice” to the reasons they feel more comfortable in this setting. After community. considering all the information, the court team decides Erie County Court Judge Thomas P. Franczyk (one on a fair and appropriate penalty that holds the youth of the judges who developed the City of Buffalo Youth accountable and makes restitution for the actual or poten- Court) observed, “The main benefit of this court is that tial harm done to the community. Youth court staff then kids respond to their peers more effectively than they work closely with respondents to ensure that they com- do when adults talk down to them. Their age group plete sanctions as mandated. Successful completion of responds to negative peer pressure, so why not positive sanctions imposed by the youth court typically results in peer pressure?” favorable disposition of the case by the referring agency. Judge Franczyk has incorporated interesting instruc- tional methodology in his training of participants. He has been known to give exams in the form of a rap song. I was struck by how sensitive The Buffalo model trains each participant in all court positions in an attempt to familiarize them with how the and insightful the judge was system works for the community. Trainees then become a core group of teenagers willing to articulate standards in handling the responsibility at of behavior. They are “setting norms for other teenagers,” noted Judge Franczyk. such a young age. Another City of Buffalo Youth Court mentor, Craig H. Hannah, stated, Peer Intervention Judge Hannah’s experience as both a Buffalo City Court The active learning allows you to teach them without Judge and an Acting Family Court Judge gives him a letting them know you are teaching them. . . . The kids perspective for comparison of the adult and youth mod- were amazing. The students always wanted to meet on els. He noted, “The best part of it is peer intervention. Thursdays and Fridays at night to prepare for their 15 There sometimes is a disconnect between adolescents and

NYSBA Journal | January 2011 | 43 An Alternative Model Another model youth court in the Eighth Judicial District is operating in Cattauraugus County, where Laurie Peterson has been the youth court coordinator for the past 13 years. Cattauraugus County offers challenges to the coordination of these cases because of the large rural geographic area it encompasses. Accordingly, she has set up the court in two locations, one in Machias to serve the northern half of the county, and one in Little Valley for the southern half. Referrals come from the county’s Probation Department for matters such as petit larceny, property offenses, simple assaults, drugs, alcohol, harass- ment, bullying or fighting. Ms. Peterson is solely responsible for all training, data tracking and case management. She provides training in many of the high schools in her county and has gotten positive responses from the schools. In her own words: “There has never been enough emphasis on the team Colonie Youth Court member James Fox delivers his opening remarks members, who are taught to think outside the box. They as Prosecutor during a mock Youth Court hearing at the NYSBA learn a greater respect for rules and authority. They pause Headquarters in Albany in October, 2010. and think what does this law do for me?” In addition to a greater sense of responsibility, and a civic sense, she said, “They learn speaking skills.” Quoting Judge Kaye, adults. When the participants all are from a similar age Peterson added, “It’s the right message from the right group and socio-economic background, the respondents messengers.” may receive their sentence more willingly.” As Erie County Court Judge Sheila DiTullio said about In a recent article in the New York Times, one 18-year- her visit to youth court: old youth court member said, “We’re not here to punish They were very serious and thorough. They thought them, we’re here to help them out.” Another participant carefully about the sanctions handed down. Some of was quoted in the same article as saying, “I was known the things they thought of would not have occurred as the troublemaker in school – I was the stereotype.” to me as an adult, but as teenagers they were right on point, taking away things that really mattered to the After being referred from criminal court to youth court respondent.

It was obvious to me that the youth court judge’s words were even more meaningful because of her age in relation to that of the respondent.

for petit larceny and carrying out his sentence of four As a former Erie County Family Court Judge, I strong- hours of community service, attending a decision-making ly support the existence of youth courts. I applaud New workshop, writing a letter of apology to his mother and York State Bar President Stephen P. Younger, who has an essay on how petit larceny affected his neighborhood, urged that every community in the state should have a he attended the training to participate in running the youth court. ■ court sessions and began hearing cases. He said, “Before, nobody trusted me besides my family; now I’m on the 1. Tim Stelloh, Ensuring Petty Crimes Don’t Lead to Big Ones, N.Y. Times, Sept. 21, 2010 p. 22, col. 1. other side. You see things going on out in the street and you see them coming here. You have the opportunity to help them.”1

44 | January 2011 | NYSBA Journal BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([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.

More “Enjoyment of Life” (Part I)

Prologue (Mea Culpa!) in order to demonstrate entitlement to to injuries and conditions claimed in In the first week of December I non-party disclosure. This and the next the lawsuit: received nearly identical calls from issue’s column will address the ques- Here, the plaintiff affirmatively several friends and colleagues, includ- tion posed in September, and highlight placed her entire medical condition ing Frank Quinn and Harold Herman. the split in the Appellate Divisions in controversy through the broad Both began with the question: “Is over the scope of disclosure when these allegations of physical injury and everything all right?” damages are claimed. mental anguish contained in her The reason for their concern? No Many personal injury plaintiffs’ bill of particulars. In addition, the “Burden of Proof” column in the bills of particulars contain a boiler- nature and severity of the plain- November/December 2010 Journal. plate allegation that as a result of the tiff’s previous injuries and medical The reason for no “Burden of Proof” defendant’s negligence the plaintiff conditions are material and neces- column? Not death, infirmity, or act has suffered of what many plaintiffs’ sary to the issue of damages, if any, of God, but something more prosaic, a attorneys do not realize is that the recoverable for a claimed loss of Frye motion. A Frye motion, in limine, “loss of enjoyment of life” claim may enjoyment of life due to her current which occupied my life for a few criti- open the injured party’s entire physi- foot injury.5 cal days, including the deadline day cal and mental medical history to for the Journal. scrutiny. The rationale adopted by the The Second Department set forth Quoting Mark Twain, I responded courts that find the door to be opened the general rule on furnishing medical to each query, “The report of my death is that the broad nature of the claim authorizations, and applied the rule in was an exaggeration.”1 To those who trumps what is generally the limited the context of a claim of loss of enjoy- did not call, I extend a global mea culpa waiver of the medical privilege in ment of life: for marring what was otherwise a personal injury actions. “Since the A party must provide duly exe- wonderful holiday season. nature and severity of the plaintiff’s cuted and acknowledged written With a personally heightened sense prior medical conditions may have authorizations for the release of of the enjoyment of life, I return to the an impact upon the amount of dam- pertinent medical records when topic of claim for the loss of enjoyment ages, if any, recoverable for a claim of that party has waived the physi- of life. loss of enjoyment of life, the records cian-patient privilege by affirma- regarding those preexisting medical tively putting his or her physical Introduction conditions are material and necessary or mental condition in issue, and September’s column2 discussed the to the defense.”4 CPLR 3101(a) requires full dis- damages claim of loss of enjoyment closure of all evidence material of life, and concluded with the ques- The Door Is Wide Open in the and necessary to the prosecution or defense of an action, regard- tion: “To what extent does the asser- Second Department less of the burden of proof. Here, tion of a claim for loss of enjoyment In the Second Department, claiming information as to the nature and of life waive the physician-patient loss of enjoyment of life as an item severity of the injured plaintiff’s privilege?” Coincidentally, the July/ of damages opens the door to broad previous right shoulder injury and August column3 addressed the topic disclosure of a plaintiff’s past medical right shoulder surgery are mate- of the split in the Appellate Divisions history, notwithstanding the rule that a rial and necessary to the issue of over the extent to which, if any, special personal injury plaintiff’s waiver of the damages, if any, recoverable for a circumstances need to be established physician-patient privilege is limited claimed loss of enjoyment of life

NYSBA Journal | January 2011 | 45 due to the current injuries sus- that the trial court erred in dividing addiction records may be useful tained by him in the subject motor non-pecuniary damages into separate in preparation for trial and “may vehicle accident. Accordingly, that awards for pain and suffering and loss lead to relevant evidence bearing branch of the defendants’ motion of enjoyment of life. Holding “[m]ental on plaintiff’s claim for damages,” which was to compel the plaintiff suffering is an element of the pain and we conclude that such evidence 13 [], to provide authorizations for suffering experienced by injured par- should be disclosed. the release of his medical records ties [citing McDougald],”9 a new trial In Syron v. Paolelli,14 the plaintiff pertaining to a prior right shoulder was ordered unless plaintiff consented was injured in an automobile accident. injury and surgery should have been granted.6 to a reduction in the award corre- While not alleging loss of enjoyment sponding to the amount separately of life, the plaintiff did claim “men- What many plaintiffs’ attorneys do not realize is that the claim of “loss of enjoyment of life” may open the injured party’s entire physical and mental medical history to scrutiny.

However, the Second Department awarded for loss of enjoyment of life. tal anxiety” and “emotional distress.” will deny the exchange of records Despite the agreement with McDougald The defendant requested records of where the proper foundation is not that loss of enjoyment of life is a com- the plaintiff’s psychiatric and/or psy- established: ponent of pain and suffering, the case chological treatment, and the plain- Here, the Supreme Court provi- does not discuss any disclosure issues tiff opposed the demand, arguing the dently exercised its discretion in in the action prior to trial. records were privileged. The Third denying the motion of the defen- In Coddington v. Lisk,10 where the Department held: dant . . . pursuant to CPLR 3124 plaintiff’s drug use/addiction was in Generally, in a personal injury to compel the plaintiff to provide controversy, the Third Department action, the medical records of a liti- an authorization pursuant to the explained, “Plaintiff seeks damages gant, who affirmatively places his Health Insurance Portability and for, inter alia, alleged ‘permanent weak- Accountability Act of 1996 for the or her physical condition or mental ness and instability,’ ‘permanent effect or psychological status in issue, release of the plaintiff’s psychiatric of pain’ and ‘loss of enjoyment of treatment records and in granting are subject to disclosure. However, life’ resulting from the incident.”11 The the plaintiff’s motion for a pro- plaintiff maintains that she is not tective order. [Defendant] failed plaintiff had sought to prevent the obliged to disclose her psychologi- to establish that the records she disclosure of records of methadone cal and psychiatric records because sought to discover were material treatment based upon a claim that the she has “not filed a claim alleging and necessary to the defense of records might reveal information con- an aggravation or development of this action. Moreover, although cerning the plaintiff’s HIV status, and an emotional trauma or psycholog- the decedent’s medical records the trial court denied the defendants’ ical condition,” and hence has not are clearly discoverable here, the motion to compel the exchange of an waived the physician-patient priv- plaintiff’s psychiatric treatment 12 authorization. The Third Department ilege with respect to these records. records are privileged. The mere held: fact that the plaintiff commenced We disagree, for in her complaint this action did not result in an We note that no argument has been and bill of particulars alike she automatic waiver of the physician- advanced that discovery would specifically alleges that she suffers patient privilege and there is no cause undue harm to plaintiff. permanently from “mental anxi- evidence that the plaintiff affirma- There is a strong presumption of ety” and “emotional distress” as a tively placed her psychiatric condi- disclosing all relevant material. result of the accident. tion in issue so as to effect a waiver Notwithstanding Supreme Court’s Moreover, our in camera review of of the privilege and permit disclo- broad discretion, under the cir- sure. Accordingly, the plaintiff’s these records discloses that they cumstances presented here we psychiatric treatment records are relate, in part, to therapy and treat- find that the court erred in deny- not subject to disclosure.7 ment plaintiff received in connec- ing defendants’ request to com- tion with her complaints of chronic pel plaintiff to execute an autho- The Door May Be Open in the pain stemming, inter alia, from rization for records pertaining to Third Department the physical injuries she sustained her Methadone Program records. 8 in the accident, as well as for the In Lamot v. Gondek, the Third De- . . . Inasmuch as plaintiff’s drug partment agreed with the defendant emotional distress occasioned

46 | January 2011 | NYSBA Journal thereby. They cannot, therefore, be (Interim) Conclusion 9. Id. at 679. See McDougald v. Garber, 73 N.Y.2d considered irrelevant to the pres- The next issue’s column will com- 246, 538 N.Y.S.2d 937 (1989). ent action.15 plete this review of claims of loss of 10. 249 A.D.2d 817, 671 N.Y.S.2d 826 (3d Dep’t 1998). Accordingly, there is authority in enjoyment of life. In the meantime, I 11. Id. at 818. the Third Department directing the hope to see you at the January Annual exchange of records based, at least in Meeting. ■ 12. Id. at 817. part, upon a claim of loss of enjoyment 13. Id. at 818 (citations omitted). (“Plaintiff seeks 1. N.Y. Journal, June 2, 1897. damages for, inter alia, alleged ‘permanent weak- of life, although cases dealing with ness and instability,’ ‘permanent effect of pain’ and drug use/addiction may not provide 2. David Horowitz, Enjoyment of Life, N.Y. St. B.J. ‘loss of enjoyment of life’ resulting from the inci- (Sept. 2010) p. 16. guidance across the board. Claims of dent. Inasmuch as plaintiff’s drug addiction records 3. David Horowitz, No Longer Special, N.Y. St. B.J. may be useful in preparation for trial and ‘may lead mental anxiety and emotional distress, (Jul./Aug. 2010) p. 21. to relevant evidence bearing on plaintiff’s claim for damages,’ we conclude that such evidence should which are often reflexively listed as 4. Amoroso v. City of New York, 66 A.D.3d 618, 618, be disclosed.” Id. (citations omitted). boilerplate claims in bills of particu- 887 N.Y.S.2d 163 (2d Dep’t 2009) (citations omit- lars, appear to open the door under ted). 14. 238 A.D.2d 710, 656 N.Y.S.2d 419 (3d Dep’t 1997). Syron. 5. Diamond v. Ross Orthopedic Grp., P.C., 41 A.D.3d 768, 839 N.Y.S.2d 211 (2d Dep’t 2007) (citations omit- 15. Id. ted). The Door Closes in the Fourth 16. Bozek v. Derkatz, 55 A.D.3d 1311, 865 N.Y.S.2d 6. Weber v. Ryder TRS, Inc., 49 A.D.3d 865, 866, 854 163 (4th Dep’t 2008). Department N.Y.S.2d 480 (2d Dep’t 2008) (citations omitted). 17. Id. at 1311–12. In an action for the negligent prescrip- 7. Napoli v. Crovello, 49 A.D.3d 699, 699–700, 854 18. Id. at 1312. tion of medications, wherein plaintiff N.Y.S.2d 176 (2d Dep’t 2008) (citations omitted). 19. Id. (citations omitted). alleged “in her bill of particulars that 8. 163 A.D.2d 678, 558 N.Y.S.2d 284 (3d Dep’t her injuries included a perforated gas- 1990). tric ulcer, the effects of which resulted in, inter alia, loss of enjoyment of life and pain and suffering,”16 the defendants sought numerous authorizations for, inter alia, records of physicians and mental health providers.17 “Plaintiff asserted in opposition to the motion that she had never sought treatment from seven of the providers, and that the remaining 11 providers had treated her for injuries and conditions unrelated to the injuries at issue in this action.”18 The Fourth Department denied the defendants’ request for an authorization directing the release of the records: [T]he waiver of that privilege “‘does not permit discovery of information involving unrelated illnesses and treatments.’” “The determina- tive factor is whether the records sought to be discovered are ‘material and necessary’ in defense of the action,” or whether the records “may contain information reason- ably calculated to lead to relevant evidence.” Here, as plaintiff cor- rectly contends, defendants failed to establish that the records sought “related to any physical or mental conditions affirmatively placed in controversy by” plaintiff in this action against defendants.19

NYSBA Journal | January 2011 | 47 JUSTIN S. TEFF (justinteff@ ralphmkirk.com) is a senior attorney in the Law Offices of Ralph M. Kirk in Kingston, New York. Over the course of his career, Mr. Teff has represented insurance carriers, the Special Funds Conservation Committee and, most recently, injured workers in all aspects of workers’ compensation proceedings. A graduate of the State University at Albany, he received his J.D. from Albany Law School.

After Burns v. Varriale: Essential Lessons for Workers’ Compensation Third-Party Action Attorneys By Justin S. Teff

hen a work-related injury occurs, and the contribute to this equation its equitable share of the costs wrong of a third party is involved, the injured involved in obtaining that recovery. The process of cal- Wworker normally need not elect between main- culating and applying the equitable apportionment of taining a workers’ compensation claim and a third-party the costs of third-party litigation can have a significant lawsuit against responsible contributors; the worker effect on a worker’s overall return, and it is therefore cru- may pursue both claims. In keeping with the principle cial that third-party and compensation counsel are fully of preventing double recovery, however, the Workers’ versed in the subject. Indeed, a once intricate issue has Compensation Law (WCL) provides the liable compen- become more so in the aftermath of the courts’ decisions sation insurance carrier with lien and offset rights viz. a in Burns v. Varriale.1 This article discusses third-party claimant’s third-party recovery. The carrier’s lien – the liens and offsets, as well as matters third-party action sum of past benefits paid on the claim – is reimbursed at attorneys must manage during lien/offset negotiations to the time of settlement or judgment, and the carrier is then appropriately represent the claimant. permitted to offset, or withhold payment of, future benefits in an amount equal to the remaining net recovery. Lien and Offset Rights Because the carrier obtains such a substantial ben- Background efit from the recovery in the third-party action, it is only The Workers’ Compensation Law specifically provides reasonable, and as such the law provides, that it must that when a worker’s injury or death is occasioned by

48 | January 2011 | NYSBA Journal the negligence or wrong of a third party, not in the same to account for its equitable share of the costs of obtaining employ, the worker “need not elect whether to take com- that offset. pensation and medical benefits under this chapter or to pursue his remedy against such other” but may do both, Kelly and Burns subject to certain limitations.2 Perhaps the most conse- The decision in Kelly v. State Insurance Fund altered this quential limitation is that the compensation carrier’s equation inasmuch as it concluded that a carrier must not written consent to settle the third-party action (TPA) must only reduce its lien by a proportionate share of the TPA be obtained, absent court approval, or a claimant risks costs, but must pay additionally for the benefit derived forfeiting all future workers’ compensation benefits.3 from the future offset. Kelly involved a compensable To prevent the claimant from being paid twice for death case in which the future benefits due the widow a single harm, WCL § 29 contains another important could be approximated by reference to actuarial tables. limitation in the form of the carrier’s statutory lien and The Court noted in this regard, “The value of future com- offset rights against the net third-party proceeds.4 The pensation payments that a carrier has been relieved of carrier has the right to recoup its compensation outlay up paying due to a third party recovery is not so speculative to the time of TPA recovery in the form of a lien on the that it would be improper to estimate and assess litiga- net proceeds5 and a separate right to an ongoing offset tion costs against this benefit to the carrier.”12 (often called a holiday, or a period in which the carrier is This principle gave rise, in practice, to performance of not liable for actual payment of benefits) against future a so-called Kelly calculation to determine the present dol- compensation benefits to the extent of the remaining net lar value of the future compensation liability extinguished recovery.6 by virtue of the offset right, a percentage of which (PCOL) Once the benefits to which the claimant is entitled would then represent the carrier’s equitable share of costs under the WCL exceed the amount of the remaining net for obtaining the offset. As Kelly required the carrier also third-party recovery, the carrier’s holiday is over, and it to contribute this amount to the equation, the result was must resume actual payment of ongoing compensation generally a further reduction of the carrier’s lien at the benefits.7 This resumed liability for actual payment is time of TPA recovery, or even “fresh money” (an actual commonly termed deficiency compensation. monetary payment in addition to full lien negation) being Given that the compensation carrier obtains such a paid to the claimant, in exchange for the full future offset considerable benefit as a result of the TPA recovery, it right. is only reasonable that it should share in the costs of Such was the state of the law from 1983 until 2006, obtaining that recovery. The statute itself provides that when the decision of the Third Department in Burns v. in the event of a recovery – by settlement, judgment, Varriale, affirmed by the Court of Appeals in 2007, again or otherwise – the claimant may apply to the court for substantially altered the lien/offset landscape.13 The an order “apportioning the reasonable and necessary Court of Appeals in Burns pronounced the newly opera- expenditures, including attorney’s fees, incurred in effect- tive principle at the outset: ing such recovery. Such expenditures shall be equitably that the value of future workers’ compensation ben- apportioned by the court between the employee or his efits for a claimant with a nonschedule permanent dependents and the lienor.”8 disability is speculative, that the present value of these The carrier’s equitable apportionment percentage benefits cannot be ascertained at the time claimant share, also known as the percentage cost of litigation recovers damages in a third-party action, and that (PCOL), is the percentage of the gross recovery repre- claimant is not entitled to an apportionment of attor- sented by the sum of costs/disbursements and attorney ney’s fees based on such future benefits.14 fees.9 As explained by the Court in Kelly v. State Insurance In particular, the Court agreed with the Third Department Fund,10 the purpose of WCL § 29(1) is to that “if a claimant does not receive benefits for death, total stem the inequity to the claimant[], arising when a [permanent] disability or schedule loss of use, the car- carrier benefits from an employee’s recovery while rier’s future benefit cannot be quantified by actuarial or assuming none of the costs incurred in obtaining the other reliable means.”15 recovery, and to ensure that the claimant receives a As a result of Burns, claimants who have been clas- full measure of the recovery proceeds in excess of the sified with a permanent partial disability (PPD) in their amount of statutory benefits otherwise due the claim- compensation claim at the time of TPA recovery, and ant.11 arguably those with no finding of permanency, are not In practice (prior to Kelly, discussed below), this provi- entitled to have the carrier immediately contribute its sion typically resulted in a reduction of the carrier’s lien PCOL share of the offset. Rather, the Court held, in such by the PCOL at the time of TPA recovery, with the carrier cases “the carrier should be required to periodically pay permitted to retain its future offset to the extent of the its equitable share of attorney’s fees and costs” as ben- remaining recovery, but with no additional contribution efits accrue.16 The decision directed that “[t]he trial court,

NYSBA Journal | January 2011 | 49 in the exercise of its discretion, can fashion a means of Practice Points Post-Burns apportioning litigation costs as they accrue and monitor- While it is accurately stated that the carrier’s lien and off- ing (e.g., by court order or stipulation of the parties) how set rights exist to prevent a double recovery by the claim- the carrier’s payments are made.”17 ant, the notion that a permanently disabled individual Generally the equitable share of the offset is accounted ever receives a double recovery is in some respects a dra- for by the carrier making ongoing Burns payments to the matic overstatement. In a perfect world, all compensatory claimant, calculated as the PCOL share of the claimant’s recoveries would adequately restore the injured party to ordinary weekly benefit entitlement (e.g., $500 weekly a pre-injury state, to the extent this can be accomplished WCL benefit X 35% PCOL = carrier actually pays $175 per by any monetary amount, but in reality – which includes week). Burns likewise suggests that the carrier should be comparative negligence and insurance policies of limited responsible for its PCOL share of ongoing medical costs coverage – such recoveries rarely do so. as they accrue. Considering all the factors involved, the true bal- Counsel must be cognizant that both Kelly and Burns ance to be struck, in this equation, is between avoiding require a carrier not only to immediately discount its lien a double recovery to the claimant and preventing what by the PCOL pursuant to WCL § 29(1), but additionally is in essence a double windfall to the carrier. Though contribute its pro rata share viz. the future offset. By no the claimant has indeed received WCL benefits and the means does Burns hold that a carrier need not contribute third-party recovery, the TPA affords the carrier a sub- at all for the future benefit; instead Burns merely recog- stantial windfall, which is obtained via little or no effort nizes another means of accounting for this aspect of the on its part and in connection with a loss for which it duly equitable apportionment of costs. Thus if Kelly does not wrote the risk and accepted a full premium. This windfall apply, and no immediate Kelly contribution is made, then persists even as compensation carriers are required, or at Burns does, and the carrier must be subject to some pay- least expected, to pay their PCOL share for the benefit as-you-go arrangement pursuant to the holdings of both they receive in connection with lien recoupment and the the Third Department and Court of Appeals.18 future offset/holiday. Third-party attorneys must be vigilant, then, in requir- Lien and Offset Issues in Practice ing the carrier to pay its fair share for the benefit received Because the carrier’s consent to settle the TPA is required, by way of the TPA recovery, immediately in connection lien and offset negotiations usually occur within the with the repayment of its lien, and either at once or there- context of obtaining said consent. However, these mat- after in connection with the offset right. Any advantage a ters must be addressed with equal precision in a post- carrier is permitted to take without paying the full PCOL judgment context, either by stipulation or request for share represents a double windfall. Put another way, the court order. If a stipulation cannot be reached, Burns initial windfall received by the carrier will be paid for indicates that the trial court has jurisdiction to determine entirely by the injured worker. Any result contrary to a the issue. The claimant’s compensation counsel should be carrier’s full PCOL contribution for both the lien and off- involved early to help coordinate and maximize benefits set rights is incorrect as a matter of law (Kelly and Burns) in all forums and provide a clear statement of the claim- and equity, as this surely results in an unjust enrichment ant’s rights and the carrier’s obligations after third-party to the carrier. recovery. Counsel must be cognizant of the various tactics com- Whether Kelly or Burns applies is dependent upon pensation carriers employ in letters of consent to settle, the claimant’s legal status under the WCL at the time of the essential document used by the board to ascertain the recovery. A worker will, for these purposes, either have parties’ agreement if entitlement questions later arise. No (a) no finding of permanent disability; (b) a finding of letter of consent should be accepted from a carrier that scheduled permanent disability for appendages, and recognizes the obligation to pay its PCOL share of the vision and hearing loss (facial disfigurement awards lien but disclaims responsibility for additional contribu- likely fall into this category);19 (c) a classification of a per- tion per Kelly, per Burns, or both. Such a provision, if manent partial disability (e.g., Burns);20 (d) a classification accepted, represents nothing short of a gift to the carrier of a permanent total disability;21 or (e) a work-related in the amount of its PCOL share of the future offset it will death (e.g., Kelly).22 take against the claimant’s WCL benefits. At this time, it seems reasonable to presume that Counsel must be aware that acceptance of a consent should the Third Department encounter the issue, cat- letter with adverse provisions and disbursement of the egories (a) and (c) will require that Burns apply, and no settlement proceeds represents a contract, the terms of immediate contribution be made as to the future offset, which are unlikely to be altered by a court or the board. and categories (b), (d), and (e) will remain in the Kelly Only a clear resolution of the carrier’s PCOL contribution category, as iterated by the Third Department and Court responsibilities, set forth in the letter of consent, or bet- of Appeals. ter yet a stipulation of the parties in writing or in open

50 | January 2011 | NYSBA Journal court, will suffice to protect the claimant. In a recent case defenses as may be available irrespective of the before the board, the carrier in its letter of consent recog- third-party recovery. nized its obligation to discount its lien by the PCOL, but In case of an intransigent carrier representative, a disclaimed responsibility for any additional contribution simple motion to the court with notice to the compensa- under Kelly, with no mention of further rights under tion carrier – with a copy of the proposed order/stipula- Burns; Kelly did not apply to the facts of the case. When tion – will usually suffice to involve the carrier’s special- the claimant sought ongoing Burns payments, the board ized compensation counsel, and the motion will not need denied the request, finding – as it has in a series of recent to be brought to fruition. cases – that failure to provide for a specific agreement in As a final practical matter, a compensation carrier the consent letter to make continuing Burns payments likely would be motivated to resolve all issues in the com- constitutes a waiver by the claimant, and the board has pensation claim at the time of TPA recovery (by way of no jurisdiction to alter the terms of the parties’ agree- WCL § 32 agreements), including residual entitlement to ment. Thus the board has taken the position, consistently WCL benefits viz. the PCOL share of continuing benefits as of late, that the claimant must preserve his or her own and any potential deficiency compensation claim. Such right to Burns money, or the right will be waived. resolution would reduce the carrier’s overall liability and To err on the side of caution, the letter of consent must administrative expense, a savings to be passed on to its contain more than a mere reservation of the claimant’s clients. rights to future benefits under Burns. If ongoing Burns Regarding further developments in this area, it may be payments are not specifically delineated in the consent argued that the only truly equitable way to deal with the agreement, the carrier is free to argue that the claimant offset contribution issue is to have the Burns formulation must periodically petition the board for a lump-sum apply in all instances. Indeed, even the benefits payable Burns adjustment, a strained and unreasonable interpre- pursuant to a finding of permanent total disability or a tation of Burns. Any payments being made to the claim- compensable death, calculated with reference to actuarial ant at the time of TPA recovery should continue, in the tables, are by their nature no less speculative than a PPD amount of the PCOL share of the overall weekly benefit, benefit; a permanently totally disabled claimant may die subject only to such affirmative defenses as the carrier is otherwise always permitted to assert. To arrange otherwise is again to bestow a double windfall upon the carrier. It should be recognized that these are benefits to Are You feeling which a claimant would otherwise be entitled but from the third-party recovery. overwhelmed? If it is determined that Burns applies, and the carrier makes no upfront contribution for the offset, it is recom- The New York State Bar Association’s mended that a stipulation be obtained in writing or in Lawyer Assistance Program can help. open court, substantially as follows: 1. The compensation carrier consents to the third- party settlement; We understand the competition, constant 2. The carrier’s right to recover its lien is subject to stress, and high expectations you face as a immediate discount by the full PCOL, including lawyer, judge or law student. Sometimes costs and disbursements; the most difficult trials happen outside the 3. The carrier shall continue to pay the claimant a court. Unmanaged stress can lead to weekly benefit equal to the PCOL of the claimant’s problems such as substance abuse overall weekly WCL benefit, to the full extent its and depression. offset remains; NYSBA’s LAP offers free, confidential help. 4. The carrier shall be responsible to pay its PCOL All LAP services are confidential and protect- share of any benefits not presently due the claimed under section 499 of the Judiciary Law. ant, but which are thereafter found to be due, such as in the case of an unanticipated worsening of the claimant’s medical condition, resulting in addition- Call al lost wages or medical expenses; 5. The carrier shall pay its PCOL share of all causally 1.800.255.0569 related medical benefits as the same accrue, to the full extent its offset remains; and NEW YORK STATE BAR ASSOCIATION 6. The carrier’s obligation to pay its continuing PCOL LAWYER ASSISTANCE PROGRAM share of benefits is subject only to such affirmative

NYSBA Journal | January 2011 | 51 before his or her projected life expectancy, and ongoing 11. Id. at 138; Burns, 9 N.Y.3d at 213–14. death benefits are payable to a spouse under similar cir- 12. Kelly, 60 N.Y.2d at 139. cumstances, yet only until the point of remarriage, and 13. See Burns v. Varriale, 34 A.D.3d 59, 820 N.Y.S.2d 655 (3d Dep’t 2006), aff’d, 9 are limited to surviving children under various circum- N.Y.3d 207, 849 N.Y.S.2d 1 (2007). stances.23 Kelly thus imposes the unnecessary, perhaps 14. Burns, 9 N.Y.3d at 209. The terms classification and permanent partial dis- unreasonable burden on the carrier of having to pre-pay ability are compensation terms of art that refer to a legal permanent disability status entitling a claimant to ongoing weekly wage benefits payable under for what is still a speculative loss. The most equitable WCL § 15(3)(w). This is what is meant by the court in referring to a “nonsched- means of calculating the offset contribution is to have ule permanent disability.” Burns apply in all cases; the result would be a fair and 15. Burns, 9 N.Y.3d at 215 (emphasis in original). In decisions since Burns, the balanced allocation of the costs of litigation. ■ board has, to various ends, limited the holding’s applicability to claimants who have been classified PPD. However, given that the essence of the holding is the non-quantifiable nature of benefits, and given the courts’ explicit statement 1. 34 A.D.3d 59, 820 N.Y.S.2d 655 (3d Dep’t 2006), aff’d, 9 N.Y.3d 207, 849 that benefits are likely speculative if not involving a schedule award, a death N.Y.S.2d 1 (2007). claim, or permanent total disability, it seems unlikely the Third Department 2. See WCL § 29(1). would agree. This issue has yet to be addressed by the court. 3. See WCL § 29(5); Johnson v. Buffalo & Erie Cnty. Private Indus. Council, 84 16. Burns, 9 N.Y.3d at 217. N.Y.2d 13, 613 N.Y.S.2d 861 (1994). 17. Id. 4. See WCL § 29(1). If a work-related accident involves a motor vehicle cov- 18. Carriers will at times take the position that because they are “willing” to ered under New York’s no-fault laws, different rules will likely apply for lien discount the lien by one-third (the PCOL), no further arrangement is required and offset issues. In essence, a carrier has no lien against any motor vehicle to account for PCOL of the offset. This assertion is inaccurate, and in fact TPA recovery for its WCL outlay to the extent it is made “in lieu of first party ignores the essential holdings of both Kelly and Burns. Yet often substandard benefits which another insurer would have otherwise been obligated to pay agreements are reached in which a carrier discounts the lien by one-third, but under article fifty-one of the insurance law.” See WCL § 29(1-a). no additional money is immediately contributed for the offset (Kelly), and no 5. See WCL § 29(1). The amount of the lien is the sum of the carrier’s expendi- pay-as-you-go arrangement has been made (Burns). tures for medical expenses and disability indemnity benefits through the time 19. See WCL § 15(3)(a)–(u). of TPA finalization. 20. See WCL § 15(3)(w). WCL § 15(3)(v) provides for ongoing benefits in 6. See WCL § 29(4). certain instances in which a worker sustains a scheduled permanent injury in 7. See id. excess of a 50% loss of use. Ongoing benefits paid pursuant to WCL § 15(3)(v) will likely fall into the category with speculative permanent partial disability 8. See WCL § 29(1). benefits. 9. An important but often neglected point is that the carrier’s equitable 21. See WCL § 15(1). percentage share is not one-third per se, but the exact PCOL, which is almost always greater. The figure one-third is customarily utilized in practice as an 22. See WCL § 16. abbreviated version of the PCOL, but is not technically correct. Indeed some 23. WCL § 29(1-b) provides that should a surviving spouse with no children contingency fees are greater than one-third, and rarely does a lawsuit cost zero remarry, the spouse is then entitled to only a lump sum payment of “two years’ dollars to prosecute. While one-third is often asserted by carriers as the figure compensation.” Dependent children are allotted benefits when under the age they are willing to use, its application is almost always to the monetary detri- of 18 (up to age 23 if “enrolled and attending as a full time student in an accred- ment of the claimant. ited educational institution”) or are blind or otherwise physically disabled. 10. 60 N.Y.2d 131, 138, 468 N.Y.S.2d 850 (1983).

Foundation Memorials fitting and lasting tribute to a deceased lawyer can be made through a memor ial contribution to The A New York Bar Foundation. This highly appropriate and meaningful gesture on the part of friends and associates will be felt and appreciated by the family of the deceased. Contributions may be made to The New York Bar Foundation, One Elk Street, Albany, New York 12207, stating in whose memory it is made. An officer of the Foundation will notify the family that a contribution has been made and by whom, although the amount of the contribution will not be specified. All lawyers in whose name contributions are made will be listed in a Foundation Memorial Book maintained at the New York State Bar Center in Albany. In addition, the names of deceased members in whose memory bequests or contributions in the sum of $1,000 or more are made will be permanently inscribed on a bronze plaque mounted in the Memorial Hall facing the handsome courtyard at the Bar Center.

52 | January 2011 | NYSBA Journal BOOK REVIEW BY JUDITH S. KAYE

Commercial Litigation in New York State Courts, 3rd Ed., edited by Robert L. Haig (West, 2010)

uring the weeks since I so quick- ters, more pages. Just reserve a shelf – Different, yes. How could it be other- ly accepted Bob Haig’s invita- it’s worth it! I’ll turn to the substance. wise? The subject of discovery, of course, Dtion to write this review for As in the past, the book is naturally leaps first to mind. Indeed, the treatise’s the Journal, I have several times taxed structured around the progress of a Deposition and Disclosure indices alone myself with the question: why did I case, from sparks to ashes, but it is also are eight fully printed pages, clue to agree to do this? Bob’s a great advocate replete with sections on the underly- the enormous impact of electronic com- but, honest, I gave him no resistance. ing substantive, procedural and strate- munications on litigation, and neces- We did linger a moment over any gic issues on avoiding, expediting and sarily on litigators in their business and “conflict” issues. My deep entangle- managing litigation at every juncture. personal lives. Crisis management, cost ment with the Commercial Division, Here, significant changes in the field are control, lack of civility – the signs of authorship of Chapter 1 of the first and immediately evident – from Consumer change are everywhere throughout the second editions (now superbly sup- Protection, to Crisis Management, to volumes, most often accompanied by a plemented by Chief Judge Jonathan E-Commerce, to Health Care, to Infor- wealth of generously shared construc- Lippman), and long marriage to the mation Technology Litigation, to Not- tive steps so that colleagues can antici- late Stephen Kaye (author of the origi- for-Profits, to White Collar Crime and pate, evaluate and respond to these nal magnificent chapters on actually far beyond. Judge Graffeo’s brand-new modern-day developments. trying commercial cases, start to finish) chapter on CPLR Article 78 is a gem. But in the end, the treatise reflects are already matters of full disclosure. I can’t imagine contemplating com- what endures as well as what is dif- Anyway, a “bad” review is utterly mercial litigation without checking the ferent, starting with the fact that hun- unthinkable. The many prior reviews subject matter indices (the various indi- dreds of lawyers and judges freely of the earlier editions – up to Justice ces have their own separate volume). gave of their time and talents to create Thomas Mercure’s fabulous New York A quick reference to, say, Insurance, or these new volumes, attesting to a com- Law Journal review of the newest edi- Class Actions, or Provisional Remedies, mitment to the highest professional tion (N.Y.L.J., Nov. 22, 2010, p. 6) – connects the reader to the universe of values. This is “mentoring” of anoth- are uniformly glowing, a conclusion relevant laws, cases and forms as well er sort, different admittedly from the amply buttressed by the fact that the as infinite electronic age databases. But cherished person-to-person sessions books are in wide use, regarded as even more critically, it offers the reader of a bygone era, but sage advice and essential by practitioners, and generat- the latest insights and aids from our counseling nonetheless. ing substantial revenues for the New most seasoned practitioners in the area. The books additionally reflect the York County Lawyers’ Association. Evident in the newest edition are the high value of what we all do both No, the lure was different. Justice solid interrelationships in commercial individually to serve clients and col- Mercure, in his recent review, observed, litigation that have been built between lectively to assure the pre-eminence of “This set of books is an exemplary the New York State courts and the fed- New York State as a world commercial response to substantial changes in the eral courts, as well as the burgeoning capital. From the first-rate authors’ field of commercial litigation.” Having universe of alternative dispute resolu- extraordinary product and their every- watched from the treasured vantage tion. Heightened awareness of, and day performance, it is clear to me why point of the Court of Appeals bench mutual respect for, one another’s role New York State is so often specified in since the Commercial Division and the in our global world can only yield agreements as the governing law. treatise made their debut, I wanted to enormous benefit all-around. None of So I thank you, Bob Haig, for pre- page through the volumes and take a us does, or can do, this alone. cipitating yet another great edition – fresh, lawyer’s look at where things Do I see dramatic change in the and for inviting me to review it. ■ had come. What’s new and different, field of commercial litigation wrought what has (or has not) fared well in this by today’s business climate? Have the brave new world of ours? So I won’t intensity of competition, the technol- JUDITH S. KAYE, formerly Chief Judge of the State squander any more of my precious ogy and other factors made the prac- of New York, is now Of Counsel to Skadden, 800-word limit on the added bulk of tice of commercial litigation law today Arps, Slate, Meagher & Flom. the volumes – new authors and chap- meaner, crasser, “unprofessional”?

NYSBA Journal | January 2011 | 53 The Legal Writer Continued from Page 64 evidentiary support for the plaintiff’s knowledge, except as to the matters sistent remedies. For example, a court factual allegations.13 If a court deter- therein stated to be alleged on informa- will not grant specific performance mines that your complaint is frivolous, tion and belief, and as to those matters and rescission of a contract. you as the plaintiff or your attorney, or I believe them to be true.” Also, as explained in Part I of this both, is subject to sanctions. The court If an agent or attorney verifies series, don’t include a specific dollar might also strike your complaint.14 the pleading, use the following lan- amount in personal injury, wrongful- The signature requirement applies guage: “The ground of belief as to all death actions, medical-malpractice to every pleading you serve on another matters not stated upon knowledge actions, and any action against a party and file with the court. If you or is that . . . .” (Indicate what docu- municipal corporation. Exception: If your attorney omit a signature and you ments you’ve reviewed or conversa- the action is in New York State Supreme haven’t corrected the omission, a court tions you’ve had with a witness, for Court, allege in your complaint that may strike your pleadings. example.) “The reason a party did not the amount of “damages exceeds the make this affidavit (or affirmation, if jurisdictional limit of all other courts 6. Verification completed by an attorney) is that . . . .” that might have jurisdiction.”8 The A verification is a party’s sworn state- (Insert reasons, such as the party is not defendant may request a supplemental ment that the party asserts the allega- in the county where the party’s attor- demand asking that you specify the tions in the pleading are true according ney has an office.) total amount of damages you’re seek- to the party’s knowledge and belief, Under CPLR 2106, an attorney, phy- ing; you have 15 days from the request except as to those matters alleged in sician, osteopath, or dentist whom the to serve the supplemental demand.9 the pleading on “information and law authorizes to practice in the state Read the complaint from the point of view of each of your different audiences: the court, your adversary, and your client.

The demand for relief is also belief.”15 Some causes of action require and who is not a party to the action required in other pleadings: counter- verified complaints, including sales of may affirm the verification statement claims, cross-claims, interpleader com- goods and performance of labor under “to be true under the penalties of plaints, and third-party complaints.10 CPLR 3016(f), summary proceedings perjury” rather than swear before a to recover possession of real prop- notary. 5. Indorsement and Signature erty under Real Property Actions and CPLR 3022 explains the remedies At the end of the complaint, if you Proceedings Law § 741, and matrimo- for a defective verification when veri- are a pro se plaintiff, sign your name nial actions under Domestic Relations fications are optional as opposed to and give your address and telephone Law § 211.16 If a pleading is verified, when they’re mandatory. number. Also, print or type your each subsequent pleading must also name directly below your signature. If be verified. Exceptions: an answer by Edit and Rewrite attorneys represent you, the attorneys an infant, information that may be Once you as the attorney have fin- should provide their name, address, privileged, or any exception specified ished drafting the complaint, con- and telephone number. You or your by law. sider your clients.17 Have them read attorney may also want to include the In a multiparty case, only one party the complaint to make sure that they following: (1) the date you indorsed need verify the pleading. If a domestic understand it and that the complaint the complaint; (2) the place where you corporation is a party, a corporate officer is accurate. Clients should be able drafted the complaint; (3) the party should verify the pleading. If a party to read and understand pleadings that counsel represents; and (4) the is a governmental body, any person easily. Your clients are in the best person(s) you served the complaint. acquainted with the facts may verify the position to see factual errors in a The CPLR now requires that your attor- pleading. An attorney may also verify complaint. The complaint should be ney sign.11 Underneath the attorney’s the pleading. In verifying the pleading, “geared to their level of sophistica- signature, have the attorney print the the attorney asserts that the attorney has tion and legal knowledge.”18 If your attorney’s name. The purpose of the some knowledge of material facts in the clients can’t understand the com- signature requirement is to ensure that pleading after having consulted with a plaint, you’ve alienated those whose you or your attorney has read the com- client or reviewed certain documents. help you need. Have your clients plaint and that you or your attorney is Example of verification by a party: review the complaint to check that bringing the claim in good faith — a “I, John Johnson, being duly sworn, the facts are accurate and to confirm complaint that isn’t frivolous.12 A signa- state: I am the plaintiff in this action. that the claims in the complaint are ture also verifies that there is, or will be, The foregoing complaint is true to my the ones your clients want to pursue.

54 | January 2011 | NYSBA Journal Read the complaint yourself, once Evaluate the complaint from the reference your documents. Example: for organization and structure and a judge’s viewpoint — an objective “In a contract dated October 10, 2010, second time for accuracy and clarity. Be standpoint. Consider the tone of the defendant agreed to ship 200 widgets. certain you’ve expressed the allegations complaint. Does the story portray the A copy of that contract is attached as simply: “genuinely confusing allega- plaintiff sympathetically without being Plaintiff’s 1 and incorporated by refer- tions will give the defendant the oppor- melodramatic or maudlin? Is the com- ence into this complaint.” tunity to deny what would otherwise plaint consistent? Are there contradic- In the next issue’s column, the Legal have to be admitted.”19 Proofread care- tions? Before arguing in the alterna- Writer will continue with techniques fully; check that paragraphs are num- tive, weigh the risks and benefits of on writing pleadings. ■ bered consecutively and that references doing so: “If you decide to plead in the 20 to earlier paragraphs are correct. alternative, use language that makes GERALD LEBOVITS is a judge of the New York Draft each aspect of the complaint so it clear that you’re making alterna- City Civil Court and an adjunct professor at St. that you won’t waste time and money tive arguments, not just contradicting John’s University School of Law and Columbia pursuing fruitless claims or defending yourself.”22 Law School. He thanks court attorney Alexandra your complaint against challenges. The Standish for researching this column. Judge time spent on this careful drafting is Attaching Documents to Lebovits’s email address is [email protected]. minimal compared to the time it takes Your Complaint to respond to motions your adversary To substantiate your claims, you may 1. Mary Barnard Ray & Barbara J. Cox, Beyond raises and for you to bring motions to mention documents that corroborate the Basics: A Text for Advanced Legal Writing 265 (2d ed. 2003). amend defects in your complaint. your claims, including checks, con- 2. Roger S. Haydock, David F. Herr & Jeffrey W. tracts, letters, memorandums, and Stempel, Fundamentals of Pretrial Litigation 103 Test the Consequences reports (medical, police, and corpo- (2d ed. 1992). Once you finish drafting the com- rate).23 Documents attached to your 3. Id. plaint, answer the complaint your- complaint become part of the com- 4. Adapted from 1 Michael Barr, Myriam J. 24 Altman, Burton N. Lipshie & Sharon S. Gerstman, self. This exercise will reveal draft- plaint. You might want to attach doc- New York Civil Practice Before Trial at § 15:410, at ing and pleading defects and whether uments to the complaint to legitimize 15-44, 15-45 (2006; Dec. 2009 Supp.). the defendant can avoid answering your claims25 and to show that you 5. Ray & Cox, supra note 1, at 265. allegations because of loose drafting. have provided the requisite notice of 6. Barr et al., supra note 4, at § 15:412, at 15-45. Statements in a pleading are admis- a default and an opportunity to cure, 7. Id. at § 15:413, at 15-45. sions. You should force the other side if you must allege them. Including 8. Id. at § 15:422, at 15-46. other documents shows the court and 9. CPLR 3017(c); Barr et al., supra note 4, at § If your clients can’t your adversary that there’s substance 15:422, at 15-46. understand the to what you’re alleging. By attach- 10. Barr et al., supra note 4, at § 15:410, at 15-44. ing documents, you’re authenticating 11. CPLR 2101(d). complaint, you’ve the documents you’ve attached at the 12. Haydock et al., supra note 2, at 104. alienated those whose outset. Although attaching documents 13. Ray & Cox, supra note 1, at 266. 14. Haydock et al., supra note 2, at 104. might be advantageous to you, con- help you need. 26 15. Susan L. Brody, Jane Rutherford, Laurel A. sider the disadvantages. One disad- Vietzen & John C. Dernbach, Legal Drafting 283 to make admissions while avoiding vantage is that the documents you’ve (1994); Michael P. Graff, The Art of Pleading — New making them yourself. attached might not be admissible; they York State Courts, City Bar Ctr. for CLE 1, 26 (Dec. 8, 2008). Read the complaint from the point might contain inadmissible evidence. 16. Graff, supra note 15, at 27. of view of each of your different audi- The documents might also contain 17. Brody et al., supra note 15, at 292. ences: the court, your adversary, and information harmful to your client. 18. Id. your client. Begin with your most Also, attaching too many documents 19. Elizabeth Fajans, Mary R. Falk & Helene S. hostile audience: your adversary. The to the complaint might make the com- Shapo, Writing for Law Practice 53 (2004). defendant might seek to dismiss the plaint lose its overall persuasive effect. 20. Id. case for lack of jurisdiction, improper By attaching documents, your com- 21. Brody et al., supra note 15, at 302–03. venue, failure to state a claim or cause plaint will look like a motion for sum- 22. Id. at 304. of action, and failure to state facts mary judgment.27 That’s not what your 23. Barr et al., supra note 4, at § 15:441, at 15-47. in sufficient detail.21 Anticipate these complaint should look like. 24. CPLR 3014. grounds and edit your complaint so If you’re attaching documents to 25. Barr et al., supra note 4 at § 15:441, at 15-47. that your adversary won’t raise them. your complaint, make sure to attach 26. Id. at § 15:442, at 15-47. For every claim you set forth, make them as exhibits. Label them as exhib- 27. Id. sure to list sufficient facts to support its and mark them in numerical or each element. alphabetical order. In the complaint,

NYSBA Journal | January 2011 | 55 NYSBA SUSTAINING MEMBERS

We wish to extend our sincere gratitude to the following 798 individuals who are Sustaining Members of the New York State Bar Association. Sustaining Members are a distinguished group of members, representing 23 states and 25 countries, who provide the Association with extra financial Support to help NYSBA maintain its leadership position as the voice of the New York attorneys. Sustaining Membership dues are $400 per year for in-state members and $250 for out-of-state members. For more information on how to become a Sustaining Member, please contact the Membership Services Department at 518-487-5571 or [email protected].

Jonathan S. Abernethy Hon. Renato Beghe Dianne C. Bresee Cristine Cioffi Samuel F. Abernethy William H. Behrenfeld Zygmunt Brett Jerri A. Cirino Aaron N. Abraham Jonathan B. Behrins Peter J. Brevorka Robert D. Clark Alton L. Abramowitz Jeena Belil Daniel E. Brick Dr. Maurizio Codurri Alan Jay Ackerman Susan L. Bender Victoria E. Brieant Dr. Rudolf F. Coelle Sandra Adams Alessandro Benedetti Louis T. Brindisi John P. Coffey Paul R. Ades Howard Benjamin Alan J. Brody Peter V. Coffey Frederick H. Ahrens Hon. Catherine M. Phillip Brothman Stephen R. Coffey Mark H. Alcott Bennett, ALJ Janiece Brown Spitzmueller Barbara M. Cohen Eleanor B. Alter James D. Bennett Peter Brown Edmund S. Cohen Martin B. Amdur Pablo M. Bentes Robert E. Buckholz, Jr. Mitchell Y. Cohen Andrew B. Amerling Andrew N. Berg Hon. John T. Buckley Steven M. Cohen Randall K. Anderson James Michael Bergin Vaughn J. Buffalo J. Peter Coll, Jr. Howard F. Angione Michelle D. Bergman Carole A. Burns Ernest J. Collazo David J. Arcella Philip M. Berkowitz Howard W. Burns, Jr. Dale S. Collinson Gregory K. Arenson Henry S. Berman Leighton R. Burns Paul R. Comeau Oliver J. Armas Christine Beshar Jeffrey D. Buss Michael J. Comerford Daniel J. Arno Kenneth J. Bialkin David G. Butler S.H. Spencer Compton Dean Hannah Rose Arterian Wendy Caroline Bicovny Kwanza Rani Butler Mary Grace Condello Hon. Joel K. Asarch J. Truman Bidwell, Jr. Hon. Tyrone Thomas Butler Sydney M. Cone, III Roberta Dorf Asher Peter Bienstock A. Vincent Buzard Brian S. Conneely Marcus Aaron Asner Edward L. Birnbaum Philip A. Byler Terrence M. Connors Richard N. Aswad Thomas C. Bivona Michael J. Byrne David C. Cook Frederick G. Attea Jeffrey A. Black Karen A. Caffee Ilene S. Cooper Jack C. Auspitz Martin Blackman Tracia Caroline Callender Michael A. Cooper A. Jude Avelino Gregory J. Blasi Paul J. Cambria, Jr. Efren L. Cordero James B. Ayers Roger F. Bloom John V. Campano Edward C. Cosgrove Hong Oo Baak H. Lee Blumberg Lori A. Cantwell Edward F. Cox Gerald S. Backman John E. Blyth Eleanor Capogrosso Roderick John Coyne Dennis R. Baldwin Peter O. Bodnar Anthony J. Carbone Hon. Stephen G. Crane Robert F. Baldwin, Jr. Margaret Ann Bomba Christopher J. Carey Robert H. Crespi Kenneth J. Balkan Hugo K. Bonar Robert C. Carlsen Richard C. Cummings Ronald Balter Annamarie Bondi-Stoddard Frank V. Carone, Jr. Renaye B. Cuyler Karin J. Barkhorn Wilhelm G. Boner Zachary W. Carter Hon. Melanie L. Cyganowski Jeffery A. Barnes Christopher J. Bonner Donna J. Case Lawrence T. D’Aloise, Jr. Sol Barrocas R. Daniel Bordoni Jerome J. Caulfield Chris A. D’Angelo Hon. Richard J. Bartlett Robert L. Boreanaz Thomas H. Cellilli, III Frank G. D’Angelo Ernest T. Bartol Mitchell F. Borger Gregory T. Cerchione Ronald F. Daitz Gary E. Bashian Carol Ann Bosco Deborah J. Chadsey Prof. Harvey P. Dale Jorge L. Batista Carl-Olof E. Bouveng Saeyoung Chang Peter Danziger Ravi Batra Sharon Y. Bowen Eirini C. Charisiadou Gary M. Darche Brendan F. Baynes Hon. Seymour Boyers Guneet Chaudhary Willard H. DaSilva Charles A. Beach Bruce L. Bozeman Charles Chehebar S. Gerald Davidson Linda McKissack Beale Joseph Brachfeld Nancy Chemtob Bonni G. Davis Edward F. Beane John P. Bracken Lawrence D. Chesler Malcolm H. Davis Bruce O. Becker Thomas C. Brady Henry Christensen, III Francis P. Dec Jeffrey H. Becker RoseAnn C. Branda Bruno Cilio Francis X. Dee

56 | January 2011 | NYSBA Journal Edward K. Dennehy Steven R. Finkelstein Ronnie P. Gouz Hon. James F. Horan, ALJ Fatos Dervishi Victor M. Finmann Edward Gozigian John R. Horan W. Robert Devine Daniel G. Fish David B. Grantz Michael J. Horvitz Ronald J. DeVito Gerard Fishberg Alan W. Granwell Richard R. Howe Mark Devlin Cynthia D. Fisher Guillermo Malm Green Liberatore J. Iannarone Giovanni Di Stefano James D. Fitzpatrick William H. Green Joseph Jaffe Hon. Thomas A. Dickerson Donald J. Fleishaker Maurice R. Greenberg William M. Jaffe Gerald Dominick Diedwards Edward B. Flink Ronald David Greenberg Seymour W. James, Jr. Lawrence F. DiGiovanna Ellen L. Flowers Richard F. Griffin Sharon L. Jankiewicz Louis P. DiLorenzo Robert L. Folks James R. Grimaldi Murray M. Jaros James H. Ditkoff Lucille A. Fontana Judith D. Grimaldi Jennifer A. Jensen John K. Diviney Alexander D. Forger John J. Grimes R. Kenneth Jewell Donald C. Doerr Emily F. Franchina John H. Gross Martin T. Johnson Rico V. Domingo Paul M. Frank James S. Grossman Daniel S. Jonas Robert A. Doren David Franklin Sharon Kovacs Gruer E. Stewart Jones, Jr. Charles E. Dorkey, III Robert M. Freedman Michael J. Grygiel David Frederic Kaenzig Maureen Dougherty Theodore Levy Freedman Gregory J. Guercio Alan E. Kahn Vincent E. Doyle, III Gary B. Freidman Dean Thomas F. Guernsey Michele Kahn Thomas G. Draper, Jr. Andrew Michael Friedman Hon. Frank A. Gulotta, Jr. Arlene Kane Yvon Dreano Joseph N. Friedman Claire P. Gutekunst Arnold Y. Kapiloff Clover M. Drinkwater Richard B. Friedman George J. Haggerty Howard G. Kaplan Ronald H. Drucker Jeffrey L. Futter Michel P. Haggerty Paul Richard Karan James P. Duffy, III John Gaal Zvi Hahn Kent Karlsson Elizabeth M. Dumas Michael W. Galligan Robert L. Haig Louis P. Karol John R. Dunne Karen L. I. Gallinari John G. Hall Joel J. Karp James F. Dwyer Vincent J. Gallo Thomas J. J. Hall Scott M. Karson Joseph C. Dwyer Ganine Gambale Mark S. Hamburgh Dr. Barbara H. Katsos Patrick J. Dwyer William G. Gandy Calvin A. Hamilton Stephen D. Katz Judith A. Eisen Michael J. Garcia James H. Hancock Dunniela Kaufman Andrea M. Elder-Howell Barry H. Garfinkel David P. Hariton Eugene M. Kaufman Hon. Betty Weinberg Ellerin Dennis J. Garvey Michael T. Harren Robert M. Kaufman Anthony J. Enea Frank M. Gasparo Arlene Harris Hon. Judith S. Kaye Dennis M. Englert Stephen Gassman James M. Hartmann James J. Keefe, Jr. Gordon W. Esau Dr. Denis Gebhardt Anthony J. Harwood William F. Keenan Michael Ettinger Janet Thiele Geldzahler Mitsuhiro Hasegawa Stephen M. Kelley Karen R. Fagerstrom Ralph A. Gerra, Jr., Paul Michael Hassett Matthew J. Kelly Haliburton Fales, II Michael E. Getnick David J. Hatem Ray Kelly John A. Fantauzzi Neil V. Getnick Edgar H. Haug John J. Kenney Angelo G. Faraci Donna M. Giliberto David M. Hayes Suman Jyoti Khaitan Joseph H. Farrell S. Hazard Gillespie James E. Hayes Kenneth Seo Kim Susan J. Feathers Harlan B. Gingold Axel Heck Alison McKinnell King David W. Feeney A. Robert Giordano Clifford J. Hendel Henry L. King Dean John D. Feerick Mary P. Giordano Janet L. Henner W. Thomas King Jia Fei Rudolph W. Giuliani David J. Hernandez Thomas S. Kirk Steven Neil Feinman Joel C. Glanstein Philip M. Herr Patricia G. Kitson Howard L. Feinsand David L. Glass Cathi A. Hession Robert Koenigsberg Myrna Felder Simeon Gold Adria S. Hillman Eve Green Koopersmith Louis E. Feldman Michael Max Goldberg Linda B. Hirschson Alan M. Koral Alan Fell Neil A. Goldberg Bobbe Hirsh Edward S. Kornreich Timothy J. Fennell Charles A. Goldberger John Si Ho Roberta Kotkin Hermes Fernandez A. Paul Goldblum Jonathan L. Hochman Victor A. Kovner Lucas A. Ferrara Stuart J. Goldring Jack S. Hoffinger Kenneth A. Krajewski David A. Field Willis J. Goldsmith Barbara Hoffman Stephen J. Krass Robert P. Fine Paul A. Golinski Carol M. Hoffman Byung-Kyu Kwon Hon. Margaret J. Finerty Andre Osorio Gondinho Gregory H. Hoffman Joseph G. LaCapra Raymond L. Fink Kenneth Gordon Stephen D. Hoffman Robinson B. Lacy Rosalind S. Fink Marcia Z. Gordon Eric Honick Avnita Lakhani Daniel Finkelstein David M. Gouldin David Stephen Hope Gary K. Lam

NYSBA Journal | January 2011 | 57 Stephen B. Land Harvey S. Mars George J. Nashak, Jr. Joshua M. Pruzansky Guy P. Lander Trinidad Martin Malvina Nathanson Peter M. Puleo Carlos Luis Landin Vincent J. Martorana Marshall A. Neimark A. Craig Purcell Robert D. Lang John S. Marwell Richard P. Neimark Rory J. Radding Glenn Lau-Kee Kaname Masuda Joseph E. Neuhaus Carl Radin Louis M. Laurino Richard A. Matasar Susan Neuman Carol Rafalowski C. Bruce Lawrence Grace Virginia Mattei Fredric S. Newman Raun J. Rasmussen, Jr. Bernice K. Leber Richard L. Mattiaccio Thomas J. Newman Hon. Susan Phillips Read Richard M. Leder Allan E. Mayefsky Suong Dao Dao Nguyen Margaret Z. Reed Lawrence Lederman Harold A. Mayerson Lawrence M. Noe Alissa S. Reiner Carolyn Joy Lee Dr. Eduardo A. Mayora Paul B. Nolan Leslie N. Reizes Soonghee Lee Kevin S. McAlister John M. Nonna Daniel Edward Reynolds Matthew J. Leeds Bernard W. McCarthy Gerald A. Norlander Jeff Reynolds Jerry C. Leek Sharon L. McCarthy Karen Norlander Thomas O. Rice Anthony J. Leitner Kathryn McCary Matthew J. Nothnagle M. Catherine Richardson David Morse Leonard Dennis R. McCoy Bernard W. Nussbaum Michelle F. Rider David Lerner Elizabeth J. McDonald Carolyn G. Nussbaum Kieth I. Rieger Perry A. Lerner Gerald T. McDonald Malcolm B. O’Hara Aviva Riley Ann B. Lesk Peter A. McKay Timothy M. O’Mara Marc Alexander Rivlin Marc M. Levey Kathleen M. McKenna Michael S. Oberman Joan L. Robert A. Thomas Levin Catherine D. McMahon Larisa Obolensky Debra Ann Roberts Daniel Wayne Levin Sarah Diane McShea Avery Eli Okin George Hunter Roberts Hon. Howard A. Levine Christopher Meagher David R. Okrent Paul E. Roberts Jerome L. Levine Robert C. Melendres Victor A. Oliveri Nathan J. Robfogel Marilyn M. Levine Ricardo A. Mestres, Jr. Robert L. Ostertag Susan S. Robfogel Jerome T. Levy Hon. Millard L. Midonick Gregory E. Ostling Barbara Paul Robinson Brian N. Lewandowski Claire C. Miller Humberto Antonio Pacheco Marvin S. Robinson Burt A. Lewis David S. Miller Alpizar Patricia L. R. Rodriguez Ellen Lieberman Henry G. Miller Anthony R. Palermo Theodore O. Rogers, Jr. Marc A. Lieberstein Michael Miller William Parsons, Jr. Manuel A. Romero Marc J. Lifset Richard J. Miller, Jr., Ernest T. Patrikis Diane C. Rosen Hon. Philip A. Limpert, Jr. Eileen D. Millett Gerald G. Paul Richard T. Rosen Susan B. Lindenauer Marcia Joan Mills James M. Pedowitz Stuart M. Rosen Rachel J. Littman Peter Milne Steven E. Pegalis David B. Rosenbaum Chi Liu Martin Minkowitz Dr. Christodoulos G. Bruce S. Rosenberg Dorothy P. Loeb David P. Miranda Pelaghias David Rosenberg Christopher E. Loh Douglas A. Miro Robert N. Pelier Leonard Rosenberg Richard B. Long William W. Mizrahi Robert M. Pennoyer Kathy N. Rosenthal Mark A. Longo Zia J. Mody Joel Pensley Lesley Friedman Rosenthal Anthony J. Loscalzo Michael M. Mohun James J. Periconi Stuart L. Rosow Hon. George H. Lowe Hon. Milton Mollen Irving Perlman Mitchell J. Rotbert George T. Lowy Bruce M. Montgomerie Rajpattie Persaud-Billette Richard S. Rothberg Martin Richard Lueck Claude D. Montgomery Mark H. Petitte Laraine S. Rothenberg Bertil P. Lundqvist James C. Moore Martin Petroff Daniel J. Rothstein Jonathan D. Lupkin Rafael Avelino Morales Maxwell S. Pfeifer Philip R. Rotner Margaret Comard Lynch Edward P. Moran Michael G. Pfeifer Joshua S. Rubenstein Louis J. Macari Karen L. Morris John J. Phelan, III Seth Rubenstein Janie Hayden MacArthur Mary Beth Quaranta Hon. Emily S. Pines Cynthia B. Rubin Robert MacCrate Morrissey Vincent F. Pitta Herbert Rubin Kathryn Grant Madigan Peter J. Moschetti, Jr. Faye M. Polayes Hon. Israel Rubin Harold A. Mahony Lillian M. Moy Dale L. Ponikvar Miles L. Rubin Thomas Maligno Michael Denis Murphy Paul E. Pontiff Aaron Rubinstein Gary B. Mandel Kay Crawford Murray Susan Porter Michael J. Rufkahr J. Warren Mangan Stephen J. Murray John K. Powers Hon. Richard N. Runes Kenneth A. Manning Kathryn I. Murtagh Bruce J. Prager William T. Russell, Jr. Christopher E. Manno Thomas E. Myers Gregory P. Pressman Carmen A. Russo Linda Markowitz Gary P. Naftalis Armand James Prisco Mary L. Ryan Hendry

58 | January 2011 | NYSBA Journal Gerald S. Sacca William D. Siegel Michael R. Suprunowicz Justin L. Vigdor Suzanne Marie Saia Richard L. Sigal Robert P. Sweeney Giselle T. Vigneron David J. Saleh Robert S. Sikorski Douglas T. Tabachnik Lauren J. Wachtler Owolabi M. Salis Hon. Jacqueline W. John W. Tabner Dr. Otto Waechter Prof. Patricia E. Salkin Silbermann Lewis C. Taishoff Sherry Levin Wallach John E. Sands Paul R. Siminerio Jayant Waman Tambe Hon. Carrol S. Walsh, Jr. Jon N. Santemma Robert T. Simmelkjaer Steven L. Tarshis John Bronson Walsh William J. Sapone Rebecca J. Simmons John E. Tavss Owen B. Walsh Arthur V. Savage Dean Michael A. Simons Kimberly Taylor Peter C. Walsh Edmund A. Schaffzin Hon. Conrad D. Singer Willard B. Taylor Richard P. Walsh, Jr. Davida S. Scher Kaviraj Singh, Sr. Zenith T. Taylor Jeffrey Dana Watkiss Dennis Schlenker John P. Sirico, II Michael F. Teitler Ellen Stempler Weinstein Michael L. Schler Georgiana James Slade M. David Tell David A. Weintraub Sanford J. Schlesinger Deborah A. Slezak David H. Tennant Steven J. Weiss Alex Schmitt Robert Andrew Sliwinski Arthur N. Terranova Thomas H. Welby Harvey I. Schneider Pamela M. Sloan Norman Oscar Thomas Edward S. Weltman Robert C. Schneider Catherine L. Sloane Arthur H. Thorn Barbara Maria Weltsek Ira A. Schochet Melissa J. Smallacombe Dale M. Thuillez Joan G. Wexler Robert T. Schofield, IV Hon. George Bundy Smith David R. Tillinghast Matthew Allen Wieland David M. Schraver Richard L. Smith Donald Tirschwell Robert Andrew Wild Roderick Schutt Lewis M. Smoley Nicholas E. Tishler Michelle H. Wildgrube Gary Schwarcz Donald S. Snider Gerald C. Tobin G. Robert Witmer, Jr. Marvin Schwartz Andrew L. Sokol Jeffrey M. Tolin Diana L. Wollman Thomas F. Segalla Eugene P. Souther Howard Michael Tollin Hon. Paul L. Wollman Hon. Adam Seiden Susan A. Sovie Elizabeth C. Tomson Philip B. Wright Raymond H. Seitz Neal S. Spector Claudia O. Torrey E. Lisk Wyckoff, Jr. George C. Seward Gregory Spektor Peter Pearson Traub, Jr. Michael G. Yamin Paul F. Shanahan Evan J. Spelfogel Hon. Jonah Triebwasser Pauline Yeung-Ha Steven B. Shapiro Thomas J. Spellman, Jr. John N. Tsigakos Oliver C. Young Stephen E. Shay Gerald F. Stack Spiros A. Tsimbinos Stephen P. Younger Mary E. Sheridan Kenneth G. Standard Louis Tuchman Steven Mark Zager Isaac Sherman John P. Starrs Lenore W. Tucker Bari S. Zahn Peter J.W. Sherwin Jamie B.W. Stecher John F. Tully Mark C. Zauderer Elisa Shevlin Rizzo Harriette M. Steinberg Allen M. Turek Steven L. Zelkowitz Lisa Lynn Shrewsberry Michael V. Sterlacci David A. Tyler Jiusu Zhao Arthur E. Shulman Stephen R. Stern Leo S. Ullman Lawrence A. Zimmerman John A. Shutkin Sarah J. Stewart Sydney E. Unger Prof. Robert M. Zinman Constantine Sidamon-Eristoff Dr. Andreas Striegel Dr. Thomas O. Verhoeven Howard Zucker Prof. David D. Siegel Peter Sullivan Paul G. Vesnaver John F. Zulack

In Memoriam H. James Abdella Martin D. Ginsburg Charles H. Jennings Patricia J. Murphy Robert P. Schulman Jamestown, NY Washington, DC Lodi, NY New York, NY Boca Raton, FL John P. Balio Thomas P. Goodwin Victor M. Liccione William L. Murphy Arthur I. Seld Utica, NY Carthage, NY Syracuse, NY Staten Island, NY Seneca Falls, NY Randall J. Cude Herbert B. Halberg Hyman J. Mendelson Maureen RL Mussenden George G. Smyth New York, NY New York, NY Brooklyn, NY Buffalo, NY Hampton Bays, NY Fred Bunker Davis A. Edward Hill Stuart O. Miller Nancy D. Peck William B. Warren Omaha, NE Lafayette, CA Seneca Falls, NY Rochester, NY New York, NY Mary Elizabeth T. Dunne J. Nelson Hood Edward S. Minzner Leonard Relin Kathleen A. Warwick Albany, NY Haverstraw, NY Naples, FL Rochester, NY New York, NY Richard E. Floor Kent D. Hunter Paul L. Mollica Richard R. Rowley Norman P. Weiss Boston, MA Joplin, MO Poughkeepsie, NY Albany, NY Melville, NY

NYSBA Journal | January 2011 | 59 CLASSIFIED NOTICES

RESPOND TO NOTICES AT: LLM IN INTERNATIONAL INDEX TO New York State Bar Association PRACTICE ADVERTISERS One Elk Street Albany, NY 12207 Degree conferred by Ryszard Lazarski ABA/State Street Bank & Attn: Daniel McMahon University, Warsaw, Poland, and Center Trust Company 7 DEADLINE FOR SUBMISSIONS: for International Legal Studies, Salzburg, Attorneys Dell & Six weeks prior to the first day Austria. Two 2-week sessions in Salzburg Schaefer Chartered 60 of the month of publication. and one 2-week session in Warsaw over Bureau of National Affairs 9 NONMEMBERS: three years. See www.cils.org/Lazarski. Center for International $175 for 50 words or less; htm. Contact CILS, Matzenkopfgasse 19, Legal Studies 60 plus $1 for each additional word. Salzburg 5020, Austria, email [email protected], Boxholder No. assigned— International Genealogical $75 per insertion. US fax 509-3560077, US tel 970-4601232. Search, Inc. 47 MEMBERS: Law Offices of Joseph F. Jacob, PLLC 60 $135 for 50 words and $1 for REFER US YOUR DISABILITY each additional word. INSURANCE CASES Special Counsel, Inc. 19 Payment must accompany The Company Corporation 60 insertion orders. Attorneys Dell & Schaefer - Our disability The Law Offices of SEND ADS WITH PAYMENT TO: income division, managed by Gregory Adrian Philip Thomas P.A. 2 Network Media Partners Dell, is comprised of eight attorneys Executive Plaza 1, Suite 900 USI Affinity 4 that represent claimants throughout all 11350 McCormick Road West, a Thomson Reuters cover 4, Hunt Valley, MD 21031 stages (i.e. applications, denials, appeals, Business insert (410) 584-1960 litigation & buy-outs) of a claim for [email protected] individual or group (ERISA) long- term disability benefits. Mr. Dell is the MEMBERSHIP TOTALS INCORPORATION SERVICES author of a Westlaw Disability Insurance Law Treatise. Representing claimants Add business formation services to your throughout New York & nationwide. NEW REGULAR MEMBERS practice without adding demands on Referral Fees 212-691-6900, 800-828-7583, 1/1/10 - 12/1/10 ______10,184 your resources. www.diAttorney.com, Help clients incorporate or form limited [email protected] NEW LAW STUDENT MEMBERS liability companies with America’s lead- 1/1/10 - 12/1/10 ______1,606 ing provider of business formation ser- VISITING PROFESSORSHIPS TOTAL REGULAR MEMBERS vices. We can also assist in out-of-state AS OF 12/1/10 ______73,500 qualifications. Short-term pro bono teaching appoint- ments for lawyers with 20+ years’ experi- TOTAL LAW STUDENT MEMBERS Call us today at 800-637-4898 or visit ence Eastern Europe and former Soviet AS OF 12/1/10 ______3,327 www.incorporate.com to learn more. Republics. See www.cils3.net. Contact TOTAL MEMBERSHIP AS OF CILS, Matzenkopfgasse 19, Salzburg 5020, 12/1/10 ______76,827 ARAB AMERICAN LAWYER Austria, email [email protected], US fax 1 (509) 356 -0077. Joseph F. Jacob, BS, MBA, JD, admitted NY, NJ, Arabic Native is available for your Middle East/Arabic commercial transactions & documents drafting Notify OCA and NYSBA of any changes and review. Telephone: (518) 472-0230 MOVING? to your address or other record or email: [email protected]. information as soon as possible! Visit www.JacobLawOffices.com. let us know.

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60 | January 2011 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: Which is correct, of his family use throwaway words, On the other hand, the noun desk, “mistake ridden” or “mistake he asks, “If you add ‘truthfully,’ here, was turned into a verb in the phrase, Qriddled”? what should I think when you don’t “He’s just desking it.” That neologism Answer: To respond with the so- use that word?” was vigorously protested by sever- called “lawyerly” answer, “that Other types of intensifiers are words al readers who apparently spoke for depends.” But in this case, the answer like “very,” “greatly,” and “especially.” many Americans, for it has never taken is “that depends.” Although the two The classic example of what happens root in English. (It seems almost a pity, past participles are often synonymous, when you fasten an intensifier to a for it aptly defines an executive loafing meaning “full of,” riddled has a more word is the down-grading of the adjec- at his desk – and we all know people slanted sense. Ridden, the past partici- tive “unique.” It originally meant “one that would describe.) ple of the verb ride, is found in phrases of a kind,” a translation of the Latin like “error-ridden” and “guilt-ridden,” word unicus, meaning “only, or sole.” From the Mailbag: with the meaning of “replete with.” But when people began to attach inten- The following quotation was seen in the To say something is “mistake riddled” sifiers to “unique,” the adjective gradu- journal Chemical and Engineering News, may mean it is “rife with error,” probably ally lost its force. So now we have “very and was sent by a reader who did not a stronger condemnation than “mistake unique,” “somewhat unique.” Unique provide the date of the publication. The ridden.” The past participle riddled is has become a synonym of “unusual.” verses printed below are only the first derived from the Old English noun hrid- Propping up your adjectives not only and the last verse of a poem contain- dil, which meant “a coarse sieve.” By the weakens them, but increases verbiage. ing 146 lines; the contributor, a Dutch Middle English period, when Chaucer For forceful writing, try to find the right native who grew up in Haarlem, the wrote his Canterbury Tales and other adjective and let it stand alone. Netherlands, said that he and his class- works, it had become a verb meaning Question: A reader who asks that mates had to memorize all 146 lines in “to sift.” But during the modern English his name not be mentioned asks, order to pass their English class: period, its meaning has worsened. “Please comment on the meaning and Dearest creature in creation That pejoration in the meaning of rid- use of the word noir.” I will teach you in my verse dled may be due to its use in phrases like Answer: The adjective noir is of Latin Sounds like corpse, corps, horse, “riddled with bullet holes.” The American origin, and currently retains the mean- and worse. Heritage Dictionary (which is the source ing “black” in Modern French. English I will keep you, Susy, busy, of these definitions) quotes The New has borrowed noir, first in the phrase Make your head with heat grow Republic’s pejorative use of riddled, in “noir genre” to describe crime literature, dizzy “The political campaign [was] riddled which features tough, cynical characters with demagogy and worse.” Words, like and bleak settings. More recently it has The poem continues, ending with the people, are often judged by the company become the popular English phrase film verse below: they keep, and riddled has been the vic- noir, describing Hollywood-type crime Finally: which rimes with “enough” tim of unfortunate association. films, especially those that emphasize Though, through, plough, cough Question: My question is about cynical and sexual attitudes. Caught, or coughed? what I call “throwaway words,” words It has also been borrowed for market- Hiccough has the sound of “cup.” like “frankly, “honestly,” “sincerely,” ing purposes as a name for pricey sun- My advice is – give it up! and “truthfully,” which in my opinion glasses and jewelry. The Hotel Charles add nothing to the dialogue and are in Boston has a “Noir Bar.” Words like Readers who are native speakers of now increasingly being added to state- “noir,” borrowed for special contexts English should be happy not to have to ments. Do you have an explanation for sometimes merge into general usage be taught the correct pronunciation of why such expressions are used? and their source is forgotten. Most such these words. You might misspell them, Answer: What you have dubbed words, however, do not become popu- but you learned how to pronounce them “throwaway words” (a great name) lar and they disappear. The name for long ago at your mother’s knee. ■ are usually called “intensifiers.” When those words is “nonce terms.” they use them, people intend to empha- In the January 2010 “Language GERTRUDE BLOCK is lecturer emerita at the size what comes next, or at least to call Tips,” there was a discussion of new University of Florida College of Law. She is the attention to it. But, in fact, intensifiers uses for words, prompted by a read- author of Legal Writing Advice: Questions and weaken the language that follows. In er’s question about the noun venue. Answers (W. S. Hein & Co.); Effective Legal addition, those words cast doubt on The new meanings of venue have been Writing (Foundation Press) and co-author the sincerity of language that is not widely accepted by the public, and of Judicial Opinion Writing (American Bar so-labeled. The reader who submitted venue now seems firmly established Association). this question said that when members with its expanded meanings.

NYSBA Journal | January 2011 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

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62 | January 2011 | NYSBA Journal 2010-2011 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

STEPHEN P. Y OUNGER FIRST DISTRICT McKay, Hon. Joseph Kevin Convissar, Robert N. Aaron, Stewart D. Park, Maria Y. † Doyle, Vincent E., III President Abernethy, Samuel F. Romero, Manuel A. Edmunds, David L., Jr. New York Abramowitz, Alton L. Sunshine, Hon. Jeffrey S. Effman, Norman P. Adler, Roger B. Sunshine, Hon. Nancy T. * Freedman, Maryann Saccomando † Alcott, Mark H. Gerstman, Sharon Stern VINCENT E. DOYLE III THIRD DISTRICT Anello, Robert J. Ayers, James B. Hager, Rita Merino President-Elect Berke-Weiss, Laurie Barnes, James R. † * Hassett, Paul Michael Buffalo Bohorquez, Fernando A., Jr. Baynes, Brendan F. Manias, Giles P. Brown, Earamichia Costello, Bartley J., III Russ, Arthur A., Jr. Chambers, Hon. Cheryl E. Schwartz, Scott M. DAVID P. M IRANDA Davidoff, Michael Chang, Vincent Ted DeFio Kean, Elena Sconiers, Hon. Rose H. Secretary Christian, Catherine A. Doherty, Glen P. Seitz, Raymond H. Albany Cohen, Carrie H. Fernandez, Hon. Henry A. NINTH DISTRICT Collazo, Ernest J. Fernandez, Hermes Amoruso, Michael J. * Cometa, Angelo T. EYMOUR AMES R Glasheen, Kevin P. Brown, Terryl S W. J , J . Conley, Sylvia Jeanine Greenthal, John L. Burke, Patrick T. Treasurer DeMarco, Joseph V. Hacker, James E. Burns, Stephanie L. New York Di Pietro, Sylvia E. Hanna, John, Jr. Byrne, Robert Lantry Draper, Thomas G., Jr. Hurteau, Daniel Joseph Cohen, Mitchell Y. Drayton, Joseph Michael Kahler, Annette I. Cusano, Gary A. MICHAEL E. GETNICK Ellerin, Hon. Betty Weinberg Kaplan, Edward Ian Dohn, Robert P. Immediate Past President Eppler, Klaus Liebman, Bennett M. Fedorchak, James Mark Finerty, Hon. Margaret J. Miranda, David P. Fontana, Lucille A. Utica Finguerra, Dyan M. Moy, Lillian M. † Fox, Michael L. * Forger, Alexander D. Pechenik, Stephen A. Goldenberg, Ira S. VICE-PRESIDENTS Gallagher, Patrick C. Pettit, Stacy L. Marwell, John S. Galligan, Michael W. Privitera, John J. Miklitsch, Catherine M. Gesinsky, Loren FIRST DISTRICT Roberts-Ryba, Christina L. * Miller, Henry G. * Gillespie, S. Hazard Rosiny, Frank R. Nachimson, Steven G. Claire P. Gutekunst, New York Glanstein, Joel C. Ryan, Rachel * Ostertag, Robert L. Ann B. Lesk, New York Goldberg, Evan M. Salkin, Prof. Patricia E. Rauer, Brian Daniel Gutekunst, Claire P. Schneer, Hon. Deborah S. Sachs, Joel H. Gutheil, Karen Fisher SECOND DISTRICT * Yanas, John J. Sandford, Donald K. Hanks, Kendyl T. Selinger, John Hawkins, Dennis R. FOURTH DISTRICT Manuel A. Romero, Brooklyn Baker, Carl T. Singer, Rhonda K. Ho, John Si Starkman, Mark T. Hoffman, Stephen D. Healey, Andrew J. THIRD DISTRICT Herrmann, Diane M. Stone, Robert S. Hollyer, A. Rene Strauss, Barbara J. Honig, Jonathan Hoag, Rosemary T. Lillian M. Moy, Albany Ladouceur, Michelle H. Strauss, Hon. Forrest James, Hon. Debra A. Van Scoyoc, Carol L. James, Seymour W., Jr. Lais, Kara I. FOURTH DISTRICT Martin, Trinidad Wallach, Sherry Levin Kahn, Michele Weis, Robert A. Patricia L. R. Rodriguez, Schenectady Kanter, Gregg Herbert McAuliffe, J. Gerard, Jr. Kaplan, Matthew E. McNamara, Matthew Hawthorne TENTH DISTRICT FIFTH DISTRICT Kennedy, Henry J. Onderdonk, Marne L. Asarch, Hon. Joel K. Kera, Martin S. Rodriguez, Patricia L. R. Block, Justin M. Thomas E. Myers, Syracuse * King, Henry L. Slezak, Rebecca A. * Bracken, John P. Kobak, James B., Jr. Stanclift, Tucker C. Bucaria, Thomas A. SIXTH DISTRICT Kornreich, Edward S. Watkins, Patricia E. Chase, Dennis R. Fishberg, Gerard Mark S. Gorgos, Binghamton Larson, Wallace L., Jr. FIFTH DISTRICT Lau-Kee, Glenn Fennell, Timothy J. Franchina, Emily F. Fish, Marion Hancock Gann, Marc SEVENTH DISTRICT † * Leber, Bernice K. Lesk, Ann B. Foley, Timothy D. Good, Douglas J. June M. Castellano, Rochester Levy, M. Barry Gensini, Gioia A. Gruer, Sharon Kovacs Lieberman, Ellen † * Getnick, Michael E. Hayden, Hon. Douglas J. Hendry, Melanie Dyani EIGHTH DISTRICT Lindenauer, Susan B. Gigliotti, Hon. Louis P. Lupkin, Jonathan D. Gingold, Neil M. Karabatos, Elena David L. Edmunds, Jr., Buffalo * MacCrate, Robert Howe, David S. Karson, Scott M. Marino, Thomas V. Humphrey, Mary R. † * Levin, A. Thomas NINTH DISTRICT Medenica, Olivera Ludington, Hon. Spencer J. Luskin, Andrew J. Miller, David S. McArdle, Kevin M.N Makofsky, Ellen G. John S. Marwell, Mount Kisco Miller, Michael Myers, Thomas E. McEntee, John P. Minkowitz, Martin Pellow, David M. Mejias, Linda Kelly TENTH DISTRICT Morril, Mark C. * Richardson, M. Catherine Pachman, Matthew E. * Pruzansky, Joshua M. Emily F. Franchina, Garden City Morton, Margaret S. Stanislaus, Karen Moses, Barbara Carol Tsan, Clifford Gee-Tong Randazzo, Sheryl L. Nathanson, Malvina Virkler, Timothy L. * Rice, Thomas O. ELEVENTH DISTRICT Shulman, Arthur E. Nelson, Lester SIXTH DISTRICT David Louis Cohen, Kew Gardens Nijenhuis, Erika W. Barreiro, Alyssa M. ELEVENTH DISTRICT * Patterson, Hon. Robert P., Jr.T Denton, Christopher Cohen, David Louis TWELFTH DISTRICT Prowda, Judith B. Fortino, Philip G. DeFelice, Joseph F. Robertson, Edwin David Gorgos, Mark S. Gutierrez, Richard M. Steven E. Millon, Bronx Rothstein, Alan Grayson, Gary J. Lee, Chanwoo Russell, William T., Jr. Gutenberger, Kristin E. Nizin, Leslie S. THIRTEENTH DISTRICT Safer, Jay G. Lewis, Richard C. Risi, Joseph J. Jonathan B. Behrins, Staten Island Schindel, Ronnie † * Madigan, Kathryn Grant Taylor, Zenith T. Sen, Diana Sagorika Mayer, Rosanne Vitacco, Guy R., Jr. Seymour, Samuel W. Orband, James W. MEMBERS-AT-LARGE OF THE * Seymour, Whitney North, Jr. Pogson, Christopher A. TWELFTH DISTRICT Sigmond, Carol Ann Sienko, Leonard E., Jr. Masley, Hon. Andrea Silkenat, James R. Millon, Steven E. EXECUTIVE COMMITTEE SEVENTH DISTRICT Smith, Hon. George Bundy Burke, Philip L. * Pfeifer, Maxwell S. Samuel F. Abernethy Sonberg, Hon. Michael R. † * Buzard, A. Vincent Price, Hon. Richard Lee Spiro, Edward M. Quaranta, Kevin J. Timothy J. Fennell Castellano, June M. † * Standard, Kenneth G. Chapman, Richard N. Sands, Jonathan D. Hermes Fernandez Syracuse, Dana V. Gould, Wendy Lee Summer, Robert S. Syracuse, Vincent J. Harren, Michael T. Weinberger, Richard Hon. Margaret J. Finerty Tesser, Lewis F. Hetherington, Bryan D. THIRTEENTH DISTRICT Walsh, Jean T. Jackson, La Marr J. Behrins, Jonathan B. Glenn Lau-Kee Wolff, Adam John Kingsley, Linda S. Dollard, James A. Yates, Hon. James A. Ellen G. Makofsky Kurland, Harold A. Hall, Thomas J. J. Yavinsky, Hon. Michael J. Laluk, Susan Schultz Mattei, Grace Virginia Eileen D. Millett † Younger, Stephen P. * Moore, James C. Sieghardt, George A. Zuchlewski, Pearl Moretti, Mark J. Zulack, John F. OUT-OF-STATE Sherry Levin Wallach * Palermo, Anthony R. * Fales, Haliburton, II SECOND DISTRICT Schraver, David M. Kurs, Michael A. Bonina, Andrea E. Stapleton, T. David, Jr. Millett, Eileen D. Doyaga, David J., Sr. Tilton, Samuel O. Perlman, David B. Gerber, Ethan B. * Vigdor, Justin L. Ravin, Richard L. Hernandez, David J. * Witmer, G. Robert, Jr. Torrey, Claudia O. Kamins, Hon. Barry EIGHTH DISTRICT * Walsh, Lawrence E. Longo, Mark A. Cassata, Hon. Joseph J. Weinstock, David S. Lonuzzi, John A.

† Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | January 2011 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

Drafting New York Civil-Litigation Documents: Part IV — The Complaint

he Legal Writer continues with 1. On and for the FIRST CAUSE whatever relief is appropriate even if writing the complaint. OF ACTION (breach of contract), you haven’t specifically demanded it T awarding compensatory damages so long as it’s within the court’s juris- in the amount of $500,000 plus con- diction and the evidence supports the 4. The Demand for Relief sequential damages in the amount relief.6 Include the following language: In the demand or prayer for relief, of $150,000; “. . . and such other and further relief also known as the ad damnum clause, 2. On and for the SECOND CAUSE as the Court deems just and proper.” If state precisely what you, the plaintiff, OF ACTION (negligent misrepre- you’ve proven more than what you’ve want the court to do. This demand sentation), awarding compensa- demanded in your complaint, move universally begins with the word tory damages in the amount of under CPLR 3025(c) to amend the 1 “WHEREFORE.” Depending on the $500,000; demand in your complaint to conform cause of action, you might ask for the pleadings to the proof. Exceptions compensatory damages, punitive dam- 3. On and for the THIRD CAUSE to the court’s granting relief you didn’t ages, costs, or attorney fees. OF ACTION (fraud), awarding demand: (1) if the plaintiff doesn’t Recoverable costs and disbursements compensatory damages in the want the relief; (2) if it would cause vary by jurisdiction but can include amount of $500,000 plus puni- prejudice to the defendant; or (3) if fixed and limited docket fees, exami- tive damages in the amount of plaintiff seeks a default judgment.7 nation before trial (EBT) transcription $1,000,000; and For example, a court may not grant fees, filing fees, out-of-pocket expenses 4. On and for the FOURTH CAUSE the plaintiff a divorce if the plaintiff for service of process and subpoenas, OF ACTION (rescission), rescind- isn’t seeking a divorce, the plaintiff sheriff fees, witness fees, and other ing the contract between plaintiff sought only a legal separation, and expenses.2 To preserve claims for costs, and defendants; the defendant never counterclaimed include a demand for all costs in your for a divorce. Prejudice exists if the 5. Plaintiff’s attorney fees and legal complaint. Whether you can get attor- defendants show that they have been costs of this suit; ney fees, which are recoverable when hindered in preparing their case or the parties agree to them or a statute 6. Interest at the legal rate; have been prevented from supporting 3 authorizes them, might aid in deter- 7. Such other and further relief as their position. For a default judgment, mining which causes of action you’ll the Court deems just and proper.4 which occurs when a defendant fails bring. To recover punitive damages and to answer or appear, the court may not attorney fees, you need not plead them In this example, the demand for relief award relief that exceeds the amount as a separate cause of action. For puni- is at the end of the complaint. This is sought or is different from the type of tive damages, include in the complaint the most common method, although relief demanded. allegations that show the significant many attorneys place the demand for You may request different types public harm. For attorney fees, include relief at the end of each cause of action of relief (equitable or legal relief) in in the complaint these allegations that when the relief sought in each cause of your complaint. As explained in Part show the applicable statute or contract action is different and when separating II of this series, you may plead in the provisions that entitle you to obtain the relief will clarify things for, rather alternative; likewise, you may request attorney fees. Example of a demand: than confuse, the reader. relief in the alternative. For example, DEMAND FOR RELIEF Make your demand for relief com- you may seek different remedies for plete. In the event of a default, you the defendant’s negligent conduct and, WHEREFORE, plaintiff demands might be limited to the recovery sought alternatively, intentional conduct. A judgment against all defendants in the complaint.5 Although some court will not, however, grant incon- as follows: exceptions exist, the court may grant Continued on Page 54

64 | January 2011 | NYSBA Journal The latest NYSBA Monograph Series © 2010 Business/Corporate Mortgages Law and Practice Authors: Philip C. Kilian, Esq.; Christopher P. Daly, Esq. Authors: Michele A. Santucci, Esq.; Professor Leona Beane; 2010-2011 • 246 pp. • PN: 41380 Richard V. D’Alessandro, Esq.; Non-Mmbr Price: $80 / Mmbr Price: $72 Professor Ronald David Greenberg 2010-2011 • 860 pp. • PN: 405190 Non-Mmbr Price: $80 / Mmbr Price: $72 New York Residential Criminal Law and Practice Landlord-Tenant Law Authors: Lawrence N. Gray, Esq.; and Procedure Honorable Leslie Crocker Snyder; Authors: Honorable Gerald Lebovits; Damon Honorable Alex M. Calabrese P. Howard, Esq.; Victor S. Faleck, Esq. 2010-2011 • 160 pp. • PN: 4064990 2010-2011 • 366 pp. • PN: 41690 Non-Mmbr Price: $80 / Mmbr Price: $72 Non-Mmbr Price: $80 / Mmbr Price: $72 Debt Collection and Probate and Administration Judgment Enforcement of Decedents' Estates Author: Paul A. Peters, Esq.; William Ilecki, Esq. Authors: Jessica R. Amelar, Esq.; 2010-2011 • 222 pp. • PN: 42380 Arlene Harris, Esq. Non-Mmbr Price: $80 / Mmbr Price: $72 2010-2011 • 188 pp. • PN: 419690 Non-Mmbr Price: $80 / Mmbr Price: $72 Elder Law Real Estate Transactions— and Will Drafting Commercial Property Authors: Jessica R. Amelar, Esq.; Author: Christina Kallas, Esq. Bernard A. Krooks, Esq. 2010-2011 • 344 pp. • PN: 40370 2010-2011 • 318 pp. • PN: 40820 Non-Mmbr Price: $80 / Mmbr Price: $72 Non-Mmbr Price: $80 / Mmbr Price: $72

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