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FEBRUARY 2010 VOL. 82 | NO. 2 JournalNEW YORK STATE BAR ASSOCIATION Business Valuation Reports The Importance of Proactive Also in this Issue Lawyering A Primer on the New York By Peter E. Bronstein False Claims Act and David A. Typermass Employment Waivers and Releases “Moot Points” 866-FUNDS- NOW Pre-Settlement Finance BESTSELLERS FROM THE NYSBA BOOKSTORE February 2010 Debt Collection and the Enforcement The Plaintiff’s Personal Injury Action in NEW! of Money Judgments, Second Edition New York State (2008) This treatise answers the tough questions faced by Attorney Escrow Accounts – Rules, Monetary awards determined in court cases involve an the plaintiff’s personal injury attorney every day – Regulations and Related Topics, 3rd array of procedures that attorneys must know. The new liens, special needs trusts, structures, Medicare and Edition second edition, under the editorship of Paul A. Peters, Medicaid, conflicts of interest, workers’ compensa- This new edition provides useful guidance on Esq., not only updates case and statutory law but also tion, no-fault, bankruptcy, representing a party in escrow funds and agreements, IOLA accounts and addresses new issues within this field, providing in-depth infancy, incompetency and wrongful death. the Lawyers’ Fund for Client Protection. The greatly topical analyses. PN: 4181 / Member $175 / List $225 / 1,734 pages expanded appendix features statutes, regulations PN: 40308 / Member $125 / List $170 / 548 pages and forms. PN: 40269 / Member $45 / List $55 / 330 pages Practitioner’s Handbook for Foundation Evidence, Questions and Appeals to the Court of Appeals, Best Practices in Legal Management Courtroom Protocols, Second Edition Third Edition The most complete and exhaustive treatment of (2009) This new edition updates topics on taking and the business aspects of running a law firm available anywhere. The second edition, along with its collection of perfecting criminal and civil appeals, alternative PN: 4131 / Member $139 / List $179 / 498 pages forms and protocols, has four new chapters: Pro Se procedures for selected appeals, and how to write Defendants, Courtroom Closure, Burdens of Proof and present the appeal. Consumer Bankruptcy, 2nd Edition and Summations. PN: 4017 / Member $48 / List $57 / 234 pages This new edition covers consumer bankruptcy from PN: 41078 / Member $50 / List $60 / 172 pages both debtor and creditor perspectives. It provides Real Estate Titles, Third Edition official and procedural forms, as well as the local bankruptcy rules for New York’s federal districts. Medical Malpractice in New York, An all-time bestseller, this edition is edited by James M. PN: 40456 / Member $125 / List $170 / 770 pages Third Edition Pedowitz, Esq., a nationally renowned expert in real This book provides advanced insight into many estate law and title insurance, and authored by some New York Lawyer’s Deskbook aspects of the trial of a medical malpractice case. of the most distinguished practitioners in the field. It’s and Formbook (2009–2010) PN: 41309 / Member $95 / List $125 / 654 pages an essential guide to the many complex subjects sur- Award-winning and packed with new information and rounding real estate law. forms for use in over 25 practice areas. Model Partnership Agreements (2009) PN: 42101 / Member $150 / List $180 / 1,632 pages Deskbook PN: 4150 / Member $295 / List $375 Here is a guide for solo and small-firm practitioners Formbook PN: 4155 / Member $295 / List $375 who wish to establish a partnership or other business form, or to formalize relationships in a law practice Public Sector Labor and Employment New York Practice Monograph Series that has no formal structure. Law, Third Edition (2009 Supplement) 2009–2010 PN: 41358 / Member $50 / List $60 / 142 pages This landmark text has been revised to include recent This 16-book set comprises chapters excerpted from developments in case and statutory law that are use- the 2009-2010 edition of the New York Lawyer’s Deskbook and Formbook. It is an invaluable refer- New York State Physician’s ful to practitioners representing public sector employ- ees, unions or management. ence for practitioners who work in or are new to HIPAA Privacy Manual FFormsorms oonn CCDD PN: 42057 / Member $150 / List $185 / 1,550 pages these areas. A hands-on tool for health care providers PN: 4009GP / Member $400 / List $500 and their legal counsel, this publication provides guidance for a physician’s office The Practice of Criminal Law Under New York Residential Landlord-Tenant to respond to routine, everyday inquiries the CPLR and Related Civil Procedure Law and Procedure (2009–2010) about protected health information. Statutes, Fifth Edition (2009) Covers the fundamentals of residential landlord-ten- PN: 4167 / Member $75 / List $95 / 288 pages A book that pulls together the rules and provisions ant law and offers a guide to the procedural mechan- of law not covered in NY’s CPL or Penal Law. ics practitioners face in landlord-tenant disputes. PN: 40698 / Member $45 / List $55 / 206 pages Greatly expanded for 2009–2010, with numerous samples of judicial forms. PN: 41699 / Member $72 / List $80 / 366 pages COMING SOON! NYSBA Practice Forms on CD-ROM—2009–2010 Expand your professional knowledge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0677 Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. will be added to your order. Prices do not include applicable sales tax. NEW YORK STATE BAR ASSOCIATION JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Philip H. Dixon Albany Elissa D. Hecker Irvington Jonathan Lippman New York City Eileen D. Millett New York City Gary A. Munneke White Plains Thomas E. Myers Syracuse John B. Nesbitt Lyons Gary D. Spivey Colorado Springs, Colorado Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside PUBLISHER Patricia K. Bucklin Executive Director NYSBA PRODUCTION STAFF Attorneys, judges and law students from 113 countries and all 50 states. ASSISTANT EDITOR Joan Fucillo 76,000 members, creating an incredible, prestigious global network that makes DESIGN a real difference for the practice of law and for the public good. Among the Lori Herzing Erin Corcoran many reasons I’m proud to be a NYSBA member. EDITORIAL OFFICES One Elk Street Claire P. Gutekunst Albany, NY 12207 (518) 463-3200 NYSBA member since 1984 FAX (518) 463-8844 www.nysba.org ADVERTISING REPRESENTATIVE Network Media Partners Renew today for 2010. Bruce Tackett Executive Plaza 1, Suite 900 11350 McCormick Road www.nysba.org/renew2010 Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] Thank you for your EUGENE C. GERHART membership support. (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS FEBRUARY 2010 BUSINESS VALUATION REPORTS – THE IMPORTANCE OF PROACTIVE LAWYERING by Peter E. Bronstein AND David A. Typermass 10 DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 18 Burden of Proof by David Paul Horowitz 22 Protecting the Empire: A Practitioner’s 42 The Journal Board of Editors Primer on the New York False Claims Act by MICHAEL A. MORSE, BRYAN S. NEFT 44 Appellate Advocacy and PETER S. WOLFF by Matthew P. Side 47 Legal Research by William H. Manz 32 Navigating the Murky Waters of 50 Presentation Skills for Lawyers Employment Waivers and Releases by Elliott Wilcox by EVE I. KLEIN, JOANNA R. VARON 52 Attorney Professionalism Forum and KEITH GREENBERG 54 Language Tips by Gertrude Block 38 A “Moot Point” Is an Ongoing Concern 56 New Members Welcomed for Everyone 60 Letter to the Editor by JOSEPH F. C ASTIGLIONE 60 Classified Notices 61 Index to Advertisers 63 2009–2010 Officers 64 The Legal Writer by Gerald Lebovits The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2010 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. NYSBA Journal | February 2010 | 3 PRESIDENT’S MESSAGE MICHAEL E. GETNICK Help Wanted: IOLA in Crisis “The legal profession owes it to itself that wrongs do not go without remedy because the injured has no advocate.” – Charles Evans Hughes, former Justice of the U.S. Supreme Court and Past President of the State Bar, 1917–1918 s I complete this President’s has forced the Legal Aid Society to turn One of the very highest priorities of Message, we are ushering in away eight of every nine clients who the New York State Bar Association is Aa new year knowing there is seek help. increasing the availability of counsel in more to be done. Although many of And the increased need comes at civil cases for those of limited means. us have gladly said good-bye to a a time when funding is decreasing. Over the past few months, President- grim 2009, not all is merry and bright The state is dealing with a budget cri- elect Stephen Younger and I, working as we face 2010.
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