NOVEMBER/DECEMBER 2015 VOL. 87 | NO. 9 JournalNEW YORK STATE BAR ASSOCIATION

Also in this Issue The Battle Eight “Chiefs” That Created Criminal Justice Update Medical Malpractice Hollywood Proving a Joint Account

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BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown SAVE e-mail: [email protected] Marvin N. Bagwell Brian J. Barney Rochester Elissa D. Hecker Irvington THE Barry Kamins New York City John R. McCarron, Jr. Carmel DATE! Eileen D. Millett New York City Thomas E. Myers Syracuse Gary D. Spivey Colorado Springs, Colorado Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Nicholas J. Connolly Tarrytown

PUBLISHER David R. Watson Executive Director

NYSBA PRODUCTION STAFF EDITOR Joan Fucillo DESIGN January 25th–30th, 2016 Lori Herzing New York Hilton Midtown, NYC Erin Corcoran Dave Cape

COPY EDITORS Alex Dickson ANNUAL MEETING 2016 Reyna Eisenstark Howard Healy Kate Mostaccio EDITORIAL OFFICES One Elk Street, Albany, NY 12207 (518) 463-3200 • FAX (518) 463-8844 Networking www.nysba.org ADVERTISING REPRESENTATIVE Fox Associates Inc. OPPORTUNITIES 116 West Kinzie St., Chicago, IL 60654 312-644-3888 • Over 40 Educational Programs For MCLE FAX: 312-644-8718 New York: 212-725-2106 • MCLE Presidential Summit Los Angeles: 805-522-0501 Detroit: 248-626-0511 Phoenix: 480-538-5021 • Complimentary President’s Reception Atlanta: 800-440-0231 • Career Development Conference Email: [email protected]

• Two-Day MCLE Session For New Attorneys EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961 – 1998 CONTENTS NOVEMBER/DECEMBER 2015

THE PATENT BATTLE THAT CREATED HOLLYWOOD by David Krell 10

DEPARTMENTS 18 Eight “Chiefs” by Joseph W. Bellacosa 5 President’s Message 8 CLE Seminar Schedule 26 New Criminal Justice Legislation 15 Burden of Proof by Barry Kamins by David Paul Horowitz 31 “Loss of Chance” Doctrine in Medical 45 Index to Articles 2015 Malpractice Cases 47 Index to Authors 2015 by John M. Curran 48 NYSBA Sustaining Members 51 Attorney Professionalism Forum 40 Proving a Joint Account With Right of 61 Index to Advertisers Survivorship or Totten Trust Account 61 Classified Notices Without the Signature Card 63 2015–2016 Officers by Brian P. Corrigan 64 The Legal Writer by Gerald Lebovits

Cartoons © CartoonResource.com New Members Welcomed on our website.

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. © 2015 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publica- tion 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 $30. Library subscription rate is $200 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 | November/December 2015 | 3 Advised and administered by The New York State Bar Association Insurance Program

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With Liberty and Justice for All “Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status.”

Supreme Court Justice Lewis Powell, Jr., in an address to the ABA Annual Meeting, 1976

ritical and underfunded legal network of professional civil legal ser- President’s Pro Bono Service Awards, services programs across New vices providers and volunteer lawyers. and the NYSBA Empire State Coun- CYork State are overwhelmed. But that means that 1.8 million civil sel program. Established in 2006, our The confluence of a troubled econo- litigants entered the New York court Empire State Counsel program honors my and insufficient funding has left system without the benefit of attorney those who have performed 50 hours the neediest among us with nowhere representation. Many of these cases or more of pro bono work in a year. to turn when faced with wrongful were dismissed on procedural grounds Since the program’s inception, more eviction, home foreclosure, or difficul- – the plaintiff or defendant failed to than 11,000 NYSBA members have col- ties obtaining disability, medical, or complete a requisite form or pleading, lectively contributed over 1.7 million unemployment benefits. In these dif- did not appear in a given court on hours of pro bono service. ficult times, when we readily open our time or lacked required documenta- Since 2010, the State Bar has par- public coffers to provide government tion and/or information. Yet, while ticipated in hearings held by Chief dollars to banks and automakers, we an impressive number of New York Judge Jonathan Lippman’s Task Force should do no less for the most needy citizens have benefited from pro bono to Expand Access to Civil Legal Ser- and helpless among us. As attorneys legal assistance, the number of those in vices. We have heard testimony about we have an obligation, individually need continues to rise. the importance of civil legal services and collectively, to use the strength of We must redouble our efforts to from providers, government officials our voices to raise awareness of injus- support pro bono. Our profession is and other stakeholders, as well as tice in our society and, more impor- unique in its expectation that all attor- directly from clients. These hearings tant, to do something about it. neys dedicate a portion of their time have demonstrated that timely and and expertise to assisting the under- well-trained legal assistance can make Attorneys Making a Difference privileged. And the rewards are great. a difference. The Brennan Center for Justice at the Not just in using our knowledge and As President, I have the privilege School of Law skills to help others, but in work- of sitting on the panel with Judge has estimated that 80% of low-income ing with our colleagues in the court, Lippman, and the most compelling people nationwide have difficulty other bar associations and service testimony comes from the recipients obtaining legal representation or other- organizations for the common good of pro bono services – a woman with wise accessing the civil court system to we strengthen our legal community. AIDS, a victim of domestic violence, protect their property, their family or Through our collective efforts we can a father about to lose his home – who their livelihood. The good news is that best serve the needs of the poor. speak simply and eloquently about from a peak of 2.3 million in 2010 the Each year thousands of New York their desperate circumstances, how number of unrepresented New York attorneys donate their time through access to legal services changed their civil litigants has been reduced by one- civil legal service and bar association lives and helped preserve their most half million in 2014. programs, such as our President’s This reduction is due in no small Committee on Access to Justice, our David P. Miranda can be reached at part to the assistance of New York’s annual Howard A. Levine Award, the [email protected].

NYSBA Journal | November/December 2015 | 5 PRESIDENT’S MESSAGE basic human dignity. More than any- prevent potential pro bono volun- flexibility allows pro bono volunteers thing else, it’s their stories that remind teers from contributing their time and to work around their schedules and us why we do what we do. Judge talents, we can increase the number connect from the comfort of their home Lippman should be commended for of volunteer opportunities, assist an or office, making it easier for attorneys his leadership; he’s used the strength even greater number of indigent New to provide pro bono services. of his position to shine a light on this Yorkers, and significantly increase the important concern. pool of pro bono volunteers across Justice for All the state. As a profession, we must continue Necessary Resources A truly statewide effort will help to find ways to provide access to jus- Our Association’s charitable branch, narrow the justice gap. Our Associa- tice to the thousands of indigent New the New York Bar Foundation, last tion can take the lead by coordinating Yorkers who lack meaningful access year presented more than $830,000 in our network of New York pro bono because they do not have legal repre- grants to law-related projects designed providers, the Office of Court Admin- sentation. Our Association must find to address the fundamental issues of istration, and private contributors, to new ways to facilitate the connection poverty, homelessness, lack of access build a statewide database where pro between attorneys and those in need. to civil legal services and the challeng- bono volunteers can access and sign If you are not doing so already, please es facing immigrants. Yet we must find up for clinics and other pro bono vol- consider donating your time as a pro ways to engage a larger donor pool unteer opportunities in their local com- bono volunteer. You can access a list and raise additional funds to support munities. Volunteers will also be able of current New York pro bono pro- statewide pro bono activities. to create a personal “pro bono profile,” viders and initiatives by going to our Working in partnership with the listing their areas of legal expertise, Pro Bono page, www.nysba.org/pro- New York Bar Foundation and its Pres- their geographic preferences and the bono. If you prefer to assist our efforts ident, John Gross, we have created a times they are available. Ideally, such by contributing funds, please contact joint committee with members from a system would match a volunteer’s our New York Bar Foundation, www. both the Foundation and the New York profile with a potential pro bono cli- tnybf.org, to make your tax-deductible State Bar Association to raise addi- ent’s needs. financial contribution. tional resources to support these ini- In addition to helping create a state- Attorneys are held to a higher stan- tiatives. This committee, led by Hon. wide pro bono matching database, we dard, and that is how it should be. Pro Barry Kamins and Marion Hancock must also further enhance the pro bono bono service is good for our commu- Fish, will seek ways to attract funding opportunities available to NYSBA nity, good for lawyers, and good for beyond that already allocated to pro members. We are currently working our bar association. When justice is bono providers, to further our efforts on partnering with the American Bar served for the poorest among us, we to bridge the justice gap in New York. Association in offering to potential are all served for the better. n attorney volunteers an email-based Statewide Center for Justice pro bono system. Utilizing a “limited Our Association is in a unique position scope representation model,” indigent to do more to address this problem New York clients will simply post their head-on and make a real difference. legal questions on a site where volun- We have been working on fresh ways teer attorneys can review the questions, to leverage new sources of funding, which would be posted and sorted utilize technology and expand the by specific practice areas. Volunteers number of pro bono volunteers from can then reply to the email question our pool of 74,000 members, to assist with their legal advice and solutions. an even greater number of indigent This particular pro bono opportunity New Yorkers in gaining the access to centers on volunteer lawyers simply justice they desperately need – and answering questions – there is no actu- Follow NYSBA deserve. al courtroom representation. This sys- We have led the call for an Albany- tem would also allow law students to on Twitter based statewide Center for Justice work with licensed attorney mentors to focus on coordinating, enhancing and to learn from real life issues and Stay up-to-date on the latest and enlarging the current statewide fact patterns. This provides students news from the Association pro bono network of providers and and mentors the chance to assist indi- resources. By providing easily acces- gent New Yorkers in a controlled envi- www.twitter.com/nysba sible technology and tools to reduce ronment that can be easily accessed some of the current obstructions that anytime and from any location. This

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Basics of Elder Law Practice 13th Annual Sophisticated Trusts and Estates Institute November 5 Westchester November 16 New York City November 19 Long Island December 1 New York City; Rochester Special Education Law Update 2015 December 8 Albany November 17 Albany November 18 Buffalo; Long Island Fire Law 2015 December 9 New York City (live & webcast)

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The Patent Battle That Created Hollywood

By David Krell overned by glamour, Hollywood engineers illu- ing pictures on the screen. He thought that it would ruin sion, distraction, and escape through films and the nickel-in-the-slot peepshow business.”1 Gtelevision programs; it’s been called a dream fac- When opportunities emerged for the nascent film tory, and rightfully so. industry at the turn of the 20th century, though, Edison But Hollywood’s richness as a source for entertain- guarded his rights fiercely. In Edison ment belies its delicate balance upon an intricate fulcrum v. Lubin,2 a Third Circuit case on appeal from the Circuit of intellectual property, which, in Hollywood’s embryon- Court for the Eastern District of Pennsylvania, the leg- ic phase, offered a tale rivaling cliffhangers for suspense, endary inventor invoked copyright protection for a cel- action, and dramatic import. luloid film, described by the court as “300 feet long, 4,500 pictures, each of which was a shade different from its Hollywood: Born in New Jersey predecessor and successor, and all of which collectively It began in northern New Jersey, where Thomas Edison represented at different points Kaiser Wilhelm’s yacht set the foundation of America’s film industry with his Meteor while being christened and launched.”3 inventions like the kinetoscope. It continued in court- Somehow, about one third of the film became sepa- rooms where Edison waged battles to protect his . rated; Sigmund Lubin, unknowing of the film’s copyright It ended in Hollywood, after movie producers fled the status, “photographed [it] on a sensitized celluloid film” grasp of Edison’s patent rights in a cross-country exodus. and “reproduced a positive on a celluloid sheet.”4 In turn, Edison, as every schoolkid knows, conceived the light Lubin sold “his” film of the yacht launch to film exhibi- bulb. This is partially a myth, though – Edison improved tors.5 Edison’s brief to the Circuit Court noted the film, upon previous versions of an electric light bulb to create which included President Roosevelt and Prince Henry, a long-lasting model that became the standard. Edison’s required a marriage of art and science to be effective: societal contributions stagger the imagination: What In order to take a good photograph of this scene it was would the world be like without his versions of the necessary to use great artistic skill in placing the cam- phonograph, the fluoroscope for X-rays, and the electric era, having due regard to the time of day, the amount generator? of light, and the lights and shades of the yacht and figures, and also as to the time of exposures. Consid- Edison v. Lubin eration also had to be given to the fact that as the yacht was launched it moved away from the camera.6 However, Edison’s motion picture camera, though revo- lutionary, didn’t trigger his appreciation for the possibili- Further, he noted, the “genius of Thomas Edison”7 was ties of the relatively new medium of film. A 1931 obituary responsible for the “art of reproducing actual motion”8 as in recalled, “Open-minded as he often “the first one to grasp the possibilities of the art and to was, he could not be argued into believing that [film] had devise the mechanism by which photographs such as any future. For a long time he opposed the idea of project- these could be taken and reproduced at will.”9 Previous

David Krell (david@davidkrell. com) is an attorney in Jersey City, NJ. He is author of Our Bums: The Brooklyn Dodgers in History, Memory and Popular Culture (2015) and the forthcoming 1962: Baseball, Hollywood, JFK, and the Beginning of America’s Future (2017) and Have Yourself a Merry Legal Christmas: Holiday Movies and the Law (2017).

On the cover, p. 3 and p. 10: Edison’s Greatest Marvel – The Vitascope, 1896. Courtesy of the Library of Congress. Page 11: George Eastman (l.) and Thomas Edison (r.) at Eastman’s home in Rochester, NY, where a demonstration of the new Kodacolor film was being held, 1928. Courtesy of the Library of Congress.

NYSBA Journal | November/December 2015 | 11 attempts were faint, by comparison. Edison’s argument success,” ruled the Second Circuit court. “This, however, for copyright protection in the yacht film failed, however. did not entitle him, under the patent laws, to a monopoly It was a different story in the Third Circuit, which of all camera apparatus capable of utilizing the film. Nor targeted the lower court’s analysis of the 1870 United did it entitle him to a monopoly of all apparatus employ- States Copyright Act10 that allows exclusive copyright ing a single camera.”19 protection for “any citizen of the United States . . . who shall be . . . the author proprietor of any . . . photograph or American Mutoscope & Biograph Co. v. Edison negative thereof.”11 The court used strict interpretation of Manufacturing Co. the statute, ruling that it did not apply to “an aggregation In 1905, American Mutoscope and Edison did battle in of photographs . . . to acquire the monopoly it confers, it the Circuit Court of the District of New Jersey concerning is requisite that every photograph, no matter how or for depictions of a romantic scene.20 Seeking a preliminary what purpose it may be conjoined with others, shall be injunction against Edison to prevent alleged infringe- separately registered, and that the prescribed notice of ment, American Mutoscope argued that it had copyright copyright shall be inserted upon each of them.”12 protection in the “photograph” of the scene “largely at Here, Edison prevailed. The Third Circuit ruled first Grant’s Tomb on Riverside Drive in New York City.”21 that Lubin’s “reproduction was a photograph,”13 and American Mutoscope’s story involves a French man thus covered by the . It then reasoned that advertising for a wife with the hopes of meeting her at the statute’s construction rests on a foundation of artistic Grant’s Tomb. When multiple women arrive, a chase progress, hence the reason for the statute in the first place: ensues “across the country.”22 “The Congress shall have power . . . To promote the Prog- American Mutoscope’s position revolved around the ress of Science and useful Arts, by securing for limited uniqueness of its product, requiring “skilled artists to times to Authors and Inventors the exclusive Right to prepare the apparatus for taking the photographs, and for their respective Writings and Discoveries.”14 Under this the manipulation of such apparatus skilled pantominists constitutional paradigm, the court stated, were drilled for the performance of the action portrayed, It must have recognized there would be change and who were rehearsed in their parts.”23 Additionally, Amer- advance in making photographs, just as there has ican Mutoscope noted the editing process necessary “to been in making books, printing chromos, and other produce most perfectly the illusion sought to be made.”24 subjects of copyright protection. While such advance Edison’s reproduction and sale of the film, therefore, has resulted in a different type of photograph, yet it amounted to infringement. is none the less a photograph – a picture produced by The district court emphasized the Lubin case, in which photographic process.15 Edison successfully argued for copyright protection. “The More Patent Battles camera in that case occupied but one position, though it Edison fought competitors in the laboratories and the was placed on a pivot on which it could be moved so as courts, but no foe matched American Mutoscope – also to keep the vessel, as it left its stays and moved into the known as Biograph. In 1902, the Second Circuit Court of water, within the field of the camera’s lenses,” observed Appeals analyzed a challenge to a lower court decision the court.25 validating Edison’s patent for a kinetographic camera Extending its analysis to the present case, the court and judging American Mutoscope to be an infringer.16 took an expansive view of copyright: Edison, the court noted, broke new ground regarding I am unable to see why, if a series of pictures of a photographic instruments: “His apparatus is capable of moving object taken by a pivoted camera may be using a single sensitized and flexible film of great length copyrighted as a photograph, a series of pictures tell- with a single-lens camera, and of producing an indefinite ing a single story like that of the complainant in this number of negatives on such a film with a rapidity there- case, even though the camera be placed at different points, may not also be copyrighted as a photograph. tofore unknown.”17 Though taken at different points, the pictures express It was not enough; the court traced film’s evolution the author’s ideas and conceptions embodied in the “from plates to flexible paper film, and from paper film to one story.26 celluloid film, which was capable of producing negatives suitable for reproduction in exhibiting machines. No new Despite the same setting and the basic story of women principle was to be discovered, or essentially new form of chasing a man, Edison’s version did not satisfy the court’s machine invented, in order to make the improved photo- test for infringement. The court highlighted Edison’s graphic material available for that purpose.”18 photographer, who said, “My photograph is not a copy, Edison’s invention, while an improvement upon pre- but an original. It carries out my own idea or conception vious cameras, did not meet the court’s test for sus- of how the characters, especially the French nobleman, tainability of the patent. “Undoubtedly Mr. Edison, by should appear as to costume, expression, figure, bear- utilizing this film and perfecting the first apparatus for ing, posing, gestures, postures, and action.”27 Hence, the using it, met all the conditions necessary for commercial court denied a preliminary injunction.

12 | November/December 2015 | NYSBA Journal Joining Forces “It is not like the Standard Oil or the Coal Trust,” On December 21, 1908, Edison joined forces with other stated Scheck, upon the government’s lawsuit. “They film titans to consolidate film production into a singu- have a monopoly of things of nature that should be free lar entity – Motion Picture Patents Company, compris- for all. But motion pictures were invented. Why were the ing Edison, Biograph, Vitagraph, Essanay, Selig, Lubin, patent laws passed except to grant a limited monopoly to Kalem, Pathé, Méliès, and Gaumont.28 Once foes, Edison the man who invents things worth while?”37 and Biograph (American Mutoscope) conspired to create The District Court for the Eastern District of Pennsyl- a trust that would control entertainment. vania thought otherwise, ruling on the antitrust case on With most of the film industry patents under its aegis, October 1, 1915, with a preamble that could easily have the trust exercised its power by edging out producers and come from Charles Dickens’s Bleak House, where a morass theater owners who refused to cut deals. William Ham- of litigation confounds the parties involved in a testator’s merstein suffered the trust’s wrath after announcing his multiple wills. “The record is of such bulk, and the dis- intention to show a film of the Nelson-Wolgast fight at cussion has taken such a wide range, and has with such New York City’s Victoria Theatre. The lightweight cham- thoroughness dealt with all possible phases of the case, pionship bout had lasted 40 rounds, earning the distinc- that to even outline, with anything like adequacy, all the tion as the most brutal example of professional pugilism. considerations involved in its decision, would extend an The film, however, was not put out by the MPPC, and opinion beyond manageable limits.”38 MPPC did not allow use of the projectors it licensed Edison et al. ran a formidable operation, forcing the- to theater owners to show films it did not control. The ater owners and film exhibitors to purchase films autho- MPPC had warned, “Licensed exhibitors are permitted to rized by the MPPC and forbidding use of non-MPPC use only films licensed by the company.”29 films. The court homed in on the implications of this So, Hammerstein bought a non-trust machine to dis- stonewall method, allowing that the MPPC had legal jus- play films.30 tification if it conducted business with “any real relation While the MPPC’s enforcement was seen as a strong- to the assertion and protection of these patented rights, arm maneuver, the trust received praise from the Hartford and this had been the end proposed.”39 Courant about its impact on filmed entertainment: “It is Instead, the court found that the MPPC sought to its purpose to see that none of the exchanges holding its monopolize the trade in all the accessories of the licenses receives a single picture which will cause any- motion picture art so far as they are articles of com- body to blush, even if the houses are so dark during mov- merce. A further end proposed, and which has largely ing picture shows that blushes are not visible, provided been achieved, is the domination of the motion picture people do blush in the dark, which is quite a question.”31 business itself, and it requires no prophetic vision to foresee that the ultimate result would be that no play The MPPC’s luck began to run out, however, when would be written, or dramatically enacted, except by the United States government launched an antitrust authors and artists favored by the defendant.40 lawsuit in the Eastern District of Pennsylvania. The gov- ernment’s petition declared, “Defendants through the Another loss for the MPPC occurred in 1917, when Patents Company were enabled to and did determine the United States Supreme Court decided Motion Picture whether new motion picture theaters should or should Patents Co. v. Universal Film Manufacturing Co. Et Al., not be opened, or whether old ones should be closed, a case concerning the restriction mandating that only although defendants had no proprietary interest in such authorized MPPC films can be projected on MPPC’s theaters. This power they have exercised and continue to patented machines. The Supreme Court rejected MPPC’s exercise arbitrarily and unreasonably through the Patents monopolistic actions, stating, Company.”32 Additionally, the government alleged that This decision proceeds upon the argument that, since the MPPC controlled “from 70 to 80 percent of the film the patentee may withhold his patent altogether from business, furnishing approximately 7,000 exhibitors.”33 public use, he must logically and necessarily be per- Beyond business tactics, the MPPC allegedly used mitted to impose any conditions which he chooses the law “to harass and oppress all persons engaged in upon any use which he may allow of it. The defect in this thinking springs from the substituting of inference the motion picture business who have not obeyed its and argument for the language of the statute, and from 34 mandates.” MPPC member Philip Scheck, one-half of failure to distinguish between the rights which are a partnership owning six theaters in Baltimore – includ- given to the inventor by the patent law, and which he ing the Hippodrome, which reopened in 200435 – argued may assert against all the world through an infringe- that non-MPPC members were at fault rather than the ment proceeding and rights which he may create for trust. “The most of these independent companies have himself by private contract, which, however, are sub- to infringe on the patents to make a motion-picture film, ject to the rules of general as distinguished from those so they themselves are violating the law. If there is a of the patent law.41 moving-picture trust, it is a lawful and a square-and- Further, the Court said, “Such a restriction is invalid above-board one.”36 because such a film is obviously not any part of the inven-

NYSBA Journal | November/December 2015 | 13 tion of the patent in suit; because it is an attempt, without With an unbreakable grasp, Edison and his partners could statutory warrant, to continue the patent monopoly in have set dictated standards of content, in addition to the this particular character of film after it has expired, and dictates regarding its patented equipment. At its founda- because to enforce it would be to create a monopoly in tion, the Motion Picture Patents Company represented a the manufacture and use of moving picture films, wholly plan based in fiscal strength rather than artistic integrity. outside of the patent in suit and of the patent law as we Indeed, when the MPPC acted like a vise squeezing inde- have interpreted it.”42 pendent producers and theater owners, it underlined the Justice Oliver Wendell Holmes, joined by Justices financial realities behind the film titles on the marquees. McKenna and Van Devanter, dissented, opining that a Show business is, after all, a business. And there’s no patent owner gained rights beyond those connected to business like it. n the patent. I suppose that a patentee has no less property in his 1. Edison, at 10, Began Career as Inventor, N.Y. Times, Oct. 18, 1931, at 35. patented machine than any other owner, and that, in 2. 122 F. 240 (3d Cir. 1903). addition to keeping the machine to himself, the patent 3. Id. at 240. gives him the further right to forbid the rest of the 4. Id. at 241. world from making others like it. In short, for what- 5. Id. ever motive, he may keep his device wholly out of use. 6. Brief for Complainant at 2, Edison vs. Lubin (C.C.E.D. Pa.), Rutgers Uni- So much being undisputed, I cannot understand why versity, Alexander Library, Thomas A. Edison Papers, Part III: 1887–1898 (Reel 19 of 65), Litigation Series, Motion Picture Cases, Phonograph Cases, Univer- he may not keep it out of use unless the licensee, or, for sity Publications of America, Bethesda, Maryland. the matter of that, the buyer, will use some unpatented 7. Id. at 3. thing in connection with it. Generally speaking the 8. Id. measure of a condition is the consequence of a breach, 9. Id. at 4. and if that consequence is one that the owner may 10. Copyright Act of 1870. impose unconditionally, he may impose it condition- 11. Id. ally upon a certain event.43 12. 119 F. 993, 993 (C.C.E.D. Pa. 1903). Holmes’s logic, in essence, gives the owner of a patent 13. 122 F. at 242. the ungovernable right to authorize that a licensee only 14. U.S. Const. art. I, § 8, cl. 8. use the invention with products falling under its owner- 15. Edison, 122 F. at 242. ship, control, or benefit. For example, a beer tap patent 16. 114 F. 926 (2d Cir. 1902). owner with a financial stake in a beer company could 17. Id. at 932. restrict bars from dispensing any beers other than those 18. Id. at 934. owned by its beer company. 19. Id. 20. Am. Mutoscope & Biograph Co. v. Edison Mfg. Co., 137 F. 262 (C.C. N.J. Go West 1905). 21. Id. at 263. Legend dictates that independent producers fled the east- 22. Id. ern seaboard to escape the clutches of the MPPC’s patent 23. Id. enforcement. After traversing the United States, early 24. Id. 20th century filmmakers settled in southern California. 25. Id. at 266. Hence, it became the de facto headquarters for the film 26. Id. industry. Weather problems that hampered producers 27. Id. at 267. back east disappeared into the sunshine. 28. http://www.britannica.com/topic/Motion-Picture-Patents-Company. Even the MPPC saw the climate benefits of this new 29. Clash on Pictures of Wolgast Fight, N.Y. Times, Mar. 23, 1910, at 11. geographical paradigm. No longer would filmmakers 30. Id. be subject to the vagaries of the weather on the Eastern 31. For Clean Picture Shows, Hartford Courant, Apr. 2, 1909, at 6. seaboard. A 1911 article in the Los Angeles Times show- 32. Uncle Sam, Cincinnati Enquirer, Aug. 17, 1912, at 5. 33. Id. cased southern California as a location for filmmakers, 34. Motion Picture Men Sued as a Trust, N.Y. Times, Aug. 17, 1912 at 6. endorsed by D.W. Griffith and R.H. Hammer – officials 35. Theresa Donnelly, Hippodrome Theatre, http://explore.baltimoreheritage. of the American Biograph Company, an MPPC member. org/items/show/125#.Vhbay_F8QF. Griffith and Hammer lauded the weather, a prime attrac- 36. Own Stock in “Movie” Trust, The Sun, Aug. 18, 1912. tion for shooting films, no matter the time of year. “Our 37. Id. productions will be of the very highest possible order, 38. U.S. v. Motion Pictures Patent Co., 225 Fed. Rptr. 800, 801 (1915). since we have discovered that people who patronize the 39. Id. at 810. moving-picture shows want something of the ideal, of the 40. Id. at 811. poetical: something with bright outdoor life where every 41. 243 U.S. 502 (1917). flower and every tree stands for the best in art.”44 42. Id. at 518. Edison’s journey to consolidate power into gover- 43. Id. at 519. 44. Moving Pictures Are Aiming High, L.A. Times, Jan. 4, 1911 at II, 9. nance belonging to a few film companies seemed endless.

14 | November/December 2015 | NYSBA Journal BURDEN OF PROOF BY DAVID PAUL HOROWITZ

David Paul Horowitz ([email protected]) is a member of Geringer, McNamara & Horowitz in New York City, and has represented parties in personal injury, professional negligence, and commercial cases for more than 27 years. Complementing his litigation practice, he teaches New York Practice at Columbia Law School and serves as a private arbitrator, mediator, discovery referee, and expert wit- ness. He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the 2008 Supplement and forthcoming Third Edition of Fisch on New York Evidence® (Lond Publications). He serves on the Office of Court Administration’s Civil Practice Advisory Committee, as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee, is a member of the New York State Bar Association’s C.P.L.R. Committee, and has been selected eight times since 2007 for inclusion in the New York Super Lawyers listing. Mr. Horowitz is a frequent lecturer on civil practice, evidence, ethics, and alternative dispute resolution throughout New York State for the New York State Judicial Institute and on behalf of numerous bar associations, law firms and legal departments.

Successfully Navigating the Ashford/Kudisch World

Introduction clusion of subsequent, truthful testi- buss nature of the response constitutes When is it a judge’s province to evalu- mony, concededly in conflict with a a waiver. ate the credibility of sworn testimony? witness’s prior testimony?5 Instead, I suggest the attorney More than 100 years ago, the Court of engage in a conversation with the wit- Appeals held it was permissible only Offer an “Adequate Reason” ness to ascertain the reason or reasons when “science and common knowl- to Explain the Prior Erroneous for the witness’s mistaken answer and, edge may be invoked for the purpos- Deposition Testimony I think of equal importance, the reason es of demonstrating that a particular Notwithstanding the fact that almost the witness now recalls the correct statement in regard to some particular every witness I have ever produced answer. This is one of those rare situ- [event] must be absolutely false.”1 for deposition has been nervous, and ations when “more is more,” not “less In that same opinion, the Court many, if not most, have made mistakes is more.” went on to hold that in all other cases, in their testimony because they were For example, where the witness has even where a witness’s “testimony nervous, post-Ashford (at least in the mistakenly testified to a fact, and in upon the second trial is directly con- Second Department) it would repre- reviewing with the attorney simply trary to his testimony on the first trial sent the triumph of hope over experi- says “I was nervous” when asked why . . . the changes and contradictions in ence to offer as the reason for a change the mistake was made, further prob- the plaintiff’s testimony, the motives in testimony, without more, that the ing will likely reveal that because the for the same and the truth of the last witness was “nervous.” witness was nervous, she mistakenly version is a matter for the consider- If the decision is made (and it thought the question and answer at ation of the jury.”2 should be a conscious decision) to wait issue was a follow-up on the pre- Despite this clear mandate, past for the errata sheet in order to correct ceding question and answer, whereas, columns have discussed recent deci- the witness’s testimony, it is critical to in fact, the focus of the questioning sions where appellate courts, ruling sit down with the witness and review had changed. The witness will likely as a matter of law, have held both proposed changes, and the reasons for explain that when reading the preced- that deposition corrections submitted the changes, where substantive chang- ing question and answer during her in conformity with the requirements of es to testimony are being offered. In review of the transcript she realized CPLR 3116(a) “could not properly be light of Ashford, some attorneys have she had mistakenly thought the next considered” where the witness “failed suggested offering a laundry list of question flowed from the preceding to offer an adequate reason for materi- boilerplate excuses for the reason for one when, in fact, it did not, and there- ally altering the substance of his depo- the change in testimony (akin to the fore misunderstood the question. This sition testimony,”3 and that an affida- general negligence paragraph in a bill is the type of question and answer that vit contradicting deposition testimony of particulars). I do not recommend occurs at trials throughout the state “appear[s] to raise feigned issues of this course for two reasons: first, it every day where a witness, either on fact to avoid the consequences of [the does not (in my opinion) comply with direct or cross-examination, is asked prior] testimony and, thus, w[as] insuf- the requirement that “a statement of to explain a prior inconsistent answer ficient to defeat summary judgment.”4 the reasons [be] given by the witness given under oath. So how can practitioners avoid, or for making them”;6 and second, a However, it may not be neces- at least reduce the likelihood of, pre- court is likely to find that the blunder- sary to wait for the deposition errata

NYSBA Journal | November/December 2015 | 15 sheet to offer corrected testimony and worse is it if the defending attorney, CPLR 3113(c) does permit the the reason for the change that must seeking to correct the testimony, inter- defending attorney to cross-examine accompany the excuse. The starting jects and asks “Ma’am, are you saying his or her own witness, in turn, after point begins at the deposition, while that the light was red?” Whereupon the questioning by the other attorney the record is still open. The attorney the witness (no doubt because she is or attorneys has been completed. The defending the deposition is presum- nervous) answers “yes.” danger in waiting until the end of the ably well-acquainted with the claims Interjecting during the question- deposition to correct the record is that and defenses in the lawsuit, has thor- ing attorney’s examination would, of the witness’s mistaken answer will oughly prepped the witness for the course, run afoul of CPLR 3113(c), have been incorporated into numerous deposition (including conducting a since at trial one counsel is not permit- follow up questions, and the witness, mock examination of the critical areas ted to interrupt the questioning of a not wanting to appear foolish, may feel of inquiry), and knows in advance witness by the other counsel, unless locked-in to the answer even when the what the sum and substance of the wit- permission is given by the court to voir witness realizes it is incorrect. And let’s ness’s testimony will be. dire the witness on a particular issue: not forget the danger of the attorney When the testimony of the witness (c) Examination and cross-exam- representing the witness eliciting the veers from what is expected during the ination. Examination and cross- same mistaken answer. examination of deponents shall The Rules of Professional Conduct proceed as permitted in the trial (RPC) may provide a basis for both The risks of of actions in open court, except that conferring with the witness during the attempting a a non-party deponent’s counsel may deposition (otherwise generally pro- participate in the deposition and make hibited by Rule 221.3 unless consent correction during the objections on behalf of his or her client is obtained or the communication is in the same manner as counsel for a for one of the purposes specifically deposition are real. party. When the deposition of a permitted by Rule 221.2) and eliciting party is taken at the instance of an a contemporaneous corrected answer course of the deposition, the defend- adverse party, the deponent may shortly after the mistaken one. ing attorney must, first and foremost, be cross-examined by his or her According to RPC 3.3(a)(1)–(3): actually be listening carefully to both own attorney. Cross-examination (a) A lawyer shall not knowingly: the questions and answers so that the need not be limited to the subject (1) make a false statement of fact or departure from expected testimony is matter of the examination in chief law to a tribunal or fail to correct a immediately apparent. This sounds (emphasis added). false statement of material fact or too basic to require mention, but any Interjecting may also run afoul of law previously made to the tribu- seasoned practitioner will tell you it is Uniform Deposition Rule 221.3 if it is nal by the lawyer; often not the case. considered “communicating” with the (2) fail to disclose to the tribunal Assuming the defending attor- witness during the deposition: controlling legal authority known ney has immediately recognized the § 221.3 Communication with the to the lawyer to be directly adverse problem, the first question is whether deponent to the position of the client and not something needs to be done at the An attorney shall not interrupt disclosed by opposing counsel; or deposition. If the subject matter is col- the deposition for the purpose of (3) offer or use evidence that the lateral or background in nature, it may communicating with the deponent lawyer knows to be false. If a be wise to await the errata sheet, since unless all parties consent or the lawyer, the lawyer’s client, or a acting at the deposition is not without communication is made for the witness called by the lawyer has risk. If, however, the matter is critical purpose of determining wheth- offered material evidence and the to the claims or defenses in the case, it er the question should not be lawyer comes to know of its falsity, may be wise to attempt to correct the answered on the grounds set forth the lawyer shall take reasonable mistaken testimony at the deposition. in section 221.2 of these rules and, remedial measures, including, if The risks of attempting a correc- in such event, the reason for the necessary, disclosure to the tribu- tion during the deposition are real. communication shall be stated for nal. A lawyer may refuse to offer For example, assume the witness has the record succinctly and clearly. evidence, other than the testimony mistakenly testified on a critical issue Nonetheless, attorneys at deposi- of a defendant in a criminal matter, – that the traffic light at an intersec- tions not infrequently interject to that the lawyer reasonably believes tion was red when, in fact (and as the ask “clarifying” questions. However, is false. witness has been telling you for the attempting to “clarify” a mistaken The New York County Lawyers’ past two years), the light was green. answer on a critical issue in a case will Association’s Committee on Profes- It is bad enough to have that mistaken likely be construed as something more sional Ethics, in Formal Opinion No. testimony in the record. How much than mere clarification. 741, addressed the obligation of an

16 | November/December 2015 | NYSBA Journal attorney who learns that a client or testimony, the proffered affidavit may are confronted with an Ashford/Kudisch witness called by the lawyer has testi- be deemed “feigned” or “tailored” and dilemma, navigate carefully, but confi- fied falsely.7 Opinion No. 741 should therefore be precluded under Kudisch. dently, and trust that you will not go be read carefully, in its entirety, and My suggestion is to take care to wrong by doing right. repeatedly by any attorney seeking to acknowledge, in the affidavit, that I hope everyone has a wonderful cite it as justification for interrupting a different answer was given at the holiday season, coupled with the oppor- a deposition, unilaterally communicat- deposition, and then offer the equiva- tunity for a well-deserved break from ing with the witness being questioned, lent of the errata sheet corrections sug- the day-to-day rigors of practice. n and then questioning the witness on gested above. Again, this is the type the record in order to correct the mis- of question and answer that would 1. Walters v. Syracuse R. T. R. Co., 16 Bedell 50, 53 (1904). taken prior answer. occur at trial where a witness, either on 2. Id. The opinion makes clear that it direct or cross-examination, is asked 3. Ashford v. Tannenhauser, 108 A.D.3d 735 (2d applies to deposition testimony, that to explain a prior inconsistent answer Dep’t 2013). the attorney’s obligation is triggered given under oath. 4. Kudisch v. Grumpy Jack’s, Inc., 112 A.D.3d 788 when the attorney “knows” the tes- (2d Dep’t 2013). timony to be false, and that it does Conclusion 5. And these suggestions are offered only to aid not matter whether the witness’s false The work we litigators do is hard in the acceptance of truthful testimony. testimony is intentional or the result and seems to be growing harder with 6. CPLR 3116(a). of a mistake. Once the obligation to each passing year, and the issues high- 7. http://www.nycla.org/siteFiles/Publications act is triggered, the attorney “must lighted by Ashford and Kudisch are /Publications1340_0.pdf. remonstrate with the client in an effort good examples of this fact. If you to correct known false testimony.” Remonstrating includes exploring “whether the client may be mistakenly or intentionally offering false testimo- MEMBER BENEFIT ny.” Opinion No. 741 continues: “If the client might be mistaken, the attorney should refresh the client’s recollection, or demonstrate to the client that his testimony is not correct.” Opinion No. 741 does not discuss the situation where a witness’s mistak- en testimony is unhelpful to the wit- ness’s case, and it is fair to intuit that the opinion is focused on situations where a witness intentionally testifies falsely, and with the intention of bol- stering his or her claims or defenses. However, there is nothing in the opin- ion to suggest it does not apply to the situation where the witness’s testi- mony is mistaken, not knowingly false, and is unhelpful to the witness’s case. Clearly, opportunities for abuse are rife. However, this should not preclude its proper use in an appropriate situa- NYSBA PERIODICALS tion. ON THE GO Include an Explanation for the Change in Testimony to Avoid BONUS FEATURE: SEARCH the Affidavit Being Labeled Find the topics you are looking for quickly “Feigned” or “Tailored” If a witness who has mistakenly testi- Discover this App and more at: fied to a fact in her deposition fur- nishes an affidavit in connection with a WWW.NYSBA.ORG/APPS motion that contradicts her deposition

NYSBA Journal | November/December 2015 | 17 Eight “Chiefs” By Joseph W. Bellacosa

Preface My survey spans more than half a century – 56 years In 2011, retired U.S. Supreme Court Justice John Paul of New York State Court of Appeals history. Since the Stevens published a memoir titled Five Chiefs, in which Court, qua its constitutional origination as such in 1849, is he described his half century in the law – as a law clerk, relatively young, my scan covers more than one-third of practicing lawyer, and Associate Justice of the Court, its its history. (If I looked in a mirror, my imagination might third longest serving member. As the title indicates, the conjure up a vision of a Dorian Gray-like figure.) book’s theme focuses on life at the Court under each of “his” Chief Justices, from Fred Vinson to Earl Warren to Marcus G. Christ Warren Burger to William Rehnquist and, finally, to John My memories start with a unifying value and principle, Roberts. inculcated in me by an early mentor, Hon. Marcus G. In April, the Historical Society of the New York Courts Christ. My second job after graduation and admittance hosted its annual gala at the New York Public Library on to the Bar was as law clerk to this extraordinary appel- Fifth Avenue. This year’s, titled “At the Helm,” honored late judge at the Second Department courthouse in the three living Chief Judges of the N.Y. Court of Appeals Brooklyn Heights. One lesson, among many, that Judge – , and Jonathan Lippman – each Christ confided in me was the awe he felt for the Office of whom I was privileged to serve in various capacities in of Chief Judge, tying this to his very first meeting with my 25 years at the Court. one “Chief” – none other than Benjamin Nathan Cardozo. The literary conceit of Justice Stevens’ book and the After his introduction to Judge Cardozo at a Bar Associa- recent Court of Appeals-Historical Society event (with Hon. Joseph W. Bellacosa is a retired judge of the N.Y. Court of Appeals. three Chiefs) got me thinking about “my” Chiefs. When I thought about it, I was somewhat surprised to find that Thank you to Mike Spain, Associate Editor of the Albany Times Union, in my career I had crossed paths with an unbroken string and Julianne Claydon, Law Librarian at the N.Y. Court of Appeals, for their of eight Chiefs from 1959 to present. Of course, some of help gathering photos. these relationships were fleeting or enhanced by hearsay, but others were more intensely personal and interactive, Left to right: Court Clerk Joe Bellacosa, Chief Judge Charles especially after I became Clerk in 1975 and took my seat Breitel and Justice Lyman Smith. Photo on the Court in 1987. courtesy of Joseph Bellacosa.

18 | November/December 2015 | NYSBA Journal tion function, shortly after graduating from Harvard Law One of David’s anecdotes related to the fact that School, the Office of the Chief Judge and the occupant had been Superintendent of Insurance of the Court’s center chair projected, for him, an “aura” under Governor Lehman, an experience that, in David’s of exceptionalism, setting each Chief Judge apart. I have view, informed his preliminary thinking in liability cases. dubbed this the “Cardozo-effect.” Thus, the law clerks were instructed to ascertain whether Judge Christ told me that this aura touched every the record disclosed insurance coverage as the Chief was Chief Judge he knew in his 60-year career in the law. That more realist than jurisprude. Apocryphal in whole or in perception – and, yes, sentiment – has stayed with me as part, the instruction has a Siegel professorial charm and a sort of bequest throughout my own career. lesson to it. I have met eight and worked closely with five occu- Another story comes from the late Governor Mario pants of the Court’s center chair, and the Cardozo-effect Cuomo who clerked for Judge Adrian Burke while David has persisted, even under intimate working circum- Siegel was clerking for Chief Judge Conway. Fabian stances where I got to observe the humanity, personality Palomino, also a clerk for Judge Burke, was known for differences, and even quirks of each Chief. his absentmindedness (sadly, he too passed away within Another handoff from Judge Christ was his introduc- this past year). One morning, Fabian had somehow ing me to one of Chief Judge Cardozo’s most eloquent lingered too long in the Court library stacks, when the speeches: “Values: The Choice of Tycho Brahe,” his com- doors were closed on what served also (and still does) as mencement address to the Jewish Institute of Religion on the Court’s Conference Room. The confidential confer- May 24, 1931, available in the Selected Writings of Benjamin ences among the Judges started, and Fabian saw no way Nathan Cardozo.1 The beauty of the story it tells and les- to exit without being observed by them, so he settled in son it imparts cannot be justly summarized, so I highly with the books. Only later, after the conferences ended, recommend reading it in full. the news started circulating among the clerks that Fabian Thus, I set the stage for the snapshots that follow – my had stumbled into the confidentiality of the conferences. personal “Chief” sightings and encounters over a five- Mario and Fabian discussed the problem with David decade professional career.2 Siegel, and they decided they had better tell their bosses. Fortunately, both judges saw the humor and forthright- Albert Conway (1955–1959) ness in coughing up the backstory right away, so there Back in January 1959, I was a student at St. John’s Law were no repercussions – except as a good in-house story. School, which was located on Schermerhorn Street in Fabian laughed the heartiest, and all three never tired of downtown Brooklyn. Chief Judge Conway’s residential spinning their versions of it. chambers were nearby at the Appellate Division Court- house, at 45 Monroe Place (a workplace venue I eventu- Charles S. Desmond (1960–1966) ally occupied as Judge Christ’s law clerk). During the I first met Chief Judge Desmond when he invited Hon. Court’s in-chambers sessions, when he was not at Court Marcus G. Christ to be vouched-in as a Court of Appeals of Appeals Hall in Albany, Chief Judge Conway often Judge for a “covenant running with the land” appeal in walked the downtown Brooklyn Heights streets near his the mid-60s.3 The Court of Appeals was evenly split at brownstone home and the Supreme Court Building, off 3-3 because of a recusal. A special constitutional autho- Court Street. His lunchtime strolls often took him to the rization allowed the Court itself to replace a judge for a Brooklyn Club to visit with friends, like then-St. John’s particular appeal. (This authority is still used from time Law School Dean Harold F. McNiece, another of my to time.) mentors. Thus, one day, as I was passing by, I saw Dean The occasion was my first visit to Albany and the McNiece walking with the Chief. Dean McNiece intro- Court of Appeals. It was also a professional thrill to assist duced me to Judge Conway, and, as a first-year law stu- “my Judge” as his law clerk in the work-up of the appeal, dent, I was thoroughly awed, much as Judge Christ would and it gave me the chance to meet Chief Judge Desmond. later describe his first meeting with Chief Judge Cardozo. My second meeting with Judge Desmond was in Judge Conway was a figure right out of Central Cast- 1974, when I was a Professor at St. John’s Law School ing – tall and erect, with an elegant demeanor. He wore and he was long-retired from the bench. I was retained what I later learned was his customary attire of formal as co-appellate counsel in People v. Mackell.4 (Thomas J. striped pants, dark grey suit jacket, rimless glasses and Mackell, the former District Attorney of Queens County, fedora, which he wore cocked ever so slightly. In the few was lead defendant-appellant.) The third member of additional times that I chanced upon him thereafter, I the appellate team (actually the lead lawyer and trial looked upon him from a respectable distance. counsel) was my classmate, lifelong friend, and soon- In later years, I came to know more about Chief Judge to-be Mayor Ed Koch’s Police Commissioner, Robert J. Conway through one of my good friends, the late Profes- McGuire. The three of us prepared a joint appellants- sor David Siegel, who clerked for the judge in the late defendants’ brief and won a reversal of the conviction 1950s. that had been obtained at trial before Judge John Mur-

NYSBA Journal | November/December 2015 | 19 Starting at top left and moving clockwise: Court Clerk David Siegel and Chief Judge Albert Conway, photo courtesy of The Historical Society of the Courts of the State of New York; Chief Judge Stanley Fuld standing on a desk, photo courtesy of The Historical Society of the Courts of the State of New York; “Did it ever occur to you that we may both be making a mistake?” photo courtesy of Joseph Bellacosa; The Court spittoons are still under the bench, photo by Lisa Bohannon; Chief Judge Adrian Burke, from the cover of his memoir, “Everything I Needed: Living and Working in New York,” Golden String Press, 2004. tagh by then-Special Prosecutor Maurice Nadjari. The career as law clerk to Judge Burke; Cuomo often adverted case served as the last straw in a troubled period of to his formative experience under judicial models he “special prosecutorial” abuses in grand jury violations, admired and respected, so he picked a judge from that unfounded indictments and prejudicial press/media career-shaping era for the swearing-in place of honor. leaks affecting criminal prosecutions. It contributed significantly to Governor ’s ultimate deci- Stanley H. Fuld (1967–1973) sion to remove that special prosecutor. As the Second In 1967, while I was still his clerk, the Hon. Marcus G. Department stated in dismissing the indictment entirely: Christ was again vouched-in for service as an Associate “Although a certain number of errors must be expected Judge of the Court of Appeals, this time for the appeal in in a trial which lasts several weeks, there were transgres- People v. L. Judson Morhouse.7 This significant appeal was sions here of such quality and quantity as to severely on the Court’s criminal docket and involved the Repub- prejudice the defendants.”5 lican State Chairman who was very close to Governor By the time the appeal reached the Court of Appeals, Nelson Rockefeller. Morhouse had been convicted in a however, I had been appointed Chief Clerk and Counsel bribery scheme to secure a liquor license for the then- to the Court and, needless to say, had no involvement fledgling New York Playboy Club. with that final appeal. Indeed, then-Chief Judge Charles As Judge Christ’s law clerk on the case, I got to meet D. Breitel explicitly directed me to “go take a walk” in a Chief Judge Stanley Fuld. Of course, while proud that nearby Albany park during oral argument.6 my judge had again been selected to fill in at the Court, I During my tenure as Chief Clerk, Judge Desmond felt I was getting the hang of this law clerking role at the would also call me from time to time to ask for sets of Court of Appeals. appeal briefs, particularly useful as teaching tools, for his A few years later in 1970, when the time came for me class at Cornell Law School. to move on from my work with Judge Christ and begin I was still Clerk in 1982, when newly elected Governor the first academic phase of my career, my P.J. recom- asked former Chief Judge Desmond to mended me to Chief Judge Fuld for appointment as a perform the swearing-in at Cuomo’s first inauguration charter member of the newly formed Criminal Procedure ceremony. This awkward departure from standard pro- Law Advisory Committee to the Judicial Conference at tocol – usually that was a role for the sitting Chief Judge the Office of Court Administration. That appointment – was explained as follows: Judge Desmond had been a brought me together with renowned experts in the crimi- member of the Court of Appeals when Cuomo started his nal law field and ultimately led to my selection in 1974 as

20 | November/December 2015 | NYSBA Journal Starting at top left and moving clockwise: Court Clerk Fabian Palomino after his release from the Court library stacks, photo courtesy of Joseph Bellacosa; Chief Judge Charles Desmond, photo courtesy of the N.Y. Court of Appeals; Incoming Chief Judge Jonathan Lippman and outgoing Chief Judge Judith Kaye, photo courtesy of the New York State Bar Association; Chief Judge Larry Cooke with his wife, Alice, photo courtesy of The Historical Society of the Courts of the State of New York. the McKinney’s Criminal Procedure Law Practice Com- friends. My part-time academic colleague, Mario Cuomo, mentator, an adjunct job I performed for 10 years. had just been invited to leave his law practice and adjunct Some 15 years later, after I was appointed a member teaching post to join the newly elected Hugh Carey of the Court, Chief Judge Wachtler invited former mem- administration as Secretary of State. So, Mario and I met bers of the Court to a private “Welcome Back” dinner in in my faculty office in December 1974 to mull over our the courtroom with the then-present members. As the respective summonings. The result of our conversation evening was concluding and photographs were being is evidenced by a precious hand note, in which Cuomo taken, Judge Wachtler invited Judge Fuld (Wachtler’s first posed a fanciful question as to whether we were both Chief when he joined the Court in 1974) to stand at the making a mistake accepting new jobs in Albany. I read lawyer-argument lectern, as though he were presenting the note, from Mario to Joe, dated December 21, 1974, just an appeal. Judge Fuld had expressed a desire at long last 12 years later, on January 5, 1987, on my appointment to to do so because he never did as a lawyer but served only the Court. From the bench, before the six other judges on the other side of the bench. Judge Fuld also climbed and by-then-Governor Mario Cuomo, I declared I had the on a desk at the rear of the courtroom and posed with answer to his query: we obviously made no mistake in his arm raised at an angle, as though touching his own going blindly to Albany in 1975 as he was Governor, and portrait as Chief Judge, which hangs on the upper wall of I was the newest Judge of the Court. the courtroom. These two Chiefs, one with a robust sense My appointment as Chief Clerk began in January of humor and the other a dry deadpan type, turned the 1975 at an exciting time, as much of the day-to-day work second photograph into a symbol of a person touching also brought fundamental changes in the appeals case his own past and also connecting the historical threads of management systems. Chief Judge Breitel and the Court institutional leadership and collegiality. wanted a transformation of both the Court’s philosophy and methods of operation, and I was charged to bring Charles D. Breitel (1974–1978) them about. When Chief Judge Breitel invited me to leave my academ- Equally fruitful to my professional maturity was ic cocoon as a Professor at St. John’s University School of working on statewide judicial initiatives with the Judges Law in 1974 to become Chief Clerk and Counsel to the of the Court and leaders of the other branches of state Court, I had doubts about whether this was a good idea, Government, like Governor Carey, Secretary of State as it required my family to move to Albany. The Chief Cuomo, Assembly Speaker Stanley Fink and State Senate was very persuasive, and he encouraged me to talk to Majority Leader Warren Anderson.

NYSBA Journal | November/December 2015 | 21 From left to right: Governor Mario Cuomo, Chief Judge Sol Wachtler, Judge Judith Kaye, Judge Vito Titone and newly minted Judge Joseph Bellacosa. The Governor sits on the bench with the Court when a new judge is sworn in. Photo courtesy of Joseph Bellacosa.

Chief Judge Breitel led the reform that brought about Judicial Nomination appointive system reform so no one centralized judicial administration and statewide funding would ever have to go through that experience again, so of the courts, under a first Chief Administrative Judge he stated. (the renowned Richard J. Bartlett, who also passed away Enough context and now back to the crisis. As Clerk, this year). Judge Bartlett became the head of the Office I had to execute the notifications for the convening of of Court Administration, officially re-dubbed the Uni- a Court on the Judiciary to hear the specified charges fied Court System. As part of the trilogy of constitutional against Judge Fuchsberg. In addition to coordinating reforms in that exciting era, the independent Commission matters for the members of the Court on the Judiciary, I on Judicial Conduct replaced the unwieldy ad hoc Court had to deal with organization of the prosecution team, on the Judiciary. led by former Federal Judge Harold “Ace” Tyler and his The most important reform, however, from a personal then-assistants Rudolph Giuliani and Richard Parsons perspective, was the conversion to a state constitutional of the Patterson Belknap firm. As the formal Clerk of appointive system for the judges of the Court of Appeals, that Court, I had to deal with (along with my regular replacing the election system. Merit terminology and day job at the Court of Appeals) all the lawyers and debates aside, this was transformative and eventually judges from time to time, including Judge Fuchsberg’s led me to think an otherwise unthinkable thought: the chief counsel, Herbert Wachtell. The Court on the Judi- opportunity to become a Judge of the Court. Amazingly, ciary made findings that resulted in a public censure,8 it came to pass. and Judge Fuchsberg remained on the bench until his During my service under Chief Judge Breitel, one resignation in 1983. crisis stands out for comment. Simply stated, the Chief I wish now to move to a positive, and delightful, Judge determined on evidence that came to the Court’s human interest story. On my arrival at my new Clerk’s attention that judicial misconduct specifications had Office in 1975, I found a magnificent silver filigreed cup to be lodged against one of the Court’s own members, (not unlike the America’s Cup) sitting on a table in a Judge Jacob D. Fuchsberg. For context, Judge Fuchsberg corner of the office. On close inspection, I discovered had run against Judge Breitel for the chief judgeship in that it was the retirement gift given to Chief Judge Wil- 1972 in a bitterly contested statewide campaign, when lard Bartlett (1914–1916) and it bore the signatures of the Court of Appeals was still an elective office. Remark- the members of his Court, including that of a successor ably, Jacob Fuchsberg had rebounded and secured one of “Chief” Benjamin N. Cardozo. I asked Judge Breitel what the last elected positions on the Court (he and Lawrence I should do with this valuable heirloom. As it happened, Cooke arrived at the Court at the same time as I did, Janu- a former law clerk of Judge Breitel, James W.B. Benkard, ary 1975). The elections of the first half of the 1970s had was the grandson of Judge Bartlett. The “Chief’s” instruc- motivated Judge Breitel to press for the Commission of tion was to call Jim Benkard about the former “Chief’s”

22 | November/December 2015 | NYSBA Journal cup and return it to its rightful owners – to the enormous Sol Wachtler (1985–1992) surprise and delight of the Bartlett and Benkard families. At the beginning of 1985, Governor Cuomo surprised some people by appointing Associate Judge Sol Wachtler Lawrence H. Cooke (1979–1984) as the next Chief Judge of the Court. A subsequent sur- Upon Chief Judge Breitel’s retirement at the end of prise stunned some others: I was selected by the new 1978, Judge Cooke leap-frogged, via Governor Carey’s Chief Judge to be the next Chief Administrator of the appointment, from Junior Judge Chair # 7 to become the State Unified Court System. Governor Cuomo soon there- new “Chief” in Center Chair # 1. I was asked to continue after appointed me as a Court of Claims Judge to enhance my service as Clerk and Counsel at the Court. the authoritative perception among the judicial officers of Since his designation was the first under the new the State for the more effective exercise of the powers of appointive system, I enjoyed coordinating the transi- that Chief Administrative Judge Office. Dean Bartlett, the tion with the Governor’s Chief Counsel, Richard A. first to hold that office, released me from my academic Brown (now the long-serving District Attorney of Queens duties at Albany Law School, and with the approval of County). He and I choreographed the first-time ever the four Presiding Justices of the Appellate Division, as swearing-in ceremony for an appointed Chief Judge. For required, I assumed that office. the official ceremony, we arranged for the Governor to sit My proudest achievement during that time directly on the Court of Appeals bench alongside the seven judges affected the Court’s day-to-day work during those years. of the Court. That was the negotiation, with the Court’s unanimous During Chief Judge Cooke’s tenure, the New York encouragement, of a long-sought change via Chapter 300 State Bar Association sought the establishment of a Cli- of the Laws of 1985. It converted the Court’s civil docket ents’ Security Fund (now the Lawyers’ Fund for Client to virtually full certiorari. The immediate impact was Protection). The bar leadership asked the Court to effect a reduction, from when I arrived as Clerk of the Court it by rule, but Judge Hugh R. Jones, the chairperson of the in 1975, of approximately 700 argued civil and criminal Court’s Committee for such matters (and a former State appeals annually to fewer than 200 in 1986 and every Bar President), determined that legislation was necessary. year since then. The rationale was that this would allow When the bill started to move, as often happens in the the court of last resort to concentrate more effectively on dead of night at the end of the session, I received a call the worthiest appeals within the finite time for judicial from the lead counsels of the two State Houses, asking a simple question: Should the appointing authority for the seven-member Lawyers’ Fund Trustees be “Chief Judge” or “Court of Appeals”? I answered, “The Court,” and it was so enacted, to the dissatisfaction of the Chief Judge who desired the personal appointment authority. Judge Jones saved my skin by explaining that I had simply car- ried out his specific instruction, as Chair of the Court’s Committee: The Fund Trustees should be responsible to the Court qua institution, not the occupant of the Chair of ■ Court & Litigation One Grand Central Place the Chief Judge. 60 East 42nd Street A second story of this period involves a case, Mor- ■ BankruptCy & Depository Suite 965 New York, NY 10165 genthau v. Cooke.9 Robert Morgenthau, the sitting Dis- ■ trusts & estates trict Attorney of New York County, had sued the Chief 212-986-7470 Tel Judge concerning a rotation of judges plan, challenged ■ inDemnity & misCeLLaneous 212-697-6091 fax as ultra vires. The appeal wound its way up to the Court of Appeals itself. The Chief Judge, as named party, was ■ LiCense & permit [email protected] recused and the other six judges, though their own consultative role for rule-making was implicated, were required to rule on the constitutionality of the Chief Judge’s actions. The “rule of necessity” was invoked so the Court could resolve the purely State question10 that supported Mr. Morgenthau’s challenge. I was given the uneasy duty to leave the Conference Room and report Surety Bond SpecialiStS the unwelcome news to Chief Judge Cooke that his own Court had ruled against him. I soon left the position of Clerk to return to an aca- 212-986-7470 demic position with former Chief Administrative Judge Dick Bartlett, by then Dean at Albany Law School.

NYSBA Journal | November/December 2015 | 23 consideration. I can vividly recall then-Speaker Stanley Gioachino Rossini. It is the story of enslaved Italians held Fink smiling, gritting his negotiating teeth and comment- in North Africa by an evil Sultan. They concoct an escape ing, “Admit it, Joe, this is just a ‘less work for judges bill,’ scheme. They would honor their Master by conferring a isn’t it?” I assured him it wasn’t that at all. new title upon him, and when he became distracted by On the administrative/executive side of the total Judi- the revelry, they would escape to La Bella Italia. Well, cial Branch trial calendar operations, many judges and the Waldorf Bar audience enjoyed the fanciful spoof – no OCA staff helped to effectuate Chief Judge Wachtler’s more so than Judge Wachtler who still recalls it as the fun- commitment to move the management of the dockets of niest honorific title he has ever worn. In the early ’90s, most unfortunately, Chief Judge Wachtler suffered a personally and institutionally painful The most important reform, however, fall from grace and from the Court he loved – for which he from a personal perspective, was paid an enormous price. First, he voluntarily surrendered the conversion to a state constitutional his cherished Office as “Chief” and ended his long and distinguished 20 years of service on the Court, and then appointive system for the judges he had to undergo a stint in two different federal prisons. of the Court of Appeals, replacing the I know they were awful and so was his time there because election system. I visited him as a plain old citizen and friend. (Many of those painful details are recorded elsewhere, so there is no need for any further discussion here.) all the trial-level courts to the IAS (Individual Assign- In the aftermath, the Court proved its institutional ment System). mettle. The other six members pulled together for the After two years and some months in the role of Chief good of the institution and carried out their judicial Administrative Judge, I was privileged to receive the ulti- responsibilities with dignity and efficiency. Sol Wachtler mate lawyer’s prize – an appointment to the Court where survived, too, and still bears the “aura” of the “Chiefs,” I had toiled before. And in 1987 I joined this “Chief” as the so far as I am concerned, with the added luster of Il Junior Judge colleague (I was given the nickname “JJ”). Grande Pappataci! A word about Chief Judge Wachtler’s sense of humor at oral arguments is worth mentioning here. One day, Judith S. Kaye (1993–2008) William B. Kunstler was patronizing me with allusions to I was Clerk when Governor Mario Cuomo made history my published CPL Commentaries in the effort, no doubt, under the relatively new appointive system by selecting to secure my vote. Judge Wachtler admonished Mr. the first woman, Judith Kaye, for a seat on the Court. I Kunstler that what I had written with academic freedom had known her from a few years earlier when she was about the particular statute in question surely did not selected as a charter member of the Board of Trustees of bind the rest of the Court, which operated by constitu- the Clients’ Security Fund. She immediately and comfort- tional oath independently of commentators. Mr. Kunstler ably settled in during that 1983 year as the newest Judge took the hint and moved on to Point 2 of his argument. of the Court. Despite having no prior judicial service, she In another instance, I asked a neophyte lawyer to did not miss a beat because of her prodigious preparation “step back,” meaning figuratively, from the particular and the superlative execution of her work. case facts to explore the precedential ramifications. Before In that summer of 1983, Judith Kaye came to visit I could pose my question, the chap let go of the lectern the Court with her beloved husband, Stephen. This was and threw himself into reverse, still facing the Court as right after the Governor had announced her appoint- he moved away. The Chief called him back, saying, “Pay ment – which then had to undergo the process of Senate no attention to Judge Bellacosa, the red light is not on and confirmation. The Governor called me in advance of the you still have time left for your argument.” I never did visit to tell me to give her the “royal court treatment,” get to ask my question because of the howls of laughter, even though it was summertime and the Court was not in unfortunately at the poor young lawyer’s expense. I saw session. I walked her and Stephen through the inner sanc- him months later and apologized, and he said that was tum of the Conference and Robing Rooms. We entered OK as his appearance at the Court of Appeals was espe- the dark courtroom from the bench side – an awesome cially memorable. first experience for anyone – and her observation skills, One last story of my years with Chief Judge Wachtler: always acute, picked up the polished bronze spittoons I had to introduce him so many times at Bar Association under the bench, interesting artifacts of a distant era, and events and judicial functions that I frankly tired of the hidden from public view, of course. I smiled and sponta- C.V. bio script (no doubt he and the audiences tired, too). neously quipped that as the newest Judge of the Court So, one night at a crowded black-tie event at the Waldorf she would, of course, be expected to learn to “chew and Astoria, I introduced him as Il Grande Pappataci, a title spit.” Stephen almost fell off the bench laughing. Judge- that I borrowed from a comic opera L’Italiani in Algieri by designate Kaye’s quick response was, “Maybe after you

24 | November/December 2015 | NYSBA Journal arrange for a woman’s bathroom in the Robing Room, or York’s highest Court its preeminent place in the jurispru- at least a lock on the door of the existing one.” dence of the nation. Each Chief Judge also stood on the Only a few years later, in 1987, I was fortunate to shoulders of his or her predecessors and served not for become one of Judge Kaye’s colleagues on the Court, and personal aggrandizement or Ozymandean fame but for afterwards, I proudly sat alongside her when Governor the higher value and purpose of advancing the cause and Cuomo appointed her Chief Judge in 1993. administration of justice for all people. Not very long afterward, a somber Chief Judge Kaye That observation draws back to mind Judge Christ’s walked into my Chambers across the corridor to utter a oft-quoted invocation of that extraordinary speech by different end-of-session goodbye, saying that she might Chief Judge Cardozo, the “Values” commencement not be coming back to Albany. I was stunned, as she con- address to the Jewish Institute of Religion in 1931. There, fided that she had been summoned to Little Rock to talk Judge Cardozo described to the graduates the story of to President Clinton about both a vacancy on the Supreme the 15th-century Danish astronomer Tycho Brahe. In it he Court and the office of Attorney General. We hugged and quotes Alfred Noyes’s poem about the astronomer: I wished her well. Fortunately for the Court of Appeals, she said, “No thanks, Mr. President” to whatever he was Yet, I still hope in some more generous land contemplating, and she remained as our Chief for a long To make my thousand up {counting stars} before I die. Little enough, I know – a midget’s work. and successful tenure. She, of course, had a Cardozean “aura” of her own unique distinction. The men that follow me with more delicate art I left the Court at the virtual completion of my full May add their tens of thousands; yet my sum term in September 2000, at age 61, to return to family Will save them just that five and twenty years needs downstate (my career and family sojourn in Guil- Of patience, bring them sooner to their goal, derland had lasted 25 years) and to my long-interrupted That Kingdom of Law that I shall not see. academic life at St. John’s Law School, this time as Dean. Then, this Cardozean peroration and plea to the Jonathan Lippman (2009–2015) graduates: I got to know this present “Chief” quite well in the mid- If you are true to your mission as sons of this Institute of 1980s when I was Chief Administrative Judge. Jonathan religion, summoned from this day forth to live its deepest Lippman was head of the Law Department of the Man- verities, your choice will be the same. The submergence of hattan Supreme Court, and Chief Judge Wachtler and I self in the pursuit of an ideal, the readiness to spend oneself recognized that his talent and experience would greatly without measure, prodigally, almost ecstatically, for some- assist in the planning and implementation of the Individual thing intuitively apprehended as great and noble, spend Assignment System, and his contribution to the project was oneself one knows not why. essential to its success. He performed so well throughout That awe-inspiring sample puts the exclamation point the years in all of his assignments that he kept getting pro- on this survey covering 1959 to present. Anyone entering moted. He, too, attained the role of Chief Administrative the magnificent Court of Appeals Courtroom should gaze Judge and served for many years under Chief Judge Kaye’s up, as I did during my gifted 25 years of varying services leadership as Chief Judge of the State. Judge Lippman there, and look up to the Cardozo portrait on the top front served a record number of years in that tough, grinding left wall. There, the “Chief of Chiefs” still presides and post. As fate would have it, one (or many) good turn(s) led benevolently peers down on his successor judges with that to another, and he came to be appointed as the Presiding majestic “aura” – the model of a Chief for all times. n Justice of the Appellate Division of the First Judicial Depart- ment. That served as the final launch pad to his present 1. Margaret E. Hall, ed., Selected Writings of Benjamin Nathan Cardozo (Bender & Co. 1947). position of Chief Judge, which he must vacate by reason of 2. Albert M. Rosenblatt, ed., The Judges of the New York Court of Appeals constitutional age requirement at the end of 2015. (Fordham Univ. Press 2007). 3. Steinmann v. Silverman, 14 N.Y.2d 243 (1964). Conclusion 4. 47 A.D.2d 209 (2d Dep’t 1975). Writing this survey has allowed me to “step back,” as 5. Id. at 220 well as to share some of the details and textures of my experiences with my eight Chiefs. I conclude that each, 6. People v. Mackell, 40 N.Y.2d 59 (1976); see also Criminal Procedure Law § 450.90(2). in his and her own special way, has lived up to Judge 7. 21 N.Y.2d 66 (1967). Christ’s early characterization to me that the occupant of that High Office has an aura, that mystical and magical 8. 426 N.Y.S.2d 639 (1978). “Cardozo-effect.” 9. 56 N.Y.2d 24 (1982). Each Chief Judge brought distinctive leadership quali- 10. Id. at 29, n.3. ties and fresh ideas that built upon the strong tradition and bright history of the Court of Appeals, giving New

NYSBA Journal | November/December 2015 | 25 New Criminal Justice Legislation By Barry Kamins

his article discusses new criminal justice legisla- the victim in the corresponding degree of rape offenses. tion, signed or to be signed into law by Governor In addition, it increases the age at which a person can be TAndrew Cuomo, amending the Penal Law, Crimi- charged with Promoting Prostitution in the 1st and 2nd nal Procedure Law (CPL), and other related statutes. degree. Finally, the new legislation increases both the age The discussion that follows will primarily highlight key at which a person can be charged with Compelling Pros- provisions of the new laws; the reader should review the titution as well as the age limit of the victim. legislation for specific details. In some instances, where Other provisions of the legislation increase penal- indicated, legislation enacted by both houses is awaiting ties for certain forms of sex and labor trafficking. Those the governor’s signature and, of course, the reader must crimes have now been designated violent felonies where check to determine whether a bill is ultimately signed or the defendant causes physical injury, serious physical vetoed by the governor. injury, death or property damage.2 In addition, the legis- Two substantive pieces of criminal justice legislation lation creates a new offense, Aggravated Labor Traffick- were enacted in the last session. ing, a class C felony. A person can be convicted of this crime when he or she compels another person to engage Trafficking Victims Protection and Justice Act in labor by intentionally providing a controlled substance The first, titled the Trafficking Victims Protection and to such person for the purpose of impairing his or her Justice Act, significantly enhances protection to victims judgment. of human trafficking, and in particular addresses the In response to concerns about patronizers who fre- commercial sexual exploitation of children. In addition, it quent school zones, a new crime was enacted: Patron- increases the accountability of traffickers.1 izing a Person for Prostitution in a School Zone, a class One provision of the new legislation conforms the E felony. Under this provision it is unlawful for a person penalties for patronizing a prostitute when the person who is 21 years or older to patronize a person under 18 being patronized is under 17 years of age, with the penal- years of age, in a place that the patronizer knows or rea- ties for rape when the victim is under 17. It accomplishes sonably should know is a school zone. this by creating a new crime, Aggravated Patronizing a In 2010, the CPL was amended to enable a person to Minor for Prostitution in the 1st, 2nd and 3rd Degree. The vacate a conviction of prostitution when his or her partic- crime both prohibits specific sexual conduct not covered ipation in the crime was a result of having been the victim by existing patronizing statutes and aligns the penalties of human trafficking. The new legislation complements for these new crimes with the penalties for Rape in the 1st, 2nd and 3rd Degree. Hon. Barry Kamins is a retired State Supreme Court Justice and author The new legislation also aligns the age of the victims of New York Search and Seizure. in each degree of Patronizing a Prostitute with the age of

26 | November/December 2015 | NYSBA Journal that amendment by establishing an affirmative defense at ing scientific reports, and reviewing video recordings. trial to Prostitution or Loitering for the Purpose of Engag- Where the Attorney General, acting as special prosecutor, ing in a Prostitution Offense. A defendant can now assert declines to prosecute or where a Grand Jury declines to the defense by arguing that his or her participation in the vote any charges, he must file a report with the Governor crime was a result of having been the victim of Sex Traf- explaining the outcome and offering any recommenda- ficking, Compelling Prostitution or trafficking under the tion for systemic reform arising from the investigation. federal Trafficking Victims Protection Act.3 A victim of Sex and Labor Trafficking and Compelling Expanded Crimes; Increased Penalties Prostitution may now commence a civil action for dam- Each year the Legislature has expanded the definitions of ages against his or her trafficker within 10 years after the certain crimes and increased penalties for others, and this victim is no longer subject to the victimization. Finally, year was no exception. First, the Legislature closed what all references in the Penal Law to “prostitute” have been some believed to be loopholes in the definition of two replaced with the phrase “person for prostitution,” a sex crimes. It expanded the definition of Forcible Touch- gender-neutral term. Legislators noted that nowhere ing by making it unlawful to subject another person to else does the Penal Law designate a defendant by the sexual contact for the purpose of gratifying the actor’s crime charged – that is, “murderer” or “robber” – and sexual desire when the other person is a passenger on a this change will eliminate the stigma created by the term bus, train or subway. This amendment was in response “prostitute.” to reports of individuals using public transportation who rub their genitals on fellow passengers while mastur- College Campus Sexual Assault Prevention bating.6 Second, the definition of Public Lewdness was and Response Bill expanded to include individuals who engage in lewd The second substantive piece of legislation is the college acts while trespassing in a dwelling. This amendment campus sexual assault prevention and response bill.4 This followed an incident in which a Westchester homeowner law is intended to change the manner in which colleges discovered her neighbor masturbating while in the home- and universities in New York State address reports of owner’s dining room.7 sexual assaults, dating violence, domestic violence and The Legislature has increased the penalty for assault- stalking. ing four classes of individuals: emergency medical para- The law requires schools to amend their codes of con- medics and emergency medical service technicians; indi- duct to enhance a student’s ability to report incidents of viduals who work at a secure facility and who are sexual assault to local law enforcement officials and to employees of the Office of Mental Health or the Office give students more control over the process that unfolds for People with Developmental Disabilities; health care once an incident occurs. Schools must adopt a student’s workers who are not nurses but who provide direct bill of rights as part of its conduct code. In addition, edu- patient care at various health care facilities; and public cational institutions must adopt procedural guidelines heath sanitarians (those who conduct environmental for student violations including due process require- health inspections). Simple assaults against these indi- ments, appeal procedures and victim impact statements. viduals will now elevate a misdemeanor charge to a class The law also creates a definition of affirmative consent to D felony.8 sexual activity that requires a clear affirmative agreement A person who performs services as a private investiga- between partners. tor without a license can now be charged with a class A misdemeanor.9 An individual who uses an unauthorized Executive Order Designating the sticker or label on an official election ballot can now be Attorney General a Special Prosecutor charged with a class E felony.10 Another substantive development in the criminal justice The Legislature enacted a series of new crimes in the system is the result of an executive order issued by the last session. In response to the widespread use of new Governor. In response to a series of deaths of unarmed synthetic drugs, the Legislature has added several sub- civilians at the hands of police, Governor Cuomo issued stances to the list of hallucinogenic substances under the an executive order designating the Attorney General a Penal Law. These substances, known as “N-Bomb” or special prosecutor to investigate and, if warranted, pros- “Smiles,” are meant to mimic the effects of LSD as a hal- ecute certain matters involving the death of an unarmed lucinogen. In many cases, however, these drugs can have civilian, whether in custody or not, caused by a law devastating side effects. Possession or sale of these sub- enforcement officer.5 The order has a one-year term and stances can constitute either a misdemeanor or a felony, does not apply retroactively. depending upon the weight of the substance.11 The executive order empowers the Attorney General, The Legislature also enacted a new crime, Aggravated who supersedes all District Attorneys in these matters, to Leaving the Scene of an Incident Without Reporting, a conduct an investigation by, among other things, gather- class C felony, in response to reports of individuals who ing evidence, conducting witness interviews, review- have left the scene of accidents that resulted in serious

NYSBA Journal | November/December 2015 | 27 physical injury or death. A person can be convicted of Sealing provisions have been amended to authorize the crime if he or she engages in reckless driving, leaves a local criminal court to unseal records; previously only the scene of an accident where more than one person has a superior court could do so, even where the application been killed or seriously injured and (1) whose driver’s to unseal involved records that a local criminal court had license has been revoked or suspended based on a con- initially sealed.18 viction of Driving While Intoxicated, Driving While In the area of drug treatment courts, the Legisla- Impaired or Leaving the Scene of an Accident, or (2) has ture has amended the CPL to impose a uniform state been convicted within the past 10 years of the above policy permitting drug courts to authorize medically offenses.12 prescribed treatment in a judicial drug diversion pro-

The Fair Chance Act prohibits employers from inquiring about an applicant’s criminal record until after they have made a conditional offer of employment.

Following a series of articles in the New York Times gram. Previously some courts had required participants about working conditions in nail salons, it is now an to wean off medication, such as methadone, in order unclassified misdemeanor to operate an “appearance to continue participation in their programs. The new enhancement business,” for example, a nail salon, with- policy will permit courts to allow defendants needing out a license. The penalty for this offense is a $2,500 fine treatment for opioid abuse or dependence to have access and a maximum of six months’ imprisonment.13 to medication such as methadone and buprenorphine It is now a misdemeanor for any owner or manager of (brand name Suboxone). The new law permits treatment a residential building to discriminate against a victim of under the care of a duly licensed health care professional domestic violence by refusing to rent a residential unit to and prohibits a court from requiring a defendant to such person because of such person’s status as a victim. taper off the medication in order to remain in a diver- The penalty carries no imprisonment, but imposes a fine sion program.19 of from $1,000 to $2,000.14 Finally, the Legislature has taken steps to expand the Finally, individuals who conceal a body to prevent the use of e-filing throughout the state. The initial legislation, discovery of a person’s death can now be charged with authorizing the use of e-filing in designated counties Concealment of a Human Corpse, a class E felony.15 and courts, was set to expire on September 1, 2015. The new legislation extends the sunset date to September 1, Procedural Changes 2019, and continues the present authorization for the use A number of procedural changes were enacted in the last of e-filing, both consensual and mandatory, in Supreme legislative session. One amendment affects the expira- Court and County Courts. The new law also contains a tion date of orders of protection in certain cases. When provision authorizing each Appellate Division Depart- the CPL was amended in 2006 to extend the permissible ment to promulgate rules authorizing the e-filing of duration of a Final Order of Protection, the amendment appeals in criminal cases. However, before promulgat- did not account fully for the extended probation periods ing such rules, all groups that would be affected must that were required for sexual assault convictions in felony be given an opportunity to review and comment on the and misdemeanor cases. As a result, orders of protection rules.20 in these cases would expire before the defendant had completed probation. The amendment extends the expi- New Laws Affecting Crime Victims ration date on an order of protection for a felony sexual A number of new laws will affect crime victims. One assault conviction where probation is imposed to 10 years law provides for counseling programs for victims of sex from the date of sentencing and to six years from the date offenses and child pornography crimes21 while another of sentencing in a misdemeanor case where probation is permits the grandchild of a homicide victim to be reim- imposed.16 bursed for counseling.22 Non-English speaking victims of A new rule of evidence has been enacted. In any pros- domestic violence are now assured that their report to the ecution for Prostitution or Loitering for the Purpose of police will be promptly translated into English in order Engaging in a Prostitution Offense, a prosecutor may no to effectuate a swift investigation.23 Victims of domestic longer offer evidence that a person was in possession of violence will also benefit from an amendment allowing one or more condoms for the purpose of proving prob- people who change their names to seek waivers from the able cause for an arrest or for the commission of the crime requirement that notice of a name change be published itself.17 in designated local newspapers; they can now obtain a

28 | November/December 2015 | NYSBA Journal waiver without the necessity of showing a history of past ing eight weeks will no longer be subjected to shackling abuse.24 unless extraordinary circumstances exist.33 Victims of violent felonies can now avail themselves Finally, the Commissioner now has the discretion of a standardized form that will require law enforcement to advance an inmate’s scheduled parole release date officials to notify them if the defendant has petitioned from a Friday to a Thursday in order to ensure that the to change his or her name.25 Crime victims who apply parolee reports the next day to a community supervision for victim compensation will not need to show proof program. In the past, when parolees were released on of financial difficulty if their claim is $10,000 or less.26 a Friday and, as a result, did not report until Monday, Finally, a court must waive the DNA data bank fee when there was a risk that the parolee might violate a parole the defendant is the victim of human trafficking and has condition during the two-day period prior to his or her been convicted of certain enumerated crimes relating to reporting.34 prostitution.27 Numerous laws have had their expiration dates extended. The following statutes have been extended Vehicle & Traffic Law until September 1, 2017: determinate sentencing; the igni- A number of changes have been made in driver-related tion interlock program; inmate work release program; offenses under the Vehicle & Traffic Law (VTL). One electronic court appearances in designated counties; and amendment will affect sentences of probation or a con- the use of closed-circuit television for certain child wit- ditional discharge where there is a condition that the nesses.35 defendant install and maintain an ignition interlock The Legislature has extended the process by which a device (IID). driver’s license will be suspended if the motorist fails to Sentencing judges will normally impose a specific pay child support; the law was extended until August 31, time period during which the IID must be maintained. 2017.36 Finally, the expiration date of a statute regulating However, when a defendant is accused of violating a the resale of tickets to places of entertainment within cer- condition of probation and the court issues a declaration tain buffer zones has been extended until May 14, 2016.37 of delinquency, there is no automatic extension of the end date of the IID condition nor an express provision that Miscellaneous Laws would require a defendant to maintain the device during Various miscellaneous laws were passed this session. the delinquency period. One bill would provide the Wyoming County District Thus, a defendant may inappropriately benefit when Attorney’s office with a more flexible recruiting process violating a sentencing condition if the court files a decla- by permitting assistant district attorneys to be hired from ration of delinquency. The amendment will now require adjoining counties. Wyoming County has the eighth a defendant to maintain the IID device during the period smallest population in the state and other small counties, of any declaration of delinquency and will authorize the such as Putnam, Fulton and Essex, have in the past been court to extend the period of maintenance until the delin- afforded an exception to the requirement that prosecutors quency period terminates.28 reside in the county.38 In addition, when a motorist is charged with a viola- One new law expedites the availability of medical tion of the VTL and the charge is dismissed, a motorist marijuana to certain patients whose serious health condi- may no longer be charged with a fine or penalty of any tions warrant immediate use even before implementation kind.29 of the 2014 medical marijuana law.39 The Fair Chance Act will affect all New York City New Laws Affecting Prisoners employers, both public and private. The law prohibits Several new laws will affect prisoners, and some of these employers from inquiring about an applicant’s criminal relate to mental health issues. Initially, a new law pro- record until after they have made a conditional offer of vides that a parole hearing shall not proceed if the parole employment. New York City joins other localities that violator appears to be mentally incapacitated. In such have adopted this policy, including the cities of Buffalo, cases, Article 730 of the CPL will be triggered to deter- Rochester, Syracuse and Yonkers, and Ulster County. mine whether the parolee is mentally fit to proceed.30 If, after receiving information regarding the appli- In addition, inmates will now have more opportunities cant’s record, the employer no longer wishes to employ for their families to communicate with the Department the applicant, the employer must give a reason and pro- of Corrections and Community Supervision about the vide a copy of the record to the applicant. The position inmate’s medical condition.31 must then be held open for at least seven business days The Department of Corrections and Community during which time the applicant can respond, question Supervision will now make the final determination any inaccuracies in the record and offer explanations regarding the medical release of inmates who are con- regarding the criminal record. The employer need not victed of non-violent crimes.32 Incarcerated women who wait for a response beyond seven days.40 The law pro- are pregnant or who have delivered within the preced- vides exemptions for public and private employers who

NYSBA Journal | November/December 2015 | 29 are required by law to conduct criminal background 13. 2015 N.Y. Laws ch. 80 (signed by the Governor July 16, 2015). checks and for several city agencies including the Police 14. 2015 N.Y. Laws ch. 366 (adding Real Property Law § 227-d), eff. Jan. 19, Department, Fire Department and Department of Cor- 2016. 15. 2015 N.Y. Laws ch. 242 (adding Penal Law § 195.02), eff. Nov. 22, 2015. rections. 16. 2015 N.Y. Laws ch. 240 (amending CPL § 530.12(5)), eff. Oct. 22, 2015. Finally, a new law prohibits the sale or manufacture in 17. 2015 N.Y. Laws ch. 57 (adding Penal Law § 60.47), eff. Apr. 13, 2015. New York City of synthetic marijuana, commonly known 18. A. 7319 (awaiting the Governor’s signature). as K2.41 Possession of 10 or more packets, individual 19. 2015 N.Y. Laws ch. 258 (amending CPL § 216.05(5), (9)(a)), eff. Sept. 25, containers or separate units of this substance would be 2015. 20. 2015 N.Y. Laws ch. 237 (amending CPL § 10.40; Judiciary Law § 212), eff. presumptive evidence that an individual possessed the Aug. 31, 2015. items with intent to sell. A violation of this section consti- 21. A. 86 (awaiting the Governor’s signature). tutes a misdemeanor punishable by a fine of up to $5,000 22. 2015 N.Y. Laws ch. 104 (amending Executive Law § 626), eff. Aug. 13, or imprisonment of up to one year, or both. An individual 2015. would also be liable for a civil penalty. First-time viola- 23. A. 4347 (awaiting the Governor’s signature). 24. 2015 N.Y. Laws ch. 241 (amending Civil Rights Law § 64-a), eff. Sept. 22, tors who have not been previously convicted of a felony 2015. or a serious offense as defined in Penal Law § 265.00(17) 25. 2015 N.Y. Laws ch. 394 (signed by the Governor Oct. 26, 2015). would be liable for a civil penalty of between $500 and 26. 2015 N.Y. Laws ch. 263 (amending Executive Law § 631), eff. Sept. 25, $5,000 per violation. In addition, the law permits the seal- 2015. ing of a business when there are two violations of these 27. A. 2469 (awaiting the Governor’s signature). 28. A. 6222 (awaiting the Governor’s signature). provisions in a three-year period. n 29. A. 7230 (awaiting the Governor’s signature). 30. S. 4780 (awaiting the Governor’s signature). 1. 2015 N.Y. Laws ch. 368, eff. Jan. 19, 2016. 31. A. 7501 (awaiting the Governor’s signature). 2. The statute has an error that will need to be corrected. It referenced 32. 2015 N.Y. Laws ch. 55 (amending Executive Law § 259(r), eff. Apr. 13, Penal Law § 135.35(3) rather than § 135.35(4). 2015. 3. 22 U.S.C. ch. 78. 33. A. 6430 (awaiting the Governor’s signature). 4. 2015 N.Y. Laws ch. 76 (adding Education Law art. 129-B), eff. Oct. 5, 34. 2015 N.Y. Laws ch. 270 (amending Correction Law § 74), eff. Oct. 25, 2015; see also S. 1316 (awaiting the Governor’s signature). 2015. 5. Executive Order 147, eff. July 8, 2015. 35. 2015 N.Y. Laws ch. 55, eff. Apr. 13, 2015. 6. 2015 N.Y. Laws ch. 250 (amending Penal Law § 130.52), eff. Nov. 1, 2015. 36. 2015 N.Y. Laws ch. 29, eff. June 30, 2015. 7. 2015 N.Y. Laws ch. 373 (signed by the Governor Oct. 26, 2015). 37. 2015 N.Y. Laws ch. 15, eff. May 14, 2015. 8. S. 4839, S. 3913, A. 1034, and A. 7542 (all awaiting the Governor’s signa- 38. 2015 N.Y. Laws ch. 139 (adding Public Officers Law § 64), eff. Aug. 13, ture). 2015. 9. 2015 N.Y. Laws ch. 115 (amending General Business Law § 70), eff. Aug. 39. A. 8258, A. 7060 (awaiting the Governor’s signature). 13, 2016. 40. Local Law 63, eff. Oct. 27, 2015. 10. 2015 N.Y. Laws ch. 395 (signed by the Governor Oct. 26, 2015). 41. Local Law 95, eff. Dec. 20, 2015. 11. 2015 N.Y. Laws ch. 370 (signed by the Governor Oct. 26, 2015). 12. A. 5266 (awaiting the Governor’s signature). NEW YORK STATE BAR ASSOCIATION Legal Manual for New York Physicians Fourth Edition Written and edited by more than 70 experienced practitioners, Legal Manual for New York Physicians, Fourth Edition, is a must-have for physicians, attorneys representing physicians and anyone involved in the medical field. The information is provided in an easy-to-use question-and-answer format and comes complete with a detailed table of contents, in-depth index and appendix of forms. The Fourth Edition of Legal Manual for New York Physicians has been expanded to two volumes covering 56 topics, including the Formation of a Practice; Life-Sustaining Treatment Decisions; Medical Treatment of Minors; Medical Records; and Billing and Reimbursement Issues, including coverage of Emergency Services, Surprise Bills and Malpractice. 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30 | November/December 2015 | NYSBA Journal Hon. John M. Curran is a Justice of the Supreme Court, Erie County. Prior to joining the court, he was in private practice and served as a town justice. He received his undergraduate degree from the University of Dayton and his J.D. from the University of Buffalo Law School.

“Loss of Chance” Doctrine in Medical Malpractice Cases By John M. Curran

he “loss of chance” doctrine (LOC doctrine) is One of the earliest decisions on this subject opines that premised on the theory that the plaintiff should be the “all or nothing” rule provides a “blanket release from Tcompensated for the loss of achieving a more favor- liability for doctors and hospitals any time there was less able outcome when a defendant’s negligence destroys than a 50 percent chance of survival, regardless of how or reduces that prospect.1 Application of the doctrine flagrant the negligence.”7 Another more recent decision assumes that the plaintiff suffered from some preexisting notes that the “all or nothing” approach “fails to recog- condition or disease that the defendant did not cause.2 nize the common sense proposition that a loss of chance The defendant is held liable if the negligence deprives of survival or recovery does injure a person.”8 the plaintiff of the chance of survival or a more favorable While the LOC doctrine is theoretically applicable outcome.3 Damages under the LOC doctrine, in its pur- to a multitude of cases,9 its widest application is in the est form, are awarded “based on the extent to which the area of medical malpractice.10 The courts have given defendant’s tortious conduct reduced the plaintiff’s likeli- various reasons for applying the doctrine to that subject hood of receiving a better outcome.”4 matter.11 The LOC doctrine was a reaction to “dissatisfaction This article will explore the history of the doctrine in with the prevailing ‘all or nothing’ rule of tort recov- the medical malpractice context, describe its evolution ery.”5 Under that rule, plaintiffs recover 100% of their across the country, and analyze the extent to which New damages only if they prove that a defendant’s negli- York courts have dealt with the doctrine. Because New gence more likely than not caused the ultimate harm. York law is not fully developed on the topic, answers to “So long as the patient’s chance of survival before the some of the questions raised cannot be provided. physician’s negligence was less than even, it is logically impossible for her to show that the physician’s negli- History of the Doctrine gence was the but-for cause of her death, so she can The history of the LOC doctrine goes back somewhere recover nothing.”6 between 60 and 160 years. One author traces it back to an

NYSBA Journal | November/December 2015 | 31 the plaintiff’s injuries: Once a plaintiff has introduced 1867 Ohio Supreme Court decision in a medical malprac- evidence that a defendant’s negligent act or omission tice action.12 There, a physician mistreated a patient with increased the risk of harm to a person in plaintiff’s a dislocated shoulder but argued that he was not liable position, and that the harm was in fact sustained, it because the patient was already injured. The court dis- becomes a question for the jury as to whether or not agreed, indicating that negligence, when it “diminishes that increased risk was a substantial factor in produc- the chances of the patient’s recovery, prolongs his illness, ing the harm . . .22 increases his suffering, or, in short, makes his condition worse than it would have been if due skill and care had The Hamil court also cited to Hicks, including the been used, would, in a legal sense, constitute injury.”13 language “any substantial possibility of survival.”23 The Another author has written that “one case credited phrase “substantial possibility” and the language in with a new way of thinking about lost opportunities Hamil expressing a relaxation of “the degree of certitude was the 1911 British contract case of Chaplin v. Hicks.”14 normally required of plaintiff’s evidence” permeate the The court held that the plaintiff was entitled to recover academic literature and judicial decisions in connection because she lost the “opportunity of competition” with with the LOC doctrine. Hamil appears to be the founda- respect to a talent competition the defendant theatrical tion for the concept that the LOC doctrine is a relaxation manager conducted. of the burden of proof for proximate cause while Hicks’ Most authors regard Hicks v. United States15 as the “substantial possibility” language is repeated in connec- preeminent case giving rise to the LOC doctrine in the tion with both causation and harm. United States. In that case, decided in 1966, the decedent In 1981, Professor Joseph H. King, Jr., published a died of a bowel obstruction shortly after being diagnosed landmark article on the LOC doctrine most often associ- with gastroenteritis. The court stated: ated with the modern commencement of the doctrine. When a defendant’s negligent action or inaction has Professor King’s thesis was effectively terminated a person’s chance of survival, that the loss of a chance of achieving a favorable out- it does not lie in the defendant’s mouth to raise con- come or of avoiding an adverse consequence should jectures as to the measure of the chances that he has be compensable and should be valued appropriately, put beyond the possibility of realization. If there was rather than treated as an all-or-nothing proposition. any substantial possibility of survival and the defendant Preexisting conditions must, of course, be taken into has destroyed it, he is answerable. Rarely is it possible account in valuing the interest destroyed. When those to demonstrate to an absolute certainty what would preexisting conditions have not absolutely preor- have happened in circumstances that the wrongdoer dained an adverse outcome, however, the chance of did not allow to come to pass. The law does not in the avoiding it should be appropriately compensated even existing circumstances require the plaintiff to show to if that chance is not better than even.24 a certainty that the patient would have lived had she been hospitalized and operated on promptly.16 Professor King’s “proportional approach” treats the “loss The First Department’s 1974 decision in Kallenberg v. of chance” as a compensable injury, permits the jury to Beth Israel Hospital17 is frequently cited as the next LOC value the ultimate harm, and then discounts that valu- case because the court affirmed a verdict based on a 20% ation according to the percentage loss of chance deter- to 40% loss of chance of survival.18 The Court’s language mined by the jury.25 does not suggest that it perceived it was charting new Seventeen years later, Professor King published anoth- legal territory. The verdict was affirmed based on a jury er article wherein he discussed the development of the charge using the language “substantial possibility” of “loss-of-a-chance” theory. He recognized that, as of 1998, survival and the usual “substantial factor” language for “most cases to address the loss-of-a-chance issue have proximate cause.19 arisen in the torts context and have involved medical In 1978, the Supreme Court of Pennsylvania became malpractice claims alleging delayed diagnosis.”26 The one of the first courts to rely on Section 323 of the Restate- article distinguishes between a loss of a chance of achiev- ment (Second) of Torts “to expand the increased risk of ing a better outcome in the past entailing a retrospective harm to instances of loss of chance.”20 In that case, Hamil focus, and a loss of chance of averting an adverse out- v. Bashline, the court vacated the decision below because come in the future entailing a prospective focus.27 Thus, the jury had been incorrectly charged that the loss of cases may be differentiated based on whether the ulti- chance could not be considered a proximate cause of the mate harm has already occurred or has yet to fully occur. patient’s death.21 The Hamil court relied upon Section Professor King also draws a distinction between 323(a) providing that one who is negligent and “increases cases involving failures to take appropriate measures in the risk of harm” is liable. The decision observed that the a timely fashion (omissions) from cases involving inju- effect of Section 323(a) is ries that have been actively inflicted (commissions). He to relax the degree of certitude normally required of recognized that “the loss-of-a-chance issue has received plaintiff’s evidence in order to make a case for the the most explicit judicial attention in cases arising from jury as to whether a defendant may be held liable for passively destroyed or reduced chances.”28 However, he

32 | November/December 2015 | NYSBA Journal does not advise limiting the doctrine to only omission Under this category, “if the doctor’s negligence was a theories. substantial factor in producing harm, the doctor is liable Professor King recommends that valuation be based for the entire harm unless (the doctor) can show a basis on a percentage of a reduced loss of chance, irrespec- for apportionment.”42 Some courts allow recovery for tive of whether it is greater than 50%, and in situations any loss of chance while others require a substantial pos- where the likelihood of a loss of chance is unsubstantial.29 sibility of a loss of chance. One author describes this as a He does not suggest a certain percentage threshold for theory of “probabilistic causation.”43 recovery. The third category comprises states authorizing liabil- Professor King severely criticizes the “relaxed proof ity for the value of the lost chance. Plaintiffs recover variations,” which characterize the issue solely in causa- under this approach “only an amount representing the tion terms and refuse to recognize the “loss of chance” as value of the chance destroyed by the defendant’s neg- a discrete injury. He argues that this view continues the ligence.”44 According to Dobb’s Law of Torts, this is the “all or nothing” rule by allowing the plaintiff to recover view developed by Professor King, and the number of undiscounted damages based on the ultimate harm while states adopting this view is growing.45 It appears to be increasing the likelihood of awards because the standard well-established that the plaintiff cannot recover both of proof on causation has been relaxed. He concludes that traditional “all or nothing” damages and compensation “the relaxed proof approach represents the worst of both for the loss of chance injury.46 Within this category, some worlds.”30 courts apply proportional damages on a percentage basis The relaxed standard of causation approach employing while others entrust the issue to the jury on a subjective the “substantial factor” or “substantial possibility” termi- basis.47 nology also has been criticized by the Restatement (Third) In addition to the debate over whether the doctrine of Torts. The Restatement asserts that reliance on Restate- is conceived as a relaxation of the burden of proof on ment (Second) of Torts, Section 323, is misplaced because causation or as a compensable injury, state courts have that section pertains to duty, not causation or harm.31 analyzed whether there may be recovery for only greater than the 50% probability of survival or a better outcome48 The National Scene and whether the probability must at least be substantial.49 The LOC doctrine in medical malpractice cases has gar- There also are questions of whether the doctrine is consis- nered a great deal of attention in judicial opinions and tent with a state’s wrongful death statute,50 and whether in law review articles.32 The highest courts in 22 states the plaintiff must have experienced the ultimate harm have adopted some form of the doctrine.33 However, the before a “loss of chance” occurs.51 highest courts of nine states have rejected the doctrine.34 A 2014 law review article on the LOC doctrine The legislatures in five states have addressed the issue in describes it as “a well-established tort doctrine, and yet some respect, including two states that have enacted leg- it remains something of a mystery.”52 The “mystery” of islation repudiating the “loss of chance” cause of action.35 the doctrine is rooted in the differing terminology used Judicial opinions have categorized the LOC doctrine to describe it, the categories or approaches used to iden- under different theories and approaches.36 Authors of tify its forms, and the combinations of ways in which the law review articles regarding the doctrine have identified states apply it. “approaches,” “trends,” and “rules,” which serve to dif- ferentiate the various views of the doctrine.37 Where New York Fits The most current edition of Dobb’s Law of Torts delin- Has New York Adopted the Doctrine? eates the ways in which the states approach the doc- New York is routinely listed among the states that have trine.38 The first category consists of states that deny all adopted some form of the LOC doctrine. However, it liability for loss of chance. When the highest courts of has been identified as within both the relaxed burden of these states have done so, they have typically considered proof and proportional approaches.53 New York’s highest policy matters such as the effect on the tort judicial sys- court, the Court of Appeals, has yet to accept or reject the tem, the effect on physicians and their malpractice costs, doctrine. and the legal considerations necessary to either relax the In Kallenberg,54 the Court of Appeals affirmed the First standard of causation for medical malpractice cases or to Department’s decision which, as noted above, is widely recognize a new form of harm or injury.39 For example, regarded as one of the first cases in the country to apply in Smith v. Parrott,40 the Supreme Court of Vermont bal- the LOC doctrine.55 However, the decision in Kallenberg anced the “policy arguments” in ultimately choosing was affirmed without opinion, indicating that the Court not to adopt the doctrine finding that such “significant of Appeals concurs only in the result reached by the and far-reaching policy concerns” should be left to the First Department and not for the reasons given in the legislature.41 opinion of the lower court.56 Kallenberg therefore cannot The second category consists of states allowing liabil- be viewed as a Court of Appeals decision adopting the ity for all harm under a relaxed standard of causation. doctrine.

NYSBA Journal | November/December 2015 | 33 In Wild v. Catholic Health System,57 the one case where cause” heading. It observes that “applying the doctrine is the Court of Appeals recently could have addressed it, troublesome because its parameters are unclear.”65 and was urged to do so, the Court concluded that “defen- dants’ broad challenge to the ‘loss of chance’ doctrine” Kallenberg was unpreserved for appeal. The Court referred to the The PJI Committee’s discussion of the issue starts with issue as “the loss-of-chance theory of liability.”58 In a Kallenberg.66 There, the First Department affirmed a ver- footnote, the Court quoted two California cases to define dict in favor of the plaintiff for wrongful death in the the theory as granting “recovery to patients for depriva- amount of $55,000. The plaintiff claimed that the defen- tion of the opportunity of more beneficial treatment and dant failed to administer a medication to the decedent the resulting gain in life expectancy or comfort, although who had suffered a hemorrhage from a cerebral aneu- the evidence fails to establish a reasonable probability rism. The court in Kallenberg found that the testimony that without defendant’s negligence, a cure was achiev- supported the conclusion that the failure to administer able.”59 the medication was a “producing, contributing factor” of

The loss of a chance of achieving a favorable outcome or of avoiding an adverse consequence should be compensable and should be valued appropriately.

The Court’s language in Wild may provide some clues the death.67 The court noted that the “question of proxi- that it viewed the LOC doctrine as one involving the mate cause is a jury question” and that the jury could relaxed burden of proof on causation. First, it referred find that, if the medication had been given, the decedent’s to the doctrine as a “theory of liability,” as opposed one blood pressure “could have been kept under control” and involving harm or damages. Second, it referenced deci- “might have improved sufficiently” to undergo the sur- sions from California where the courts have rejected the gery and “make a recovery.”68 doctrine to avoid relaxing the standard of proof. Lastly, With respect to the loss of a chance, the testimony the Court focused on the burden of proof issue raised by from plaintiff’s expert was that the decedent had a 20% the defendants, as opposed to the injuries or harm. to 40% chance of survival with the medication and the The Court also addressed the defendants’ conten- surgery, and a 2% chance of survival with the medication tions, to the extent preserved, that the jury instructions only. It is this testimony that is most often cited, together “improperly reduced plaintiffs’ burden of proof.”60 The with the “could have” and “might have” language quot- Court found that, as a whole, the jury charge did not ed above, which has caused this case to be categorized improperly alter “the causation standard or plaintiffs’ under the LOC doctrine.69 However, the Kallenberg court burden of proof.”61 In reaching this conclusion, the Court never used that term and never analyzed the appropriate- was careful to note that the trial court included within ness of the doctrine. its charge both the usual burden of proof and proximate The record in Kallenberg reveals that the court charged cause charges.62 proximate cause by instructing the jury to decide “wheth- Because the court in Wild affirmed the charge as a er there was a substantial possibility that Mrs. Kallenberg whole, including use of the usual burden of proof and would have survived if she received proper treatment.”70 proximate cause instructions, it appears that, as of 2013, The record also indicates that the jury was instructed that the Court had no intention of changing the burden of “if Mrs. Kallenberg would have died regardless of the proof or proximate cause standards in medical malprac- negligence, you must find for the defendants” and that tice “loss of chance” cases. But this is largely speculation “if you find there was a substantial possibility that Mrs. as the Court did not express any opinion on the doctrine. Kallenberg would have survived but for (the) negligence, The Appellate Division has never expressly adopted you should find for the plaintiff.” Additionally, the record the LOC doctrine. Still, it appears well understood that shows that the court charged the typical burden of proof the Appellate Division has embraced the “loss of chance” standard (i.e., more likely than not) and the standard concept.63 proximate cause language (i.e., the negligence must be a The Committee on Pattern Jury (Civil) Instructions “substantial factor in bringing about” the death). (PJI Committee) has a section on the LOC doctrine fol- The negligence found by the jury in Kallenberg was in lowing its pattern medical malpractice charge.64 The PJI not administering the medication. This was found to be Committee places that discussion under its “proximate the proximate cause of the death. The harm was therefore

34 | November/December 2015 | NYSBA Journal the death, not the loss of chance of survival or a better The PJI Committee discusses the difference between outcome. It appears the plaintiff was awarded the full the Second Department and the other departments.82 value of the ultimate harm (i.e., death) even though there While it appears to be a conflict, recent decisions from was a 60% to 80% chance the decedent would have died the First and Fourth Departments suggest that the Second irrespective of negligence. This would seem to conflict Department language is gaining acceptance.83 with Professor King’s concept of the doctrine and might fall within his “worst of both worlds.” “Hastening”/“Speeding Up” and “Aggravation”/“Precipitation” “Substantial” vs. “Any”/“Some” The record in Kallenberg shows that the trial court and The record in Kallenberg reflects that the plaintiff unsuc- counsel discussed whether the court should charge that cessfully sought a jury instruction that the deprivation of the jury could award damages if the negligence caused any chance of survival would be enough for a recovery. the decedent’s death to be hastened. The trial court did Three years later in Kimball v. Scors,71 the Third Depart- not deliver such a charge, at least in part due to the late ment rejected the plaintiff’s argument that Kallenberg hour in which the discussion occurred. required a jury charge authorizing recovery when the Seven years after Kallenberg, the Fourth Department decedent is deprived of “a chance of survival . . . regard- decided Monahan v. St. Joseph’s Hospital and Health Care less of how small that chance might be.”72 Instead, the Center,84 wherein the court relied on Kallenberg and Kim- court adopted the standard of whether there was a “sub- ball to conclude that the “defendant would not be free stantial possibility” of survival but for the malpractice. from liability because his conduct merely speeded up the Ten years after Kallenberg, in Mortensen v. Memorial happening of a result that was inevitable in any event.”85 Hospital,73 the First Department endorsed the “substan- The decision in Monahan illustrates a common theme tial possibility” charge recognizing that it had been between the LOC doctrine and the well-established approved in Pennsylvania and that the Hicks decision had concepts underlying the PJI Committee’s “aggravation” employed it as well.74 The court rejected a jury charge (2:282) and “precipitation” (2:283) charges. The plaintiff’s allowing recovery for the “deprivation of any possibil- argument in Kallenberg was premised on some of the ity.”75 The Fourth Department also has employed the same Court of Appeals cases supporting those pattern “substantial possibility” charge,76 although it may only charges.86 Monahan is cited in the comment following be applicable to “omission theories” of malpractice.77 both charges, and within the PJI Committee’s “loss of As pointed out by the PJI Committee, it appears that the chance” discussion. First, Third and Fourth Departments have endorsed the According to the comment following PJI 2:282, the “substantial possibility” concept which, by Mortensen’s charge applies to situations “where the defendant’s reference to Pennsylvania law, is linked to the relaxed wrongful act does not cause the condition, injury or ill- burden of proof on causation approach. ness.”87 This is certainly the context of “loss of chance” The Second Department, however, has routinely cases involving medical malpractice, if not every medical adhered to language allowing recovery when there is “a malpractice case. The “aggravation” charge instructs the diminished chance of survival,”78 a diminution of a sub- jury that the plaintiffs “should be compensated only to stantial chance,79 and when the negligence “diminished the extent that (plaintiff’s) condition was made worse by the plaintiff’s chance of a better outcome.”80 The “some the defendant’s negligence.”88 Interestingly, the “aggra- diminution” or “a diminution” language from the Second vation” and “precipitation” charges are categorized by Department appears more in line with Professor King’s the PJI Committee as a damages concept, not as a causa- approach treating the LOC doctrine as an independently tion concept. compensable claim and without any requirement of a The “aggravation” charge may be conceptually consis- substantial loss. It also is different, however, because tent with the LOC doctrine as it seeks to limit a plaintiff’s damages are not proportional or otherwise targeted to compensation to the “damage caused by aggravation of the loss of chance. the preexisting condition” and “to the extent that you The Court of Appeals has not been presented with find [the plaintiff’s] condition was made worse by the the Second Department’s language, but Wild involved defendant’s negligence.”89 This similarity is supported the use of the “substantial possibility” language. Perhaps by the discussion in Monahan wherein the Appellate because the “broad challenge” to the LOC doctrine was Division granted the plaintiff a new trial and focused on unpreserved, the Court did not reject the “substantial distinguishing between the preexisting condition and the possibility” standard. Nevertheless, because the “sub- aggravation of that condition by the defendant’s alleged stantial possibility” language was in the charge in Wild negligence. The court phrased it as an issue of proximate and the verdict was affirmed, it would seem that the cause: “substantial possibility” language is acceptable, provided Proximate cause, a troublesome concept of the law of the usual burden of proof and proximate cause charges negligence generally, poses special problems in the also are given.81 field of medical malpractice. The problem is described

NYSBA Journal | November/December 2015 | 35 in one treatise as follows: “Almost every person who the subjective approach.99 Still, there is no support in the receives the services of a physician is sick or disabled academic literature or judicial decisions permitting full when he first goes to the physician. Thus there lurks the ever present possibility that it was the patient’s damages for the ultimate harm suffered when at least original affliction rather than the physician’s negli- some of that harm was inevitable or attributable to a pre- gence which caused the ultimate damage.”90 existing condition. The subjective approach would appear to be most Assuming the conceptual similarity between “loss of consistent with New York’s existing law incorporated in chance” and “aggravation/precipitation,” a number of the “aggravation” charge. The jury is instructed to award questions arise in the event a LOC theory is supported damages only for the harm caused by the defendant’s by the evidence, a LOC charge is sought, and the court negligence and not for plaintiff’s preexisting condition.100 agrees to deliver one to the jury: (1) must the “aggrava- If this conclusion is accurate, it may not be necessary for tion” and/or “precipitation” charge be given to limit the the Court of Appeals to adopt the doctrine because exist- award to exclude the plaintiff’s pre-existing condition ing New York law already embodies it.101 and/or an inevitable result; (2) must the verdict sheet incorporate language to that effect; and (3) must the LOC “Substantial Factor” and “Substantial Possibility” theory be alleged in the pleadings such as is required by In Mortensen, the First Department upheld the jury charge some courts for the “aggravation” charge?91 instructing only “substantial possibility” on the issue of proximate cause concluding that the “concepts of ‘sub- stantial factor in bringing about an injury’ and ‘substan- The LOC doctrine in medical tial possibility of avoiding the injury . . .’ are virtually indistinguishable.”102 However, in view of the Court of malpractice cases has garnered Appeals discussion in Wild, which seems to require the standard burden of proof and proximate cause instruc- a great deal of attention in tions when “substantial possibility” is charged, is the judicial opinions and in law statement in Mortensen accurate? In other words, if “sub- stantial factor” must be charged when “substantial possi- review articles. bility” is charged, there must be a difference between the two concepts. Does the difference lie in “substantial,” the New York courts have yet to grapple with these issues word common between the two, or in the words “factor” in the LOC context. But, if New York has adopted the and “possibility?” Logic would seem to dictate that the doctrine, one would expect these questions to arise. difference between “substantial factor” and “substantial possibility” must be in the difference between “factor” Compensation: Proportional vs. Full vs. Subjective and “possibility.” Professor King’s proportional approach directs the jury The law appears clear that proximate cause cannot be to compute the full amount of damages and have that measured by percentages or probabilities.103 Of course, amount discounted by the value of the plaintiff’s percent- the burden of proof is measured by probabilities (i.e., age loss of chance.92 As mentioned before, Professor King more likely than not).104 But in Wild, the Court of Appeals severely criticizes the second approach, which allows so- seems to indicate that the burden of proof should not be called full damages under a relaxed burden of proof for changed when “substantial possibility” is charged. Thus, causation.93 A third approach allows the jury to award a probabilities are necessitated by the burden of proof but subjective amount targeted to the loss of chance but with- prohibited from causation. out use of a percentage discount.94 The First Department’s decision in Stewart v. New York No appellate court in New York, and only one City Hospital Corp.105 helps to illustrate the point. The trial court, has adopted Professor King’s proportional jury awarded the plaintiff $500,000 for the plaintiff’s loss approach.95 Without discussion of the issue, appellate of “natural” childbearing capacity following an ectopic courts have allowed full damages apparently under the pregnancy causing destruction of the right fallopian tube. relaxed standard of causation approach (i.e., “substan- The trial court granted the defendant’s post-trial motion tial possibility”).96 Some appellate courts have reduced in part, finding that a 10% chance was not a “substantial” apparent “loss of chance” awards on the more subjective possibility of having children naturally, and reduced the basis of whether the award represents reasonable com- damages for loss of the fallopian tube to $100,000. The pensation.97 First Department reversed, stating that the jury would be The use of a proportional or a subjective approach justified in concluding that the loss of a “5 to 10 percent” would largely be dictated by the evidence presented at chance of having a child naturally was “substantial.” The trial.98 If the expert evidence employs percentages, a court increased the award to $300,000.106 proportional approach becomes possible. Otherwise, the The First Department applied the usual requirement only option would seem to be to allow the jury to follow that a plaintiff show that the negligence “was a substan-

36 | November/December 2015 | NYSBA Journal tial factor in bringing about the injury.” The court did not Appellate Division reversed the trial court and reinstated address whether the “5 to 10 percent” chance applied to the verdict, finding that there was a rational basis for “substantial factor” or to “the injury.” But, if proximate the jury to conclude that the defendant’s negligence cause cannot be discounted by percentages, the “5 to 10 proximately caused the plaintiff to have a worsened or percent” would seem to apply to “the injury.” decreased 10-year survival rate.113 Assuming this to be true, on what basis did the First The decision in Luna indicates that the initial diagno- Department increase the award to $300,000 (halfway sis was in November of 2003 and that the trial occurred between the trial court and the jury awards)? Does this in 2011 or 2012. The plaintiff appears to have been alive mean that the injury must be “substantial” before any when the appeal was decided in April of 2015. This sug- award of damages may be made by a jury? Under what gests that the Appellate Division reinstated a $6.8 million principles of tort law do we limit compensation only for verdict based at least in part on a reduction of 50% in the “substantial” harm, whatever that may mean under the 10-year survival rate when in fact the plaintiff was still law? At a minimum, it would seem that using “substan- alive more than 10 years after the diagnosis. tial” for both causation and harm is confusing. Speculative Harm vs. Compensable Harm One of the common One of the common criticisms of the LOC doctrine is that it permits recovery for harm that is speculative,107 con- criticisms of the LOC doctrine trary to settled law prohibiting such a result.108 A related criticism is that the doctrine allows compensation based is that it permits recovery on ultimate harm that has not fully occurred and may for harm that is speculative. never occur.109 Using Stewart as an example again, is an award based on a “5 to 10 percent” loss of chance necessarily specula- Critics of the LOC theory would point to Luna as tive because that form of harm does not meet the burden an example of the courts authorizing compensation of proof by more likely than not? Additionally, the deci- based on speculative harm and on ultimate harm that sion does not indicate whether the plaintiff had suffered did not occur. To address this critique, Professor King the ultimate harm of being unable to conceive naturally. and one other author have recommended that “loss of What if the plaintiff was still of childbearing age and bore chance” awards be made only after the ultimate harm has a child naturally later? Was the plaintiff compensated for occurred.114 However, both authors acknowledge that the an ultimate harm that did not occur? statute of limitations would have to be changed to allow Cases involving the delayed diagnosis of cancer are time for the ultimate harm to occur.115 typical subjects for the LOC doctrine.110 Assertions by plaintiffs that medical malpractice deprived them of a “Loss of Chance” and “Wrongful Death” probability of a cure or for a better outcome are frequent- Wrongful death actions are typical applications of the ly met with defense complaints that the claims are specu- LOC doctrine upon allegations that negligence “has- lative. The courts have nevertheless ordinarily allowed tened” or “speeded up” the death or deprived the dece- them to be weighed by a jury because, as one court has dent of a chance of survival. There has been substantial observed, “[w]e can then only deal in probabilities since debate outside New York about whether the doctrine it can never be known with certainty whether a differ- is compatible with state wrongful death statutes.116 No ent course of treatment would have avoided the adverse New York court has addressed the question. consequences.”111 New York appears to be one of the jurisdictions strictly A recent Second Department case highlights some of construing its wrongful death statute117 and otherwise the troublesome issues that arise in these types of cases adheres to the common law that an action for personal with respect to damages. In Luna v. Spadofora,112 the jury injury abates upon death.118 It has yet to be seen whether returned a verdict of $6.8 million that the trial court set a New York court will authorize “loss of chance” in a aside, concluding that there was no rational basis upon wrongful death action under either: (1) the relaxed bur- which the jury could find that the 13-month delayed den of proof on causation despite the language of the diagnosis of the plaintiff’s thyroid cancer was a proxi- wrongful death statute limiting recovery to negligence mate cause of the plaintiff’s injuries. Plaintiff alleged that “which caused the decedent’s death” or (2) the inde- the delayed diagnosis worsened her prognosis, increased pendent compensable harm method, which is a form of her harm due to metastasis of her cancer, and significant- injury separate from the death. ly decreased her 10-year survival rate. Plaintiff’s expert testified that, when the plaintiff first saw the defendant, Omission and Commission there was an 85% to 90% 10-year survival rate but that At least in the Fourth Department, the Wild decision the delayed diagnosis reduced that to 40% to 50%. The seems to limit the LOC doctrine to theories of omission.

NYSBA Journal | November/December 2015 | 37 While this is consistent with Professor King’s observation 16. Id. at 632 (emphasis added); see also Casaceli, supra note 12, pp. 525–26. that most “loss of chance” claims have involved delays in 17. 45 A.D.2d 177 (1st Dep’t 1974), aff’d, 37 N.Y.2d 719 (1975). diagnosis,119 the doctrine has not been expressly limited 18. Férot, supra note 9, at 592–93; Casaceli, supra note 12, p. 527, n. 27. to such cases. The Fourth Department did not cite to any 19. See Hicks, 368 F.2d at 632; Kallenberg, 45 A.D.2d at 178. cases supporting its conclusion. 20. Hamil v. Bashline, 481 Pa. 256, 271 (1978); Férot, supra note 9, p. 593. 21. Hamil, 481 Pa. at 256. Conclusion 22. Id. at 269. It appears that New York is not applying the LOC doc- trine in any coherent or consistent fashion. In three of the 23. Id. at 271–72. four departments, New York has apparently adopted the 24. King I, supra note 5, at 1354. doctrine, but only if the loss of chance is a “substantial 25. Id., pp. 1382–87. possibility.” In the Second Department, it appears that 26. King II, supra note 1, p. 501. awards are made for any loss of chance and even when 27. Id., p. 502. the ultimate harm has not occurred. In the Fourth Depart- 28. Id., p. 503. ment, it appears that the doctrine is only applicable to 29. Id., pp. 556–58. “omission” theories and not “commission” theories. Fur- 30. Id., p. 508. ther, it appears that New York courts must charge both 31. Restatement (Third) of Torts § 26. “substantial factor” and “substantial possibility” even though the First Department has previously stated that 32. See, e.g., Dickhoff v. Green, 836 N.W.2d 321 (Minn. 2013); Matthew Wurdeman, Loss-of-Chance Doctrine in Washington: From Herskovits to Mohr those concepts are “virtually indistinguishable.” Some and the Need for Clarification, 89 Wash. L. Rev. 603 (2014) (Wurdeman); John New York courts also award full damages for the ultimate D. Hodson, Medical Malpractice: “Loss of Chance” Causality, 54 A.L.R. 4th 10 harm based solely on a loss of chance. (1987); Zaven T. Saroyan, The Current Injustice of the Loss of Chance Doctrine: An Argument for a New Approach to Damages, 33 Cumb. L. Rev. 15 (2002–2003). All of this has occurred under New York law with vir- 33. Dickhoff, 836 N.W.2d at 334, n.12. tually no discussion of the issues or the policy consider- ations underlying the imposition of the relaxed standard 34. Id. of causation or the recognition of a new form of harm. 35. Wurdeman, supra note 32, pp. 612–13. Until there is clarification from the Court of Appeals, 36. See, e.g., Dickhoff, 836 N.W.2d at 333–35; Matsuyama, 452 Mass. at 10–18. it will be up to the trial courts and counsel to craft the 37. Wurdeman, supra note 32; Casaceli, supra note 12; Férot, supra note 9; application of the LOC doctrine, if at all. In the meantime, Ralph Frasca, Short Paper and Note: Loss of Chance Rules and the Valuation of Loss of Chance Damages, 15 J. Legal Econ. 91 (2009) (identifying the traditional it appears that plaintiffs and defendants will take their rule and the incremental loss of chance rule); King II, supra note 1. n chances with the LOC doctrine. 38. Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 196 (2d ed. 2010) (Dobbs). 1. Joseph H. King, Jr., “Reduction of Likelihood” Reformulation and Other Retro- fitting of the Loss-of-a-Chance Doctrine, 28 U. Mem. L. Rev. 492 (1998) (King II). 39. Id., p. 662. 2. Id. at 493; Dickhoff v. Green, 836 N.W.2d 321, 333 (Minn. 2013). 40. 175 Vt. 375 (2003). 3. Id. 41. Id. at 381. 4. King II, supra note 1, pp. 492–93. 42. Dobbs, supra note 38, p. 663. 5. Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E.2d 819, 829–30 (Mass. 2008); 43. Fischer, supra note 9, p. 605. Joseph H. King, Jr., Causation, Valuation and Chance in Personal Injury Torts 44. Id., p. 665. Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1365–66 (1981) (King I). 45. Id., pp. 662–65. 6. Matsuyama, 452 Mass. at 12. 46. Id., p. 666; King I, supra note 5, p. 1365; see, e.g., Mead v. Adrian, 670 N.W.2d 174, 179–80 (Iowa 2003). 7. Herskovits v. Grp. Health Coop. of Puget Sound, 99 Wn. 2d 609, 614 (Wash. 1983). 47. Fischer, supra note 9, p. 619, n. 65. 8. Dickhoff, 836 N.W.2d at 333 (emphasis in original). 48. See, e.g., Boone v. William W. Backus Hosp., 272 Conn. 551 (2005). 9. Restatement (Third) of Torts § 26 cmt. (2005); Matsuyama, 452 Mass. at 49. Casaceli, supra note 12, pp. 531–33. 19–20; Alice Férot, The Theory of Loss of Chance: Between Reticence and Accep- 50. Id., pp. 547–52. tance, 8 FIU L. Rev. 591, 592 (2013) (Férot); David A. Fischer, Tort Recovery for Loss of a Chance, 36 Wake Forest L. Rev. 605, 606 (2001) (Fischer). 51. Matsuyama, 452 Mass. at 20, n.33; Mead, 670 N.W.2d at 182–83 (Cady, J., concurring); Alexander v. Scheid, 726 N.E.2d 272, 277 (Ind. 2000); King II, supra 10. Restatement (Third) of Torts § 26. note 1, p. 544; Wurdeman, supra note 32, pp. 642–43. 11. See, e.g., Matsuyama, 452 Mass. at 19–20; Smith v. Parrott, 175 Vt. 375, 378 52. Wurdeman, supra note 32, p. 604. (2003). 53. Compare Casaceli, supra note 12, p. 531, n.5 and Férot, supra note 9, p. 610, 12. Brian Casaceli, Losing a Chance to Survive: An Examination of the Loss of n. 178. Chance Doctrine Within the Context of a Wrongful Death Action, 9 J. Health & Biomed. L. 521, 525 (2014) (Casaceli). 54. 45 A.D.2d 177 (1st Dep’t 1974), aff’d, 37 N.Y.2d 719 (1975). 13. Id.; Craig v. Chambers, 17 Ohio St. 253, 261 (1867). 55. King I, supra note 5, p. 1368, n. 53; Férot, supra note 9, pp. 592–93; Fischer, supra note 9, p. 608, n. 17; Stephen R. Koch, Comment; Whose Loss Is 14. King II, supra note 1, p. 500; see also Fischer, supra note 9, p. 609. It Anyway? Effects of the “Lost-Chance” Doctrine on Civil Litigation and Medical 15. 368 F.2d 626 (4th Cir. 1966). Malpractice Insurance, 88 N.C. L. Rev. 595, 607, n. 56 (2010).

38 | November/December 2015 | NYSBA Journal 56. Rogers v. Decker, 131 N.Y. 490, 493 (1892); Tepper v. Tannenbaum, 65 A.D.2d 95. Birkbeck v. Cent. Brooklyn Med. Grp., P.C., 2001 N.Y. Slip Op. 33491(U) 359, 360 (1st Dep’t 1978). (Sup. Ct., Kings Co. 2001). 57. 21 N.Y.3d 951 (2013). See Timothy J. O’Shaughnessy, Loss of Chance: Finally 96. Wild, 21 N.Y.3d 951; O’Connell v. Albany Med. Ctr. Hosp., 101 A.D.2d 637 Back in the Court of Appeals, N.Y.L.J., p. 4, col. 4, Vol. 248 No. 10 (July 16, 2012) (3d Dep’t 1984); Kallenberg, 45 A.D.2d 177. (O’Shaughnessy). 97. Schneider v. Mem. Hosp. for Cancer & Allied Diseases, 100 A.D.2d 583 (2d 58. Wild, 21 N.Y.3d at 953. Dep’t 1984); Stewart v. N.Y. City Health & Hosps. Corp., 207 A.D.2d 703 (1st 59. Id. at n.1. Dep’t 1994), lv. denied, 85 N.Y.2d 809 (1995); Dockery v. Sprecher, 68 A.D.3d 1043 (2d Dep’t 2009), lv. denied, 17 N.Y.3d 704 (2011). 60. Id. at 954. 98. Dobbs, supra note 38, § 196. 61. Id. at 952–53. 99. Id. 62. See also 1B New York Pattern Jury Instructions (2d ed. 2015) (PJI), 1:23, 2:70. 100. PJI 2:282.

63. PJI 2:150, pp. 77–79 (“[N]one of the Appellate Division cases that have 101. See, e.g., Ortega v. City of N.Y., 9 N.Y.3d 69 (2007); Madden v. Creative Servs., addressed the situation analyze the issue in any detail.”); John L.A. Lyddane 84 N.Y.2d 738 (1995); A.G. Ship Maint. Corp. v. Lezak, 69 N.Y.2d 1 (1986). & Barbara D. Goldberg, Proof of Causation and Measure of Recovery in “Loss of 102. 105 A.D.2d at 159. Chance” Cases, N.Y.L.J., p. 3, col. 1, Vol. 254, No. 9 (July 15, 2015). 103. Kimball, 59 A.D.2d at 985; Mortensen, 105 A.D.2d at 157. 64. Id. 104. PJI 1:23. 65. Id. 105. 207 A.D.2d 703 (1st Dep’t 1994). 66. PJI 2:150, pp. 77–79. 106. Id. at 703–04. 67. Kallenberg, 45 A.D.2d at 179. 107. Mohr v. Grantham, 172 Wn.2d 844, 857 (Wash. 2011); Matsuyama, 452 Mass. 68. Id. at 18.

69. Id. 108. Fennell v. S. Md. Hosp. Ctr., Inc., 320 Md. 776 (Md. 1990); see also Ingersoll 70. PJI 2:150, p. 77. v. Liberty Bank of Buffalo, 278 N.Y. 1 (1938). 71. 59 A.D.2d 984 (3d Dep’t 1977), lv. denied, 43 N.Y.2d 648 (1978). 109. Kramer v. Lewisville Mem. Hosp., 858 S.W.2d 397 (Tex. 1993). 72. Id. at 984–85. 110. King II, supra note 1, p. 501.

73. 105 A.D.2d 151 (1st Dep’t 1984). 111. Brown v. State of N.Y., 192 A.D.2d 936, 938 (3d Dep’t), lv. denied, 82 N.Y.2d 74. Id. at 159. 654 (1993); see, e.g., Dickhoff v. Green, 836 N.W.2d 321, 336 (Minn. 2013) (juries are routinely delegated the duty of determining life expectancy based on 75. Id. probabilities and statistics).

76. Cannizzo v. Wijeyasekaran, 259 A.D.2d 960 (4th Dep’t 1999). 112. 127 A.D.3d 933 (2d Dep’t 2015).

77. Wild v. Catholic Health Sys., 85 A.D.3d 1715 (4th Dep’t 2011), aff’d, 21 113. Id. at 934. N.Y.3d 951 (2013). 114. King II, supra note 1, p. 560; Wurdeman, supra note 32, pp. 642–44. 78. Hughes v. N.Y. Hosp.-Cornell Med. Ctr., 195 A.D.2d 442, 444 (2d Dep’t 1993). 115. Id. 79. Jump v. Facelle, 275 A.D.2d 345, 346 (2d Dep’t 2000); Calvin v. N.Y. Med. 116. Casaceli, supra note 12. Grp., P.C., 286 A.D.2d 469 (2d Dep’t 2001). 117. EPTL 5-4.1. 80. Flaherty v. Fromberg, 46 A.D.3d 743, 745 (2d Dep’t 2007); Alicea v. Ligouri, 118. Greco v. S.S. Kresge Co., 277 N.Y. 26 (1938). 54 A.D.3d 784 (2d Dep’t 2008). 119. King II, supra note 1, p. 501. 81. Compare Calvin, 286 A.D.2d 469, and Candia v. Estepan, 289 A.D.2d 38 (1st Dep’t 2001).

82. PJI 2:150, pp. 77–79.

83. Wolf v. Persaud, 130 A.D.3d 1523 (4th Dep’t 2015); Hernandez v. N.Y. City Health & Hosp. Corp., 129 A.D.3d 532 (1st Dep’t 2015).

84. 82 A.D.2d 102 (4th Dep’t 1981).

85. Id. at 108.

86. McCahill v. N.Y. Transp. Co., 201 N.Y. 221 (1911); Dunham v. Vill. of Canisteo, 303 N.Y. 498 (1952).

87. PJI 2:282.

88. Id.

89. PJI 2:282, p. 892.

90. Monahan, 82 A.D.2d at 107 (quoting 1 Louisell & Williams, Medical Mal- practice, par. 8.07, p. 213).

91. PJI 2:282, p. 893.

92. King I, supra note 5, pp. 1381–87, 1397.

93. King II, supra note 1, p. 508.

94. Dobbs, supra note 38, § 196, pp. 667–68; Fischer, supra note 9, p. 619, n. 65.

NYSBA Journal | November/December 2015 | 39 Brian P. Corrigan is a partner in Holland & Knight’s New York office and a member of the firm’s litigation and dispute resolution practice, focusing on the areas of trusts, estates and fiduciary litigation. Mr. Corrigan gratefully acknowledges the assistance of Duvol M. Thompson, an associate in the firm’s New York litigation group, with the research for this article.

Proving a Joint Account With Right of Survivorship or Totten Trust Account Without the Signature Card By Brian P. Corrigan

frequent dispute in administration of a dece- Joint Accounts With Right of Survivorship dent’s estate concerns the interest of a surviving With respect to joint accounts, N.Y. Banking Law § 675 A co-tenant in an account alleged to have been provides that when a deposit is made in the name of the joint with right of survivorship. Similar issues arise as depositor and another person to be paid to either or the to the interest of a beneficiary to an alleged Totten trust survivor of them that the account. The analysis begins with a review of the signa- making of such deposit . . . shall, in the absence of ture card establishing the account at issue. The signature fraud or undue influence, be prima facie evidence, in card, and, specifically, the language on the signature card any action or proceeding . . . of the intention of both identifying the interests of the parties in the account, is depositors . . . to create a joint tenancy and to vest title recognized as the best evidence of the decedent’s intent at to such deposit or shares, and additions and accru- als thereon, in such survivor. The burden of proof in the time the account was established.1 As a consequence refuting such prima facie evidence is upon the party or of mergers or otherwise, banks sometimes cannot locate parties challenging the title of the survivor. the signature card when it is needed in an estate adminis- tration. However, there is other evidence courts regard as Thus, an executed signature card containing language probative of whether a joint account with right of survi- complying with the statute exonerates the bank from vorship or Totten trust account has been established when liability and creates a rebuttable presumption2 that the the signature card is unavailable. surviving co-tenant is entitled to the entire account.

40 | November/December 2015 | NYSBA Journal In Estate of Butta,3 the interest of the decedent’s great Evidence Establishing a Joint Account nephew, Nicholas, in an account he claimed to be joint With Right of Survivorship with a right of survivorship with his deceased aunt, The Surrogate held, in the alternative, that Nicholas was was tried before the Surrogate without a jury. The facts entitled to the presumption under Banking Law § 675 or established that the decedent’s estate was almost $4 mil- that he adduced sufficient proof to meet his burden of lion and Nicholas was not a beneficiary of her will or proof under common law principles. The court referred lifetime trust. The subject bank account was opened with to the following facts in support of its holding: a $240,000 deposit supplied by the decedent. On the date • The redacted electronic signature card reflects that of the decedent’s death, the balance was $151,485.75. All the type of account was “J,” a joint account. withdrawals from the account were made by Nicholas • The only type of account that the bank would open solely for his own benefit. All of the statements and can- at the time the account was opened in the names of celed checks for the account were mailed to the decedent, two depositors was a joint account with survivor- and she reported all of the interest earned on the account ship rights. on her income tax returns. • The bank representative who opened the account The bank was unable to produce the signature card. told the decedent and Nicholas that the account was The bank representative who opened the account testi- payable to the survivor. fied that she had probably opened between 500 and 1,000 accounts for customers. Although she did not remember any specific conversation with the decedent and Nicholas The signature card is recognized on the date the account was opened, she did recall that as the best evidence of the she told them that the account would be payable to the survivor of them upon the death of the other. Further, the decedent’s intent at the time the bank representative testified that she knew she advised account was established. the decedent and Nicholas that the account was a survi- vorship account because, when the account was opened, the bank would not open an account in two names unless Although the bank representative’s recollection of the it was a survivorship account. account opening was imperfect, the Surrogate found no The bank was able to produce an “electronic signa- reason to doubt her credibility. The court analogized the ture card summary” containing the account number, representative’s testimony to that of an attorney who the names of both the decedent and Nicholas under the supervises the execution of numerous wills and can be “Account Title,” the letter “J” under the “Account Type” positive that a particular will was executed with the and the electronic signatures of both the decedent and required statutory formalities without necessarily being Nicholas. accurate as to all of the other details regarding the execu- tion ceremony. The Statutory Presumption Under Banking Law Having found a joint account with right of survivor- § 675 and Common Law Principles ship, the court next addressed, and rejected, the execu- The Surrogate acknowledged the line of cases holding tor’s claim that the account was a convenience account, that survivorship language on the signature card suffices citing the following evidence: to establish a prima facie case under Banking Law § 675, • The statements and canceled checks were mailed but noted it does not follow from those cases, or the stat- to the decedent’s home and there is no reason to ute, that the statutory presumption is restricted to cases believe that she did not read them. where the signature card contains survivorship language. • The statements/canceled checks reflect that Nicho- Surrogate Holzman held that las made over 200 withdrawals solely for his benefit. while survivorship language on the signature card • Although Nicholas assisted the decedent with itself is the best evidence to give rise to the statutory chores, there was no proof that she relied solely presumption, and, perhaps, in most cases the only upon him or that she was in any way incompetent. practical way, it is not the exclusive way. The statutory • The decedent lived by herself, consulted with her presumption arises upon any proof that clearly estab- accountant without anyone else being present and, lishes the deposit was made and credited in the name more than three years after the account was opened, of both parties to be paid to either or the survivor of she executed both a lifetime trust and a will under 4 them. which her great-nephew did not receive any portion This analysis continued, noting it is well established of her substantial estate. that the surviving tenant will prevail, without the benefit The First Department affirmed, holding, of the statutory presumption, by establishing a common The testimony of a bank employee that the signature law joint account with right of survivorship citing, inter cards used by the bank when the subject account was alia, In re Antoinette5 and In re Coon.6 opened contained right of survivorship language was,

NYSBA Journal | November/December 2015 | 41 in the face of the bank’s inability to produce the actual ed that the decedent knew that [Anna] used the accounts signature card for the account, sufficient proof that for her own benefit and he did not object.”9 such language in fact appeared on the signature card with which the account was opened. It is therefore Totten Trust Accounts unnecessary to determine whether the presumption N.Y. Estates, Powers & Trusts Law 7-5.1 et seq. (EPTL) of a joint account with rights of survivorship (Banking governs Totten trust or “in trust for” bank accounts and Law § 675(b)) may arise from other proof.7 provides for a financial institution’s release from liability Thus, the Appellate Division’s decision leaves open, for making payment to the beneficiary in accordance with at the appellate level, whether the statutory presumption the statute.10 may arise from proof other than the signature card. In Estate of Posch,11 the bank’s computer records listed In In re Slavin,8 although the signature card could not Helen as beneficiary of a trust account established by the be produced, the Surrogate found the presumption under decedent. There was, however, no signature card, or any Banking Law § 675 had been established by other proof. other document signed by the decedent, in the bank’s

While the revocation of a trust account requires a writing, EPTL 7-5.1 makes no mention of a writing requirement for the creation of a trust account.

The decedent was a partner at Cantor Fitzgerald and possession designating a beneficiary. In the turnover pro- died intestate on September 11, 2001, in the attack on the ceeding commenced against Helen by the administrator World Trade Center. He was survived by his minor son of the estate, a bank employee testified that it was the from a prior marriage (who was his sole distributee) and bank’s policy not to require a signature card when an his fiancée, Anna, with whom he had lived for more than individual account was converted to a trust account. The four years immediately prior to his death. administrator of the estate and Helen each moved for The decedent had $656,944.36 in three accounts and summary judgment. banked at the World Trade Center branch of his bank. The Surrogate noted that EPTL 7-5.1(d) provides that After September 11, 2001, Anna closed the accounts. The a trust account is established “by the depositor describing signature cards were maintained at the World Trade Cen- himself as trustee for another” and, under common law, ter branch and were destroyed on September 11. a trust of personal property can be established by parol The administrator of the decedent’s estate (the mater- with no particular form of words being necessary, pro- nal grandmother of the decedent’s son) commenced a vided the expression of intent is unequivocal. The court turnover proceeding against Anna and the bank. The observed that EPTL 7-5.1 left the common law standard administrator contended that because the signature cards for establishing a trust chiefly intact. could not be produced, the respondents could not satisfy While the revocation of a trust account requires a the requirements under Banking Law § 675 and, there- writing,12 EPTL 7-5.1 makes no mention of a writing fore, neither the bank nor Anna was entitled to the statu- requirement for the creation of a trust account. Thus, the tory presumption. question of law is whether the decedent’s direction to the Citing Butta, the bank and Anna moved for sum- bank met the statutory requirements, and the question of mary judgment and submitted the deposition testi- fact is what the decedent communicated to the bank. mony of three different bank employees that at the time The Surrogate concluded that the bank’s computer the accounts were established the following language entry was admissible as a business record, but it had “accounts with multiple owners are joint, payable to no more probative value than any other evidence and, either owner or the survivor” would have appeared on therefore, the “unsigned bank records alone are not what was signed. As the administrator submitted no conclusive evidence of the transaction.”13 The court evidence to rebut this testimony, the Surrogate found denied the summary judgment motions and held that that the statutory presumption under Banking Law § 675 the administrator was entitled to test at trial the credibil- applied. ity of the bank employee who generated the computer The court next rejected the administrator’s allegation record. that the accounts were merely of convenience, finding: Estate of Tate14 involved a dispute among the dece- “Decedent was a bright, educated stock trader who was dent’s three children as to the beneficiary of a Totten trust in no need to have convenience accounts created on his account. The administrator of the decedent’s estate, one behalf. The bank statements and cancelled checks indicat- of the children, petitioned to have her sister return funds

42 | November/December 2015 | NYSBA Journal withdrawn from the account. The bank was unable to trust accounts payable to Sidbury. The manager further produce the signature card. testified that the bank’s computer records identified the At trial, the petitioner testified that she was present customer service representative who handled the transac- with the decedent when the account was opened in 1984 tion (who was no longer employed by the bank) and that with proceeds from the decedent’s lottery winnings, and it was the bank’s procedure to require proof of identifica- observed the decedent designating all three of her chil- tion from the customer. The bank also relied on the fact dren as beneficiaries. She further testified that her mother that the statements thereafter listed the account title as never changed the designations. During the last year of “Carrie Clinton ITF Shirley Sidbury.” her life, the decedent’s health deteriorated and she could The evidence showed that a year before the Totten no longer handle her financial affairs. The petitioner trust accounts were established, the decedent’s doctor testified that her mother gave her the checkbook for noted that the decedent, in her mid-80s, had early organic the account in question so she could pay the decedent’s mental syndrome, a deterioration of mental function that expenses. The court observed the records supported the occurs with aging. The doctor was concerned about the petitioner’s testimony as all of these checks were num- decedent’s ability to administer prescribed medication. bered sequentially and followed numerically from the Further, the decedent told her doctor she didn’t have the checks signed by the decedent. means to buy the medication despite, although unknown The petitioner observed that the respondent, who to the doctor, having more than $500,000 in the bank. lived in a basement apartment at the mother’s home, For the bank to gain the release from liability under received shipments of new furniture and other purchases EPTL 7-5.4, the court stated that “there must be a pay- at a time when the respondent was on public assistance. ment to a ‘beneficiary’ which is defined as a ‘person The decedent was not receiving bank statements and who is described by the depositor as a person for whom a believed the respondent was intercepting them to cover trust account is established.’”17 The bank argued that its up withdrawals. The bank records revealed that the computer records would not reflect a Totten trust account respondent wrote checks on the account, none of which without one having been validly established by the was in the proper numeric sequence. depositor. Surrogate Preminger rejected this argument The court noted that the respondent, who claimed she and held that accompanied the decedent to the bank in 1984 and that the best evidence of such a transaction would be a the decedent designated her as sole beneficiary, testified signature card signed by the decedent, or at the very in an “evasive and reluctant manner.” The respondent least, some other admissible indication of the dece- admitted to writing the checks, but claimed the decedent dent’s intent to create the Totten Trust accounts [citing Tate and Posch gave her authority to do so.15 ]. [The bank], however, concedes it does not have signature cards corresponding to this account The court credited the petitioner’s testimony and con- change transaction, and instead offers only its com- cluded a Totten trust account was established for the ben- puter records and the statements of an employee who efit of all three of the decedent’s children. The court held: has no recollection of the transaction, nor personal The fact that the bank statements only list respon- knowledge of it. Having put forth essentially nothing dent’s name as beneficiary, although of some rel- but its computer account records, [the bank’s] cross evance, is clearly outweighed by the testimony of motion for summary judgment seeking stakeholder petitioner, the circumstances surrounding the creation status should be denied.18 of the account, and the lack of original signature cards In re Wess19 involved a dispute between Wess, a long- to support that this was the only name on the actual time friend of the decedent who claimed to be a ben- account. As such, respondent is entitled to a one-third interest in the account.16 eficiary of a Totten trust account, and the executor who contended it was an estate asset. The bank could not find In In re Clinton, the administrator of Carrie Clinton’s the signature card. estate commenced a turnover proceeding against a bank The decedent was a businesswoman who wholly and Shirley Sidbury, who claimed to be the beneficiary of owned a consulting company and who died in 2009 at several accounts shown on the bank’s records as “Carrie age 55 leaving an estate of approximately $9 million. The Clinton ITF Shirley Sidbury.” All three parties moved decedent and Wess were romantically involved, having for summary judgment. After finding issues of fact and lived together for a decade. They stopped living together denying the motions of the administrator and Sidbury, around 2000, but remained friends. Indeed, in the last the court turned to the bank’s motion seeking a determi- 10 years of the decedent’s life, and up to a few months nation that it was merely a stakeholder. before her death, the decedent gave Wess a number of As it was unable to produce the signature card, the generous gifts; this was not disputed by the executor. bank relied on an affidavit from the manager of the In August 2009, after learning that she would likely branch where the transaction occurred. The branch man- die within the year, the decedent executed a will and ager testified that on March 6, 1998, the account titles made arrangements to seek medical treatment in Japan. were changed from the decedent’s name alone to Totten On the same day the decedent flew to Japan, she added

NYSBA Journal | November/December 2015 | 43 approximately $370,300 to the subject account, thereby records alone, a bank employee with direct knowledge of increasing the balance to about $406,300. The account the transaction itself or, if that is unavailable, the practice contained approximately $441,500 when she died. and procedure related to the transaction should be pur- Having to overcome hearsay issues, CPLR 4519 and sued in discovery. The relationship between the decedent the missing signature card, Wess submitted the following and the other party should be examined as well as the evidence in support of his summary judgment motion: circumstances under which the account was established. 1. the 1099s for 11 years (1998 through 2009), showing Finally, the proposed disposition of the account should be the account as “I/T/F Frank Wess,” were addressed viewed in the context of any other planning the decedent to the decedent, which she may be presumed to made and the disposition of other estate assets. n have seen without protest as to their accuracy; 2. the bank records reflecting that the subject account 1. See Estate of Butta, 192 Misc. 2d 614 (Sur. Ct., Bronx Co. 2002), aff’d, 3 A.D.3d 347 (1st Dep’t 2004) (as to joint accounts); In re Clinton, 1 Misc. 3d was held “I/T/F” Wess; and 913(A) (Sur. Ct., N.Y. Co. 2004) (as to Totten trust accounts). 3. a bank employee’s testimony that such data was, 2. See Fischedick v. Heitmann, 267 A.D.2d 592 (3d Dep’t 1999) (presumption as a matter of company practice, entered into the rebutted); In re McMurdo, 56 A.D.2d 602 (2d Dep’t 1977) (same). bank’s computer system at the time that the deposi- 3. 192 Misc. 2d 614. tor supplied the information. 4. Id. at 619. In opposition, the administrator argued that the 5. 291 A.D.2d 733 (3d Dep’t), lv. to appeal denied, 98 N.Y.2d 604 (2002). account was never established, the decedent forgot about 6. 148 A.D.2d 906 (3d Dep’t 1989). the account and intended to dispose of it by will, and/ 7. Estate of Butta, 3 A.D.3d at 347. or that the account had been revoked by the decedent. 8. 3 Misc. 3d 725 (Sur. Ct., Queens Co. 2004). Note: The author’s law firm Surrogate Anderson found none of these theories to be represented the bank in this case. supported by anything other than bare speculation and 9. Id. at 728. granted Wess’ summary judgment motion. 10. EPTL 7-5.4. 11. N.Y.L.J., Aug. 12, 2002, p. 26, col. 3 (Sur. Ct., Nassau Co.). Conclusion 12. See EPTL 7-5.2. An attorney advising a client in a dispute over a Totten 13. Posch, N.Y.L.J., Aug. 12, 2002. trust or joint account for which the signature card is not 14. N.Y.L.J., Nov. 5, 2001, p. 28, col. 4 (Sur. Ct., N.Y. Co.). available should explore whether bank statements show- 15. All the parties apparently waived CPLR 4519. ing the interest of the other party were sent to the dece- 16. Tate, N.Y.L.J., Nov. 5, 2001. dent and whether the decedent ever made an objection. A 17. Clinton, 1 Misc. 3d 913(A), *5. related consideration is whether there is reason to believe 18. Id. the decedent was not receiving this mail or that the dece- 19. N.Y.L.J., Jan. 28, 2013, 1202585573297, at *1 (Sur. Ct., N.Y. Co.). dent may not have been able to read or understand the statements. Furthermore, rather than relying on bank

The Journal’s 2015 Statement of Ownership, Management and Circulation

44 | November/December 2015 | NYSBA Journal INDEX TO ARTICLES 2015

This index places each article in one of the following categories. All articles are available online, to members. The articles are listed, alphabetically, by title, followed by the last name(s) and first initial(s) of the author(s); the issue date; and the page number. A word-searchable index to the Journal, for years 2000–2015, is available online at www.nysba.org. Click on “publications,” then Bar Journal. Scroll down, and on the right-hand side click on “Searchable Index by Category (2000-present).” Administrative Law Consumer Law International Law Animal Law Courts Labor and Employment Antitrust Law Criminal Law Law Practice Appeals Crossword Legal Writing Arbitration / Alternative Dispute Elder Law Poetry Resolution Environmental Law Point of View Column Attorney Professionalism Evidence Real Property Law Banking / Finance Law Family Law Technology and the Law Bankruptcy Government and the Law Tax Law Books on Law Health Law Torts and Negligence Civil Procedure History Trial Practice Commercial Law Humor – Res Ipsa Jocatur Trusts and Estates Constitutional Law Intellectual Property Women in Law

Attorney Professionalism Consumer Law Forum: How to Handle a Bully, Syracuse, V.; When Does “Free of Charge” Become “Pay What You Wish But You Must Maron, M., Mar./Apr. 2015, p. 50 Pay Something”?, Dickerson, T., Mar./Apr. 2015, p. 48 Forum: If General Counsel Is Called for an Interview Concerning an Courts Investigation of the Company, Syracuse, V.; Maron, M., May 2015, p. 52 Enforceability of a “Personal Guaranty” Clause – Attorney Fee Agreements in the Surrogate’s Court, Penzer, E.; Sullivan, L., Sept. 2015, p. 30 Forum: Losing Lawyer Harasses Lawyer-Juror, Syracuse, V.; Stallone, M., June 2015, p. 49 Criminal Law Forum: Loyalty Tested – What Duties Does an Associate Owe to a Law New Criminal Justice Legislation, Kamins, B., Nov./Dec. 2015, p. 26 Firm?, Syracuse, V.; Maron, M., Feb. 2015, p. 59 Forum: Secretly Recording Discovery, Syracuse, V.; Stallone, M.; Elder Law Furst, H., Nov./Dec. 2015, p. 51 Nursing Home Petitioners and Guardianship, Levitin, N., Sept. 2015, p. 54 Forum: Structuring a Financial Services Transaction, Syracuse, V.; Evidence Siciliano, R.; Kantowitz, R., Sept. 2015, p. 59 Burden of Proof – “A Tale of Two Cases,” Horowitz, D., Feb. 2015, p. 18 Forum: When Does an Attorney Have an Obligation to Reveal Client Confidences?, Syracuse, V.; Stallone, M., July/Aug. 2015, p. 55 Burden of Proof – “Morally Certain,” Horowitz, D., Sept. 2015, p. 18 Forum: When Opposing Counsel Has a Meltdown, Syracuse, V.; Burden of Proof – “No Excuses,” Horowitz, D., June 2015, p. 40 Stallone, M.; Furst, H., Oct. 2015, p. 50 Burden of Proof – “Should It Be Excused?,” Forum: When You Disagree with the Senior Partner, Syracuse, V.; Horowitz, D., July/Aug. 2015, p. 16 Maron, M.; Kantowitz, R., Jan. 2015, p. 50 Burden of Proof: Still “Morally Certain”?, Frivolous Conduct – Ethical Considerations in Appellate Practice, Horowitz, D., Oct. 2015, p. 16 Newman, T., July/Aug. 2015, p. 39 Burden of Proof – Successfully Navigating the Ashford/Kudisch World, Horowitz, D., Nov./Dec. 2015, p. 15 Civil Procedure Burden of Proof – “That’s No Excuse,” Horowitz, D., May 2015, p. 16 Choice of Law or Law of Choice? N.Y. Rule 8.5, Kewalramani, D.; McFarlane, R., Sept. 2015, p. 20 Burden of Proof – “What’s Your Excuse?”, Horowitz, D., Mar./Apr. 2015, p. 23 Conflict Among the Departments – Does Service of a 90-Day Demand to Resume Prosecution and for a Note of Issue Constitute a Waiver of a Burden of Proof – “You Better Object . . . Now!”, Defendant’s Right to Discovery?, Kirby, K., July/Aug. 2015, p. 32 Horowitz, D., Jan. 2015, p. 18 Discoverability of Social Media Profiles in New York: How Defense Family Law Litigators Can Optimize on Disclosure, Turbert, K., Oct. 2015, p. 10 Mommy (and Daddy) Dearest – Determining Parental Rights and Commercial Law Enforceability of Surrogacy Agreements, Giacomo, W.; DiBiasi, A., July/Aug. 2015, p. 18 Alter Ego Doctrine in New York, The, Yankelunas, E., May 2015, p. 10 Contracts – Contractual Foreplay: Letters of Intent vs. Term Sheets, Government and the Law Siviglia, P., May 2015, p. 49 Governmental Function Immunity Defense in Personal Injury Cases, The: Contracts – Opinion Letters: Refocusing, An Analytical Template, Bersani, M., Oct. 2015, p. 42 Siviglia, P., July/Aug. 2015, p. 51 Health Law Contracts – Shareholder Arrangements, Siviglia, P., Feb. 2015, p. 48 “Loss of Chance” Doctrine in Medical Malpractice Cases, Curran, J., Contracts – Writing Contracts: Suggestions for Law Schools and Young Nov./Dec. 2015, p. 31 Attorneys, Siviglia, P., Jan. 2015, p. 40 Curious Case of the Full-Payment Check, History The, Mullings, S., May 2015, p. 44 Dutch, Munsees, and the Purchase of Island, The, from Guide to New York State Commercial Landlord-Tenant Law and Opening Statements – Law, Jurisprudence, and the History of Dutch New Procedure, A – Part I, Lebovtis, G.; Terk, M., Feb. 2015, p. 22 York, Otto, P.; Rosenblatt, A.; Rosenblatt, J., Jan. 2015, p. 10 Keeping Your Secrets Secret, Johnson, J., July/Aug. 2015, p. 24 Eight “Chiefs,” Bellacosa, J., Nov./Dec. 2015, p. 18

NYSBA Journal | November/December 2015 | 45 Lawyer Who Lit the Fuse of the American Revolution, The, Foglia, P., Point of View Mar./Apr. 2015, p. 26 Assessing Minimum Competence in a Changing Profession: Why the UBE Only Whites Need Apply – The Strange Case of Stuyvesant Town, Is Right for New York, Bosse, D., Feb. 2015, p. 39 Zauderer, M., Sept. 2015, p. 25 Association Position, The: Remarks of President-elect David P. Miranda to Patent Battle That Created Hollywood, The, Krell, D., the Advisory Committee on the Uniform Bar Examination, Miranda, D., Nov./Dec. 2015, p. 10 Feb. 2015, p. 46 When Law Meets Art: Aeschylus’ The Eumenides and Shakespeare’s The Bad Law or Bad Lawyering? The Need for Local Counsel Notwithstanding Merchant of Venice, Stock, W., Oct. 2015, p. 47 a Contract’s Governing Law Selection, Siviglia, P., Oct. 2015, p. 50 Comparison of the New York Bar Examination and the Proposed Uniform Labor and Employment Bar Examination, A, Gallagher, M.; Darrow-Kleinhaus, S., Conflicting Legal Standards for Mixed-Motive Employment Feb. 2015, p. 32 Discrimination Claims, The: A Comparison of the ADEA and Title VII, Necessary Peremptory Challenge, The, Miller, H., June 2015, p. 38 Mars, H., May 2015, p. 34 New York’s Law on Full Payment Checks: Has It Changed?, Disability Determinations, Judicial Authority and CPLR Article 78, Part Anderson, D., July/Aug. 2015, p. 53 I, Lukaszewski, C., May 2015, p. 28 Obergefell v. Hodges and Issues of Judicial Civility, Hyer, J., Disability Determinations, Judicial Authority and CPLR Article 78, Part Sept. 2015, p. 46 II, Lukaszewski, C., June 2015, p. 44 Should Non-Attorneys Represent Parties in FINRA Arbitration for Law Practice Compensation?, Gana A.; Truitt, A., Jan. 2015, p. 36 Buying or Selling a Small or Solo Practice – Part 2, Wasserstein, N., Will Someone Protect the Kids?, Grumet, L., July/Aug. 2015, p. 45 Jan. 2015, p. 26 Real Property Law Determining Partner Compensation: Identifying and Defining Criteria, Rose, J., Oct. 2015, p. 26 Conservation Land Exemptions in New York: The Mohonk Preserve Experience, Wilkes, D.; Hoagland, G., Mar./Apr. 2015, p. 10 Follow the Money – Escrow Accounts: The Dangers of Excessive Delegation and Deference, Flanagan, M., June 2015, p. 28 Guide to New York State Commercial Landlord-Tenant Law and Procedure, A – Part I, Lebovits, G.; Terk, M., Feb. 2015, p. 22 For Sole Practitioners, the Future’s Not What It Used to Be, Gallagher, S.; Sienko, Jr., L., Oct. 2015, p. 20 Guide to New York State Commercial Landlord-Tenant Law and Procedure, A – Part II, Lebovits, G.; Terk, M., Mar./Apr. 2015, p. 34 From “Sua Sponte” to “Sea Sponge” – The Mixed Blessings of Auto- Correct, Lang, R., July/Aug. 2015, p. 28 Property Contamination and Leasing: The Federal Law, Schnapf, L., May 2015, p. 38 How to Shift Law Firm Culture – One Firm’s Story, Drumm, D., June 2015, p. 23 Tax Law It’s Not Just “Lawyering,” Rice, M., June 2015, p. 10 Conservation Land Exemptions in New York: The Mohonk Preserve Law Practice Management – The Virtual Law Firm, Burton, C., Experience, Wilkes, D.; Hoagland, G., Mar./Apr. 2015, p. 10 Jan. 2015, p. 48 Dennis Rodman: His Single-Handed, Lasting, Misunderstood Pop Quiz: Are You a “Good” Partner?, Metsch, V., June 2015, p. 32 Contribution to Settlement Agreements, Wood, R., July/Aug. 2015, p. 10 Reducing Legal Malpractice Risks – Preserving a Statute of Limitations Tax Alert – FACTA’s Perfect Storm for Offshore Accounts, Wood, R., Defense, Kowlowitz, A.; Singer, S., June 2015, p. 19 Mar./Apr. 2015, p. 44 Start Out Right – Engagement Letters, Rice, M., June 2015, p. 34 Technology and the Law Strategic Referral Relationships Enhance Growth, Greenwald, C., Defamation and the Internet: Representation in the Digital Age, June 2015, p. 14 Bordman, E., Oct. 2015, p. 35 What If? Answers to Frequently Asked Questions About Closing a Law Legal Research – The Uniform Electronic Legal Material Act in New York, Practice on a Temporary or Permanent Basis, NYSBA Law Practice Emerson, A., Jan. 2015, p. 44 Management Committee Subcommittee on Law Practice Continuity, Oct. 2015, p. 31 Trial Practice End of War – Last of the War Stories From the New York Courts, Legal Writing Schwab, H., Sept. 2015, p. 40 Drafting New York Civil Litigation Documents: Part XXXVIII – Motions Judiciary Law Criminal Contempt: Why All the Confusion?, Brunetti, J., to Vacate Default Judgments, Lebovits, G., Jan. 2015, p. 64 May 2015, p. 20 Drafting New York Civil-Litagaion Documents: Part XXXIX — Motions More War Stories From the New York Courts, Schwab, H., to Vacate a Default Judgment Continued, Lebovits, G., Feb. 2015, p. 64 Feb. 2015, p. 10 Drafting New York Civil-Litigation Documents: Part XL – In Limine, “Toxic” Judicial Research, Saxe, Hon. D., Sept. 2015, p. 36 Trial and Post-Trial Motions, Lebovits, G., Mar./Apr. 2015, p. 64 Drafting New York Civil-Litigation Documents: Part XLI — In Limine, Trusts and Estates Trial and Post-Trial Motions Continued, Lebovits, G., May 2015, p. 64 Aftereffects: New Legislation Addresses the Rights of the Posthumously Drafting New York Civil-Litigation Documents; Part XLII — In Limine, Conceived Child, Selvaggio, A.; Klotz, N., Jan. 2015, p. 30 Trial, and Post-Trial Motions Continued, Lebovits, G., June 2015, p. 64 Forfeiture and New York’s “Slayer Rule,” Cooper, I.; D’Agostino, J., Drafting New York Civil-Litigation Documents: Part XLIII – Motions for Mar./Apr. 2015, p. 30 Attorney Fees, Lebovits, G., July/Aug. 2015, p. 64 Kramer, In re, and the Enforceability of Charitable Pledges, Drafting New York Civil-Litigation Documents: Part XLIV – Motions for Reames, S., Jan. 2015, p. 22 Attorney Fees Continued, Lebovits, G., Sept. 2015, p. 64 Obergefell v. Hodges – The Effect of the Decision and Estate Planning Drafting New York Civil-Litigation Documents: Part XLV — Motions for for LGBT Couples, Burda, J., Sept. 2015, p. 10 Sanctions and Related Costs, Lebovits, G., Oct. 2015, p. 64 Proving a Joint Account With Right of Survivorship or Totten Trust Drafting New York Civil-Litigation Documents: Part XLVI — Best Account Without the Signature Card, Corrigan, B., Practices for Persuasive Writing, Lebovits, G., Nov./Dec. 2015, p. 64 Nov./Dec. 2015, p. 40

46 | November/December 2015 | NYSBA Journal INDEX TO AUTHORS 2015

Anderson, David G. Krell, David Schnapf, Larry Point of View July/Aug. 2015, p. 53 History Nov./Dec. 2015, p. 10 Real Property Law May 2015, p. 38 Bellacosa, Joseph W. Lang, Robert D. Schwab, Harold Lee History Nov./Dec. 2015, p. 18 Law Practice July/Aug. 2015, p. 28 Law Practice Feb. 2015, p. 10 Bersani, Michael G. Lebovits, Gerald Law Practice Sept. 2015, p. 40 Government and the Law Oct. 2015, p. 42 Commercial Law Feb. 2015, p. 22 Selvaggio, Anthony T. Bordman, Ethan Commercial Law Mar./Apr. 2015, p. 34 Trusts and Estates Jan. 2015, p. 30 Technology and the Law Oct. 2015, p. 35 Legal Writing Jan.–Nov./Dec. 2015 Siciliano, Ralph A. Bosse, Diane F. Levitin, Nancy Attorney Professionalism Sept. 2015, p. 59 Point of View Feb. 2015, p. 39 Elder Law Sept. 2015, p. 54 Sienko, Jr., Leonard E. Brunetti, John J. Lukaszewski, Chet Law Practice Oct. 2015, p. 20 Trial Practice May 2015, p. 20 Labor and Employment Law May 2015, p. 28 Singer, Stefanie A. Burda, Joan M. Labor and Employment Law June 2015, Law Practice June 2015, p. 19 Trusts and Estates Sept. 2015, p. 10 p. 44 Siviglia, Peter Burton, Chad E. Maron, Matthew R. Commercial Law Jan. 2015, p. 40 Law Practice Jan. 2015, p. 48 Attorney Professionalism Jan.–May 2015 Commercial Law Feb. 2015, p. 48 Cooper, Ilene S. Mars, Harvey S. Commercial Law May 2015, p. 49 Trusts and Estates Mar./Apr. 2015, p. 30 Labor and Employment Law May 2015, Commercial Law July/Aug. 2015, p. 51 Corrigan, Brian P. p. 34 Point of View Oct. 2015, p. 53 Trusts and Estates Nov./Dec. 2015, p. 40 McFarlane, Robert B. Stallone, Maryanne C. Curran, John M. Civil Practice Sept. 2015, p. 20 Attorney Professionalism, June–Nov./ Health Law Nov./Dec. 2015, p. 31 Metsch, Victor M. Dec. 2015 D’Agostino, Jaclene Law Practice June 2015, p. 32 Stock, William B. Trusts and Estates Mar./Apr. 2015, p. 30 Miller, Henry History Oct. 2015, p. 47 Darrow-Kleinhaus, Suzanne Point of View June 2015, p. 38 Sullivan, Lori A. Point of View Feb. 2015, p. 32 Mullings, Sandra J. Courts Sept. 2015, p. 30 DiBiasi, Angela Commercial Law May 2015, p. 44 Syracuse, Vincent J. Family Law July/Aug. 2015, p. 18 Newman, Thomas R. Attorney Professionalism, Jan.–Nov./Dec. Dickerson, Thomas A. Attorney Professionalism July/Aug. 2015, 2015 Consumer Law Mar./Apr. 2015, p. 48 p. 39 Terk, Michael B. Drumm, Donna NYSBA Law Practice Management Commercial Law Feb. 2015, p. 22 Law Practice June 2015, p. 23 Committee Subcommittee on Law Practice Commercial Law Mar./Apr. 2015, p. 34 Emerson, Amy A. Continuity Law Practice Oct. 2015, p. 31 Truitt, Alexander A. Technology and the Law Jan. 2015, p. 44 Penzer, Eric W. Point of View Jan. 2015, p. 36 Flanagan, Matthew K. Courts Sept. 2015, p. 30 Turbert, Kevin W. Law Practice June 2015, p. 28 Otto, Paul Technology and the Law Oct. 2015, p. 10 Foglia, Philip History Jan. 2015, p. 10 Wasserstein, Nat History Mar./Apr. 2015, p. 26 Reames, Spencer L. Law Practice Jan. 2015, p. 26 Furst, Hannah Trusts and Estates Jan. 2015, p. 22 Wilkes, David C. Attorney Professionalism Oct.–Nov./Dec. Rice, Marian C. Real Property Law Mar./Apr. 2015, p. 10 2015 Law Practice June 2015, pp. 10, 34 Wood, Robert W. Gallagher, Mary Campbell Rose, Joel A. Tax Law Mar./Apr. 2015, p. 44 Point of View Feb. 2015, p. 32 Law Practice Oct. 2015, p. 26 Tax Law July/Aug. 2015, p. 10 Gallagher, Stephen P. Rosenblatt, Albert M. Yankelunas, Edward P. Law Practice Oct. 2015, p. 20 History Jan. 2015, p. 10 Commercial Law May 2015, p. 10 Gana, Adam J. Rosenblatt, Julia C. Zauderer, Mark C. Point of View Jan. 2015, p. 36 History Jan. 2015, p. 10 History Sept. 2015, p. 25 Giacomo, William J. Saxe, Hon. David B. Family Law July/Aug. 2015, p. 18 Trial Practice Sept. 2015, p. 36 Greenwald, Carol Schiro Law Practice June 2015, p. 14 NEW YORK STATE BAR ASSOCIATION Grumet, Lou Point of View July/Aug. 2015, p. 45 Hoagland, Glenn D. Real Property Law Mar./Apr. 2015, p. 10 Grow Your Practice: Horowitz, David Paul Evidence Jan.–Nov./Dec. 2015 Legal Marketing & Hyer, James L. Point of View Sept. 2015, p. 46 Business Development Johnson, James A. Commercial Law July/Aug. 2015, p. 24 Grow Your Practice introduces Kamins, Barry attorneys to marketing and Criminal Law Nov./Dec. 2015, p. 25 management resources that focus Kantowitz, Robert I. on clients and complement today’s Attorney Professionalism Sept. 2015, p. 59 dynamic legal practice. Kewalramani, Devika Order Now! Civil Practice Sept. 2015, p. 20 Kirby, Kenneth R. NYSBA Members $50 | Non-members $65 Civil Procedure July/Aug. 2015, p. 32 PN:41265 • 302 pp., softbound Klotz, Nancy E. Trusts and Estates Jan. 2015, p. 30 1.800.582.2452 www.nysba.org/pubs Kowlowitz, Andrew S. Mention Code: PUB8171 Law Practice June 2015, p. 19

NYSBA Journal | November/December 2015 | 47 NYSBA SUSTAINING MEMBERS

We wish to extend our sincere gratitude to the following individuals who are Sustaining Members of the New York State Bar Association. Sustaining Members are a distinguished group of members who provide the Association with extra financial support to help NYSBA maintain its leadership position as the voice of the New York attorney.

Judith Aarons Alison Arden Besunder Major Guneet Chaudhary Fatos Dervishi Blaine V. Fogg Mario J. Abate Kenneth J. Bialkin Mudita Chawla W. Robert Devine Lucille A. Fontana Samuel F. Abernethy J. Truman Bidwell, Jr. Michael D. Chechanover Ronald J. DeVito Alexander D. Forger Aaron N. Abraham Peter Bienstock Nancy Chemtob Mark Devlin Patrick Formato Alton L. Abramowitz Edward L. Birnbaum Lawrence D. Chesler Hon. Thomas A. Dickerson Paul S. Forster Lindsay Spencer Adams Thomas C. Bivona Kenny Chin Lawrence F. DiGiovanna Emily F. Franchina Edward A.K. Adler Martin Blackman Innocent Chinweze Alfred C. DiGirolomo, Jr. Paul M. Frank Mady A. Adler Alan M. Blecher Woohyoung Cho Louis P. DiLorenzo David R. Franklin Suzanne Aiardo H. Lee Blumberg Henry Christensen, III Joseph Dinardo Hon. Helen E. Freedman Mark H. Alcott Jennifer M. Boll Cristine Cioffi James H. Ditkoff Robert M. Freedman Virginia L. Allan Hugo K. Bonar Jerri A. Cirino John K. Diviney Gary B. Freidman Eleanor B. Alter Annamarie Bondi-Stoddard William F. Clair, Jr. Donald C. Doerr Andrew M. Friedman Andrew B. Amerling Wilhelm G. Boner Alan W. Clark Rico V. Domingo Joseph N. Friedman Leonard J. Amoruso Hon. Ralph A. Boniello, III Dr. Nicholas Clark Donald S. Domitrz Richard B. Friedman Mark L. Amsterdam Adrienne D. Bonilla Robert D. Clark Sean M. Doolan Jeffrey L. Futter David J. Arcella Christopher J. Bonner Sheilagh M. Clarke Rosemary Dooley John Gaal Gregory K. Arenson Jeanne Bonney Dr. Rudolf F. Coelle Brian F. Doran Michael J. Gaffney Adrienne J. Arkontaky R. Daniel Bordoni John P. Coffey Charles E. Dorkey, III Catherine A. Gale Oliver J. Armas Robert L. Boreanaz Peter V. Coffey Maureen Dougherty Michael J. Gallagher Daniel J. Arno Mitchell F. Borger Stephen R. Coffey Vincent E. Doyle III Michael W. Galligan John D. Aspland, Jr. Sharon Y. Bowen Edmund S. Cohen Thomas G. Draper, Jr. Vincent J. Gallo Richard N. Aswad Hon. Seymour Boyers Mitchell Y. Cohen Yvon Dreano Yee-Min Gan Frederick G. Attea Bruce L. Bozeman Orin J. Cohen William J. Dreyer William G. Gandy Jack C. Auspitz John P. Bracken J. Peter Coll, Jr. Clover M. Drinkwater Daniel Garcia A. Jude Avelino RoseAnn C. Branda Ernest J. Collazo John R. Dunne Michael J. Garcia James B. Ayers Katherine D. Brandt Thomas J. Collura James F. Dwyer Barry H. Garfinkel Hong Oo Baak Dianne C. Bresee Paul R. Comeau Patrick J. Dwyer Stephen Gassman Pamela M. Babson Zygmunt Brett Michael J. Comerford Martin W. Edelman Dolores Gebhardt Ricardo A. Baez Peter J. Brevorka S.H. Spencer Compton Judith A. Eisen Janet Thiele Geldzahler Rosalia Baiamonte Daniel E. Brick Brian S. Conneely Todd M. Eisenbud Sharon Stern Gerstman Meredith L. Baio Louis T. Brindisi Martin E. Connor Hon. Betty Weinberg Ellerin Michael E. Getnick Carl T. Baker Alan J. Brody Terrence M. Connors Lawrence Elmen, Jr. Neil V. Getnick Dennis R. Baldwin H. Bruce Bronson, Jr. David C. Cook Anthony J. Enea Joan M. Gilbride Kenneth J. Balkan Janiece Brown Spitzmueller Ilene S. Cooper Denis A. Engel Donna M. Giliberto Ronald Balter Robert E. Brown Michael A. Cooper Dennis M. Englert Harlan B. Gingold Karin J. Barkhorn Terryl Brown Edward C. Cosgrove Klaus Eppler Laurie A. Giordano James R. Barnes Matthew C. Browndorf Martin J. Costello Michael Ettinger Mary P. Giordano Toni Ann C. Barone Robert E. Buckholz, Jr. Edward F. Cox Michael A. Faillace Rudolph W. Giuliani Ernest T. Bartol Vaughn J. Buffalo Roderick J. Coyne John A. Fantauzzi Joel C. Glanstein Gary E. Bashian Mary Anne Bukolt-Ryder Hon. Stephen G. Crane Angelo G. Faraci David L. Glass Mona L. Baskin William A. Burck Robert H. Crespi David W. Feeney Sarah E. Gold Robert C. Bata Carole A. Burns Richard C. Cummings Dean John D. Feerick Michael M. Goldberg Jorge L. Batista Jeffrey D. Buss Renaye Brown Cuyler Hon. Paul G. Feinman Neil A. Goldberg Ravi Batra A. Vincent Buzard Hon. Melanie L. Cyganowski Louis E. Feldman Charles A. Goldberger Edward F. Beane Philip A. Byler Jaclene D’Agostino Alfred G. Feliu A. Paul Goldblum Jeffrey H. Becker Michael H. Byowitz Christopher A. D’Angelo Alan Fell Shawn D. Golden William H. Behrenfeld Michael J. Byrne Frank G. D’Angelo Timothy J. Fennell Ira S. Goldenberg Jonathan B. Behrins Paul J. Cambria Jr. Christina Ciaramella D’Elia Hermes Fernandez Stuart J. Goldring Leonard A. Bellavia Dennis J. Campagna Ronald F. Daitz Lucas A. Ferrara Willis J. Goldsmith Susan L. Bender John V. Campano Prof. Harvey P. Dale Samuel J. Ferrara Paul A. Golinski Howard Benjamin Eleanor Capogrosso Gary M. Darche David A. Field Ronald B. Goodman Hon. Catherine M. Bennett, Anthony J. Carbone Willard H. DaSilva Robert P. Fine Kenneth Gordon ALJ Christopher J. Carey Bonni G. Davis Margaret J. Finerty Marcia Z. Gordon James D. Bennett Robert C. Carlsen Malcolm H. Davis Raymond L. Fink David M. Gouldin Jeffrey P. Bennett Zachary W. Carter Francis P. Dec Fern J. Finkel Ronnie P. Gouz Daniel J. Bergeson Donna J. Case Francis X. Dee Steven R. Finkelstein Edward Gozigian James Michael Bergin June M. Castellano Joseph F. DeFelice Gerard Fishberg Mark Steven Granger Michelle D. Bergman Jerome J. Caulfield Deborah Deitsch-Perez Alan P. Fitzpatrick David B. Grantz Philip M. Berkowitz Orlando A. Cavallo, Jr. Alex C. Dell James D. Fitzpatrick Guillermo Malm Green Henry S. Berman Gregory T. Cerchione Richard A. Della Pietra Donald J. Fleishaker Reza Green Mark A. Berman Deborah J. Chadsey Steven Della Rocca Edward B. Flink William H. Green Christine Beshar Hon. Cheryl E. Chambers Edward K. Dennehy Ellen L. Flowers Maurice R. Greenberg

48 | November/December 2015 | NYSBA Journal Ronald D. Greenberg David Frederic Kaenzig Jerome T. Levy David P. Miranda John J. Phelan III Richard F. Griffin Alan E. Kahn Brian N. Lewandowski Douglas A. Miro Thomas N. Pieper Judith D. Grimaldi Michele Kahn Burt A. Lewis Hon. Michael M. Mohun Hon. Emily S. Pines John H. Gross Arnold Y. Kapiloff David G. Leyden Brem Mica Moldovsky Bradley M. Pinsky James S. Grossman Paul R. Karan Marc A. Lieberstein Hon. Milton Mollen Vincent F. Pitta Sharon Kovacs Gruer Ashok K. Karmaker Marc J. Lifset James C. Moore Tara A. Pleat Michael J. Grygiel Louis P. Karol Susan B. Lindenauer Rafael Avelino Morales Judy L. Plumley Gregory J. Guercio Scott M. Karson Peter C. Lomtevas Angelicque M. Moreno Faye M. Polayes Hon. Frank A. Gulotta Jr. Dr. Barbara H. Katsos Richard B. Long Mark J. Moretti Joshua F. Pompilus Claire P. Gutekunst John Katsougrakis Mark A. Longo Karen L. Morris Paul E. Pontiff Richard M. Gutierrez Robert M. Kaufman Anthony J. Loscalzo Mary Beth Quaranta John K. Powers Mark J. Hackett, Jr. Keelin Kavanagh Hon. George H. Lowe Morrissey Bruce J. Prager George J. Haggerty Hon. Judith S. Kaye George T. Lowy Peter J. Moschetti Vicki J. Prager Michel P. Haggerty Elena DeFio Kean Rafael Lucas-Pires Elissa Moskowitz Allen P. Prak Robert L. Haig William F. Keenan Martin R. Lueck Logan Vansen Moss Gregory P. Pressman John G. Hall Matthew J. Kelly Betty Lugo Lillian M. Moy Robert M. Preston Thomas J. Hall John J. Kenney Bertil P. Lundqvist Kay Crawford Murray Joshua M. Pruzansky Mark S. Hamburgh Valerie Kerker Jonathan D. Lupkin Kathryn I. Murtagh Peter M. Puleo David B. Hamm Kenneth S. Kim Richard A. Luthmann Carolyn M. Myers-Simonds A. Craig Purcell James H. Hancock Alison King Margaret Comard Lynch Gary P. Naftalis Thomas F. Purcell Gretchen Harders Henry L. King Michael Lynne Domenick Napoletano Rory J. Radding Gerard E. Harper Donald T. Kinsella Desmond C.B. Lyons William Nazal Connie A. Raffa Michael T. Harren Ralph M. Kirk Louis J. Macari Susan R. Necheles John T. Rafter Arlene Harris Jed N. Kirsch Victor A. Machcinski, Jr. Martin S. Needleman Raun J. Rasmussen Jr. Helene W. Hartig Patricia G. Kitson Kathryn Grant Madigan Marshall A. Neimark Hon. Susan Philips Read James M. Hartmann Jungho Ko Patricia M. Magid Richard P. Neimark Margaret Z. Reed Anthony J. Harwood James B. Kobak, Jr. Harold A. Mahony Joseph E. Neuhaus Richard Reich Annette G. Hasapidis William S. Kogan Shalom S. Maidenbaum Jacqueline N. Newman James E. Reid Paul Michael Hassett Daniel F. Kolb Heidi A. Malaczynski Lawrence M. Noe Hon. Vincent J. Reilly, Jr. Edgar H. Haug Eve Green Koopersmith Frank R. Malpigli Paul B. Nolan Gerarda M. Rella Michael J. Hausman Kristine M. Koren Gary B. Mandel John M. Nonna Jeff Reynolds Gerald J. Hayes Cheryl F. Korman Anna C. Manger Gerald A. Norlander Sharlene S. Richards James E. Hayes Edward S. Kornreich Kenneth A. Manning Karen S. Norlander Ambrose M. Richardson, III Richard B. Herman Eric D. Koster Alan Mansfield James A. Notaris M. Catherine Richardson David J. Hernandez Roberta Kotkin Linda Markowitz Timothy Nugent Morghan L. Richardson Adria S. Hillman Drew S. Kovacs Thomas J. Maroney Amanda H. Nussbaum David E. Richman Joy Henry Hinton Victor A. Kovner Paul B. Marrow Bernard W. Nussbaum Michelle F. Rider Linda B. Hirschson Kenneth A. Krajewski Harvey S. Mars Carolyn G. Nussbaum Kieth I. Rieger Jonathan Hochman Stephen J. Krass Hon. Vincent J. Martorana Michael S. Oberman Michael Rikon Jack S. Hoffinger Ronald Kreismann John S. Marwell Larisa Obolensky Sandra Rivera Barbara Hoffman Robert Kresse Dilip N. Massand Hon. John F. O’Donnell Joan L. Robert Stephen D. Hoffman Hon. Rachel Kretser Kaname Masuda Avery Eli Okin Adam L. Roberts C. Randolph Holladay Abraham B. Krieger Richard L. Mattiaccio Victor A. Oliveri George Hunter Roberts P. Daniel Hollis, III Hon. William F. Kuntz, II John F. Maxwell Sean R. O’Loughlin Nathan J. Robfogel William J. Hooks Joseph G. LaCapra Allan E. Mayefsky Timothy M. O’Mara Susan S. Robfogel David Stephen Hope Robinson B. Lacy Harold A. Mayerson Melissa H. Orlen Barbara Paul Robinson Adnan Horan Stephen B. Land Maureen A. McAndrew Dr. Helmut F. Ortner Prof. Nicholas Adams Hon. James F. Horan, ALJ Guy P. Lander David J. McCabe Robert L. Ostertag Robinson John R. Horan Robert D. Lang Sharon L. McCarthy Gregory E. Ostling Jorge Rodriguez Michael J. Horvitz William M. Lanier Kathryn McCary Tomoyuki Otsuki Jose A. Rodriguez Jonathan M. Houghton Jamie Lathrop Ken McCauley Humberto Pacheco Alpizar Theodore O. Rogers Jr. Richard R. Howe Glenn Lau-Kee Dennis R. McCoy Steven A. Pagones Manuel A. Romero William N. Hulsey Louis M. Laurino Elizabeth J. McDonald Anthony R. Palermo James C. Roscetti Petal Hwang C. Bruce Lawrence Gerald T. McDonald Frances M. Pantaleo David B. Rosenbaum Frank B. Iacovangelo Bernice K. Leber Brian T. McGovern Edward Papa David Rosenberg Liberatore J. Iannarone Scott J. Lebson Bruce J. McKeegan William Parsons Jr. Leonard M. Rosenberg Anthony R. Ianniello Richard M. Leder Sarah D. McShea Ernest T. Patrikis Richard H. Rosenberg Charles P. Inclima Bruce N. Lederman Norma G. Meacham Michael A. Patterson Ruth H. Rosenhaus Souren Avetick Israelyan Lawrence Lederman Christopher Meagher John Paul Kathy N. Rosenthal LaMarr J. Jackson Matthew J. Leeds Gerard M. Meehan Mark G. Pearce Lesley Rosenthal Joseph Jaffe Wallace Leinheardt Ricardo A. Mestres Jr. Steven E. Pegalis Stuart L. Rosow Seymour W. James Jr. Edward K. Lenci Claire C. Miller Dr. Christodoulos G. Mitchell J. Rotbert Sharon L. Jankiewicz David Lerner David S. Miller Pelaghias Richard S. Rothberg David Jaroslawicz Perry A. Lerner Henry G. Miller Robert N. Pelier Seth Rubenstein R. Kenneth Jewell Ann B. Lesk Howard. B. Miller Robert M. Pennoyer Herbert Rubin Martin T. Johnson Marc M. Levey Michael Miller James J. Periconi Aaron Rubinstein Robert W. Johnson, III A. Thomas Levin Richard J. Miller Jr. Michael F. Perlis Michael J. Rufkahr David A. Jones Hon. Howard A. Levine Scott D. Miller Daniel J. Persing Hon. Richard N. Runes E. Stewart Jones, Jr. Jerome L. Levine Eileen D. Millett Martin Petroff Betsy R. Ruslander Kevin C. Jones Lance I. Levine Peter Milne Hon. Stacy L. Pettit William T. Russell, Jr. Diane B. Kadlec Marilyn M. Levine Martin Minkowitz Michael G. Pfeifer Carmen A. Russo

NYSBA Journal | November/December 2015 | 49 Eric J. Russo Michael V. Sterlacci John V. Vincenti Richard L. Weisz Pauline Yeung-Ha Brad R. Sacks Stephen R. Stern Gerard Virga Andrew L. Weitz Oliver C. Young Dana L. Salazar Joel B. Strauss Joseph Vona Thomas H. Welby Stephen P. Younger David J. Saleh Risa S. Sugarman Maria T. Vullo Torben M. Welch Helen Yu Owolabi M. Salis Bradford J. Sullivan Lauren J. Wachtler Joseph M. Wentland Steven Mark Zager Christopher L. Salley Peter Sullivan Dennis M. Wade Vivian D. Wesson Matthew J. Zangwill Catherine Sammartino Jeong-Ho Sun Dr. Otto H. Waechter Joan G. Wexler Mark C. Zauderer James R. Sandner Michael R. Suprunowicz David J. Wagner Robert Andrew Wild Steven L. Zelkowitz John E. Sands Robert P. Sweeney David M. Waks Michelle H. Wildgrube Jiusu Zhao Jon N. Santemma Kathleen M. Sweet Dr. Byron C. L. Wallace Roberta G. Williams Prof. Robert M. Zinman Charles Saperstein Douglas T. Tabachnik Gerard W. Wallace Steven Wimpfheimer Howard Zucker Evan Sarzin Lewis C. Taishoff Sherry Levin Wallach James W. Winslow Adrian Zuckerman Waler A. Saurack John E. Tavss Richard P. Walsh, Jr. G. Robert Witmer Jr. John F. Zulack Deborah A. Scalise Willard B. Taylor Ellen Stempler Weinstein Melanie Slaughter Wolk Ellen K.S. Zwijacz Edmund A. Schaffzin Zenith T. Taylor David A. Weintraub Hon. Paul L. Wollman Davida S. Scher Michael F. Teitler Steven J. Weiss Hon. Geoffrey D.S. Wright Dennis B. Schlenker M. David Tell Andrew S. Weissman Philip B. Wright Michael L. Schler David H. Tennant Sanford J. Schlesinger Arthur N. Terranova Alex Schmitt Jessica D. Thaler Robert C. Schneider Gilles J.V. Thieffry In Memoriam Ira A. Schochet Arthur H. Thorn J. Lee Benice Joseph B. Gertler Barbara B. Ohlig Robert T. Schoefield, IV Nicholas E. Tishler Sun City Center, FL Lynbrook, NY East Northport, NY Michael J. Schoppmann Jeffrey M. Tolin Guy M. Blynn C. Martin Goldenberg John G. Ringrose William H. Schrag Howard M. Tollin Washington, DC Greenwich, CT Rome, NY David M. Schraver Elizabeth C. Tomson Yisroel Y. Schulman Peter P. Traub, Jr. Patrick Kevin Brosnahan Charles Goldfarb Gerald Romanoff Babylon, NY Brooklyn, NY Long Beach, NY Max F. Schutzman Lauren M. Trialonas Arthur Z. Schwartz Hon. Jonah Triebwasser Chas G. Cancellare Richard E. Halperin Benjamin Rubenstein A. Joseph Scott, III Dana L. Trier Hauppauge, NY New York, NY Yorktown Heights, NY Thomas F. Segalla C.F. Tsai Arlana S. Cohen Michael A. Hayes William J. Sapone Hon. Adam Seiden John N. Tsigakos New York, NY Trumbull, CT Monroe, CT Raymond H. Seitz Louis Tuchman William J. Cotter Edward A. King Kenneth L. Scheer Howard S. Shafer Lenore W. Tucker Williamsville, NY , MA Poughkeepsie, NY Steven B. Shapiro Allen M. Turek Mario Diaz-Cruz James E. Konstanty Joseph C. Scollan Sonya Hashim Shaykhoun David A. Tyler New York, NY Cooperstown, NY Auburn, NY Francis Scott Shea Sydney E. Unger Ronald J. Doane Leon Lebensbaum Nancy Segore-Freshman John B. Sheehan Peter Utterstrom Fort Salonga, NY Levittown, NY Norwalk, CT Mary E. Sheridan Thomas P. Valet Neil P. Forrest Jeffrey A. Manheimer George F. Sweeny Isaac Sherman Timothy A. Valliere New York, NY Garden City, NY Sparta, NJ Peter J.W. Sherwin Dr. Thomas O. Verhoeven Louis Bentley Frost Noah P. Melnick Roy W. Vasile Lisa Lynn Shrewsberry Paul G. Vesnaver New York, NY New York, NY Merrick, NY Arthur E. Shulman Justin L. Vigdor Michael S. Shuster William D. Siegel Hon. Jacqueline W. Silbermann Rachel Shira Silberstein Rebecca J. Simmons Kenneth J. Simon Dean Michael A. Simons David C. Singer Georgiana James Slade Deborah A. Slezak Pamela M. Sloan Hon. George Bundy Smith Hon. Martin E. Smith Maura Abeln Smith Richard L. Smith very Donald S. Snider gi f t Andrew L. Sokol m a tte r s . Enet C. Somers-Dehaney Frederic Sosnick Give $30, give $100, give $1,000—with any amount we will make a difference! The more received, Eugene P. Souther E the more profound the difference in the lives of those in need of legal assistance! Evan J. Spelfogel When you make your gift to The New York Bar Foundation, you join with lawyers and others who Gerald F. Stack share in our conviction that we must work together to bring equal access to justice to all New Yorkers. Kenneth G. Standard Todd J. Stearn Jamie B.W. Stecher To make a contribution call The Foundation at Lawyers caring. Lawyers sharing. Harriett M. Steinberg (518) 487-5650 or visit our website at www.tnybf.org Around the corner. Around the state. Robert D. Steinhaus

50 | November/December 2015 | NYSBA Journal ATTORNEY PROFESSIONALISM FORUM

To the Forum: responsive materials and felt that I was Dear Ben Camed: I am deeply disturbed by the events being stonewalled, I used my smart- Your letter raises several important that transpired at a recent on-site visit phone camera to take pictures of the issues about what we hope is not to inspect the opposing party’s books boxes from the conference room so that becoming a common practice. It and records in compliance with a dis- I would be able to present the issue to seems as if everyone has an iPhone, covery order. Due to the defendants’ the court if necessary. or another kind of smartphone, with repeated failure to comply with sev- Although the defendants’ counsel the ability to surreptitiously record eral discovery orders and deadlines was nowhere in sight when I took the conversations and events at will with and the parties’ contentious and acri- pictures, within two minutes he came only the tap of a screen or the click monious relationship, I got a court storming into the conference room and of a button. The fact that technology order directing that the defendants asked whether I had taken any pic- may present an irresistible temptation produce certain documents by a spec- tures. It was only then that I discov- to certain members of our profes- ified date. The court also granted us ered that we had been under surveil- sion makes your question particularly permission to have an on-site visit lance in the conference room during timely. and inspection of the defendants’ the entire document production. When As an initial matter, what occurred books and records. I saw the webcam in the conference may be a great example of an out- On the agreed-upon site-visit date, room, I confronted opposing counsel, rageous discovery abuse that would I met the defendants’ counsel at the asking whether he and his clients had allow you to pursue a whole host of defendants’ offices and was accompa- been watching and listening to my remedies before the court that ordered nied by an accountant that the plain- communications with the plaintiff’s the document production. However, tiff hired to assist with the litigation. accountant. The defendants’ counsel that is a subject for another time, and Despite the fact that the defendants did not deny that he and his clients perhaps another space. Our focus here had several weeks to prepare the doc- had been watching and listening to our is through the lens of the ethical and uments requested by the plaintiff for communications. Instead, he smirked professional questions that arise from the on-site inspection, after we were and replied that my communications the secret attorney recording that you placed in a conference room, we were with the plaintiff’s accountant had no described and its implications to the given only two Bankers Boxes® of expectation of confidentiality or privi- legal profession. documents, with limited information. lege. He refused to allow me to take a Although I made repeated requests picture of the webcam. Based on these for additional information, the defen- circumstances, I can only assume that The Attorney Professionalism Committee dants failed to produce numerous cat- both opposing counsel and his clients invites our readers to send in comments egories of documents that the court had been secretly monitoring my pri- or alternate views to the responses ordered them to produce. The defen- vate and privileged communications printed below, as well as additional dants’ counsel stated that they would and work product with the plaintiff’s hypothetical fact patterns or scenarios to produce these materials at a later date retained expert. be considered for future columns. Send since they did not have them avail- I am deeply troubled by what hap- your comments or questions to: NYSBA, able. pened and by opposing counsel’s One Elk Street, Albany, NY 12207, Attn: That wasn’t the end of the story. behavior, which strikes me as out- Attorney Professionalism Forum, or by While we were in the conference room, rageous. Are we now at a point in e-mail to [email protected]. I saw that there were several boxes of the practice of law when opposing This column is made possible through documents in the hallway outside the counsel can secretly videotape a docu- the efforts of the NYSBA’s Committee on conference room. I knew right away ment production and eavesdrop on my Attorney Professionalism. Fact patterns, that the boxes contained categories of conversations during my inspection of names, characters and locations presented documents responsive to the plain- the documents? What about telephone in this column are fictitious, and any resem- tiff’s requests, which the court had conversations? If counsel secretly put blance to actual events or to actual persons, ordered the defendants to produce. me under surveillance while I was living or dead, is entirely coincidental. These This was obvious from the labels that in the conference room, it is possible columns are intended to stimulate thought were clearly visible and in plain sight that he may have also recorded our and discussion on the subject of attorney on the sides of the boxes. telephone conversations. I am writing professionalism. The views expressed are I asked the defendants’ counsel to the Forum because, quite frankly, those of the authors, and not those of the about the boxes in the hallway but was I am unfamiliar with the rules. What Attorney Professionalism Committee or told that I could not see them because should I do? the NYSBA. They are not official opinions he did not currently have access to Sincerely, on ethical or professional matters, nor those materials. Since I had reason Ben Camed should they be cited as such. to believe that the boxes contained

NYSBA Journal | November/December 2015 | 51 It is useful to begin with a brief Columbia. See Carol M. Bast, Surrepti- act, in and of itself, is unethical.” N.Y. review of federal and state law on tious Recording by Attorneys: Is It Ethi- County Lawyers’ Ass’n Ethics Op. 696 wiretapping. Federal law permits a cal?, 39 St. Mary’s L.J. 661, 684–85. (1993). However, the NYCLA’s opinion non-law enforcement individual Nine states hold that secret attorney also advised attorneys to avoid using to record telephone calls and other recording is unethical, except in certain the recording in a “misleading way,” electronic communications as long situations. The nine states are Arizona, or lying about the existence of the as one party to the conversation or Colorado, Idaho, Indiana, Iowa, Ken- recording at all, and stated that in these communication has consented. See 18 tucky, New York, South Carolina, and circumstances, the attorney’s behavior U.S.C. § 2511(2)(d) (2008). States are Virginia. Id. at p. 688. Five states hold would be considered to be “ethically allowed by 18 U.S.C. § 2516(2) to enact that secret attorney recording should improper.” Id. their own legislation on wiretapping. be evaluated on a case-by-case basis. In 2004, the Association of the Bar of The result, as one might expect, has These states are Hawaii, Michigan, the City of New York issued an opinion been that the laws on this issue vary New Mexico, Ohio, and Wisconsin. Id. stating that while a secret recording is widely from state to state. In some at p. 694. And 13 states have not yet improper as a routine practice, there states, so-called “two-party consent” reached a consensus on this issue. The are circumstances where undisclosed laws have been adopted, meaning remaining states are Arkansas, Dela- tapings should be permitted. See Ass’n that every party to a phone call or ware, Georgia, Louisiana, Nebraska, of the Bar of the City of N.Y. Formal conversation must consent in order Nevada, New Jersey, North Dakota, Ethics Op. 2003-2 (2004). For example, for the recording to be lawful. These Rhode Island, South Dakota, Vermont, where the recording “advances a gen- laws have been enacted in California, West Virginia, and Wyoming. Id. at pp. erally accepted societal good” it may Florida, Illinois, Maryland, Massachu- 683, 695. New York is one of the nine be proper. Id. However, it would be setts, Montana, Nevada, New Hamp- states that hold that secret attorney unethical for an attorney to surrepti- shire, Pennsylvania, and Washington. recordings are generally unethical, but tiously record a conversation for the See Robert Pelton, Ethics and the Law: under certain circumstances record- sole purpose of having an accurate Professionalism, Voice for the Defense ings may be permissible. Id. at p. 688. record of the conversation. Id. Online, October 2, 2011, http:// Various New York bar associations The Association ultimately coun- www.voiceforthedefenseonline.com/ and ethics committees have examined seled attorneys against making such story/ethics-and-law-professionalism- the topic and provided guidance. In recordings absent unusual circum- robert-pelton. 1979, the New York State Bar Associa- stances, stating: “We further believe The majority of states, however, tion Committee on Professional Ethics that attorneys should be extremely have adopted “one-party” consent issued a formal opinion on this subject reluctant to engage in undisclosed tap- laws, meaning that only one party to stating that “lawyers engaged in a ing and that, in assessing the need for the conversation needs to consent to criminal matter, representing the pros- it, attorneys should carefully consider the recording for it to be legal. See id. ecution or a defendant, may ethically whether their conduct, if it became New York is a one-party consent state. record a conversation with the consent known, would be considered by the Therefore, in New York it is not a crime of one party except where the purpose general public to be fair and honor- to record or eavesdrop on an in-person is to commit a criminal, tortious or able.” Id. meeting or telephone conversation if injurious act.” N.Y. State Bar Ass’n Our research did not uncover one party to the conversation consents; Comm. on Prof’l Ethics Op. 515 (1979). many New York court decisions on that one party can, in fact, be the indi- In addition, the 1979 opinion stated this issue. The one case we did locate vidual recording the conversation. N.Y. that a lawyer may counsel a client is illustrative of when the exception Penal Law §§ 250.00, 250.05. about the legality of the client secretly rather than the general rule on secret With the federal and state laws in recording a conversation with a third recordings applies. In Mena v. Key mind, the next question is: even if the party. Id. Food Stores Co-op., Inc., 195 Misc. 2d recording is legal, is it ethical for an In 1993, the New York County Law- 402, 403 (Sup. Ct., Kings Co. 2003), attorney to engage in such conduct? yers’ Association (NYCLA) also issued the plaintiffs, who were employees Not surprisingly, there also is a wide an opinion on the subject. The NYCLA of defendant Key Food, brought suit range of differing opinions on this reasoned that while “[p]erhaps, in the against their employer, alleging that topic across the United States. Twelve past, secret recordings were consid- obscenities and racial slurs were being states and the District of Columbia ered malevolent because extraordi- directed at women and African Ameri- hold that secret attorney recording is nary steps and elaborate devices were cans in the workplace. A Key Food not unethical. The 12 states include required to accomplish such record- employee consulted with counsel, Alabama, Alaska, Kansas, Maine, Min- ings [because] [t]oday, recording a tele- who advised her about the legality of nesota, Mississippi, Missouri, North phone conversation may be accom- secretly recording her employer, and Carolina, Oklahoma, Tennessee, Texas, plished by the touch of a button [there- subsequently, a secret recording did and Utah, as well as the District of fore . . . ] we do not believe that such an take place. Although the defendant

52 | November/December 2015 | NYSBA Journal employer tried to suppress the con- versation does not necessarily violate the U.S. District Court of the North- tents of the taped telephone conver- the Model Rules. Formal Opinion 337 ern District of Illinois in Anderson v. sations between the employer and (1974) accordingly is withdrawn.” Id. Hale, 202 F.R.D. 548 (N.D. Ill. 2001). third parties, and tried to disqualify ABA Opinion 01-422 is not with- In Anderson, the court found that an the employee’s counsel because of his out limitations, however. For example, attorney’s surreptitious tape record- involvement in the recording, the court an attorney should not surreptitiously ing of telephone conversations with ultimately found that the attorney’s record a conversation in a two-party plaintiff’s witnesses in a civil case vio- conduct was reasonable and appropri- consent state, where the consent of all lated the state’s local rule. The court ate given the circumstances surround- the parties is necessary in order for the explained that “[a]t a minimum, fair- ing the recording. The Supreme Court recording to be lawful. The Opinion ness and honesty require attorneys reasoned that the recording was justi- also cautions that an attorney shall not to disclose material facts to witnesses fied because falsely deny that a recording is taking at the commencement of a conversa- [t]he interests a[t] stake here tran- place or has taken place. According to tion [ . . . and] [w]hether a conversa- scend the immediate concerns of the ABA, “[t]o do so would likely vio- tion is being recorded is a material the parties and attorneys involved late Model Rule 4.1, which prohibits a fact . . .” The court further reasoned . . . The public at large has an inter- lawyer from making a false statement that because the attorney’s conduct est in insuring that all of its mem- of material fact to a third person.” Id. was inherently deceitful and involved bers are treated with that modi- This very issue of lying about mak- trickery, it would injure the public’s cum of respect and dignity that is ing a recording was addressed by the confidence in the legal profession and the entitlement of every employee Mississippi Supreme Court in The the legal system as a whole. Id. at 556. regardless of race, creed or national Mississippi Bar v. Attorney ST, 621 So. We note, however, that Illinois, unlike origin. Weighed against this ethical 2d 229 (Miss. 1993). The Mississippi New York, is a two-party consent state. imperative, the attorney’s conduct Supreme Court determined that even In summary, in New York an attor- . . . should not be subject to con- if the attorney did not violate any ethi- ney is not permitted to secretly record demnation . . . cal rules by surreptitiously taping two communications with opposing coun- Id. at 407. Notably, privileged and/ telephone conversations, one with an sel absent some very unusual circum- or confidential communications and acting city judge and one with the city stances. When evaluating the ethical information did not appear to be at police chief, it was a violation of the implications of an attorney recording, stake in that case as seems to be the Mississippi Rules of Professional Con- it is important to consider the con- case here. duct for the attorney to lie and deny text in which the secret recording was Other authorities, including the that the recordings ever took place. The made, as well as the intent and pur- American Bar Association (ABA), have court explained: pose behind the recording. Addition- also weighed in on this topic. Interest- We find . . . that Attorney ST ally, practitioners should bear in mind ingly, as technology has advanced and stepped over the line in viola- the New York Rules of Professional changed over time, so has the ABA’s tion of the Mississippi Rules of Conduct (NYRPC), specifically, Rule position on attorney recording. For Professional Conduct when he bla- 8.4(c), which provides that a lawyer or instance, in 1974, in ABA Formal Opin- tantly denied, when asked, that law firm shall not “engage in conduct ion 337, the ABA held that an attor- he was taping the conversations. involving dishonesty, fraud, deceit or ney should not record a conversation Rule 4.1 comment expressly states misrepresentation.” without full consent from all parties, that “[a] lawyer is required to be Applying these principles to the sit- the exception being that government truthful when dealing with oth- uation you have described, it certainly and law enforcement attorneys could ers on a client’s behalf.” An attor- seems as though the behavior exhib- record a conversation without such ney is not a private detective or a ited by opposing counsel in secretly consent. See Bast, supra, p. 665. secret agent; he is not acting as an recording your private, and arguably However, 27 years later, in June undercover police officer; rather, privileged, communications and work 2001, the ABA changed course with the he is first and foremost an attorney, product with the plaintiff’s retained adoption of Formal Opinion 01-422, and his truthfulness must be above expert was made for an improper pur- which permits an attorney to secretly reproach. When asked point-blank pose. Indeed, it seems obvious that record conversations with non-clients whether he is mechanically repro- opposing counsel knew what he was in one-party consent states like New ducing a conversation, his answer doing and was trying to obtain an York. See ABA Comm. On Ethics and must be truthful. To respond oth- unfair strategic advantage by listen- Prof’l Responsibility, Formal Op. erwise vitiates all rules of profes- ing into the confidential conversations 01-422 (2001). According to the ABA, sional conduct. between you and the plaintiff’s expert. “[a] lawyer who electronically records Id. at 233. Although some might suggest that a conversation without the knowledge Another court to examine the issue you should have checked the room of the other party or parties to the con- of covert recordings by an attorney is for the surveillance camera and/or

NYSBA Journal | November/December 2015 | 53 microphone, in our view, you had a temptation to use technology to gain leave. When I made a suggestion about reasonable expectation of privacy and what is, in our opinion, an improper a possible resolution of the matter that should not have been subjected to advantage over our adversaries. I felt would achieve the client’s goals, your adversary’s eavesdropping. We Sincerely, my adversary’s snide response was, are at a loss at how counsel could say The Forum by “Did it take you nine months to come with a straight face that you had no Vincent J. Syracuse, Esq. up with that idea?” I honestly did not expectation of confidentiality during ([email protected]), know what to say and did my best to the periods you were alone with plain- Maryann C. Stallone, Esq. ignore the comment. tiff’s expert in the conference room, or ([email protected]) and I have also noticed that the quality how this secret recording of the docu- Hannah Furst, Esq. and quantity of my work has changed ment inspection “advances a generally ([email protected]) since I’ve returned from maternity accepted societal good,” or in any way Tannenbaum Helpern Syracuse leave. Not only do I have a lower vol- was an exercise conducted in good & Hirschtritt LLP ume of work, but the level of interesting faith with the principles of fairness and work is also lower. Even though I have honesty in mind. Moreover, although QUESTION FOR THE returned to the firm full-time, my bill- your adversary did not deny record- NEXT ATTORNEY able hours have decreased significantly. ing your conversations when you con- PROFESSIONALISM FORUM During my first year as partner, I billed fronted him with the question, it is 2,500 hours. During my second year as unclear from the facts whether he has I am an income partner at a 100-law- partner, when I had my son and was actually acknowledged the recording yer firm. I was made partner just two on maternity leave for three months, or will later deny doing so. As dis- years ago. Six months after making I billed 1,800 hours. This leads me to cussed supra, both bar associations and partner, I became pregnant with my what happened at my end-of-the-year courts have taken a strong position third child. After making it through meeting with the firm’s Compensa- against lying about the occurrence of my first trimester, I started to share the tion Committee. During that meeting, an attorney recording. happy news with my colleagues. When one of the partners remarked that my Either way, we believe that oppos- I told a senior partner in my group that hours were very low for the year. When ing counsel’s behavior runs contrary I was expecting, he remarked, “Wow! I responded by reminding the Commit- to the standards of fairness and candor, Haven’t you already done your fair tee that I had been on maternity leave and we echo your sentiment that it is share of overpopulating the earth?” I for three months, another partner said quite outrageous. Indeed, we believe didn’t know how to respond. I felt both something along the lines of: “Well, if that you would be on solid ground defensive and uncomfortable, but I you had spent as much time billing as to notify the court and seek, inter alia, chuckled along anyway, hoping to dis- you did breastfeeding, you would have the disqualification of the defendants’ solve the awkwardness. In the months had more billables this year.” counsel and the preclusion of any and weeks leading up to my mater- I cannot believe that in this day and recording or transcription of the docu- nity leave, I made sure to communicate age I should be subjected to these types ment inspection, as well as to inform effectively both internally at the firm of comments and behavior. I am out- the state bar authorities of your adver- with my colleagues, and externally raged. Is the conduct described above sary’s actions. with my clients, about my anticipated acceptable professional behavior? That leads us to our last point. Put- three-month leave and made sure that Sincerely, ting aside the legal and ethical ramifi- all my cases would be accounted for Pumped Up cations in New York, is this really the and covered during my absence. direction that we want to be taking the Upon returning to work three MEMBERSHIP TOTALS legal profession in – covertly record- months later, I was greeted with fur- ing or eavesdropping on our adver- ther offensive comments. On my first New Regular Members saries – simply because in the age of day back to work, the managing part- 1/1/15 - 10/14/15______6,893 smartphones it is just so easy to do so. ner casually strolled into my office We think not. George Orwell warned asking, “How was your vacation?” New Law Student Members us about Big Brother, but perhaps he I responded that I was not on vaca- 1/1/15 - 10/14/15______1,580 should have said something about tion, but on maternity leave for the Total Regular Members opposing counsel! We know that the birth of my son. The managing partner as of 10/14/15______65,061 technology exists and facilitates such laughed and stated, “Same difference!” recordings or eavesdropping, but that and walked out. Total Law Student Members does not mean that it should be used. The following week, I attended as of 10/14/15______3,635 In this world of mass social media and a meeting with a client at opposing Total Membership as of technology, we should take the high counsel’s office on a case that I had 10/14/15______68,696 road as attorneys and resist the constant been working on before my maternity

54 | November/December 2015 | NYSBA Journal The Legal Writer Continued from Page 64 Don’t use the kitchen-sink approach: gest that you can’t explain your case Limit your contentions to those that easily. They might even suggest that affidavits and complaints, but don’t have a reasonable likelihood of suc- you don’t understand your own case. use it in your memorandums of law. cess. Varying sentence and paragraph Start each paragraph with a topic Organize your argument using the length makes your writing spicy and or transition sentence. A topic sen- CRARC method.18 CRARC stands for more readable. When in doubt, shorter tence introduces what you’re going Conclusion, Rule, Application, Rebut- is better. to discuss in your paragraph. Every tal and Refutation, and Conclusion. sentence in each paragraph must relate Use CRARC as a roadmap to structure to and amplify your topic sentence. A an argument. CRARC guides you to To persuade, you’ll transition sentence links the end of one begin an argument with a persuasive need to personalize paragraph to the start of the next para- conclusion statement instead of a neu- graph by linking or repeating a word tral issue statement. It also directs you your client. or concept. to craft a rebuttal that acknowledges Structure your writing so that the the potential weaknesses of your cli- Leave white space on the page. The reader follows your thoughts from the ent’s case and preemptively refutes the white space is the space in the margins beginning to the end of the document. other side’s contentions. Anticipating and between words, sentences, and Be overt, not covert: “The best way to a rebuttal will give you credibility paragraphs. The more words you put ensure that a trial judge will under- without undercutting an argument. on a page, the greater your chances of stand your case is to make the orga- A properly CRARCed argument sec- losing. Your goal is to make sure that nization . . . obvious. Make your orga- tion addresses the strongest arguments the judge reads your document. nizational plan overt.”16 Use headings first, followed by weaker arguments Just because you might have a to organize your document. Use sub- and public-policy arguments. This is 25-page limit doesn’t mean you should headings. Headings and subheadings the best method for persuasive writ- exhaust your limit to make your point. “bring the judge’s attention back into ing. It draws the court’s attention right Make your point and stop. As one focus.”17 Example: away to the arguments with which it scholar pointed out, “In the Book of I. Carly Dean fails to state a cause might agree. Genesis, God created the world in 400 of action against Pretty Proper- Tone It Down. Tone helps deter- words . . . . [This] writing[] get[s] to the ties for breach of contract because mine whether readers will accept what point.”20 Dean does not allege that Pretty you write. Always be measured, ratio- Put Some Emotion Into It. The Property breached any contract. nal, and respectful. Never be bitter, facts of your case will dictate whether II. Dean fails to state a cause of condescending, defensive, defiant, sar- you should use emotional facts, with- action against Pretty Properties castic, self-righteous, or strident. Don’t out writing emotionally, to persuade. for interfering with its contract. bold, italicize, underline, capitalize, or A story infused with emotion will A. Dean’s allegations do not use exclamation points or quotation “impact the outcome of a case.”21 rise to the level of “wrongful marks to emphasize or show sarcasm. Use the right amount of emotion for means”: Dean does not allege Avoid excessive capitalization. Once your case. Use more emotion if your that Pretty Properties used you’ve found the right tone, keep it client lost a leg than if your client suf- physical violence, fraud, or consistent. Your tone should be confi- fered a black eye. If you’re moving to misrepresentation. dent, formal, persuasive, and under- dismiss on the basis of subject-matter B. Dean fails to allege that stated, not angry, colloquial, harsh, or jurisdiction, it’s probably best not to Pretty Properties was solely pushy. use emotion to persuade. motivated by malice. Less Is More. Make your document If you use emotion to persuade, Organize your legal argument. Start readable. Draft lots of short sentences. don’t overdo it. Relying on too much with your strongest points — those on Short sentences are powerful.19 Long emotion to persuade, instead of rely- which you’re most likely to win. If two sentences are hard to digest. ing on the law, will make you lose points are equally strong, go first with Create short paragraphs. A para- credibility. the point that’ll win the largest relief. graph should rarely be longer than Let’s Get Personal. Paint a picture Alter that pattern to arrange your six sentences. It shouldn’t exceed one of your client for your reader. To per- points logically, to order the elements thought and two-thirds of a double- suade, you’ll need to personalize your or factors listed in a statute or seminal spaced page or 250 words, whichever client. Whether your client is a big cor- case, or to begin with a threshold argu- is less. Intersperse short sentences with poration, a convicted felon, or a sweet ment, like the statute of limitations, a few long sentences, but make sure grandmother, you need to help your before discussing the merits. your long sentences aren’t confusing. reader understand and get to know Your legal arguments must flow Complicated and convoluted sentenc- logically. es will confuse your reader. They sug- Continued on Page 56

NYSBA Journal | November/December 2015 | 55 your client. Put your client in the best John was fired from his job despite sion cannot be validly maintained possible light. all his successes and achievements. where damages are merely being The way you refer to your client will On his way home from work on sought for breach of contract.30 help personalize your client. Avoid April 1, 2015, John had an acci- Create a rule that favors your client. using “plaintiff” or “defendant.” Per- dent. Even though John was drunk Example: sonalize by using your client’s name or when he was arrested, he didn’t A defendant is liable for conver- corporate name. injure anyone or damage anyone’s sion when a defendant assumes Creating an “impersonal acronym” property. Within two weeks of the and exercises ownership rights, won’t persuade.22 If your client’s cor- accident, John found another job. without authority, over goods porate name is Beautiful Artistic Den- John has always supported his belonging to the plaintiff exclud- tistry, don’t use the acronym “BAD” daughter, Penelope. John spends ing plaintiff’s ownership rights. throughout your document. Doing so all his free time with Penelope. A plaintiff may sue for the defen- would put your client in a bad light. John is a good father. dant’s conversion of money if the Instead consider using “Beautiful Den- To deemphasize bad facts, place bad money is specifically identifiable. tistry” to refer to your client. facts in the beginning of a sentence.27 Plaintiffs may not maintain a cause Example: “John drinks, but he’s a good of action for conversion if their father.” damages are merely for a breach Know the weakness To deemphasize bad facts, place of contract. in your own case. them in a subordinate clause.28 A sub- In this example, the law is clear, read- ordinate clause — also known as a able, and favors the plaintiff: The focus dependent clause — can’t stand on of the paragraph is whether the defen- Personalize your client, but de- its own as a sentence; a subordinate dant is liable. personalize your adversary’s client. If clause doesn’t express a complete Don’t rely for the law on headnotes, you represent Mabel James and you’re thought. Example: “Even though John case summaries, or “statements in case suing Taylor Corporation, refer to your was drunk when he was arrested, he syllabi.”31 adversary as “the Corporation” and neither injured Tom nor damaged Holding Versus Dictum. When refer to your own client as “Mabel Tom’s car.” you’re relying on a case for support, James.” If possible, make unfavorable facts rely on the court’s holding instead of Focus on the Facts. Your case is only appear favorable for your client. the court’s dictum, unless no usable as good as your facts: “Cases are won Don’t exaggerate the facts.29 holding supports your case. Know on the facts — the nitty-gritty details Don’t omit key facts. the difference between holding and that the parties cull from each other Analogize the facts: If you’re relying dictum: “A judge’s power to bind is during discovery.”23 on cases to support your argument, limited to the issue that is before him; Be honest about your facts: “Don’t analogize your facts to the facts in he cannot transmute dictum into deci- fudge” the facts.24 If a fact is unfavor- those cases. sion by waving a wand and uttering able for your client, deal with the fact Distinguish the facts: If you’re dis- the word ‘hold.’”32 Dictum might be honestly. Address unfavorable facts tinguishing your adversary’s leading persuasive and a prediction of how before your adversary raises them. cases, distinguish your facts from the an appellate court might rule in the If you wait, your adversary will use facts in those cases. future, but it’s not binding. those facts against your client. If you Framing Issues. In your motion, wait until your adversary interprets The Law frame the issues for the court.33 Cre- the unfavorable facts, you’re one step Know the Law. Don’t rely on your ate deep issues: “[A] deep issue is away from losing the case. adversary or the court to know the law. the ultimate, concrete question that Minimize the impact of unfavorable Find the law and use it to persuade. a court needs to answer to decide a facts — the “bad facts” — by weaving Explain the law in your own words. point your way. . . . The deep issue is them in with favorable facts — the Assume that your jurisdiction the final question you pose when you good facts.25 To deemphasize a bad defines a cause of action for conver- can no longer usefully ask the follow- fact, place it in the middle of a para- sion as follows: up question, ‘And what does that issue graph; weave the good facts around Conversion is an unauthorized turn on?’”34 the bad fact. If you use this method to assumption and exercise of the Be Honest. Don’t fudge the law.35 deemphasize, readers might not notice right of ownership over goods Interpret the law, but don’t lie about the bad facts: The reader will “per- belonging to another to the exclu- what the law provides. ceive[] [the bad facts] as another part sion of the owner’s rights. Money, Don’t omit unfavorable aspects of of the story.”26 Example: if specifically identifiable, may be the law to help your client. John was an Assistant Vice-Pres- the subject of a conversion action. Don’t ignore law unfavorable to ident at Primrose Donavan Inc. However, an action for conver- your client. Your adversary and the

56 | November/December 2015 | NYSBA Journal court will find it. If you hide the law, In the Alternative. Don’t assume stay within the page limit. If the judge you’ll never have the opportunity to that the court will rule for you. Have tells you that your deadline is next use it to persuade. Bringing up, and a back-up plan by creating alternative Thursday, follow the judge’s instruc- then rebutting, unfavorable law makes arguments — but not too many. Even tion. Breaking the rules means that the you look credible. Bringing up unfa- if the court disagrees with your first judges might reject your papers; at the vorable law helps “take away [your argument, it’ll have a reason to rule least, you’ll lose credibility. Your client adversary’s] thunder.”36 Besides, for you if it agrees with an alternative will lose credibility, too. you’re “required to advise the court of argument. Your alternative arguments Honesty Is the Best Practice. Judg- any adverse controlling authority.”37 should be as good (and as persuasive) es appreciate honesty. Be honest with If you’re quoting from a statute, as your main argument: “[B]ad argu- the facts.46 Be honest with the law.47 rule, or regulation, quote verbatim. But ments detract from good ones.”42 You’ve learned from the last col- don’t quote everything from the statute, Don’t make “outlandish alternative umn — writing and opposing sanc- rule, or regulation. Avoid large block arguments.”43 Don’t argue anything tion motions — that lying will get quotations. Using block quotations frivolous or weak. you into trouble. If you lie about one makes you look unseasoned and lazy. Make It Easy. Make it easy for thing — even if it’s minor — the court Don’t use a quotation “from a case the court to rule for you. If you’re will assume you’ve lied about other to suggest the case stands for a propo- relying on an unreported or obscure things. sition it does not.”38 case, attach it to your document as an If you’re quoting the law and you’re exhibit.44 Attaching it shows the court The Words altering the language, let the court that you’ve got nothing to hide. Watch your language. Words have know about your alterations. When Cite Correctly. When citing to the power: “[W]ords can win — or lose you alter a quotation, make sure not to law, do so correctly. Cite the correct — the case.”48 Make sure you use the change its meaning. Also, don’t create reporter. Cite the correct page. Make it right words to say what you want to “the potential for misinterpretation, easy for your reader to find and re-cite say. Limit your adjectives and adverbs. misapplication, or ambiguity.”39 Use your authority. Here’s a list of things you should ellipses to show that you’ve eliminated eliminate from your litigation docu- some of the text. Use three ellipses The Weakness ments: within a sentence if you’ve removed Know the weakness in your own case. • Adverbial Excesses. Eliminate less than a sentence. Use four ellipses if Know what facts are unfavorable to “absolutely,” “apparently,” “cer- you’ve removed a sentence or more or your client. Know what aspect of the tainly,” “clearly,” “completely,” when you’ve chopped off the end of a law is unfavorable for your client. “indisputably,” “obviously,” sentence and what remains is an inde- Then address those weaknesses. “really,” “truly,” and “unmistak- pendent clause. Use brackets to show Address weaknesses as soon as pos- ably” from your documents.49 If what you’ve added, deleted, or altered sible. Don’t wait until your adversary it were clear, you wouldn’t be in when it’s a letter or more. Example: brings them up. If you wait until your court. If it were indisputable, you A defendant is liable for conver- adversary explains the law or the facts, wouldn’t have an adversary to sion when a defendant, without it’ll be too late. dispute your version of the facts authority, “assum[es] and exercise[s] Know when to concede. Don’t con- and law. . . . the right of ownership over cede too early or too frequently or • Clichés. Eliminate: “all things goods belonging to another to the give up an essential argument. Don’t considered,” “at first blush,” exclusion of the owner’s rights. . . . argue for the sake of arguing: “Don’t “clean slate,” “exercise in futil- However, [plaintiffs may not] . . . vehemently stick to an unreasonable ity,” “fall on deaf ears,” “foregone validly maintain[] [a cause of or tenuous position just for the sake of conclusion,” “it goes without action] where [plaintiffs’] damages arguing — this will seriously impact saying,” “last-ditch effort,” “leave are merely . . . sought for breach of credibility. Acknowledge weaknesses no stone unturned,” “lock, stock, contract. and address them forthrightly.”45 and barrel,” “making a mountain Analysis. Apply the law to your out of a molehill,” “nip in the facts persuasively. The outcome of The Rules bud,” “none the wiser,” “pros your case will depend on how well Playing by the rules could mean the and cons,” “search far and wide,” you apply law to fact. Show the court difference between winning or losing. “step up to the plate,” “tip of the “why a ruling for your client is right Follow court deadlines and court rules. iceberg,” “wait and see,” “wheels and just.”40 Use your theme to “tie all Serve and format your papers accord- of justice,” “when the going gets the pieces together.”41 ing to the court’s requirements. tough,” and “writing on a clean Don’t forget to address any counter- Follow the individual judge’s dead- slate.” arguments — your adversary’s main lines and rules. If the judge gives you • Colloquialisms. Colloquialisms arguments. a 25-page limit for your post-trial brief, are expressions that aren’t used in

NYSBA Journal | November/December 2015 | 57 formal speech or writing. Exam- emphasis; for rhythm; to climax throat clearing. Get to the point ples: “gonna” and “ain’t nothin.” (end with emphasis); or to go without a running start that • Conjunctive Adverbs. The from short to long or from old to occupies space but adds nothing. best writing doesn’t rely exces- new. Emphasis examples: “It was a Eliminate: “After due consider- sively on conjunctive adverbs like machete that killed Jimmy.” Here, ation,” “as a matter of fact,” “bear “additionally,” “along the same the author emphasizes the object in mind that,” “for all intents and lines,” “furthermore,” “however,” that killed Jimmy, not that Jimmy purposes,” “it appears to be the “in addition,” “in conclusion,” was killed. “It was Judge Garner case that,” “it can be said with “lastly,” “moreover,” and “there- who wrote the opinion.” Here, certainty that,” “it goes without fore.” If the logic and movement the author emphasizes Judge saying that,” “it is clear that,” of your ideas are clear, your read- Garner’s authorship even though “it is important (or helpful or er will connect thoughts without it would have been more concise interesting) to remember (or note) needing artificial transitional to write “Judge Garner wrote the that,” “it is significant that,” “it devices that impose superficial opinion.” Rhythm example: “To is submitted that,” “it should be logic. everything there is a season.” emphasized that,” “it should not • Contractions. Don’t use con- This example would have been be forgotten that,” “the fact of the tractions in your litigation different had the author writ- matter is,” “the point I am try- documents.50 Examples: “can’t,” ten “To everything is a season.” ing to make is that,” “it is well “don’t,” “it’s,” “won’t.” Contrac- Climax example: “There is a preju- settled,” and “it is hornbook law.” tions might be appropriate in a dice against sentences that begin • Mixed Metaphors. Mixed meta- magazine or newspaper article, with expletives” is better than “A phors combine two commonly but they have no place in your prejudice against sentences that used metaphors to create a non- legal documents. begin with expletives exists.” The sensical image: “He tried to nip it • Elegant Variation. Repeat the climax should not be on “exists.” in the bud but made a mountain same word instead of using a syn- • Jargon. Jargon is terminology out of a molehill.” onym. If you create a synonym, that relates to a specific profes- • Negatives. Watch out for negative you’ll confuse your reader. If sion or group. Don’t use words words: “barely,” “except,” “hard- your case is about a contract, refer or phrases only you or another ly,” “neither,” “not,” “never,” to it as a “contract.” Don’t use lawyer might know. Examples: “In “nor,” “provided that,” and “agreement,” “understanding,” the instant case” or “in the case “unless.” Example: “Good law- or “covenant” to refer to the same at bar” becomes “here” or “in this yers don’t write in the negative.” contract.51 case.” Or, better, discuss your case Becomes: “Good lawyers write in • Equivocations. Eliminate doubt- without resorting to “here” or “in the positive.” Eliminate negative ful, timid, and slippery equivoca- this case.” combinations: “never unless,” tions, phrases, and words: “at • Legalese. Eliminate all legalisms. “none unless,” “not ever,” and least as far as I’m concerned,” Incorrect: “Enclosed herewith is “rarely ever.” Don’t use “but,” “generally,” “probably,” “more or my brief.” Correct: “Enclosed is “hardly,” or “scarcely” with less,” and “seemingly.” my brief.” Incorrect: “The defen- “not.” Use “but” instead of “but • Euphemisms. Eliminate euphe- dant has a prior conviction.” however,” “but nevertheless,” misms. A euphemism is a word Correct: “The defendant has a con- “but that,” “but yet,” and “not or phrase that replaces a negative, viction.” Eliminate these words: but.” Eliminate negative prefixes offensive, or uncomfortable word “aforementioned,” “aforesaid,” and suffixes: “dis-,” “ex-,” “il-,” or phrase. Some euphemisms for “foregoing,” “forthwith,” “here- “im-,” “ir-,” “-less,” “mis-,” dying: “passed away,” “passed inafter,” “henceforth,” “herein,” “non-,” “-out,” and “un-.” Use on,” “checked out,” “kicked the “hereinabove,” “hereinbefore,” negatives only for negative bucket,” “bit the dust,” “bought “per” (and “as per”), “said,” emphasis: Abigail: “How are the farm,” “cashed in their chips,” “same,” “such,” “thenceforth,” you?” Bob: “Not bad.” and “croaked.” “thereafter,” “therein,” “thereby,” • Nominalizations. A nominaliza- • Expletives. “Expletive” means “to wit,” “whatsoever,” “where- tion is a verb turned into a noun. “filled out” in Latin. Avoid: “there as,” “wherein,” and “whereby.” If Nominalizations are wordy. They are,” “there is,” “there were,” you wouldn’t say it, don’t write hide. They’re abstract. Don’t “there was,” “there to be,” “it is,” it. Write “earlier” or “before,” not bury your verbs. Most buried and “it was.” Example: “There are “prior to.” Write “after” or “later,” verbs end with these suffixes: three issues in this case.” Becomes: not “subsequent to.” “-tion,” “-sion,” “-ment,” “-ence,” “This case has three issues.” • Metadiscourse. Metadiscourse “-ance,” and “-ity.” Change weak Exceptions: Use expletives for is discourse about discourse. It’s nouns to powerful verbs: “allega-

58 | November/December 2015 | NYSBA Journal tion” becomes “allege”; “conclu- • Passive Voice. The passive The officer will help you.” Fourth, use sion” becomes “conclude”; “con- voice comes in two forms: single the second-person pronoun: “you,” sideration” becomes “consider”; passives and blank passives “your,” or “yours.” Example: “He who “installation” becomes “install”; (sometimes called double or can write should apply for the job.” “intention” becomes “intend”; nonagentive passives). A single Becomes: “If you can write, apply for “motion” becomes “moves”; passive occurs when a sentence is the job.” “objection” becomes “object”; converted to object, verb, subject Use the Right Verb. Statutes can’t “preparation” becomes “prepare”; from subject, verb, object. The speak, point out, or demonstrate any- “provision” becomes “provide”; double passive hides the subject. thing. But statutes can “apply,” “dic- “requirement” becomes “require”; Single passive: “The motion was tate,” “impose,” “limit,” “mandate,” “resistance” becomes “resist”; and filed by Martin.” Double passive: “prohibit,” “provide,” and “require.”53 “violation” becomes “violate.”52 “The motion was filed.” Prefer Courts can’t argue, believe, or feel. • “Of.” “Of” signals that you’re the active voice: “Martin filed But courts can “conclude,” “decide,” wordy. Eliminate “of” by creat- the motion.” The active voice lets “declare,” “determine,” “examine,” ing possessives or by inverting or readers know who did what to “find,” “hold,” “modify,” “reason,” rearranging the sentence. Posses- whom, in that order. The active and “rule.”54 sive example: “The foregoing con- voice is concise; the passive, Don’t Be Conclusory. Show, don’t stitutes the decision and order of wordy. The active voice is always tell. Example: “Maurice is tall.” Elimi- the court.” Becomes: “This opinion honest; the passive is sometimes nate the conclusory language: “Mau- is the court’s decision and order.” dishonest. People think in the rice is seven feet in height.” Rearranging and inverting exam- active voice, not the passive. Mind Your Manners. You might ples: “I am a fan of the Doors.” • Slang. Eliminate slang from be angry with your adversary, your Becomes: “I am a Doors fan.” formal legal writing. Slang is adversary’s client, the judge, or even “He’s a justice of the Supreme made up of informal words or your client, but you should “get over Court of the State of New York.” expressions not standard in the your anger and use your head.”55 Becomes: “He’s a New York State speaker’s dialect or language Don’t attack your adversary or your Supreme Court justice.” “You’re and which are used for humor- adversary’s client. Avoid insults: “liar,” not the boss of me.” Becomes: ous effect. Use “absent minded” “idiot,” and “stupid.” When you insult “You’re not my boss.” If the pos- instead of “out to lunch,” “drag” your adversary and your adversary’s sessive looks awkward, keep the or “take” instead of “schlep,” client, you lose sight of the big picture “of.” “The Fire Department of the “marijuana” instead of “weed,” — winning the case based on the mer- City of New York’s (FDNY) poli- “police” instead of “Five-O,” “sto- its of your case. When you insult your cies.” Becomes: “The policies of len goods” instead of “loot” or adversary and your adversary’s client, the Fire Department of the City “stash.” the court will lose sight of the merits of New York (FDNY).” Delete “as Gender-Neutral Language. Elimi- of your case. The court won’t take you of.” “The attorney has not filed nate sexist language. Here are four seriously. The court will eventually the motion as of yet.” Becomes: ways to create gender-neutral lan- turn against you.56 “The attorney has not filed the guage. First, make the antecedent Avoid inflammatory language.57 motion yet.” Don’t use “of” prep- plural. Example: “A law clerk can’t Avoid words like “absurd” or ositional phrases: “Along the line be careless. She must be meticulous “ridiculous.”58 of” becomes “like.” “As a result of” and precise.” Change “a law clerk” to If you’re an attorney, don’t attack becomes “because.” “Concerning “law clerks” and “she” to “they” to your client. the matter of” becomes “about.” eliminate the sexist language. Becomes: Don’t insult the judge. Many liti- “During the course of” becomes “Law clerks can’t be careless. They gants believe that the way to win is to “during.” “In advance of” becomes must be meticulous and precise.” Sec- attack the judge. Some litigants attack “before.” “In case of” becomes ond, rephrase the sentence to eliminate the judge by moving to disqualify the “if.” “In lieu of” becomes “instead the pronoun. Example: “She who can’t judge. Some litigants sue the judge. If of.” “In the event of” becomes handle the work should find another you’re unhappy with the judge’s rul- “if.” “On the grounds of” becomes job.” Becomes: “Anyone who can’t han- ing, bring a motion to renew, reargue, “because.” “Regardless of wheth- dle the work should find another job.” or both. In your motion to reargue, er or not” becomes “regardless Example: “A waiter likes his customers you can point out that the judge mis- whether.” “With the exception of” to be generous.” Becomes: “A wait- interpreted or misapplied the law and becomes “except.” Eliminate “type er likes generous customers.” Third, the facts. Be diplomatic.59 In explain- of,” “kind of,” “matter of,” “state repeat the noun: “A police officer will ing the judge’s error, you don’t need of,” “factor of,” “system of,” “sort be here soon. He’ll help you.” Becomes: to make the judge feel stupid: “There of,” and “nature of.” “A police officer will be here soon. are ways to show that a court’s ruling

NYSBA Journal | November/December 2015 | 59 was in left field without saying the issues of the Journal, the Legal Writer 24. Schiess, supra note 16, at 138. judge is an ‘uninformed moron.’”60 If will discuss how to draft contracts. n 25. Lamparello & Boyd, supra note 1, at 27. you believe the court made a mistake, 26. Id. 27. Id. at 28. appeal. The best “practice is to focus Gerald Lebovits ([email protected]), an 28. Id. on the law, not the judge.”61 acting Supreme Court justice in Manhattan, 29. Id. is an adjunct professor of law at Columbia, 30. Peters Griffin Woodward, Inc. v. WCSC, Inc., The Editing Process Fordham, NYU, and New York Law School. He 88 A.D.2d 883, 883–84, 452 N.Y.S.2d 599, 599 (1st Some litigators forget that the best way thanks court attorney Alexandra Standish for Dep’t 1982). to produce a polished document is to her research. Note to readers: The Journal is 31. Lamparello & Boyd, supra note 1, at 31. edit: “Reading an error-laden brief is pleased to report that the prestigious Scribes 32. Pierre N. Leval, Madison Lecture: Judging under Journal of Legal Writing has selected three of the Constitution: Dicta about Dicta, 81 N.Y.U. L. Rev. like listening to someone with bad hic- Judge Lebovits’s Legal Writer columns for inclu- 1249, 1249 (2006) (quoting United States v. Rubin, cups — pretty soon the reader starts sion in its “Best of” series. See Free at Last from 609 F.2d 51, 69 (2d Cir. 1979) (Friendly, J., concur- ring)). timing the hiccup intervals instead of Obscurity: Achieving Clarity, 16 Scribes J. Legal 33. For more information on framing your issues, listening to what the speaker is trying Writing 127 (2014–2015); available at http:// 62 consult Gerald Lebovits, The Legal Writer, You Think to say. Proofread.” papers.ssrn.com/sol3/papers.cfm?abstract_ You Have Issues? The Art of Framing Issues in Legal Check for grammar, punctuation, id=2654480 (last visited Oct. 21, 2015); Legal- Writing — Part I, 78 N.Y. St. B.J. 64 (May 2006); and spelling. Check the accuracy of Writing Myths, 16 Scribes J. Legal Writing 113 Gerald Lebovits, The Legal Writer, You Think You (2014–2015), available at http://papers.ssrn. Have Issues? The Art of Framing Issues in Legal Writ- your quotations. Check the accuracy of ing — Part II, 78 N.Y. St. B.J. 64 (June 2006). com/sol3/papers.cfm?abstract_id=2654470 your authorities. 34. Bryan A. Garner, 7 Keys to Winning & Defeat- Don’t abuse punctuation: “Some (last visited Oct. 21, 2015); and On Terra Firma ing Motions on the Papers, LawProse Seminar 1, 2–3 writers put semicolons and wild mush- With English, 16 Scribes J. Legal Writing 123 (July 8, 2015). (2014–2015), available at http://papers.ssrn. rooms in the same category: some are 35. Schiess, supra note 16, at 139; Lamparello & com/sol3/papers.cfm?abstract_id=2654479 (last Boyd, supra note 1, at 30. nice, and some are not, and since it is visited Oct. 21, 2015). 36. Lamparello & Boyd, supra note 1, at 31. hard to tell the difference, they should 37. Johns, supra note 20, at 137. 63 all be avoided.” Eliminate excla- 38. Lamparello & Boyd, supra note 1, at 31. mation points and question marks 1. Adam Lamparello & Megan E. Boyd, Show, 39. Id. Don’t Tell: Legal Writing for the Real World 19 from your writing. If you want to be 40. Id. at 33. (2014). emphatic, do it in front of a jury. If you 41. Id. 2. Id. 42. Id. at 25. want to ask questions, put a witness 3. Id. 43. Id. on the stand and question the witness. 4. Id. 44. Id. at 31. Choose one font and stick with it. 5. Id. 45. Id. at 34. Most experts reject Times New Roman, 6. Id. 46. Schiess, supra note 16, at 138. the default font in Word and Word- 7. Id. at 20. 47. Id. at 139. Perfect: “Both the Supreme Court and 8. Id. 48. Lamparello & Boyd, supra note 1, at 22. the Solicitor General use Century. . . . 9. Id. 49. Id. 10. Id. Bookman and Century . . . are prefer- 50. Id. at 23. 11. Id. at 21. able to . . . Garamond . . . and Times 51. Johns, supra note 20, at 233. 64 12. Id. [New Roman].” 52. Id. at 158. 13. Id. Eliminate excess. Cut out informa- 53. Id. at 160–61. 14. Id. tion that doesn’t serve a purpose: The 54. Id. 15. Id. purpose is to persuade the court to rule 55. Id. at 234. 16. Wayne Schiess, “Best of Wayne Schiess,” Writing 56. Id. for you. for the Trial Judge — For Motions, 12 Scribes J. Legal Choose your words carefully: Writing 131, 135 (2008–2009), available at http:// 57. Lamparello & Boyd, supra note 1, at 26. Choose words that say what you want media.wix.com/ugd/3eec74_dc7ec0483e8a41b- 58. Id. f90e9a7dea4fbd9a7.pdf (last accessed Oct. 21, 2015). to say. 59. Johns, supra note 20, at 234. 17. Id. at 136. 60. Lamparello & Boyd, supra note 1, at 26. Reorganize: Rearrange sentences; 18. See Gerald Lebovits, The Legal Writer, Cracking 61. Johns, supra note 20, at 234. rearrange paragraphs. the Code to Writing Legal Arguments: From IRAC to 62. Id. at 237. Comply with court rules and dead- CRARC to Combinations in Between, 82 N.Y. St. B.J. 64 (July/Aug. 2010). 63. Id. at 236 (quoting Richard C. Wydick, Plain lines. English for Lawyers 95 (4th ed. 1998)). 19. Lamparello & Boyd, supra note 1, at 23 (citing Use every opportunity in your liti- Ross Guberman, “Five Ways to Write Like John 64. Seventh Circuit, Requirements and Sugges- gation documents to persuade. Don’t Roberts,” available at www.legalwritingpro.com/ tions for Typography in Briefs and Other Papers 5, articles (last visited Oct. 21, 2015)). available at http://www.ca7.uscourts.gov/rules/ wait until oral argument or trial to type.pdf (last visited Oct. 21, 2015) (“Professional 20. Margaret Z. Johns, Professional Writing for persuade. Persuade in the beginning, typographers avoid using Times New Roman for Lawyers 231 (1998). middle, and end of every document. book-length (or brief-length) documents. This face 21. Lamparello & Boyd, supra note 1, at 24. was designed for newspapers, which are printed in This concludes the series on writing 22. Id. at 25. narrow columns, and has a small x-height in order litigation documents. In the next five 23. Id. at 26. to squeeze extra characters into the narrow space.”).

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62 | November/December 2015 | NYSBA Journal 2015-2016 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

First District Silverman, Paul H. Fennell, Timothy J. Morrissey, Mary Beth David P. Miranda †* Alcott, Mark H. Smith, Asha Saran Gensini, Gioia A. Quaranta President Alden, Steven M. Sonberg, Hon. Michael R. Gerace, Donald Richard * Ostertag, Robert L. Albany Arenson, Gregory K. Spirer, Laren E. †* Getnick, Michael E. Owens, Jill C. Brown, Earamichia Spiro, Edward M. Hage, J. K., III Protter, Howard Claire P. Gutekunst Brown, Terryl * Standard, Kenneth G. LaRose, Stuart J. Ranni, Joseph J. President-Elect Carbajal, Natacha Stenson Desamours, Perez, Jose E. Riley, James K. Yonkers Chakansky, Michael I. Lisa M. * Richardson, M. Catherine Starkman, Mark T. Chambers, Hon. Cheryl E. Tesser, Lewis F. Stanislaus, Karen Thaler, Jessica D. Sharon Stern Gerstman Chang, Vincent Ted Udell, Jeffrey A. Westlake, Jean Marie Wallach, Sherry Levin Treasurer Cilenti, Maria Ugurlayan, Anahid M. Williams, James M. Weathers, Wendy M. Davino, Margaret J. Valet, Thomas P. Weis, Robert A. Buffalo Sixth District Davis, Tracee E. †* Younger, Stephen P. Welch, Kelly M. Barreiro, Alyssa M. Ellen G. Makofsky Dean, Robert S. Zuchlewski, Pearl Denton, Christopher Tenth District Finerty, Margaret J. Secretary Second District Grossman, Peter G. Barcham, Deborah First, Marie-Eleana Garden City Aidala, Arthur L. Lanouette, Ronald Seldes Flynn, Erin Kathleen Ajaiyeoba, Abayomi O. Joseph, Jr. Block, Justin M. lenn au ee * Forger, Alexander D. G L -K Bonina, Andrea E. Lewis, Richard C. * Bracken, John P. Fox, Glenn G. Immediate Past President Chandrasekhar, Jai K. †* Madigan, Kathryn Grant Burns, Carole A. Freedman, Hon. Helen E. New York Fallek, Andrew M. McKeegan, Bruce J. Calcagni, John R. Friedman, Richard B. Kamins, Hon. Barry Saleeby, Lauren Ann Christopher, John P. Gallagher, Pamela Lee Klass, Richard A. Shafer, Robert M. Clarke, Christopher VICE-PRESIDENTS Galligan, Michael W. Lonuzzi, John Justin Glass, David L. Seventh District First District McKay, Hon. Joseph Cooper, Ilene S. Goldberg, Evan M. Baker, Bruce J. Taa R. Grays, New York Kevin England, Donna Goldfarb, David Bleakley, Paul Wendell Fishberg, Gerard Michael Miller, New York Napoletano, Domenick Goodman, Hon. Emily J. Romero, Manuel A. Brown, T. Andrew Franchina, Emily F. Grays, Taa R. Buholtz, Eileen E. Second District Seddio, Hon. Frank R. Gann, Marc † Gutekunst, Claire P. †* Buzard, A. Vincent Glover, Dorian Ronald Dominick Napoletano, Brooklyn † Shautsova, Alena Himes, Jay L. Simmons, Karen P. Hetherington, Bryan D. Gross, John H. Hoffman, Stephen D. Third District Spodek, Hon. Ellen M. Jackson, LaMarr J. Harper, Robert Matthew Hollyer, A. Rene Lawrence, C. Bruce Hermes Fernandez, Albany Sunshine, Hon. Jeffrey S. Hillman, Jennifer F. Honig, Jonathan Yeung-Ha, Pauline McCafferty, Keith Karson, Scott M. Fourth District Hyland, Nicole Isobel Modica, Steven V. Kase, Hon. John L. Jaglom, Andre R. Third District * Moore, James C. Matthew R. Coseo, Ballston Spa Lapp, Charles E., III Kenney, John J. Barnes, James R. Moretti, Mark J. †* Levin, A. Thomas Fifth District Kiesel, Michael T. Bauman, Hon. Harold J. * Palermo, Anthony Robert Makofsky, Ellen G. * King, Henry L. Behe, Jana Springer Rowe, Neil J. Stuart J. Larose, Syracuse Mancuso, Peter J. Kobak, James B., Jr. Calareso, JulieAnn †* Schraver, David M. McCarthy, Robert F. Sixth District Koch, Adrienne Beth Coffey, Daniel W. Shaw, Linda R. Meisenheimer, Patricia M. †* Lau-Kee, Glenn Collura, Thomas J. Alyssa M. Barreiro, Binghamton Tilton, Samuel O. * Pruzansky, Joshua M. Lawton-Thames, Crummey, Hon. Peter G. * Vigdor, Justin L. * Rice, Thomas O. Seventh District Lynnore Sharise Fernandez, Hermes * Witmer, G. Robert, Jr. Stines, Sandra

†* Leber, Bernice K. Fox, William L. Strenger, Sanford T. Andrew Brown, Rochester Lessard, Stephen Charles Gerbini, Jean F. Eighth District Bloom, Laurie Styka Tarver, Terrence Lee Eighth District Lindenauer, Susan B. Greenberg, Henry M. Tully, Rosemarie Ling-Cohan, Hon. Doris Brown, Joseph Scott Cheryl Smith Fisher, Buffalo Grogan, Elizabeth Janas Weinblatt, Richard A. Maroney, Thomas J. Heath, Hon. Helena * Doyle, Vincent E., III Edmunds, David L., Jr. Wicks, James M. Ninth District Martin, Deborah L. Higgins, John Eric Effman, Norman P. Eleventh District Sherry Levin Wallach, Mount Kisco Miller, Michael Hines, Erica M. Minkowitz, Martin Kean, Elena DeFio Fisher, Cheryl Smith Alomar, Karina E. Tenth District Morales, Rosevelie Mandell, Adam Trent * Freedman, Maryann Bruno, Frank, Jr. Saccomando Marquez Meacham, Norma G. Carola, Joseph, III Scott M. Karson, Melville Gerstman, Sharon Stern Moses, Barbara Carol Meyers, David W. Cohen, David Louis Halpern, Ralph L. Eleventh District Moskowitz, Hon. Karla † Miranda, David P. Gutierrez, Richard M. * Hassett, Paul Michael Nathanson, Malvina Prudente, Stephen C. †* James, Seymour W., Jr. Richard M. Gutierrez, Forest Hills Hills, Bethany Needham, Andrew W. Rivera, Sandra Lee, Chanwoo O’Donnell, Hon. John F. Twelfth District Otis, Andrew D. Rosiny, Frank R. Samuels, Violet E. O’Donnell, Thomas M. Prager, Bruce J. Ryba, Christina L. Terranova, Arthur N. Steven E. Millon, Bronx Ogden, Hon. E. Jeannette Pressment, Jonathan D. Sciocchetti, Nancy Wimpfheimer, Steven Pajak, David J. Thirteenth District Radding, Rory J. Silver, Janet Ryan, Michael J. Twelfth District Raskin, Debra L. * Yanas, John J. Michael J. Gaffney, Staten Island Braverman, Samuel M. Reitzfeld, Alan D. Smith, Sheldon Keith Calderón, Carlos M. Richter, Hon. Rosalyn Fourth District Spitler, Kevin W. Marinaccio, Michael A. MEMBERS-AT-LARGE OF THE Robb, Kathy Ellen Coseo, Matthew R. Sullivan, Kevin J. Bouton Cox, James S. Millon, Steven E. EXECUTIVE COMMITTEE Ninth District Robertson, Edwin David Hanson, Kristie Halloran * Pfeifer, Maxwell S. Barrett, Maura A. Rodner, Stephen B. Jones, Barry J. Weinberger, Richard James R. Barnes Burke, Michael K. Rothenberg, David S. King, Barbara J. David Louis Cohen Burns, Stephanie L. Thirteenth District Rothstein, Alan Kyriakopoulos, Efstathia G. Fox, Michael L. Gaffney, Michael J. Michael L. Fox Safer, Jay G. Nowotny, Maria G. Goldenberg, Ira S. Hall, Thomas J. Samuels, William Robert Onderdonk, Marne L. Michael W. Galligan Goldschmidt, Sylvia Marangos, Denise Sarkozi, Paul D. Rodriguez, Patricia L. R. Gordon-Oliver, Marangos, John Z. Evan M. Goldberg Walsh, Joseph M. Scanlon, Kathleen Marie Hon. Arlene Martin, Edwina Frances Ira S. Goldenberg Wildgrube, Michelle H. Schnabel, David H. Hyer, James L. McGinn, Sheila T. Wood, Jeremiah Bryan D. Hetherington Sen, Diana S Keiser, Laurence Mulhall, Robert A. * Seymour, Whitney Fifth District Klein, David M. Scheinberg, Elliott Elena DeFio Kean North, Jr. Connor, Mairead E. Marwell, John S. Edwina Frances Martin Shamoon, Rona G. Out-of-State DeMartino, Nicholas J. McCarron, John R., Jr. Sigmond, Carol Ann Jochmans, Hilary F. John S. Marwell Dotzler, Anne Burak * Miller, Henry G. Silkenat, James R. Sheehan, John B. Bruce J. Prager Sheldon Keith Smith † Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | November/December 2015 | 63 THE LEGAL WRITER BY GERALD LEBOVITS Drafting New York Civil-Litigation Documents: Part XLVI — Best Practices for Persuasive Writing

n the last issue of the Journal, we have memorable themes. Creating a Tell the court why you want it. Your discussed sanctions motions. good theme means persuading the introductory paragraph is meant to I In this issue, the Legal Writer reader that you (or your client) should provide a roadmap for the reader. Tell concludes its 46-part series on civil-lit- win based on the applicable law and the reader what’s to come: “Use your igation documents with the best prac- relevant facts. Creating a good theme introduction to lay out your case.”13 tices for writing litigation documents. means you’re developing a “cred- Use the relevant facts and law to tell Throughout this series, you’ve ible, compelling storyline that has (1) the court why you want the relief you learned about writing complaints, believable characters (the parties); (2) a seek. answers, bills of particulars, notices persuasive plot (the facts and law); (3) to admit, interrogatories, subpoenas, a logical story arc (a beginning, mid- motions for disclosure, motions to dle, and end); and (4) a powerful end- Create a theme dismiss, summary-judgment motions, ing (why your client must prevail).”6 that makes a motions to vacate default judgments, Create a theme that makes a last- motions to reargue and renew, in limi- ing impression on the court (and your lasting impression ne motions, trial motions, post-trial adversary). Your theme must be “inter- on the court (and motions, motions for attorney fees, and esting, persuasive, easily understood, motions for sanctions. We’ve focused and supported by the facts and the your adversary). on the rules and mechanics of writing law.”7 these documents. But at the heart of all In developing your theme, use emo- these litigation documents is persua- tion, such as sympathy or outrage.8 Remember that it’s an introduction. sion: Winning or losing your case will Use “logic, equitable principles, Don’t try to do everything in your depend on whether you persuade. To public policies, or some [other] com- introductory paragraph.14 write effective litigation documents, bination.”9 Persuade on Page One. The expres- the Legal Writer offers some tips on To persuade, weave your theme sion “good things come to those who persuasion. throughout your document. wait” doesn’t apply to legal writing. Create an Introductory Paragraph. In legal writing, you need to persuade The Story Great movies begin their themes with right away, on page one. Get to the Develop a Theme. Good lawyers are memorable opening scenes; great books point quickly. If you wait until the good storytellers.1 The story you tell have memorable opening lines.10 Your middle or the end of your document in your litigation document must per- litigation documents should likewise to persuade, you might already have suade the court to grant your motion persuade from the opening paragraph: lost the case. or deny your adversary’s motion.2 “Think of your strongest legal argu- In your memorandum of law, per- Because you’re the author — the sto- ment or a powerful fact that supports suade in your table of contents.15 Cre- ryteller — you decide how to tell the your claim and craft an introduction ate persuasive headings and sub-head- story.3 that immediately tilts the scales in ings you’ll copy in your text. You have a chance to win from the your client’s favor.”11 Don’t wait until Get Organized. Telling a coherent first sentence of your document: “First you’ve reached the middle or the end story means you need to organize your impressions are critically important . . . of your document to explain why you story. Organize your thoughts in sepa- [Y]ou win at the beginning by hooking should win. rate bite-sized paragraphs. Write your the reader into a story that ends in vic- In your introductory paragraph, paragraphs in numerical order. Use tory for your client.”4 grab the reader’s attention. this organizational technique in many You hook the reader by developing Tell the court what you want: State of your litigation documents, such as a theme.5 The best movies and books the relief you’re seeking.12 Continued on Page 55

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NYSBA Journal | November/December 2015 Paul Mertenskoetter SIXTH DISTRICT Naomie Jean-philippe Alexandra Star Dear Florence Osabuohien Paige Ashley Munson Xiayue Yin Kajal Harivadan Maria Luisa Di Lauro Oyegue Peter Michael Neddo Kantawala Christine Trinidad Duque Avalon Latoya Paul Michael Barnes Neumann SEVENTH DISTRICT Michael S. Katz Hua Feng Angelo Anthony Regina Yasha Raphael Orenstein John Christopher Lyle Oluwatosin Gladys Anthony K.c. Fong Michalina Natalia Shuter Janine Frances Panchok- Justin Patrick McCombs Kolawole Xiaodong Ge Berry Joanna Kourkoumelis Kristina Marie Georgiou THIRTEENTH DISTRICT Jonathan David Park EIGHTH DISTRICT Timothy Joseph Krieg Michael Lawrence Jill Burton Bramwell Kenneth Levon Perkins Anna Jennie Oakes Meredith-anne Margaret Greenberg Taimour Tahir Chaudhri Emma Karine Polgar Kurz Erin Elizabeth Hennessy Vincent C. Loiodice Emily Theresa Puhl NINTH DISTRICT Ellen L. Ladd Robert John Hidde Nicole Romano Aditya Ranade Suzanne Samera Adely Christine-Marie Lauture Lynn Hsieh Daniel J. Slomnicki Monica Laverne Robinson Carol Arcuri Louis Moshe Leon Chavette Renee Jackson Tina Mary Thomas Bynum Janelle Gladys Armentano Jason Philip Levy Jessica Willeen Jeavons Desiree Rebecca Salomone Emily Anne Barile Ruben Manuel Magalhaes Nicholas Franey Jensen OUT OF STATE Anjali Vyas Salvador Inna A. Bilmes Dane Marrow Tanner Bryce Jones Omolola Adekanye Somalia L. Samuel-Frank Mintskovsky Kurt Von Strelow Martin Jenny Kim Niranjan Adhikari Andrea Marlene Sands Phionah N. Brown Heather Lynn McGee Munishwar Lall George Adjeisah Adjei Caroline Saucier Daniel Evan Cohen Sean J. 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November/December 2015 | NYSBA Journal Aneesa Chatterji Julian Jose Gonzalez Phillip Lewis Lamberson Nmachukwu Blessing Obi Anisha Shroff Anirban Chatterji Andrea Lynn Gordon Courteney Brianne Lario Chiyoon Oh Charles S. Silver Jixin Chen Julie M. Gottselig Dennis Lazarev Matthias Josef Dietrich John V. Silverio Ohm Lei Chen Eugenio Grageda Uyen Phuong Le Joshua Maxwell Silverstein Masafumi Ohsaki Morgen Carol Cheshire Jonathan Shulman Daniel Hyung Lee Alexandra Lynn Simon Mary Rose Chew Greenstein Sunjae Lee Kentaro Okamoto Shannon Lee Smith Lhakpa Chodon Philippa Greer Robert Alexander Leitch Leia Chicoine Olsen Tamara Marie Spicer Jason M. Chodos Yulia Vladislavovna Adrien Nicolas Leleu Olamide Oladapo Omolaja Jeffrey A. 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NYSBA Journal | November/December 2015