Are Cigarettes Defective in Design?

JANUARY 2009 VOL. 81 | NO. 1 JournalNEW YORK STATE BAR ASSOCIATION

California and New York Also in this Issue Diverge in Approach and Result The Eyewitness Conundrum The Past as Present: by Robert G. Knaier The Last “Dead Heat” in the State Senate, 100 Years Ago The Medicare Secondary Payer Statute

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Thank you for your membership support. CONTENTS JANUARY 2009

ARE CIGARETTES DEFECTIVE IN DESIGN? California and New York Diverge in Approach and Result by Robert G. Knaier 10

DEPARTMENTS 5 President’s Message The Eyewitness Conundrum 7 In Memoriam: 24 Lorraine Power Tharp How Courts, Police and Attorneys Can David S. Williams Reduce Mistakes by Eyewitnesses 8 CLE Seminar Schedule by BENNETT L. GERSHMAN 20 Burden of Proof by David Paul Horowitz 33 The Past as Present: The Last “Dead 44 Legal Research Heat” in the State Senate, 100 Years Ago by William H. Manz by BENNETT LIEBMAN 48 Attorney Professionalism Forum 39 The Medicare Secondary Payer Statute 50 Language Tips Medicare’s Recovery Rights in the by Gertrude Block Context of Liability Insurance (Including 51 New Members Welcomed Self-Insurance) and No-Fault Insurance 60 Classified Notices by ROBERT G. TRUSIAK 60 Index to Advertisers 63 2008–2009 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 © 2009 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | January 2009 | 3

PRESIDENT’S MESSAGE BERNICE K. LEBER United Together in Troubled Times “[The American Dream] has thrived because in our darkest hours, we have risen above the smallness of our divisions to forge a path towards a new and brighter day. We have acted boldly, bravely, and above all, together.” President-elect Barack Obama, Radio Address, November 22, 2008

he New Year has come. We have to our Legislative Action Center and a new President entering the emailing the FDIC and your congres- TWhite House. Fannie Mae and sional leaders. This “quick response” Freddie Mac are poised to resume system was an innovation in 2003 of home foreclosures, unemployment Past President Lorraine Power Tharp remains at record highs, and we’re who, fortunately for all of us, had the all wondering how the financial crisis tremendous foresight to move us for- will continue to affect our practices, ward collectively and electronically. As our families and our futures. Now, a result of our superb grassroots effort gram, to addressing needed reforms more than ever, is the time to remain this past November, a score of mem- in the area of Wrongful Convictions, united and vigilant in our efforts to bers of Congress from the New York to responding to our recent efforts to press forward on issues and values delegation wrote to the FDIC with us. improve our use and the public’s use that are important to our profession Upon receiving our appraisal that the of court facilities through our State of and the public whom we serve. lack of uniformity in extending account the Courthouse Survey, to pitching in Who is around to remember practic- protections to lawyer IOLA accounts and handling pro bono a mortgage ing law during the Great Depression? had the unintended consequence of foreclosure conference or case, you Although the pundits have finally reducing the flow of interest to sup- have all strengthened our profession acknowledged what we’ve known for port civil legal services and thereby and improved our image to the public. over a year now, we face similar hard harm the poor, the FDIC immediately In my recent travels and visits with times. Whether you are an attorney agreed to treat IOLA accounts the same the Nassau County Bar Association, in the White House or in one of the as individual demand bank accounts, the Onondaga Bar Association and city halls across America, whether you thereby insuring the safety of millions the Brooklyn Bar Association, in our are a lawyer working to repair Wall of dollars used to fund civil legal ser- House of Delegates and our Executive Street, helping folks avoid mortgage vices. The FDIC acknowledged that Committee, just to name a few, I have foreclosure or restructuring businesses more than half the letters it received been touched by your profound sense to weather this financial storm, you are on this crucial issue – an issue that of duty not just to paying clients but each vital to the mission of our profes- affects not just New York but 36 other also – and especially – for all those pro sion and the State Bar. I am proud to states – came from our members. You bono hours you give selflessly to those lead the largest voluntary state bar in truly made a difference in the lives who cannot otherwise afford a lawyer the country, with over 75,000 mem- of the needy, who depend upon civil during these troubled times. So many bers representing every state and more legal services funding from the interest of you contributed as well during these than 110 countries. Each of your voices earned on these accounts. hard times by providing hundreds of lends influence and expertise to our For those of you who toil in the hours of legal service at polling places work, and I am thankful for your con- trenches and still make time in your across the country Your service has not tinued support. hectic schedules to be a part of our gone unnoticed.1 Like lawyers of generations past, of initiatives and work at the State Bar, As seriously as we take our profes- late you have answered the call in so I say, thank you! From reports on sion and our standing in our com- many meaningful ways. lack of due process at Guantanamo munities, so too must we direct our Last November, as the FDIC consid- Bay for prisoners held there, to new collective efforts to help those within ered whether to include IOLA accounts ethical standards for attorney conduct, within its Temporary Liquidity to implementing our “Miles to Go” Guarantee Program, hundreds of you report to ensure greater diversity in Bernice K. Leber can be reached at responded to my call to action by going the profession, to teaching a CLE pro- [email protected].

NYSBA Journal | January 2009 | 5 PRESIDENT’S MESSAGE our ranks who may not be as fortu- tion. Particularly now, with the rise problem or ask for help, answer the nate. As we go forward into 2009, to in our profession of those suffering call. Now is not the time to cut back on borrow from Eric Goldman, we each from depression, drug dependency or support for our bar association. If any- have a rendezvous with destiny. For alcoholism, our Lawyers’ Assistance thing, the message I want to convey to there is talk at law firms about cutting Program, chaired by Hon. Sally Krause you and our fellow members, particu- back, limiting or entirely eliminating and assisted by the tireless Patricia larly to those who are not members, is support for bar memberships or bar Spataro, provides confidential help, this: now is the time to join, to partici- functions or bar events. This is a seri- free of charge. If you’re looking to pate and to help one another. ous issue for our futures. brush up your resume or interview- I look forward to seeing you at my How many of us learned “best ing skills, or are considering moving upcoming Presidential Summit, which practices” from colleagues in Sections to a different area of practice, our will feature some of the most brilliant and Committees? How many of us Committee on Lawyers in Transition, minds in our country who are con- read our first legal update, attended chaired by Lauren Wachtler, makes it fronting two of today’s most pressing our first CLE program, wrote our first part of our mission to help our mem- obstacles: the regulation of our finan- report about the law by belonging to bers and similarly, find lawyers for cial markets and climate change. I am our bar association? Can we really those law firms with openings. proud to be a member of a profession distill knowledge and experience by But none of this is possible unless that can be part of the solution to these renouncing our professional associa- we remain united together, strong in problems that affect us all. There’s no tion? How do we instill professional- the belief that bar association activity is time to waste. Together we cannot ism in the next generation of lawyers if fundamental to our existence and our fail. ■ we do not encourage them to seek out fulfillment as lawyers. We also know the wisdom of other professionals? that true friendships are tested not just 1. See Leslie Wayne, Party Lawyers Ready to Keep an Eye on the Polls, N.Y. Times, Oct. 28, 2008, p. A12; For that matter, as many of you in good times but in the worst of times. Petra Pasternak, Lawyers Trade Billables for Election struggle in this difficult job market, So particularly in this year, when a Day Volunteering, law.com, Oct. 30, 2008, available at our bar association provides need- lawyer inside your office or outside http://www.law.com/jsp/law/sfb/lawArticleSFB. jsp?id=1202425637804. ed support, guidance and direc- your firm calls for advice, to share a NYSBA Annual Meeting 2009

CAREER TRANSITIONS IN A VOLATILE MARKET Monday, January 26, 2009 Panel Discussion 1:00 – 4:00 p.m.; Networking Reception 4:00 – 6:00 p.m. (for those attending the panel discussion)

In this troubled economy, many practitioners are facing hard choices and difficult situations. If you find yourself in financial straits, with work- and home-life issues, and you need to make a change, this program will give you the support and information you need. Sponsored by the Law Practice Management Committee, the Special Committee on Lawyers in Transition and the Senior Lawyers Section, the program addresses topics from ethics to interviewing to networking to the psychological issues of job loss. Moderated by Lauren Wachtler, Esq., speakers include Anthony Davis, Esq., Stephen Buchman, Esq., Elena Kaspi, Esq., and Carol Kanarek, Esq. For more information, go to our Web site, www.nysba.org/lpm; or contact the NYSBA’s Law Practice Management Director, Pamela McDevitt, at 518-487-5595 or [email protected].

6 | January 2009 | NYSBA Journal In Memoriam: Lorraine Power Tharp and David S. Williams

Lorraine Power Tharp David S. Williams We mourn the passing of The New York State Bar Lorraine Power Tharp, the Association mourns the New York State Bar Asso- passing of David Sterling ciation’s 105th President Williams, retired part- and the third woman to ner of McNamee, Loch- lead the State Bar. ner, Titus & Williams, “Lorraine strongly who served as the Asso- believed that making a dif- ciation’s 84th President, ference was not only her from 1981–1982. calling, but the duty of “David was the con- every attorney. She once summate leader who was said that every single devoted to public service lawyer has the ability to and to promoting always help someone and to solve the best interests of the somebody’s problem. Lorraine’s legacy is her resound- Association,” said State Bar President Bernice K. Leber. ing belief that every lawyer counts and that every person “During his term as president, he addressed profound counts, and she lived every day to pursue that higher call- and important issues to the profession . . . and directly ing,” said President Bernice K. Leber. raised the level of the Bar.” Tharp brought that philosophy to her term as president During Williams’s term, legislative and judicial action of the Association. The Association, she once said, is more were taken on the important issues of the Clients’ than just a trade organization. It must be the voice of the Security Fund and Lawyer Registration, initiatives car- law, if it is to be the voice of lawyers. It must advocate for ried over from previous presidential terms. His accom- the needs of the public. It must work to improve the lives of plishments included “expanding the Law, Youth & people, to improve the judiciary, to improve the law itself. Citizenship program, increased lobbying efforts for civil Tharp reminded us that a large part of the work of the law – legal services and creating a Corporate Counsel Section,” to help directly improve people’s lives – is being performed noted Leber. every day by small firms and small-town attorneys, the A native of Albany, Williams remained in the area and “journeymen” attorneys. As president, she made an effort was an active community leader throughout his life. He to meet with as many of those attorneys as possible. graduated from Colgate University, served in the U.S. During her presidential term, 2002–2003, Tharp created Army during World War II and earned his law degree from the Task Force on Increasing Diversity in the Judiciary, Albany Law School of Union University. He joined Whalen, the Annual Meeting Presidential Summit and the Special McNamee, Creble & Nichols in 1946 and was made part- Committee on Animals and the Law. She fought for an ner in 1950. In 2002, he received the Albany Law School increase in the assigned counsel fee rate, adequate funding Trustees Gold Medal Award. for civil legal services and the creation of a cutting-edge Williams was well regarded by his colleagues for his sexual harassment policy for law offices. vast knowledge of New York government and his affable A native of Massena, Tharp graduated from Smith manner. Former president Justin T. Vigdor sums it up best: College and earned her law degree from Cornell Law “David was an old-school gentleman. Always gracious and School. She was the first woman lawyer at McNamee, genial.” Lochner, Titus & Williams and its first woman partner, in 1981. She later became a partner of Whiteman Osterman & Hanna LLP, chairing the Commercial and Residential Real Estate Practice Group. In 2003, Tharp received the Albany Law School’s prestigious Kate Stoneman Award and in 2004 was named the New York County Lawyers’ Association’s Outstanding Women of the Bar.

NYSBA Journal | January 2009 | 7 NYSBACLE Partial Schedule of Spring Programs (Subject to Change)

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

Construction Site Accidents Starting Your Own Practice February 27 Albany April 21 New York City

New York State and City Tax Institute Civil Trial Practice in the 9th Judicial District March 11 New York City (3:00 pm – 5:00 pm) April 23 White Plains Legal Malpractice Litigation (9:00 am – 1:00 pm) International Trusts & Estates Law Institute March 20 Albany, New York City, Tarrytown (2-day program) March 27 Long Island, Syracuse April 23–24 New York City

Bridging the Gap International Practice Day – Beginner Level (2-day program) April 30 New York City March 25–26 Live session – New York City DWI on Trial Video Conferences in Albany and Buffalo (2-day program) May 7–8 New York City Women on the Move (12:30 pm – 5:00 pm) International Practice Day – Advanced Level April 2 Albany May 15 New York City

Introductory Strategies on Ethics and Civility in Everyday Lawyering (9:00 am – 1:00 pm) April 17 Albany, New York City, Rochester April 24 Buffalo, Long Island

Also Coming This Spring: Practical Skills Series: Basic Elder Law Practice Practical Skills Series: Family Court Practice – Custody, Child Protective Proceedings and Ethics Practical Skills Series: Forming and Advising Businesses Practical Skills Series: How to Commence a Civil Lawsuit

To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount)

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Come click for CLE credit at: www.nysbaCLEonline.com or to purchase CDs call 800.582.2452 Are Cigarettes Defective in Design?

California and New York Diverge in Approach and Result By Robert G. Knaier ROBERT G. KNAIER ([email protected]) is an associate with the San Diego office of Latham & Watkins LLP, where he is a member of the Litigation Department, practicing in the areas of products liability and mass torts. He received his B.A. from the University of California, San Diego, and his J.D. from Cornell Law School. Mr. Knaier would like to thank Loring Veenstra, a 2008 summer associate at Latham & Watkins’ San Diego office and currently a third- year law student at Columbia Law School, for his valuable research assistance.

t one time, it seemed clear that consumer products that carry known health risks – such as alcohol, fatty foods, and tobacco – were not the sorts of products that could Abe considered “defective in design.” The Restatement Second of Torts observed, for example, that “[g]ood tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful.”1 That proposition is no longer so clear, and at least some courts have displayed a willingness to include consumer products such as cigarettes within the ambit of products liability. Indeed, having been largely foreclosed from bringing claims under the theory that cigarette manufacturers “failed to warn” of the dangers of cigarettes,2 plaintiffs have turned to the law of design defect, seeking to impose liability on cigarette manufacturers for alleged harms caused by their products. Courts in California and New York have reached notably divergent results in such cases. These results reveal that a difference in approach – whether reflected in procedural mechanisms such as the burden of proof or in substantive liability rules – has real implications for the outcome of products liability litigation and, in the case of cigarette design litigation, suggest a fundamental difference in the way courts view the appropriateness of permitting liability for harm allegedly caused by dangerous products that consumers nevertheless want to purchase.

Products Liability Law and “Design Defects” The law of products liability has evolved to recognize three distinct ways in which a product manufacturer might be held liable for harm caused by a “defective” product.3 The kinds of defect to which such liability might attach include, first, “manufacturing defects,” or those instances in which a product “departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.”4 For example, “when a product comes off the assembly line in a substandard condition,”5 such as when a glass bottle has a flaw that ultimately causes it to shatter unexpectedly under ordinary use,6 it is said to have a manufacturing defect. Second, a product might also be defective by virtue of “inadequate instructions or warnings.”7 Specifically, in such “failure to warn” cases, a manufacturer may incur liability if the omission of reasonable instructions or warnings “renders the product not reasonably safe.”8 Finally, a product manufacturer might incur liability for harm caused by a product deemed defective in design.9 Courts across the United States have long struggled with the notion of what constitutes a “defective” design for purposes of imposing liability for harm caused by consumer products. Many commentators have argued,10 and many courts have held,11 that a product is not defective in design unless it can be shown that the risks inherent in its design outweigh its benefits or “utility.” More specifically, courts often require a showing that a “reasonable alternative design” was available, i.e., that the manufacturer of the product could have utilized a safer design, at a reasonable cost, and without

NYSBA Journal | January 2009 | 11 undue sacrifice to the utility of the product.12 Indeed, the a product defective in design.23 But consistent with its Restatement Third, Torts: Products Liability explains that desire to permit liability even in the face of patent design this is the majority rule in the United States.13 defects, the court further held that even if a product The position taken in the Restatement Third has, how- meets consumer expectations – i.e., even if a product’s ever, “generated considerable controversy.”14 For some dangers are known or should be known to a reasonable commentators,15 and for a minority of courts,16 whether a consumer – that product may nevertheless be defective in product is defective in design is a function of “consumer design if its risks outweigh its benefits.24 On the choice between the “consumer expectations” test and the “reasonable alternative design” test, California and New York have taken different paths. expectations”; that is, a design is defective if and only if The California Supreme Court more recently explained it fails to satisfy a reasonable consumer’s expectations of that the “consumer expectations” prong of Barker applies safety.17 This approach is considered by some to be con- only in limited circumstances. In Soule v. General Motors sistent with the spirit of products liability to the extent Corp., in which a plaintiff alleged that a design defect in that it is less burdensome for plaintiffs and thus more an automobile “allowed its left front wheel to break free” effectively shifts the costs of product-related accidents during an accident, “collapse rearward, and smash the to manufacturers. Those in favor of a risk/utility test in floorboard into her feet,” the court held that the trial court design defect cases, however, have argued that a standard erred in instructing a jury on the consumer expectations looking only to consumer expectations is not only proce- test.25 The court explained that the complex nature of the durally untenable, it also fails to account for the sort of alleged defect did not sensibly lend itself to an analysis of practical considerations of relative safety and utility inher- a consumer’s “expectations.” ent in every product design – particularly in the design of Reasoning that “the ordinary consumer of an auto- technologically complex products.18 As discussed below, mobile simply has no idea how it performs in all foresee- on the choice between the “consumer expectations” test able situations, or how safe it should be made against all and the “reasonable alternative design” test, California foreseeable hazards,” the court held that “the consumer and New York have taken different paths – and are pro- expectations test is reserved for cases in which the every- ducing different results. day experience of the product’s users permits a conclusion that the product’s design violated minimum safety California’s Hybrid Approach assumptions.”26 Indeed, noting that a “jury may not be Courts in California apply a “hybrid” approach to claims left free to find a violation of ordinary consumer expecta- of defective design, alternatively considering consumer tions whenever it chooses,” the court held that “unless expectations or risk/utility factors in various categories the facts actually permit an inference that the product’s of cases.19 In 1963, in Greenman v. Yuba Power Products, the performance did not meet the minimum safety expecta- California Supreme Court famously adopted “strict liabil- tions of its ordinary users, the jury must engage in the ity” for harm caused by products defective in design.20 balancing of risks and benefits required by the second Fifteen years later, in Barker v. Lull Engineering Co., Inc., prong of Barker.”27 the court clarified this notion, announcing a disjunctive, In any event, claims of design defect face little dif- two-prong standard.21 Specifically, the Barker court held ficulty in reaching a jury in California. First, a plaintiff’s that evidentiary burden is not demanding. As one court a product is defective in design if (1) the plaintiff recently explained, “[t]he plaintiff’s burden is only to proves that the product failed to perform as safely as adduce evidence that would permit a jury to find that an ordinary consumer would expect when used in an the defendant’s design defect was the proximate cause intended or reasonably foreseeable manner, or (2) the of the plaintiff’s injury,” and “[e]ven a plaintiff’s mere plaintiff proves that the product’s design proximately description of how an accident occurred” could satisfy caused injury and the defendant fails to prove, in light this burden.28 Moreover, as the Barker court stated, “once of the relevant factors, that on balance the benefits of the challenged design outweigh the risk of danger the plaintiff makes a prima facie showing that [her] inherent in such design.22 injury was proximately caused by the product’s design,” it becomes the defendant’s burden “to prove . . . that the Thus, the Barker court held that a failure to meet product is not defective.”29 This can be a significant reasonable consumer expectations can, by itself, render hurdle, and recent case law highlights the difficulty that

12 | January 2009 | NYSBA Journal defendants face in attempting to prove the absence of a about the safety of their product. Thus, having artificially defect – whether under Barker’s consumer expectations raised expectations, their product necessarily disappoints test30 or the risk/utility test.31 the reasonable expectations of those deceived. There will come a time, however – if it has not come already – when California’s Application of the Consumer it will be wildly implausible to suppose that smokers Expectations Test to Cigarette Manufacturers have or had inaccurate expectations about the risks inher- Consistent with the results in design defect cases gener- ent in cigarettes. When that time comes, California courts ally, California courts have been somewhat permissive in will, one presumes, move to the second prong of Barker. allowing claims that cigarettes are defective in design to As noted above, the structure of Barker is such that, even reach the jury. In Boeken v. Philip Morris, Inc., for example, if a product comports with consumer expectations, it still a plaintiff, who had been smoking since 1957 and who had must pass muster under a risk/utility test. developed lung cancer as a result, claimed, among other Furthermore, the courts in Boeken and Bullock each things, that the light cigarettes he had been smoking were appear to have applied the consumer expectations test in defective in design.32 In affirming a jury verdict in the a rather unreflective way. That is, neither decision con- plaintiff’s favor, the court held that “the verdict may be tains an analysis of whether the consumer expectations affirmed on the basis of the consumer expectations test.”33 test is appropriate in cigarette cases. Given the extent to Specifically, the court found that the plaintiff had produced which Soule circumscribed the applicability of that test, evidence sufficient to show that light cigarettes fail to “per- this is a conspicuous omission. While cigarettes appear form as safely as an ordinary consumer would expect when to be simple products, the American Cancer Society has used in an intended or reasonably foreseeable manner.”34 noted that “[m]ore than 4,000 individual chemicals have This evidence consisted of (1) studies showing that “most been identified in tobacco and tobacco smoke,” including smokers believe that light cigarettes are safer than regular “more than 60 chemicals that are known to cause cancer cigarettes”; and (2) expert testimony that – contrary to the (carcinogens).”38 Furthermore, “[t]here are hundreds beliefs of most smokers – light cigarettes may be at least as of substances added to cigarettes by manufacturers to dangerous as regular cigarettes for reasons such as “com- enhance the flavor or to make smoking more pleasant.”39 pensating,” a phenomenon by which smokers take longer, Thus, it is not at all certain that the “the everyday experi- deeper draws on light cigarettes because otherwise such ence” of cigarette users is such as to provide a reasonable cigarettes deliver less tar and nicotine.35 basis on which to evaluate whether cigarettes – given Similarly, in Bullock v. Philip Morris USA, Inc., a plain- their complexity and the varied illnesses with which they tiff who had smoked cigarettes for 45 years prevailed at have been associated – are defective in design.40 One could trial on a claim that those cigarettes were defective in argue that the risks inherent in cigarette designs present design.36 In affirming, the court held that the plaintiff precisely the sort of complex issues that can only be produced sufficient evidence under Barker’s consumer adequately addressed under a risk/utility framework. expectations test: The evidence of [the defendant’s] extensive efforts, New York Requires a Reasonable Alternative Design through various means, to mislead the public about the Unlike in California, courts in New York straightforward- adverse health effects of smoking cigarettes and create ly apply a risk/utility test to all claims of design defect, a false controversy as to whether smoking caused lung specifically requiring that a plaintiff demonstrate the cancer and other diseases, and evidence that smokers availability of a reasonable alter- are particularly vulnerable to such manipulation, is native design. In 1973, in sufficient to support the finding that the ordinary con- Codling v. Paglia, the New sumer was misled and was unaware of the dangers of York Court of Appeals 37 cigarette smoking. articulated the basic stan- The court thus held that the true risks entailed by ciga- dard of strict liability rettes ultimately disappointed the reasonable expecta- to be applied in New tions of consumers – but only because the defendant had York.41 In the follow- waged such a successful campaign to inflate those expec- ing decade, the Court tations in the first instance. expressly adopted a The opinions in Boeken and Bullock are notable for a risk/utility approach few reasons. First, based as they are on claims of historical to the standard for deception, their underlying rationale is arguably self-lim- strict liability iting. Specifically, these decisions appear to have applied in cases the consumer expectations test to claims against cigarette manufacturers on the strength of the allegation that these defendants, at least in years past, deceived the public

NYSBA Journal | January 2009 | 13 alleging design defects. In Robinson v. Reed-Prentice reasonably can be attributed to the plaintiff; and (7) the Division of Package Machinery Co.,42 the Court explained manufacturer’s ability to spread any cost related to that “a defectively designed product is . . . one whose util- improving the safety of the design.54 ity does not outweigh the danger inherent in its introduction As described below, the notion that an alternative design’s into the stream of commerce.”43 And in Voss v. Black & safety and feasibility must be balanced against its utility Decker Manufacturing,44 the Court opined that to determine whether it is truly a reasonable alternative the proper standard to be applied should be whether has recently come to play a central role in cigarette design [a] product as designed was “not reasonably safe” – litigation. that is, whether it is a product which, if the design defect were known at the time of manufacture, a rea- New York’s Limitation of Liability for sonable person would conclude that the utility of the Cigarette Manufacturers product did not outweigh the risk inherent in market- Although a few courts in New York have permitted ing a product designed in that manner.45 claims that cigarettes are defective in design to reach the Thus, the Court adopted a standard for design defect jury,55 on the whole, such claims have faced significant cases that requires a careful balancing of the risks and difficulty as a matter of law. Applying the requirement benefits of the product design at issue.46 that plaintiffs demonstrate the availability of a “reason- The New York Court of Appeals thus sharply diverged able alternative design,” courts in New York have reject- from the California Supreme Court’s approach to design ed such design defect claims: (1) on evidentiary grounds, defects. It did not adopt “consumer expectations” as a test excluding expert evidence of alternative designs when of whether a product is defective in design.47 In addition, such evidence has an insufficient foundation or is not rel- unlike the burden shift faced by defendants in California, evant under the controlling standard; (2) for substantive under which it is their obligation to demonstrate that a reasons, finding that plaintiffs have failed to demonstrate product’s benefits outweigh its risks, the rule in New that proposed alternative designs are reasonable under York is that “[t]he plaintiff, of course, is under an obliga- the balancing approach dictated by Voss – and specifi- tion to present evidence that the product, as designed, cally have failed to show that such alternatives do not was not reasonably safe.”48 unduly sacrifice the utility of cigarettes; and (3) with a Specifically, in New York a plaintiff is required to sensitivity to the role of the judiciary in matters of public demonstrate that “there was a substantial likelihood policy, declining to permit liability for harm caused by of harm and it was feasible to design the product in a products that, while dangerous, are nevertheless desired safer manner.”49 This evidence may consist of “expert by consumers. testimony concerning either a prototype that the expert has prepared or similar equipment using an alternative The Rejection of Design Defect Claims design that has been put into use by other makers.”50 on Evidentiary Grounds Alternatively, a plaintiff might offer expert testimony Regarding evidentiary reasons for rejecting design defect about the state of the art in a given field and the feasibility claims against cigarette manufacturers, courts in New of employing an alternative, safer design.51 York have held that plaintiffs failed to present admis- Notably – and as should be obvious from the nature sible evidence of reasonable alternative designs. In Neri of the balancing test applied in New York – reasonable v. R.J. Reynolds Tobacco Co.,56 for example, the plain- alternative designs are not simply safer designs that are tiff submitted reports from two experts on the ques- technologically and economically feasible to produce.52 tion of whether a reasonable alternative design existed Rather, they are alternatives that, all things considered, for cigarettes. One expert, Dr. K. Michael Cummings, offer a material reduction in risk without sacrificing prac- opined as to the “availability to Defendant of alterna- tical utility.53 The Voss court offered specific guidance tive cigarette designs, including the Premier and Eclipse in this regard, explaining that “[i]n balancing the risks cigarette designs which Defendant tested in the 1980s inherent in the product, as designed, against its utility and 1990s.”57 The other expert, Dr. William A. Farone, and cost,” several factors are relevant, including: opined on a proposed alternative design that he theorized 58 (1) the utility of the product to the public as a whole could be implemented. The court found both opinions and to the individual user; (2) the nature of the prod- inadmissible. Dr. Cummings (1) had failed to provide uct – that is, the likelihood that it will cause injury; any scientific support for his opinion that the described (3) the availability of a safer design; (4) the potential designs were, in fact, safer than other cigarettes; and for designing and manufacturing the product so that (2) had failed to address the economic feasibility of the it is safer but remains functional and reasonably priced; prior designs, i.e., whether cigarettes so designed would (5) the ability of the plaintiff to have avoided injury “remain[] functional and reasonably priced, and whether by careful use of the product; (6) the degree of aware- the manufacturer can spread the cost of any safety-related ness of the potential danger of the product which design changes.”59 And with regard to evidence of a

14 | January 2009 | NYSBA Journal newly theorized alternative design, the court found that requirement of demonstrating the availability of a rea- Dr. Farone’s proposal amounted to a hypothesis that, at sonable alternative design, the plaintiff had to show that least at this time, was “too speculative to be tested.”60 a proposed design was a reasonable alternative, taking Having excluded the plaintiff’s evidence of a reasonable alternative design, the court granted summary judgment in favor of the defendant.61 Safety and feasibility are not the The Rejection of Design Defect Claims for Substantive Reasons only relevant considerations. Even where courts have not excluded evidence of alternative cigarette designs, they have found that plaintiffs have nevertheless failed to meet the substantive requirement of demonstrating the availability of a reasonable alterna- into account factors such as its utility to the product’s tive design. In some instances, this inquiry has turned on consumers – which, in the case of cigarettes, is largely, if the question of economic feasibility. In Tompkins v. R.J. not entirely, a matter of subjective acceptability. Reynolds Tobacco Co., for example, survivors of an indi- Similarly, consumer acceptability as a gauge of util- vidual who had smoked unfiltered cigarettes for nearly 60 ity once again played a central role in Rose v. Brown & years claimed, among other things, that those cigarettes Williamson Tobacco Corp.68 In Rose, the plaintiff contended were defective in design.62 The plaintiffs submitted a report that she developed lung cancer as a result of smok- from Dr. Cummings, again describing “several alternative ing “negligently designed” cigarettes.69 Specifically, the cigarette designs that were available” to the defendant plaintiff had smoked “regular” cigarettes for years, and, during the 1980s and 1990s.63 In granting the defendant’s as proof of their defective design, she offered that “light” motion for summary judgment, however, the court found cigarettes constituted a reasonable alternative design by that Dr. Cummings’s report failed to raise a triable issue virtue of their reduced levels of tar and nicotine.70 The of fact regarding whether the designs he described con- plaintiff essentially argued that, given the availability of stituted a reasonable alternative to the design used by the this safer design, cigarette manufacturers “should have defendant.64 The court found in part that, even taking into sold only ‘light’ cigarettes . . . and should not have sold account Dr. Cummings’s report, the plaintiffs had failed regular cigarettes.”71 The trial court permitted this claim to produce any evidence of the “cost of manufacturing or to reach a jury, and the plaintiff obtained a verdict in her marketing an alternative design, or whether an alternative favor. product would be profitable for any company.”65 The Appellate Division reversed the jury’s verdict More recently, courts in New York have begun to scru- and dismissed the plaintiff’s claim. As of this writing, tinize cigarette design claims not only for their economic the New York Court of Appeals is reviewing that deci- or technological feasibility, but also by recognizing that, sion. The Appellate Division’s reasoning is nevertheless in some circumstances, “consumer acceptance” is a cru- instructive for its analysis of this claim under long- cial factor to consider in evaluating whether a proposed standing rules of products liability. Applying New York’s alternative design unacceptably sacrifices utility. test for design defect, the court focused on the “utility” Indeed, at least two courts have recently applied the of light cigarettes – and whether the plaintiff had dem- notion of consumer acceptance in rejecting design defect onstrated that their utility rendered them a reasonable claims against cigarette manufacturers. In Clinton v. alternative to regular cigarettes. Consistent with other Brown & Williamson Holdings, Inc., the plaintiff’s expert, cases in which courts have distinguished between a safer, Dr. Farone, offered the opinion that the defendant could feasible alternative design and a safer, feasible alternative have adopted a reasonable alternative design for its design that does not unduly sacrifice utility,72 the court in cigarettes; specifically, he opined that it is feasible to Rose explained that manufacture cigarettes with reduced amounts of car- it must be recognized that two differently designed 66 cinogens, and also cigarettes that are “non-addictive.” products that, like regular cigarettes and light ciga- The court found, however, that “all parties recognize[d]” rettes, are generally similar in function, may nonethe- that these proposed alternatives had been investigated less yield results so different in quality as to make and researched by the cigarette industry – and had been it impossible to characterize the design of the safer “indisputably rejected by consumers.”67 product as a feasible alternative to the design of the The court thus recognized that safety and feasibility more hazardous product.73 are not the only relevant considerations. That is, even In the case of cigarettes, in particular, the court noted that if the plaintiff in Clinton could have established that the their “‘usefulness’ (such as it is) is the production . . . of proposed alternative designs were safer and feasible certain subjective sensations and feelings in the user (the to produce, that would not end the inquiry. Under the taste of tar and the psychological effect of nicotine).”74

NYSBA Journal | January 2009 | 15 The Rose court recognized that cigarettes are the sort that they should be outlawed, regardless of the absence of products that, while presenting significant risks, nev- of any feasible alternative design that would serve the ertheless “serve some subjective function or utility for same function.”81 For these courts, permitting liability smokers; if this were not true, the tobacco companies for harm caused by dangerous products that consumers would quickly go out of business.”75 Thus, in the context nevertheless desire may amount to a public policy choice of determining whether light cigarettes are a reasonable not appropriately addressed by the judiciary. alternative to regular cigarettes – i.e., are a safer alterna- A note about consumer desire is needed here. In some tive that does not unduly sacrifice utility – their “func- instances, the law of products liability allows for intrusions tionality can only be demonstrated by [their] acceptabil- on what consumers may desire in a given product. For ity to consumers.”76 Applying this criterion, the court example, although some product users would rather not found that the plaintiff had failed to carry her burden have certain cumbersome safety devices attached to prod- “to prove that, notwithstanding the reduced taste and ucts, courts nevertheless sensibly require manufacturers to psychological effect they provide, light cigarettes could adopt such devices if doing so strikes an acceptable bal- feasibly serve the same function as regular cigarettes.”77 ance between safety and utility.82 Products like cigarettes, That is, the plaintiff failed to demonstrate that light ciga- however, arguably present a special case. Alternative rettes are, from a consumer’s perspective, an acceptable cigarette designs appear to necessarily encroach on the core alternative to regular cigarettes.78 aspect of what makes them desirable to consumers. The Clinton and Rose courts rejected liability because For better or worse, consumers want to smoke ciga- the proposed alternatives, even if feasible to produce rettes largely because of “the taste of tar and the psycho- and less dangerous, sacrificed too much of what is sub- logical effect of nicotine.”83 Thus, unlike requiring the jectively desired in the product at issue. Notably, this is manufacturer of a power saw to install a safety guard consistent not only with New York law but also with the on its product – making it less convenient to use but not Restatement Third’s position on design defect. As the impinging on its core function of being able to cut wood Reporters’ Note to the Restatement Third explained, a or other materials – requiring cigarette manufacturers to proposed alternative design reduce levels of tar and nicotine necessarily infringes on may deprive a product of important features which the very purpose for which consumers purchase cigarettes. make it desirable and attractive to many users and It is like requiring the power saw manufacturer to make its consumers. Courts that apply a “risk-utility” balanc- blades less sharp – a patently unacceptable proposition. ing test recognize that these considerations are central It may very well be the case, then, that cigarettes are to the finding that a substitute design is a reasonable a kind of product that cannot be made safer without alternative. It is for this reason that courts take the unacceptable reductions in utility qua acceptability. As position that the availability of a safer design does not noted in Clinton, certain proposed alternatives have been ipso facto mean that the actual design is defective.79 investigated and researched by the cigarette industry – and have been “indisputably rejected by consumers.”84 Thus, Clinton and Rose demonstrate the difficulties faced Similarly, consumers continue to choose “regular” ciga- by plaintiffs in alleging claims of design defect against rettes over “light” cigarettes, which suggests that, for at manufacturers of products for which there may indeed be least one category of consumers, light cigarettes are an safer alternatives, but whose utility is largely determined unacceptable substitute.85 Although further research and by subjective consumer acceptance. development may reveal that cigarettes can be made safer without reducing their acceptability to consumers, The Rejection of Design Defect Claims at this time there may simply be no reasonable alternative as Matters of Public Policy design. And if that is true, then permitting a finding that Finally, and consistent with the importance of “consumer cigarettes (or regular cigarettes) are defective in design acceptance” as an indicator of utility, at least a few courts arguably would amount to a ban on those products from in New York have indicated that cigarette design defect the marketplace. This is, to be sure, a significant power claims may be problematic to the extent that they reflect to bestow on a judge and jury. Indeed, given questions of an attempt to restrict consumer choice by removing whether such power should be given to any body other whole categories of products from the market. As the than a democratically elected legislature, it is not surpris- Clinton court explained in evaluating proposed alterna- ing that “courts generally have concluded that legislatures tive cigarette designs, “[a] state law requirement that and administrative agencies can, more appropriately than allows only cigarettes with no tar or no nicotine to be courts, consider the desirability of commercial distribu- sold is virtually a ban on cigarettes, just as a requirement tion of some categories of widely used and consumed, that allows only ‘alcohol-free’ liquor to be sold would but nevertheless dangerous, products.”86 be a ban on whiskey.”80 Similarly, the Rose court rejected In accord with this general consensus, courts in New the argument that “regular cigarettes are so dangerous York have been loath to displace consumer choice by

16 | January 2009 | NYSBA Journal effectively removing desired products from the market – 6. Cf. Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 461, 150 P.2d 436 even where those products present significant risks. As (1944). the New York Court of Appeals has explained, “policy 7. Restatement Third § 2(c). concerns mandate that the responsibility for risks that 8. Id. cannot reasonably be designed out of a product should be 9. Restatement Third § 2(b). transferred to the consumer, the party who has the choice 10. See, e.g., James A. Henderson, Jr. & Aaron D. Twerski, Achieving Consensus of using them or not.”87 And consistent with the notion on Defective Design, 83 Cornell L. Rev. 867, 886 (1998); David G. Owen, Defectiveness Restated: Exploding the “Strict” Products Liability Myth, 1996 U. Ill. that consumers should be permitted the choice of using L. Rev. 743, 754 (1996); John W. Wade, On the Nature of Strict Tort Liability for dangerous products, courts in New York have indicated Products, 44 Miss. L.J. 825, 835 (1973). that the judiciary should largely yield to the democratic 11. See, e.g., Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992); Prentis v. political process in these matters. As the Rose court said, Yale Mfg. Co., 365 N.W.2d 176, 183 (Mich. 1984); Holm v. Sponco Mfg., Inc., 324 N.W.2d 207, 212 (Minn. 1982); Auburn Mach. Works Co., Inc. v. Jones, 366 So. 2d the decision to remove a consumer product from the mar- 1167, 1169–70 (Fla. 1979); Turner v. Gen. Motors Corp., 584 S.W.2d 844, 847 (Tex. ketplace is “not one appropriately made by the judicial 1979); Phipps v. Gen. Motors Corp., 363 A.2d 955, 959 (Md. 1976). branch” but rather “is a political decision resting with the 12. See, e.g., Rix v. Gen. Motors Corp., 723 P.2d 195, 201 (Mont. 1986); Gen. legislative branch of government or with regulators act- Motors Corp. v. Edwards, 482 So. 2d 1176, 1191 (Ala. 1985); Uloth v. City Tank Corp., 384 N.E.2d 1188, 1193 (Mass. 1978); see also La. Rev. Stat. Ann. § 9:2800.56 88 ing pursuant to a legislative grant of authority.” (2008); Miss. Code Ann. § 11-1-63 (2008). 13. Restatement Third § 2(b) (explaining that a product “is defective in Conclusion design when the foreseeable risks of harm posed by the product could have California and New York each have well-developed been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of bodies of law regarding products liability and the law of distribution, and the omission of the alternative design renders the product not design defects in particular. Courts in each state, however, reasonably safe”). have made choices about both procedural and substantive 14. Restatement Third, Introduction at 4. details that necessarily have yielded divergent results. In 15. See, e.g., Douglas A. Kysar, The Expectations of Consumers, 103 Colum. L. California, the burden of disproving a defect effectively Rev. 1700, 1762 (2003); Guido Calabresi & Jeffrey O. Cooper, The Monsanto rests with defendants, whereas in New York, the burden Lecture: New Directions in Tort Law, 30 Val. U. L. Rev. 859, 865 (1996); Marshall S. Shapo, A Representational Theory of Consumer Protection: Doctrine, Function and of proving a defect squarely rests with the plaintiff. That Legal Liability for Product Disappointment, 60 Va. L. Rev. 1296, 1325 (1974). these procedural choices have resulted in a more plaintiff- 16. See, e.g., Kudlacek v. Fiat, 509 N.W.2d 603, 610–11 (Neb. 1994); Sumnicht friendly liability regime in California is unsurprising. v. Toyota Motor Sales, U.S.A., Inc., 360 N.W.2d 2, 15–16 (Wis. 1984); Lee v. But, substantive doctrinal choices also have driven Volkswagen of Am., Inc., 688 P.2d 1283, 1285–86 (Okla. 1984). a difference in results, particularly in the case of ciga- 17. The Restatement Third recognizes that although “consumer expectations” can be relevant to the inquiry into whether a given design is defective and a rette design defect litigation. Here, the differences are proposed alternative is reasonable, “consumer expectations do not constitute stark. In California, the application of the consumer an independent standard for judging the defectiveness for product designs. . . . expectations test to cigarette design claims suggests a [S]tanding alone, [they] do not take into account whether the proposed alternative design could be implemented at reasonable cost, or whether an alternative somewhat unreflective willingness to extend liability to design would provide greater overall safety.” Restatement Third § 2, cmt. g products for which there may not currently be a reason- (emphasis added). able alternative design. In contrast, many courts in New 18. See, e.g., Denny v. Ford Motor Co., 87 N.Y.2d 248, 270, 639 N.Y.S.2d 250 York have found reasons to foreclose the possibility of (1995) (noting that it has been suggested that “it is beyond the experience of most lay jurors to determine what an ‘ordinary consumer’ expects or ‘how liability, whether by finding expert evidence lacking, safe’ a sophisticated modern product could or should be made to satisfy those by looking to the notion of “consumer acceptance” as expectations” without including in their analysis the feasibility of alterna- an important element of utility, or by self-consciously tive, safer designs); Soule v. Gen. Motors Corp., 8 Cal. 4th 548, 569, 882 P.2d 298 (1994) (setting forth the defendant’s argument, among others, that the con- announcing that considerations of democratic public sumer expectations test “eliminates the careful balancing of risks and benefits policy preclude them – as opposed to legislatures – from which is essential to any design issue”); Restatement Third § 2, cmt. a (“Many deciding that whole categories of consumer products product-related accident costs can be eliminated only by excessively sacrificing product features that make products useful and desirable. . . . Society benefits should be deemed “defective” despite continued con- most when the right, or optimal, amount of product safety is achieved.”). sumer demand. Indeed, whether one finds more com- 19. Courts in California are not alone in taking this “hybrid” approach. fort in the results reached in California or in New York See, e.g., Ontai v. Straub Clinic & Hosp., Inc., 659 P.2d 734, 739–40 (Haw. 1983); may in large part depend on one’s view of the role of the Caterpillar Tractor v. Beck, 593 P.2d 871, 884 (Alaska 1979). judiciary in matters of public policy. ■ 20. 59 Cal. 2d 57, 63, 377 P.2d 897 (1963). Justice Traynor, the author of Greenman, had long believed that strict liability should be the rule in cases of 1. Restatement Second of Torts § 402A, cmt. i (“Restatement Second”). harm caused by defective products. See Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 461–68, 150 P.2d 436 (1944) (Traynor, J., concurring) (disagree- 2. See, e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 524, 527–28 (1992) ing with reliance on res ipsa loquitor as the basis for liability in a manufacturing (interpreting the Public Health Cigarette Smoking Act of 1969 as largely pre- defect case). empting claims that cigarette packages contain inadequate warnings). 21. 20 Cal. 3d at 426–27. 3. See Restatement Third, Torts: Products Liability (“Restatement Third”) § 2. 22. Id. (emphasis added). 4. Restatement Third § 2(a). 5. Barker v. Lull Eng’g Co., Inc., 20 Cal. 3d 413, 429, 573 P.2d 443 (1978). 23. Id. at 429.

NYSBA Journal | January 2009 | 17 24. Id. at 430–31. 44. 59 N.Y.2d 102, 463 N.Y.S.2d 398 (1983). 25. 8 Cal. 4th 548, 556, 882 P.2d 298 (1994). The court ultimately found, how- 45. Id. at 108. ever, that the error was harmless, given that the parties had presented signifi- 46. See Denny, 87 N.Y.2d at 257 (explaining that the approach in New York cant evidence regarding the risks and benefits of the design at issue, the jury “is rooted in a recognition that there are both risks and benefits associated had been instructed on both prongs of Barker, and “the consumer expectations with many products and that there are instances in which a product’s inherent theory was never emphasized at any point.” Id. at 570–71. dangers cannot be eliminated without simultaneously compromising or com- 26. Id. at 567 (quotation marks and citation omitted) (emphases in original). pletely nullifying its benefits”). More recent case law has clarified that the “relevant inquiry” in determining 47. See id. at 269 (“Although some jurisdictions have recognized the consumer the applicability of the consumer expectations test is “whether the ordinary expectation standard, . . . New York has never done so.”). Moreover, the Court consumer of the defendant’s product would have minimum safety assumptions has taken seriously the judicial and academic criticisms of the consumer expec- about the product’s use that were not met.” Vanier v. Battery Handling Sys., Inc., tations test, concluding that it “is unworkable when applied in cases involving No. Civ. S-06-978 LKK/PAN, 2007 WL 2688731, at *7 (E.D. Cal. Sept. 12, 2007) design defects.” Id. at 270. (emphasis in original); cf. Bruce v. Clark Equip. Co., et al., No. Civ. S-05-01766 WBS KJM, 2007 WL 912927 (E.D. Cal. Mar. 26, 2007) (“An ordinary Bobcat 48. Voss, 59 N.Y.2d at 108 (emphasis added). user’s minimum assumptions about loader safety are unlikely to extend to 49. Id.; see also Clinton v. Brown & Williamson Holdings, 498 F. Supp. 2d 639, operating the loader in this unusual manner.”). 646 (S.D.N.Y. 2007) (“[P]roof of a feasible alternative design is a prerequisite to 27. Soule v. Gen. Motors Corp., 8 Cal. 4th 548, 568, 882 P.2d 298 (1994) (emphasis establish a prima facie design defect claim under New York law.”); Saladino v. added); see also Vanier, 2007 WL 2688731, at *7 (“[I]f the alleged design defect Stewart & Stevenson Servs., Inc., No. 01-CV-7644 (SLT) (JMA), 2007 WL4285377, involves complex technical details such that the ordinary user of the product at *4 (E.D.N.Y. Dec. 3, 2007) (same; discussing Voss and quoting 1A N.Y. Pattern would have no minimum safety assumptions about the functioning of a par- Jury Instructions, Comment to § 2:141 (3d ed. 2007)). ticular product design, the consumer expectation test is inappropriate.”). 50. Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 80 (2d Cir. 2006) (citing Rypkema 28. Vanier, 2007 WL 2688731, at *7; see also Campbell v. Gen. Motors Corp., 32 Cal. v. Time Mfg. Co., 263 F. Supp. 2d 687, 692 (S.D.N.Y. 2003)); see also Warnke v. 3d 112, 125–26, 649 P.2d 224 (1982) (holding that a plaintiff’s own testimony Warner-Lambert Co., 21 A.D.3d 654, 656–57, 799 N.Y.S.2d 666 (3d Dep’t 2005). and her photographs of an allegedly defective city bus were “sufficient” to 51. See Restatement Third § 2, cmt. f. provide a jury with enough information with which to gauge their “own sense 52. Indeed, under such a test, one could argue that nearly any product design of whether the product meets ordinary expectations”). is “defective.” Every product could be made safer. Knives could be less sharp. 29. Barker, 20 Cal. 3d at 431. Bullets could be made of soft foam. Without considering whether such mea- 30. See, e.g., Vanier, 2007 WL 2688731, at *7 (denying summary judgment to the sures unacceptably reduce utility, an inquiry into “defectiveness” becomes manufacturer of a crane-operated system for lifting and moving large batteries, meaningless. holding that the defendant failed to produce “evidence that, as a matter of law, 53. See, e.g., Kosmynka, 462 F.3d at 80–81 (holding, in a case in which a plain- the ordinary user of the battery gantry would not expect the battery to fall” as tiff alleged that an all terrain vehicle (ATV) was defective insofar as it did it had). not include a “kill switch” to “cut power to the [ATV’s] wheels if the vehicle 31. See, e.g., id. at *8 (holding, after noting the “many factors” relevant to a climbed too steep a slope or accelerated too rapidly,” that the plaintiff had risk/utility analysis – factors such as the “‘gravity of the danger posed by the “introduced no reasonable alternative design that would have made the challenged design, the likelihood that such danger would occur, the mechani- [ATV] safer without materially impairing the vehicle’s utility”) (emphasis added); cal feasibility of a safer alternative design, the financial cost of an improved Felix v. Akzo Nobel Coatings, Inc., 262 A.D.2d 447, 448–49, 692 N.Y.S.2d 413 (2d design, and the adverse consequences to the product and to the consumer Dep’t 1999) (rejecting a claim that a solvent-based lacquer sealer was defec- that would result from an alternative design’” – that the defendant had not tive in design, because the proposed alternative, a water-based lacquer sealer, “met its burden to prove, as a matter of law, that the benefits of the [design] although less combustible, did not have the same functionality). at issue outweigh its risks”); Bruce, 2007 WL 912927 at *7 (denying summary 54. Voss, 59 N.Y.2d at 109 (emphasis added); cf. Micallef v. Miehle Co., 39 N.Y.2d judgment to the manufacturer of a “Bobcat skid-steer loader”; after noting that 376, 386, 384 N.Y.S.2d 115 (1976) (explaining, in a case involving a claim for “[d]efendants, of course, do not have to prove that the current, challenged “negligent design,” that “[w]hat constitutes reasonable care will, of course, design is the safest or best design in existence,” and after describing the numer- vary with the surrounding circumstances and will involve a balancing of the ous safety features incorporated into the design of the product at issue, the likelihood of harm, and the gravity of harm if it happens, against the burden of court nevertheless held that it could not “say as a matter of law that the design the precaution which would be effective to avoid the harm”) (quotation marks is not defective”); Gonzalez v. Autoliv ASO, Inc., 154 Cal. App. 4th 780, 787, 64 and citations omitted). Cal. Rptr. 3d 908 (2007) (reversing a grant of summary judgment in favor of 55. See Semowich v. R.J. Reynolds Tobacco Co., No. 86-CV-118, 1988 WL 86313 an airbag manufacturer on the ground that the defendant failed to produce (N.D.N.Y. Aug. 18, 1988); Tomasino v. Am. Tobacco Co., 23 A.D.3d 546, 549, 807 evidence that “the benefits of the design outweigh its inherent risks; evidence N.Y.S.2d 603 (2d Dep’t 2005); Miele v. Am. Tobacco Co., 2 A.D.3d 799, 804–05, 770 necessary to show the absence of a design defect”) (emphasis added). N.Y.S.2d 386 (2d Dep’t 2003); Fabiano v. Philip Morris Inc., 15 Misc. 3d 1130(A), 847 32. 127 Cal. App. 4th 1640, 1649, 26 Cal. Rptr. 3d 638 (2005). N.Y.S.2d 901 (Sup. Ct., N.Y. Co. 2007), rev’d on different grounds in Fabiano v. Philip 33. Id. at 1668. Morris Inc., 54 A.D.3d 146, 862 N.Y.S.2d 487 (1st Dep’t 2008). 34. Id. (quotation marks and citation omitted). 56. No. 98-cv-371 (FJS/GJD), 2000 WL 33911224 (N.D.N.Y. Sept. 28, 2000). 35. Id. 57. Id. at *44–46. 36. 159 Cal. App. 4th 655, 667, 71 Cal. Rptr. 3d 775 (2008). 58. Id. at *47–49. 37. Id. at 675. 59. Id. at *44–45. 38. See American Cancer Society: Cigarette Smoking, available at http:// 60. Id. at *49. www.cancer.org/docroot/PED/content/PED_10_2X_Cigarette_Smoking. 61. See also Tuosto v. Philip Morris USA, Inc., No. 05 Civ. 9384 (PKL), 2007 WL asp?sitearea=PED. 2398507, at *13 (S.D.N.Y. Aug. 21, 2007) (granting defendant judgment on the 39. Id. pleadings, finding that an affidavit of Dr. Farone which had been photocopied from another case was procedurally deficient, having not been prepared for 40. Soule v. Gen. Motors Corp., 8 Cal. 4th 548, 567, 882 P.2d 298 (1994) (emphases and signed in the present case). in original). 62. 92 F. Supp. 2d 70, 73 (N.D.N.Y. 2000). 41. 32 N.Y.2d 330, 342, 345 N.Y.S.2d 461 (1973). 63. Id. at 85. 42. 49 N.Y.2d 471, 426 N.Y.S.2d 717 (1980). 64. Id. at 85 n.8. 43. Id. at 479 (emphasis added).

18 | January 2009 | NYSBA Journal 65. Id. at 85. high degree of danger, that liability should attach even absent proof of a reasonable alternative design”). 66. 498 F. Supp. 2d 639, 646–47 (S.D.N.Y. 2007). 87. Denny, 87 N.Y.2d at 271 (emphasis added). Notably, the notion of consum- 67. Id. at 648. er choice was central to the dissent in Rose. The dissent noted that the strong 68. 53 A.D.3d 80, 855 N.Y.S.2d 119 (1st Dep’t 2008). consumer demand for cigarettes – and regular cigarettes in particular – is at 69. Id. at 81. One court recently explained that “[g]enerally, New York courts least in part a product of their addictive capacity. According to the dissent: treat strict products liability [for defective design] and negligence claims as [C]onsumer acceptability cannot be a factor in determining feasibility when substantively similar.” Saladino v. Stewart & Stevenson Servs., Inc., No. 01-CV- the consumers are nicotine addicts – a class of consumer created by the 7644 (SLT) (JMA), 2007 WL4285377, at *4 (E.D.N.Y. Dec. 3, 2007). Indeed many defendants through their admitted manipulation of nicotine levels. It is hardly illuminating that sales and marketing data would show that nicotine addicts courts and commentators over the years have puzzled over how design defect prefer cigarettes with sufficient levels of nicotine to sustain their addiction cases, with their inherent weighing of risks and benefits, can be characterized with minimum effort. as sounding in anything other than negligence. See, e.g., Prentis, 365 N.W.2d at 184 (“The risk-utility balancing test is merely a detailed version of Judge Rose, 53 A.D.3d at 91. It is unclear, however, whether this observation can Learned Hand’s negligence calculus. As Dean Prosser has pointed out, the justify a court in depriving all consumers of the choice to purchase regular liability of the manufacturer rests ‘upon a departure from proper standards cigarettes. of care, so that the tort is essentially a matter of negligence.’”) (citing United 88. Rose, 53 A.D.3d at 89 (citing David G. Owen, Inherent Product Hazards, 93 States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947), and quoting Prosser, Ky. L.J. 377, 383 (2004–2005); see also Tuosto, 2007 U.S. Dist. Lexis 61669 at *36 Torts (4th ed.) § 96); see also Denny, 87 N.Y.2d at 258 (acknowledging that “the (“[A]llowing the allegation that cigarettes in general are defective to constitute reality is that the risk/utility balancing test” applied in design defect cases “is a claim for improper design would contradict congressional policy deeming a ‘negligence-inspired’ approach, since it invites the parties to adduce proof the sale of cigarettes legal.”); Clinton, 498 F. Supp. 2d at 648 (noting that “the about the manufacturer’s choices” and evaluate the manufacturer’s judgment). vast majority of courts have been markedly unreceptive to the call that they New York courts, however, have drawn the following distinction: “Both claims displace markets, legislatures, and governmental agencies by decreeing whole entail a showing that a product defect caused the injury; but to show negli- categories of products to be ‘outlaws’”) (quotation marks and citation omitted). gence, the plaintiff must also prove that the injury caused by the defect could have been reasonably foreseen by the manufacturer.” Kosmynka, 462 F.3d at 86 (citing Robinson, 49 N.Y.2d at 426). This distinction does not alter the analysis here. 70. Rose, 53 A.D.3d at 81. 71. Id. 72. See supra notes 52–53. 73. 53 A.D.3d at 84. 74. Id. at 82. 75. Id. at 88. 76. Id. 77. Id. at 84. 78. Id. at 86–87. 79. Restatement Third § 2, Reporters’ Note, cmt. f. 80. Clinton, 498 F. Supp. 2d at 648. 81. Rose, 53 A.D.3d at 88–89. 82. See, e.g., Scarangella v. Thomas Built Buses, Inc., 93 N.Y.2d 655, 660–61, 695 N.Y.S.2d 520 (1999). 83. Rose, 53 A.D.3d at 82. 84. Clinton, 498 F. Supp. 2d at 648. 85. See Rose, 53 A.D.3d at 85 (“[P]laintiffs’ own experts apparently agreed that the great majority of smokers reject both low-tar and low-nicotine cigarettes.”). 86. Restatement Third § 2, cmt. d; see also Restatement Second § 402A, cmt. i (“[A] manufacturer or seller breaches no legal duty to voluntary consumers by merely supplying, in an unadulterated form, a common commodity which cannot be made safer, but which the public desires to buy and ingest despite general understanding of its inherent dangers.”); but see McCarthy v. Olin Corp., 119 F.3d 148, 173–74 (2d Cir. 1997) (Calabresi, J., dissenting) (arguing that questions should have been certified to the New York Court of Appeals, so that it could consider “whether entire categories of products can be deemed defective in the absence of an alternative design”); Jiminez v. Sears, Roebuck & Co., 4 Cal. 3d 379, 383, 482 P.2d 681 (1971) (Traynor, J.) (“[I]t has been suggested that liability might be imposed as to products whose norm is danger.”); Restatement Third § 2, Comment e (noting that some “courts have suggested that the designs of some products are so manifestly unreasonable, in that they have low social utility and

NYSBA Journal | January 2009 | 19 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

What About the CPLR?

o civil litigation topic is more vice of expert exchanges has been a This issue is summarized in New likely to lead to eye rolling frequently litigated issue. As practitio- York Civil Disclosure: Nby lawyers and judges alike ners are well aware, the only reference Failure by a plaintiff to disclose than New York State’s expert dis- to the timing of expert exchanges pur- expert information in advance closure scheme, codified in CPLR suant to CPLR 3101(d)(1)(i) is the fol- of defendant’s motion for sum- 3101(d)(1)(i). Enacted in 1986, and lowing: “However, where a party for mary judgment should not pre- applicable to cases commenced on or good cause shown retains an expert an clude plaintiff from submitting the after the effective date, July 25, 1986, insufficient period of time before the expert’s affidavit in opposition to CPLR 3101(d)(1)(i) was part of a pack- commencement of trial to give appro- the motion. Downes v. American age of legislation cobbled together to priate notice thereof, the party shall not Monument Co., 283 A.D.2d 256, 724 address, inter alia, the perceived medi- thereupon be precluded from introduc- N.Y.S.2d 610 (1st Dep’t 2001) (the motion court properly considered cal malpractice crisis in the mid-’80s. ing the expert’s testimony at the trial the affidavit of plaintiff’s expert If “medical malpractice crisis” solely on grounds of noncompliance witness in opposition to summary 2 seems an event of more recent vin- with this paragraph.” judgment, even though the plaintiff tage, one eventually learns that it is a There is no reference to any deadline had failed to disclose the expert’s phenomenon that comes along about for service of the expert exchange in a identity previously, since there was every 10 years or so, like those mam- situation other than where the expert is no showing of willfulness in, or moth “Decennial Digests” I used to retained “an insufficient period of time prejudice caused by the failure to avoid in law school. The initial appear- before the commencement of trial,”3 disclose earlier); Simpson v. Tenore ance of this “medical malpractice cri- whether by reference to the filing of the and Guglielmo, 287 A.D.2d 613, 731 sis” phenomenon was in the mid-’70s. note of issue, the date set for trial, or N.Y.S.2d 859 (2d Dep’t 2001) (after That “crisis” resulted in the shortening any other benchmark familiar to litiga- the defendant made out a prima facie case for summary judgment, it of the medical, dental, and podiatric tors in New York state courts. was proper for the court to consid- malpractice statutes from three years er the affidavit of plaintiff’s expert, to two-and-one-half years (and no, I A Fatal “Omission” submitted in opposition to motion, have no idea how podiatrists managed In the last several years a subset of the despite the plaintiff’s failure to to jump onto that bandwagon).1 The expert timing issues has arisen in the serve a notice pursuant to CPLR “crisis” resurfaced as an issue again Second Department: whether a trial 3101(d)(1)(i), absent evidence that this past year. court may, in an exercise of discre- plaintiff intentionally or willfully The enactment of CPLR 3101(d)(1)(i) tion, ignore affidavits and affirmations failed to disclose identity of expert was touted as signaling an end to “trial by an expert submitted by a party and absent showing of preju- by ambush.” Why? Because attorneys opposing summary judgment where dice). However, there is troubling were now required, albeit only upon the expert was not identified prior to contrary authority in the Second Department. In Dawson v. Cafiero, demand, to furnish their adversaries the filing of the note of issue. with certain information about the experts due to be called to testify at the DAVID PAUL HOROWITZ ([email protected] or [email protected]) practices time of trial. More than 20 years later, as a plaintiff’s personal injury lawyer in New York and is the author of New York Civil Disclosure the jury is still out on whether this goal (LexisNexis), the 2008 Supplement to Fisch on New York Evidence (Lond Publications), and the has been achieved. Syracuse Law Review annual surveys on Disclosure and Evidence. Mr. Horowitz teaches New York Practice, Evidence, and Electronic Evidence & Discovery at Brooklyn, New York and St. John’s Law Timing Is Everything Schools. A member of the Office of Court Administration’s CPLR Advisory Committee, he is a frequent As I have mentioned numerous times lecturer and writer on these subjects. in this column, the timing of the ser-

20 | January 2009 | NYSBA Journal 292 A.D.2d 488, 739 N.Y.S.2d 190 Singletree controverting the claims of faulty instal- (2d Dep’t 2002), plaintiffs served On October 28, 2008, the Second lation and opining on the cost of repair. the affidavits after the filing [of] Department in Construction by Single- The Second Department agreed the note of issue attesting to the tree, Inc. v. Lowe8 reiterated that a trial with the trial court that the general completion of discovery. The Second Department reversed the court, in the proper exercise of its contractor had established prima facie trial court denial of the motion, discretion, may bar expert affidavits entitlement to summary judgment on, but affirmed the preclusion of submitted in opposition to summary inter alia, the breach of warranty claim, plaintiff’s experts for not exchang- judgment motions where the expert and that the owner had failed to raise ing the experts prior to the filing, has not been exchanged prior to the a triable issue of fact, holding that the and for certifying all discovery filing of the note of issue. trial court had not abused its discretion was complete, and further found In Singletree, a subcontractor com- [i]n declining to consider the affi- that the affidavits failed to raise menced an action to recover money davits of the purported experts a triable issue of fact. Dawson allegedly owed by the owner and gen- v. Cafiero, 292 A.D.2d 488, 739 proffered by Lowe, since Lowe eral contractor. The owner (“Lowe”) N.Y.S.2d 190 (2d Dep’t 2002); see failed to identify the experts in cross-claimed for breach of warranty also DeLeon v. State of New York, pretrial disclosure and served the 22 A.D.3d 786, 803 N.Y.S.2d 692 and liquidated damages against the affidavits after the note of issue (2d Dep’t 2005) (‘‘The expert affi- general contractor (“J.C.”). and certificate of readiness attest- davit proffered by the claimant After the completion of disclosure, ing to the completion of discovery as the sole evidence to defeat the general contractor moved for sum- were filed in this matter.9 the motion should have been mary judgment, seeking dismissal of rejected as he did not identify the owner’s claims. In opposition, the Justice Carni, concurring in part his expert in pretrial disclosure owner furnished expert affidavits both and dissenting in part, took issue and served the affidavit after the date on which the note of issue was waived. Moreover, the expert affidavit consisted of mere speculative assertions unsupported by adequate foundational facts and accepted industry standards”).4

Some solace was available to attorneys following Dawson and DeLeon, because both decisions pointed to independent grounds for granting summary judgment even when considering the proffered expert affidavits (“that the affidavits failed to raise a triable issue of fact”5 and “the expert affidavit consisted of mere speculative assertions unsupported by adequate foundational facts and accepted industry standards”6). Nonetheless, New York Civil Disclosure ends with a warning to the bar: Warning: The Dawson case may be cited to mean that plaintiffs in the Second Department run a risk if they serve expert exchanges after the filing of the note of issue, although there is no statute or other rule mandating this. Perhaps there was a schedul- ing order specific to the case that was violated by the plaintiff, but the decision does not give any additional details.7

NYSBA Journal | January 2009 | 21 with a portion of the panel’s holding, Even if CPLR 3101(d)(1)(i) applied any explanation for such failure, highlighting the distinction between to these affidavits, it is well settled it was not an improvident exer- experts retained to testify at trial, and that this provision does not require cise of discretion for the Supreme those retained as consultants: a party to respond to a demand for Court to have determined that the expert witness information at any specific expert opinions set forth in The preliminary conference stipu- specific time in any event. Were the affidavits submitted in opposi- lation and order which governed we concerned with expert trial wit- tion to the motion for summary both pretrial disclosure and the nesses on the eve of trial, which judgment could not be considered filing of the note of issue provided we are not, we would undertake at trial. That circumstance, cou- that “expert disclosure shall be the consideration of whether the pled with Lowe’s failure to demon- provided by all parties pursuant to alleged noncompliance with the strate how the facts set forth in the CPLR 3101.” statute was intentional or willful. experts’ affidavits could otherwise However, such consideration is not The provision of the CPLR which be established at trial, justified the necessary under the procedural was referenced in the trial court’s Supreme Court’s conclusion that posture of this case. preliminary conference order Lowe failed to adequately establish and stipulation is entitled “Trial In my view, the applicability of the existence of a material issue of Preparation,” and provides in CPLR 3101(d)(1)(i) to the employ- fact necessitating a trial in response pertinent part as follows: “Upon ment of experts opposing a sum- to J.C.’s prima facie showing of request, each party shall identi- mary judgment motion is contrary entitlement to judgment as a mat- to the express language of the stat- fy each person whom the party ter of law. Accordingly, summary expects to call as an expert witness ute and beyond its clear legislative judgment dismissing so much of at trial and shall disclose in reason- intent.10 Lowe’s second cross claim as was able detail the subject matter which to recover compensatory damages each expert is expected to testify.” How did the majority address this for breach of warranty was prop- (CPLR 3101[d][1][i]) (emphasis argument? erly awarded to J.C.11 added). Our dissenting colleague disagrees Therefore, the trial court’s order, with this holding, arguing that It is difficult to reconcile the Sec- read in conjunction with CPLR CPLR 3101(d)(1)(i) applies only to ond Department’s holding in Single- 3101(d)(1)(i), only required the dis- an expert whom a party intends closure of experts retained for the to call at trial, and ought not have tree with its own prior jurisprudence, purpose of providing testimony at precluded the trial court from con- and its holding remains at odds with the time of trial. Here, the appel- sidering previously undisclosed the case law in the other appellate lant submitted affidavits from expert opinions submitted in oppo- divisions. experts for the purpose of raising a sition to a motion for summary What is not difficult to understand material issue of fact in opposition judgment. We note, however, that is the danger this ruling presents to to the motion of the defendant J.C. the purpose of summary judgment litigants in the Second Department. for summary judgment dismissing is to determine whether there are Despite the fact that the underlying his cross claims. CPLR 3101(d)(1)(i) genuine issues necessitating a trial. disclosure orders in Singletree did not simply does not require the disclo- As such, “one opposing a motion contain any specific directives concern- sure of experts or consultants that for summary judgment must pro- ing the exchange of experts beyond are retained and utilized by a party duce evidentiary proof in admis- “expert disclosure shall be provided for purposes other than providing sible form sufficient to require a by all parties pursuant to CPLR 3101,” trial testimony. trial of material questions of fact disclosure of the expert post–note of Accordingly, I respectfully disagree on which he rests his claim or must issue was held to be untimely. with my colleagues to the extent demonstrate acceptable excuse for Conclusion that the majority holds that CPLR his failure to meet the requirement 3101(d)(1)(i) requires the disclosure of tender in admissible form.” So what about the CPLR? The re- of consultants or experts retained quirement imposed by the Second for the purpose of opposing a sum- As it is undisputed that Lowe failed Department in Singletree appears mary judgment motion. There is no to identify any experts in pretrial contrary to a plain reading of CPLR requirement that an expert or con- disclosure whom he intended to 3101(d)(1)(i). It also fails to take into ac- sultant who provides an affidavit call to testify at trial concerning count the practice rampant throughout for the limited purpose of opposing whether the work was faulty or the the department of conducting disclo- a summary judgment motion be extent of his alleged compensatory sure post–note of issue. the same expert trial witness who damages arising from that breach However, since an attack on the testifies at the subsequent trial. of warranty, and did not proffer statutory infirmity of the Second

22 | January 2009 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION

Department’s holding is a slender reed upon which to hang one’s hat, until such time, if ever, as the Court of Appeals weighs in on the issue, a pre– note of issue expert exchange in the Second Department would be advis- able, where possible. Where an expert exchange cannot be furnished pre-note, a response to the expert demand outlining why the expert cannot be exchanged pre-note (for example, the existence of outstanding, relevant disclosure to be conducted post-note, the unavailabil- ity of all necessary records and/or transcripts pre-note for an expert to review, or an insufficient amount of time between the completion of dis- Lawyer Referral and closure and the date set for the filing of the note of issue) can be served at the time the note of issue is filed. This Information Service “exchange” would document that the failure to serve a responsive expert exchange pre-note was not due to Interested in expanding your inadvertence or willfulness. It should also help to establish “good cause” client base? under CPLR 3101(d)(1)(i) for a post- note exchange when opposing summary judgment. Join the Lawyer Referral & Finally, where an expert has not Information Service been exchanged pre–note of issue, a prudent party opposing summa- Why Join? ry judgment should set forth “good > Expand your client base cause” in the opposing papers > Benefit from our marketing strategies explaining why the exchange could > Increase your bottom line not be made pre-note. ■ Overview of the Program 1. CPLR 214-a. The New York State Bar Association Lawyer Referral and Information 2. CPLR 3101(d)(1)(i). Service (LRIS) has been in existence since 1981. Our service provides refer- 3. Id. rals to attorneys like you in 40 counties (check our Web site for a list of the eligible counties). Lawyers who are members of LRIS pay an annual fee of 4. 1-22 LexisNexis AnswerGuide New York Civil Disclosure § 22.05 (citations omitted). $75 ($125 for non-NYSBA members). Proof of malpractice insurance in the minimum amount of $100,000 is required of all participants. If you are 5. Dawson v. Cafiero, 292 A.D.2d 488, 739 N.Y.S.2d 190 (2d Dep’t 2002). retained by a referred client, you are required to pay LRIS a referral fee of 10% for any case fee of $500 or more. For additional information, visit 6. DeLeon v. State of N.Y., 22 A.D.3d 786, 803 N.Y.S.2d 692 (2d Dep’t 2005). www.nysba.org/joinlr. 7. 1-22 LexisNexis AnswerGuide New York Civil Disclosure § 22.05. Sign me up 8. 2008 NY Slip Op 8287, 2008 WL 4743499 (2d Download the LRIS application at www.nysba.org/joinlr or call Dep’t Oct. 28, 2008). 1.800.342.3661 or e-mail [email protected] to have an application sent to you. 9. Id. (citations omitted). 10. Id. (citation omitted). 11. Id. (citations omitted). GGiveive uuss a ccall!all! 8800.342.366100.342.3661

NYSBA Journal | January 2009 | 23 BENNETT L. GERSHMAN ([email protected]) is the James Hopkins Professor of Law at Pace University. He graduated cum laude from Princeton University and received his J.D. from New York University School of Law. A former prosecutor with the Manhattan District Attorney’s Office and the N.Y. State Office of the Special State Prosecutor, Mr. Gershman is author of Prosecutorial Misconduct (Thomson-West) and Trial Error and Misconduct (Lexis- Nexis). He is a recipient of the NYSBA’s award for Outstanding Contribution to the Field of Criminal Law Education.

The Eyewitness Conundrum How Courts, Police and Attorneys Can Reduce Mistakes by Eyewitnesses By Bennett L. Gershman

yewitnesses make mistakes. We know this empiri- The Need for Protection Beyond cally, anecdotally, and intuitively.1 An eyewitness Wade v. United States who makes an in-court identification of a defendant Since the landmark case of Wade v. United States,6 the E 2 is probably the most unreliable of witnesses. The inher- Supreme Court has provided modest constitutional pro- ent weakness of eyewitness identification is confirmed tections against the most blatantly unfair kinds of police by the more than 200 post-conviction DNA exonerations, identification procedures. Although Wade was a Sixth and supported by an increasingly powerful body of social Amendment right-to-counsel case, the Court has most science research.3 Indeed, misidentification by eyewit- often invoked the guarantees of due process to ensure nesses is claimed to be the largest single source of wrong- that pre-trial identification procedures employed by ful convictions and may in fact be responsible for more law enforcement are not so “impermissibly sugges- wrongful convictions than all other causes combined.4 tive as to give rise to a very substantial likelihood of Yet despite its inherent weakness, the testimony by irreparable misidentification.”7 As the Court noted, it an eyewitness has a powerful impact on juries. One com- is the “likelihood of misidentification that violates . . . mentator has noted, “[T]here is almost nothing more due process,”8 and suggestive identification procedures convincing than a live human being who takes the stand, increase that likelihood.9 Since “reliability is the linch- points a finger at the defendant, and says, ‘That’s the pin in determining the admissibility of identification one!’”5 Undeniably, eyewitnesses are critical to solving testimony,”10 the Court has enumerated several factors crimes. Nevertheless, the recognition that some of these that must be considered by trial courts in weighing the witnesses have later been proved wrong makes it impera- extent to which the “corrupting effect of the suggestive tive that the principal participants in the criminal justice identification” tainted the witness’s ability to make a system – judges, prosecutors, defense lawyers, and reliable courtroom identification.11 These factors include police – develop new approaches to ensure the accu- (1) the witness’s opportunity to view the defendant, (2) the racy of eyewitness testimony and reduce the incidence of degree of attention by the witness, (3) the accuracy of the courtroom misidentifications. description given to the police, (4) the witness’s level of

24 | January 2009 | NYSBA Journal certainty, and (5) the lapse of time between the crime and impair an eyewitness’s ability to make an accurate and the confrontation.12 reliable identification. The due process guarantee offers only limited con- Jurors generally are unaware of the inherent weakness stitutional protection, however. Highly suggestive iden- of eyewitness identifications.17 When identification is a tification procedures often do not rise to the level of a critical issue in a trial, courts should routinely respond due process violation. Accordingly, given the seriousness to the dangers of mistaken identification by formulat- of the problem of eyewitness misidentification, judges, ing special cautionary jury instructions emphasizing the prosecutors, police, and defense lawyers need to think fallibility of an eyewitness’s identification and requiring creatively and adopt policies and protocols that go the jury to find beyond a reasonable doubt that the eye- beyond the minimal protection afforded by due process. witness’s identification is trustworthy. Such instructions For the trial judge, this means adopting special proce- should focus the jury’s attention on well-documented dural safeguards that would enable juries to make a more factors, noted below, that affect the reliability of an eye- careful evaluation of the eyewitness’s testimony.13 For witness’s identification.18 the prosecutor, this means evaluating the eyewitness’s Several courts have formulated special cautionary identification with greater care and not proceeding with instructions on identification testimony. One such instruc- a case that rests on the uncorroborated testimony of an tion, modeled after United States v. Telfaire,19 emphasizes eyewitness, unless the prosecutor is personally satisfied the importance of the issue of identification, the govern- beyond any reasonable doubt that the eyewitness is mak- ment’s burden of proof, and the kinds of factors that the ing a reliable identification.14 For the police, this means jury should consider in evaluating the reliability of the employing pre-trial identification procedures that have identification. Many of these factors have been cited by been demonstrated by a powerful body of scientific liter- courts and commentators as critical to the evaluation of ature to ensure that identification procedures are admin- the identification testimony and are contained in pattern istered in such a way as to enhance the accuracy of the criminal jury instructions.20 Such instructions should witness’s identification, and to avoid procedures that are include: (1) whether the witness knew the offender more likely to produce mistaken identifications.15 And before the crime took place; (2) whether the witness had for defense counsel, this means aggressively investigat- a good opportunity to observe the offender; (3) whether ing the eyewitness’s background, account of the crime, the witness was paying careful attention; (4) whether a and encounters with the police; presenting all available description given by the witness was close to the way and accessible independent evidence of the client’s inno- the offender actually looked; (5) the use of any sugges- cence; and conducting an effective cross-examination that tive or non-suggestive identification techniques; (6) the is likely to expose deficiencies in the eyewitness’s testi- lapse of time between the occurrence and the witness’s mony.16 The following sections elaborate on the special next opportunity to see the accused; and (7) whether responsibilities of each of these participants. the witness failed to make an identification or made an identification inconsistent with the identification he or The Role of the Trial Judge she made at trial.21 Trial courts traditionally have viewed the testimony of When a witness’s identification is weak or equivocal, eyewitnesses as no different from the testimony of any a stronger instruction is called for that emphasizes the other kinds of witness. In general, these courts have unreliability of eyewitness identifications and specifically allowed the jury to evaluate the credibility of an eyewit- directs the jury to scrutinize the identification testimony ness without any special instructions and have refused to with great care and caution.22 Many appellate courts, allow experts to assist the jury in understanding the way while recommending that a special identification instruc- in which perception and memory affect the reliability of tion be given in such a case, typically leave the matter an eyewitness’s identification. In light of the recent explo- to the trial court’s discretion.23 Those courts that have sion of scientific research and findings on perception adopted this approach have indicated that it is unrea- and memory, however, and the increasing acknowledg- sonable to impose a rigid requirement that the specific ment by courts and commentators that eyewitnesses are instruction be given or an automatic reversal will result, often mistaken, it seems only reasonable that trial courts particularly when the identification testimony is cred- should be open to new approaches to help jurors better ible.24 Nevertheless, this more flexible approach almost evaluate eyewitness credibility. certainly would require that the issue of the reliability A trial judge can ensure that a jury is equipped to of the eyewitness’s identification be fairly presented to analyze the testimony of identification witnesses, first, the jury, and that the jury at a minimum be instructed to by giving the jury a special instruction that cautions the consider the credibility and reliability of the identification jurors to evaluate rigorously and carefully the courtroom witness.25 When identification is a critical issue at trial, identification by an eyewitness, and, second, by allowing however, the failure to give any guidance to a jury on the experts to explain to the jury the kinds of factors that may issue of identification is likely to be found an error.26

NYSBA Journal | January 2009 | 25 In addition to giving the jury special cautionary expert on eyewitness identification, the failure of a court instructions on the dangers of eyewitness identification, to provide funds for the retention of the expert is likely courts have also been asked to allow experts to testify an error if the defendant can demonstrate that a reason- to the kinds of factors that have been found by scientific ably competent attorney for a paying client would have research to contribute to mistaken eyewitness identifica- sought the assistance of the expert, and that the defen- tions. The kinds of subjects about which experts have dant was prejudiced by the lack of expert assistance.44 testified include: (1) the diminished accuracy of cross- racial identifications;27 (2) the diminished accuracy when The Function of the Prosecutor a weapon is present;28 (3) the presence of extreme levels Many prosecutors view their role not simply as that of of stress, which can impair memory;29 (4) the weakening a partisan bent on obtaining a conviction, but as a neu- effect on memory of the passage of time;30 (5) the influ- tral advocate who has a responsibility to assemble the ence of the initial identification on later identifications;31 evidence of guilt, place that evidence before a jury fairly (6) the lack of correlation between the confidence of a and effectively, and allow the adversary system to pro- witness and the accuracy of the witness’s identification;32 duce an acceptable result. Thus, as one local prosecutor (7) the impact of suggestive pre-trial identification proce- stated following the dismissal of a murder case in which dures on the reliability of the eyewitness identification;33 an innocent defendant spent eight years in jail, based on (8) the tendency of eyewitnesses to identify the person mistaken identification: “We live by an adversarial sys- from the lineup who in their opinion looks most like the tem. Our job is to present evidence we believe is credible. perpetrator;34 and (9) the lack of correlation between the The defense’s job is to poke holes in it. In a sense, the amount of time that a witness viewed the perpetrator and system worked, although it took some time.”45 Another the witness’s memory and retention of the event.35 prosecutor made the following remark: “If the [alleged Many courts disfavor expert testimony regarding rape victim] came in and said she could not identify her the reliability of eyewitness identifications, believing it assailants, then we don’t have a case. If she says, yes, it’s not helpful to a jury, and potentially confusing.36 This is them, or one or two of them I have an obligation to put particularly true in cases in which the eyewitness identi- that to a jury.”46 fication evidence is compelling, or other evidence of guilt These comments present the question starkly: Did corroborates the eyewitness’s testimony.37 Nevertheless, these prosecutors have an “obligation” to place these the unmistakable trend, particularly among state courts, cases before a jury? Or did the prosecutors have an obli- has been to allow experts to testify on the reliability of gation to make an impartial and objective determination eyewitness identifications.38 Such testimony typically of the quality of the witnesses’ identification before ask- addresses the well-documented factors, noted above, ing a jury to convict? The approach by the prosecutors in that can render an eyewitness’s identification untrust- the above cases may well be incompatible with a pros- worthy.39 In addition, the testimony of experts may be ecutor’s constitutional and ethical responsibility to serve necessary to counter many widely held misconceptions the cause of justice and to protect innocent persons from about the supposed reliability of identifications, and to erroneous convictions.47 apprise the jury of factors that might contribute to an Prosecutors’ responsibility to serve truth and justice inaccurate identification.40 Experts most often are permit- requires them to make an independent evaluation of the ted to testify when the identification evidence is weak, credibility of the witnesses, the reliability of the evidence, and convictions have been reversed when trial courts and the truth of the defendant’s guilt before putting the have unreasonably excluded such proof.41 case before a jury. With respect to eyewitnesses, there is When courts are asked to allow experts to testify to little doubt that an experienced prosecutor is much better novel scientific theories, they must assume the role of qualified than a jury at judging their reliability.48 A pros- “gatekeeper” to determine whether a sufficient founda- ecutor has more information about the background of the tion has been laid for the introduction of such testimony. witness, has spent more time studying the evidence, is The federal courts, and many state courts, apply the foun- familiar with the relevant literature on eyewitness cred- dational test of Daubert v. Merrell Dow Pharmaceuticals, ibility, and has acquired courtroom experience in pros- Inc.,42 under which scientific expert testimony is admis- ecuting other cases involving eyewitness identifications. sible if the evidence (1) is based on “scientific knowl- A prosecutor’s informal evaluation of an eyewit- edge,” and (2) will “assist the trier of fact to understand ness’s reliability is more trustworthy than that of a jury or determine a fact in issue.”43 As noted above, courts because a prosecutor can more readily maintain a neutral that refuse to allow expert testimony on the fallibility of and objective view of the evidence. A jury’s view of the eyewitness identifications claim that such testimony is evidence, particularly the testimony of an eyewitness, unnecessary and confusing, and may usurp the function is typically influenced by a variety of prejudicial, non- of the jury in deciding questions of witness credibility. evidentiary factors.49 And, ironically, a prosecutor, even If an indigent defendant makes a proper request for an one who entertains a reasonable doubt about the reli-

26 | January 2009 | NYSBA Journal ability of his or her witnesses, may impress a jury with eyewitnesses in the murder trial of Randall Dale Adams, the strength of the case merely by virtue of the decision memorialized in the film documentary The Thin Blue to prosecute. Juries trust prosecutors; they are impressed Line,55 offers a dramatic commentary on the susceptibil- by the prosecutor’s prestige and expertise.50 Indeed, ity of juries to powerful but false identification testimony jurors may reasonably assume that the prosecutor would offered by a venal prosecutor. The film presents these not have brought the case in the first place if he or she identification witnesses as having given their testimony harbored any doubt, and the jury may further assume confidently, even with bravado, under circumstances in that additional evidence probably exists to support the which they almost certainly knew that their testimony hypothesis of guilt. The danger of letting a jury decide a was false.56 questionable case involving weak eyewitness testimony Apart from an affirmative responsibility to promote is that juries usually reach a verdict, and that verdict usu- the truth, a prosecutor has a corresponding duty not to ally is guilty.51 engage in conduct that disserves the truth. Some prosecu-

The courts have not been especially vigilant about suggestive interviewing techniques, leaving it up to the adversary process to expose weaknesses and improprieties.

Where the testimony of an eyewitness is determina- tors, either consciously or unconsciously, try to “adjust” tive of guilt, the prosecutor should approach the case or “polish up” the testimony of their identification with a healthy skepticism, a willingness to subject the witness to strengthen the probative force of their identi- hypothesis of guilt to rigorous testing, and the courage fication. Through various kinds of coaching, some pros- to decline prosecution if he or she entertains a reasonable ecutors overtly, covertly, or unintentionally elicit from doubt of the defendant’s guilt. A prosecutor’s evaluation eyewitnesses additional facts that “adjust” the witness’s of the reliability of eyewitnesses should be influenced memory and thereby improve the testimony, as well as by the quality of the police investigation. Thus, a pros- create an artificial aura of certainty and confidence.57 ecutor’s determination of the accuracy of the eyewitness This “coaching” process is exemplified by the testimony should depend to a very large extent on prior encounters of key identification witnesses in three recent Supreme between the witness and the police. A prosecutor should Court cases – Banks v. Dreke,58 Strickler v. Greene,59 and be vigilant in learning whether the police employed sug- Kyles v. Whitley.60 The eyewitness’s testimony in each gestive techniques in obtaining a pre-trial identification of these cases was confident and convincing. Yet there from an eyewitness. is every reason to believe that their testimony was A prosecutor should be alert to any motive a witness embellished – even contrived – as a result of coach- might have to falsify. One of the difficulties in evaluating ing by the prosecutors. Moreover, as the above cases the credibility of eyewitnesses is that they typically have indicate, the courts have not been especially vigilant no motive to make a false identification. In such cases, about suggestive interviewing techniques of witnesses, the question that is frequently encountered is whether leaving it up to the adversary process to expose weak- the eyewitness is simply making a mistake – whether the nesses and improprieties. And even assuming highly witness’s confidence in the identification is justified.52 skilled defense counsel able to test the accuracy and In other cases, however, an eyewitness may be deliber- truthfulness of the eyewitness – a basic postulate of the ately falsifying an identification, and a prosecutor has a adversary system’s effectiveness – the process necessar- responsibility to scrutinize carefully the background of ily malfunctions when the prosecutor is able to control that witness. and shape the information, and eliminate or polish up In one highly publicized wrongful conviction case, the information detrimental to his or her case. To the extent defendant spent eight years in jail for a double murder he that the above cases exemplify the process of eyewitness did not commit, based on the uncorroborated testimony preparation by careless or even venal prosecutors, they of an alleged eyewitness.53 In that instance, the prosecu- provide a devastating commentary on the artificiality of tor was negligent in failing to investigate his witness’s courtroom testimony by eyewitnesses, the correspond- background. Had he done so, he would have learned that ing difficulty of the criminal justice system in reducing the witness was a psychopathic liar who was in prison in jury mistakes that produce miscarriages of justice, and another state at the time he claimed to have witnessed the need for new approaches to lessen the instances of the double murder.54 Similarly, the testimony of several misidentifications.61

NYSBA Journal | January 2009 | 27 Police Procedures The police also can neutralize the relative judgment When a crime is reported, the police usually make the process by using what is known as a “sequential lineup.” initial contact with victims and witnesses. When the A sequential lineup involves showing the persons in the perpetrator is unknown, the police employ a variety group – including a suspect and any fillers – one at a time of procedures to attempt to identify a suspect.62 These rather than employing the customary practice of showing procedures typically seek to minimize suggestiveness them all together. The benefit of a sequential lineup is that by having the witness view a lineup containing several the viewer makes an identification based on a recollection individuals standing together or having the witness view of the incident and compares the person being viewed an array of photographs.63 To be sure, there may be occa- with the person he or she recalls as being involved in the sions when the police believe it is necessary to have the incident.69 The extent to which sequential lineups repre- witness view a suspect in isolation or show the witness sent an important prophylactic against mistaken identifi- a single photograph. These latter encounters – denomi- cations is unclear, however. Experts claim that sequential nated “show-ups” – are inherently suggestive and may lineups may reduce false identifications but also may violate due process.64 reduce correct identifications.70 Another innovation advocated by researchers is the practice of using a “double-blind” lineup, where the Recording the details of officer conducting the lineup has no knowledge of the facts of the investigation and does not know whether the identiﬁ cation during any suspect is present in the lineup. Commentators claim that this practice reduces the chance that a police officer or immediately after the involved in the investigation may consciously or unconsciously telegraph cues regarding a particular individual. process is critical. Double-blind testing traditionally has been a universally accepted methodology in scientific research and there is The manner in which the police administer an iden- no reason why it should not become an accepted practice tification procedure also may violate due process. The when police administer any type of lineup procedure. Supreme Court in United States v. Wade65 described the Finally, the police should make every effort to record kinds of suggestive procedures that contribute to mistak- the details of the identification procedure, regardless en identifications. The police might suggest to the witness whether it results in a positive identification, a non- the identity of the perpetrator or that the perpetrator is in identification, or a “near miss” or “near hit” where the the array; they might create a lineup in which a particu- identification is tentative, uncertain, and inconclusive.71 lar characteristic of one person in the array would likely Clearly, any dialogue between the police officer admin- draw the viewer’s attention, or where one person in the istering the lineup and the witness may be critical to array was dramatically different in appearance from the understanding the level of confidence or uncertainty of others in the group; or the police might allow several wit- the witness, and whether any suggestive cues occurred nesses to view the lineup together. during the lineup procedure.72 Recording the details of The police can minimize suggestiveness in identifica- the identification during or immediately after the process tion practices in several ways. Police probably are aware is critical; it is likely that neither the officer nor the wit- that when they present an eyewitness with a lineup, ness will accurately recall the details of the process after a show-up, or photographic array, the eyewitness reason- lapse of time. Thus, guidelines must be issued that would ably assumes that the police consider one of the persons require the lineup administrator to record in writing or, to be the suspect.66 The eyewitness in such a case might where feasible, electronically, the identification procedure feel obligated to identify a person in the group who employed. This should include a complete and accurate in the opinion of the eyewitness looks most like the record of any resulting identification and non-identifica- perpetrator relative to the other members of the group. tion, in the witness’s own words, and indicate the wit- This phenomenon – known as the “relative judgment ness’s level of confidence, as well as a verbatim account process” – has been borne out by scientific research.67 of any exchange between the witness and the police.73 The police may be able to neutralize this relative judgment process by affirmatively advising the eyewitness The Task of Defense Counsel that the perpetrator might or might not be present in Representing a client who claims that he or she is inno- the identification procedure. Guidelines published by cent and has been wrongly identified poses one of the the National Institute of Justice suggest that, prior to a most daunting challenges to any defense lawyer. The lineup, the witness should be instructed “that the person lawyer knows from experience that the traditional truth- who committed the crime may or may not be present in testing tools that might expose a witness’s motive to the group of individuals.”68 lie are usually ineffective in the case of an eyewitness.

28 | January 2009 | NYSBA Journal Demonstrating that an eyewitness is mistaken is extraor- eyewitness’s accuracy, a prosecutor may take a “second dinarily difficult, particularly when the witness appears look” at the case and possibly subject the eyewitness to be a sympathetic crime victim who has no motive to to a vigorous interrogation of the kind that might be falsely accuse the defendant, and who insists that the expected from a skilled defense counsel at trial. Some identification is correct. Some attorneys are not up to prosecutors use polygraph examinations to clear innocent this challenge, and a failure to effectively confront the suspects or as a basis for further examination.85 When a prosecution’s evidence is a significant cause of wrongful defense attorney represents that his or her client is inno- convictions.74 cent and that the client is willing to take a lie detector test, A lawyer representing a criminal defendant oper- it would appear that a prosecutor incurs no significant ates within a constitutional framework that requires the disadvantage in administering such a test. lawyer, at a minimum, to provide reasonably competent Finally, there may be opportunities for defense coun- assistance.75 To be sure, when misidentification is a sel to protect his or her client from an unfair courtroom critical issue, an attorney must become familiar with the identification by devising techniques to challenge the legal and scientific literature on the “vagaries of eyewit- eyewitness inside the courtroom with a simulated iden- ness identification.”76 Moreover, again at a minimum, tification procedure. Thus, counsel might request that an attorney who represents a client who claims he is the the court allow an in-court line-up with other persons of “wrong man” must travel several roads in an effort to similar description or have the defendant sit in the spec- undermine the identification. The lawyer must aggres- tators’ gallery or place more than one person at counsel sively investigate the background of the eyewitness, table. Such a strategy obviously carries the risk that the challenge the circumstances of the initial viewing of the witness will make a correct identification of the defen- accused, intelligently confront the eyewitness’s testimo- dant. Defense attorneys have also devised questionable ny in court, and produce independent evidence proving ploys to trick witnesses into misidentifying a defendant, that the client has been wrongly accused. such as substituting an individual at the counsel table An attorney has a duty to attempt to locate and who looks like the defendant, and who sits there while interview witnesses, including alibi witnesses who the the prosecution’s eyewitness misidentifies the stand-in as defendant claims possess knowledge concerning the the perpetrator.86 defendant’s actions.77 An attorney also has a duty to learn the physical details of the place where the crime occurred, Conclusion and the physical, emotional, or psychological infirmi- Reducing the incidence of wrongful convictions based ties of the eyewitness, for use in cross-examination.78 on eyewitness mistakes poses a difficult challenge to Indeed, inasmuch as cross-examination is claimed to be the criminal justice system. There is near-unanimity the most important adversarial safeguard to discovering among courts and commentators that eyewitness mis- the truth,79 defense counsel should thoroughly prepare takes account for more erroneous convictions than any an effective strategy to challenge the eyewitness’s iden- other type of proof. It is therefore incumbent on every tification, including an inquiry into the kinds of factors key participant in the criminal justice system – judge, that may affect the eyewitness’s memory and perception, prosecutor, police, and defense counsel – to use every and conduct an effective cross-examination.80 Courts available tool to protect an accused from being mistaken- must afford defense counsel a meaningful opportunity ly identified by an eyewitness. For the judge, protecting to probe the reliability of an identification witness’s testi- the accused requires a willingness to give the jury special mony.81 Defense counsel should also seek out a scientific instructions on eyewitness identification and a willing- expert who could testify about the way memory and ness to allow the use of experts to inform the jury of the perception affect the reliability of an eyewitness’s identi- issues concerning the reliability of eyewitnesses. For the fication, as well as the kinds of factors that contribute to prosecutor, protecting the accused requires a willingness misidentifications.82 Assuming that defense counsel has to undertake an objective and impartial investigation of made a sufficient offer of proof, he or she should be pre- the reliability of his or her eyewitnesses, and to refuse to pared to support the offer of proof at a pre-trial in limine present such witnesses when the prosecutor entertains a evidentiary hearing.83 reasonable doubt about the accuracy of identifications. Convinced of their client’s innocence, some defense For the police, protecting persons from mistaken identifi- lawyers may decide to approach the prosecutor with cations requires the employment of new techniques that representations of that innocence. Many prosecutors are are capable of preventing the kinds of suggestiveness alert to a defense attorney’s representations that the cli- that taint the witness’s in-court identification and cre- ent is innocent, especially when the appeal comes from ate the potential for an unjust conviction of an innocent a defense attorney whom the prosecutor trusts.84 Such defendant. And for the defense attorney, protecting the claims probably are made sparingly so as not to impair client means more than simply providing constitutionally an attorney’s credibility. When given reason to doubt the competent representation but, in addition, being willing

NYSBA Journal | January 2009 | 29 24. See United States v. Luis, 835 F.2d 37, 41 (2d Cir. 1987) (“because the trial to aggressively challenge the prosecutor’s evidence to judge is in the best position to evaluate whether this charge is needed in the minimize the chance that the client will be wrongly con- case before it, adopting a rigid requirement cuts back on the trial court’s discre- victed. ■ tion in the conduct of the trial without any assurance that the fair administration of justice is thereby enhanced”).

1. See Brian L. Cutler & Steven D. Penrod, Mistaken Identification 3-36 (1995) 25. See United States v. Miranda, 986 F.2d 1283, 1285–86 (9th Cir. 1993) (“general (describing numerous instances of misidentifications); Gary Wells, Eyewitness instructions on the jury’s duty to determine the credibility of witnesses and the Identification (1988); Jennifer L. Davenport, Steven D. Penrod & Brian L. burden of proof are fully adequate”). Cutler, Eyewitness Identification Evidence, 3 Psychol. Pub. Pol’y & L. 338 (1997) 26. See United States v. Fernandez, 456 F.2d 638, 644 (2d Cir. 1972) (error to refuse (noting that “both archival studies and psychological research suggest that any identification instruction). eyewitnesses are frequently mistaken in their identification”). 27. See United States v. Stevens, 935 F.2d 1380, 1397 (3d Cir. 1991); United States 2. See United States v. Wade, 388 U.S. 218, 228–29 (1967) (“The vagaries of eye- v. Smith, 736 F.2d 1103, 1106 (6th Cir. 1984). But see State v. Valentine, 785 A.2d witness identification are well-known; the annals of criminal law are rife with 940 (N.J. Super. 2001) (requirement that juries be instructed on the weaknesses instances of mistaken identification.”). of cross-racial identifications does not apply to cross-ethnic identifications). 3. See Innocence Project, http://innocenceproject.com. 28. The phenomenon is known as “weapon focus.” See Stevens, 935 F.2d at 4. See Jim Dwyer et al., Actual Innocence 41–77 (2000) (documenting cases 1396–97; United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985). of wrongful convictions based on eyewitness mistakes); Edwin M. Borchard, 29. See United States v. Sebetich, 776 F.2d 412, 419 (3d Cir. 1985). Convicting the Innocent (1932) (documentation of 62 American and three 30. The phenomenon is known as the “forgetting curve.” See Sebetich, 776 F.2d British cases of convictions of innocent defendants); Arye Rattner, Convicted at 419; Downing, 753 F.2d at 1230–31. but Innocent: Wrongful Conviction and the Criminal Justice System, 12 Law & Hum. Behav. 289–92 (1988) (describing a study of more than 200 felony cases of 31. The phenomenon is known as “relation back.” See Stevens, 935 F.2d at wrongful conviction that found misidentification to be the single largest source 1399–1400. See also United States v. Wade, 388 U.S. 218, 229 (1967) (“it is matter of of error, accounting for more than half of cases that had one main cause). See common experience that once a witness has picked the accused at the line-up, also State v. Delgado, 902 A.2d 888, 895 (N.J. 2006) (“Misidentification is widely he is not likely to go back on his word later on”). recognized as the single greatest cause of wrongful convictions in this coun- 32. See State v. Ledbetter, 881 A.2d 290, 311 (Conn. 2005) (citing numerous sci- try.”). entific studies suggesting that “a weak correlation, at most, exists between the 5. Elizabeth Loftus, Eyewitness Testimony 19 (1979). See also United States v. level of certainty by the witness at the identification and the accuracy of that Langford, 802 F.2d 1176, 1182 (9th Cir. 1986) (“[J]uries almost unquestioningly identification”). accept eyewitness testimony.”). 33. See United States v. Norwood, 939 F. Supp. 1132, 1139–40 (D.N.J. 1996). 6. 388 U.S. 218 (1967). 34. The phenomenon is known as the “relative judgment process.” See 7. Simmons v. United States, 390 U.S. 377, 384 (1968). Ledbetter, 881 A.2d at 314 (citing empirical studies supporting this phenomenon). 8. Neil v. Biggers, 409 U.S. 188, 198 (1972). 35. Norwood, 939 F. Supp. at 1138. 9. The Court has considered on several occasions the scope of the due process protection against the admission of evidence derived from, for suggestive 36. See United States v. Welch, 368 F.3d 970 (7th Cir. 2004) (upholding exclusion identification procedures. See Stovall v. Denno, 388 U.S. 293 (1967) (totality of of expert testimony as not capable of assisting jury); United States v. Kime, 99 circumstances is test to determine whether suggestive show-up violates due F.3d 870, 884 (8th Cir. 1996) (“minimal probative value of the proffered expert process); Simmons, 390 U.S. 377 (initial identification by suggestive photo- testimony is outweighed by the danger of juror confusion”); United States v. graphic array did not violate due process); Foster v. California, 394 U.S. 440 Serna, 799 F.2d 842, 850 (2d Cir. 1986) (“expert’s testimony would have done (1969) (procedures used to obtain identifications violated due process); Coleman nothing but “muddy the waters”); United States v. Sims, 617 F.2d 1371, 1375 v. Alabama, 399 U.S. 1 (1970) (pre-trial procedures used did not taint in-court (9th Cir. 1980) (“the admissibility of this type of expert testimony is strongly identification); Neil, 409 U.S. 188 (discussing factors to be considered in evalu- disfavored by most courts”). ating likelihood of misidentification); Manson v. Brathwaite, 432 U.S. 98 (1977) 37. See, e.g., United States v. Curry, 977 F.2d 1042, 1052 (7th Cir. 1992) (eyewit- (applying factors in Biggers to find no violation of due process). ness testimony supported by much other evidence). 10. Manson, 432 U.S. at 114. 38. See, e.g., State v. Cheatam, 81 P.3d 830 (Wash. 2003) (en banc); State v. DuBray, 11. Id. 77 P.3d 247 (Mont. 2003); Commonwealth v. Christie, 98 S.W.3d 485 (Ky. 2002); People v. Lee, 96 N.Y.2d 157, 726 N.Y.S.2d 361 (2001); Johnson v. State, 526 S.E.2d 12. Neil, 409 U.S. at 199–200. 549 (Ga. 2000). 13. See infra “The Role of the Trial Judge.” 39. See supra notes and accompanying text. 14. See infra “The Function of the Prosecutor.” 40. See People v. Mooney, 76 N.Y.2d 827, 560 N.Y.S.2d 115 (1990) (dissenting 15. See infra “Police Procedures.” opinion) (“The notion that jurors are generally aware from their everyday 16. See infra “The Task of Defense Counsel.” experience of the factors relevant to the reliability of eyewitness observation and identification has not only been properly condemned as ‘makeshift reason- 17. State v. Long, 721 P.2d 483, 490 (Utah 1986) (“jurors do not appreciate the ing’ . . . but has been refuted by research demonstrating a number of common fallibility of eyewitness testimony”). and widely held misconceptions on the subject among laypersons”). 18. See infra notes 27–35, and accompanying text. 41. See Stevens, 935 F.2d 1380 (excluding expert testimony regarding correla- 19. 469 F.2d 552, 558–59 (D.C. Cir. 1971). tion between accuracy and confidence in eyewitness identifications was abuse of discretion); Downing, 753 F.2d 1224 (excluding expert testimony on reliability 20. See Pattern Criminal Jury Instructions, Federal Judicial Center 44–45 of eyewitness identification because court believed it could never be helpful to (1988); Comment at 45 (“For cases where such an identification will be determi- jury was abuse of discretion); People v. LeGrand, 8 N.Y.3d 449, 835 N.Y.S.2d 523 native, a careful detailed instruction should be given to minimize any chance of (2007) (excluding expert testimony on reliability of eyewitness identification misidentification.”). when there was no evidence corroborating the witness’s identification testi- 21. Id. mony was abuse of discretion). 22. See United States v. Barber, 442 F.2d 517, 525 n.8 (3d Cir. 1971) (advising jury 42. 509 U.S. 579 (1993). Daubert superseded Frye v. United States, 293 F. 1013 that “identification must be scrutinized with great care”). (D.C. Cir. 1923), which remains the standard is several states. Under Frye, 23. See United States v. Johnson, 848 F.2d 904 (8th Cir. 1988); United States v. expert testimony on novel scientific evidence is admissible if “the thing from Thoma, 713 F.2d 604, 607–08 (10th Cir. 1983); People v. Whalen, 59 N.Y.2d 273, 464 which the deduction is made [is] sufficiently established to have gained gener- N.Y.S.2d 454 (1983). al acceptance in the particular field to which it belongs.” Id. at 1014. However,

30 | January 2009 | NYSBA Journal “[t]here is rapidly growing dissatisfaction among courts and commentators 60. 514 U.S. 419, 443 & n.14, 454 (1995) (finding a clear implication of witness with the Frye test.” Mooney, 76 N.Y.2d at 830 (dissenting opinion). coaching from suppressed evidence as well as fact that testimony at subsequent trial was much more precise than at an earlier trial). 43. Daubert, 509 U.S. at 591. Daubert provided trial judges with a series of “general observations” to determine whether a theory or technique is based 61. It should be noted that the prosecutor in each of the above cases not only upon “scientific knowledge” and is reliable. Such factors include (1) whether engaged in impermissible witness-coaching but also withheld exculpatory the expert’s theory or technique can be, and has been, tested; (2) whether evidence that would have severely discredited the witnesses’ testimony. See the methodology has been subjected to peer review and publication; (3) the Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. Tex. L. Rev.685 frequency by which the methodology leads to erroneous results; (4) the exis- (2006). tence and maintenance of standards controlling the technique’s operation; and 62. Police often create a composite sketch of the perpetrator prepared by (5) whether the methodology has been generally accepted in the scientific com- the victim and the police artist in order to reflect the witness’s recollection. munity. Id. at 593–94. See also Fed. Rule Evid. 702. See People v. Maldonado, 97 N.Y.2d 522, 526, 743 N.Y.2d 389 (2002) (composite 44. United States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996) (“it is unlikely that sketches are “critical investigative tools” in the way they “winnow the class of a reasonably competent attorney would have incurred the expense of hiring an suspects from the infinite down to a lesser number of people” but are inadmis- eyewitness identification expert.”); State v. Reynolds, 639 P.2d 461 (Kan. 1982) sible as hearsay to prove a defendant’s guilt unless they are used to rebut a (no abuse of discretion in refusing to authorize services of expert on eyewitness charge of recent fabrication). identification). 63. Given the practical difficulties of assembling a live lineup containing a fair 45. See Jim Yardley, Man Is Cleared in Murder Case After Eight Years, N.Y. Times, sampling of persons resembling the perpetrator, it may be less suggestive to Oct. 29, 1998, at B1. create a fair array through use of a photographic spread obtained from a com- puter that has been programmed to produce pictures of persons that are similar 46. See David Barstow & Duff Wilson, Charges of Rape Against 3 at Duke Are to the defendant. For an discussion of the comparative suggestiveness of a live Dropped, N.Y. Times, Dec. 23, 2006. lineup and a photo-spread, see People v. Burrowes, N.Y.L.J., Oct. 25, 2004, p. 21, 47. See Berger v. United States, 295 U.S. 78, 88 (1935) (“The prosecutor’s] inter- col. 1 (Sup. Ct., Kings Co.). est, therefore, in a criminal prosecution is not that it shall win a case, but that 64. See, e.g., United States v. Rogers, 387 F.3d 925 (7th Cir. 2004) (placement of justice shall be done.”). See also Model Rules Of Professional Conduct Rule one narcotics offender in same cell as person whom he had earlier been unable 3.8, Comment 1 (1983) (“A prosecutor has the responsibility of a minister of to identify and whom he later identified was unnecessarily suggestive and justice and not simply that of an advocate.”); Model Code of Professional tainted reliability of in-court identification). Responsibility EC 7-13 (1981) (“The responsibility of a public prosecutor dif- fers from that of the usual advocate; his duty is to seek justice, not merely 65. 388 U.S. 218, 229–34 (1967). to convict.”); ABA Standards For Criminal Justice, The Prosecution Function 66. See State v. Ledbetter, 881 A.2d 290, 314 (Conn. 2005). Standard 3-1.2(c) (3d ed. 1993). See also Bennett L. Gershman, The Prosecutor’s Duty to Truth, 14 Geo. J. Legal Ethics 309, 314–15 (2001) (“prosecutor has the 67. Id. overriding [constitutional and ethical] responsibility not simply to convict the 68. See National Institute of Justice, Eyewitness Identification: A Guide for Law guilty but to protect the innocent”). Enforcement, U.S. Dept. of Justice Pub. No. NCJ 1788240 (1999), at 32. 48. See, e.g., Samuel R. Gross, Loss of Innocence: Eyewitness Identification and 69. A substantial body of empirical data supports the reliability of sequential Proof of Guilt, 16 J. Legal Stud. 395, 446 (1987) (“There is every reason to believe lineup procedures. Guidelines issued by the United States Department of that prosecutors, with more information at their disposal and more experi- Justice and the Attorney General of the State of New Jersey endorse the sequen- ence, are considerably better than juries at judging identification in criminal tial lineup procedure. See In re Wilson, 191 Misc. 2d 224, 741 N.Y.S.2d 831 (Sup. cases.”). Ct., Kings Co. 2002). The first reported case to use the sequential lineup is State 49. See Reid Hastie, Steven D. Penrod & Nancy Pennington, Inside the Jury v. Armstrong, 329 N.W.2d 386 (Wis. 1983). 232 (1983) (discussing how inadmissible evidence and stricken testimony has 70. Compare In re Thomas, 189 Misc. 2d 487, 733 N.Y.S.2d 591 (Sup. Ct., Kings impact on juror’s decision making). Co. 2001) (“scientific community is unanimous in finding that sequential 50. See United States v. Young, 470 U.S. 1, 18–19 (1985) (“prosecutor’s opinion lineups are fairer and result in more accurate identification”) with Wilson, 191 carries with it the imprimatur of the Government and may induce the jury to Misc. 2d 224 (“researchers have noted that in cases involving multiple perpe- trust the Government’s judgment rather than its own view of the evidence”). trators or child witnesses sequential lineups may be inferior to simultaneous lineups.”). 51. See Harry Kalven & Hans Zeisel, The American Jury 55–63 (1966). 52. See State v. Ledbetter, 881 A.2d 290, 311 (2005) (“a weak correlation, at most, exists between the level of certainty demonstrated by the witness and the accuracy of that identification”). 53. See Jim Yardley, Man Is Cleared in Murder Case After Eight Years, N.Y. Times, Oct. 29, 1998, at B1. 54. See Kristin Choo, Perjury With Conviction: Lawyers Can Use Strategic Tactics at Trial to Expose Pathological Liars on the Witness Stand, A.B.A.J., June, 1999, at 71 (discussing wrongful prosecution of Jeffrey Blake, convicted of a double murder based on testimony of Dana Garner, a psychopathic liar whose bizarre and uncorroborated eyewitness testimony should have been more carefully scrutinized by prosecutor). 55. Miramax Films (1988). 56. See Bennett L. Gershman, Film Review, The Thin Blue Line: Art or Trial in the Fact-Finding Process?, 9 Pace L. Rev. 275, 287–94 (1989). 57. See Bennett L. Gershman, Witness Coaching by Prosecutors, 23 Cardozo L. Rev. 829, 846 (2002). 58. 540 U.S. 668, 677, 685, 705 (2004) (stating that a suppressed transcript of pretrial practice sessions shows how the prosecutor “intensively coached” and “closely rehearsed” the testimony of witnesses). 59. 527 U.S. 263, 272–75 (1999) (eyewitness initially told police she had only “muddled memories” of event but after series of extensive interviews with police and prosecutor gave an astonishingly detailed account of the event, claiming “I have an exceptionally good memory”).

NYSBA Journal | January 2009 | 31 71. See State v. Delgado, 902 A.2d 888 (N.J. 2006). timony given under oath and that her prior descriptions were much different 72. Id. at 894. See also United States v. Ash, 413 U.S. 300, 318–19 (1973) (selection from her testimony at the trial.”); Driscoll v. Delo, 71 F.3d 701, 710–11 (8th Cir. of person other than accused or inability of witness to make any selection is 1995) (“[T]here is no objectively reasonable basis on which competent defense useful to defense). counsel could justify a decision not to impeach a state’s eyewitness whose testimony, as the district court points out, took on such remarkable detail and 73. See Delgado, 902 A.2d at 895–97. clarity over time.”). 74. See Dwyer et al., supra note 4, at 183. See also Stephen B. Bright, Counsel for 81. Harper v. Kelly, 916 F.2d 54 (2d Cir. 1990) (court’s preclusion of defense the Poor: The Death Sentence Not for the Worst Crime But for the Worst Lawyer, 103 attorney’s inquiry into victim’s emotional state during robbery infringed harm- Yale L.J. 1835 (1994); Dirk Johnson, Shoddy Defense by Lawyers Puts Innocents on fully on defendant’s Sixth Amendment right to confront his accuser.). Death Row, N.Y. Times, Feb. 5, 2000, at A1. 82. See supra “The Role of the Trial Judge.” 75. See Strickland v. Washington, 466 U.S. 668 (1984). 83. United States v. Downing, 753 F.2d 1224, 1241 (3d Cir. 1985) (in limine hear- 76. United States v. Wade, 388 U.S. 218, 228 (1967) ing the most efficient procedure that court can use in making determination of 77. See Henry v. Poole, 409 F.3d 48 (2d Cir. 2005) (deficient performance in fail- reliability); State v. Gunter, 554 A.2d 1356, 1357 (N.J. Super. 1989) (“[T]he ques- ing to present adequate alibi defense); Washington v. Smith, 219 F.3d 620 (7th tion of the admissibility of the [expert’s] evidence proffered here could only Cir. 2000) (counsel fails to contact or produce critical alibi witnesses); Lawrence have been resolved by a hearing . . . to determine its scientific reliability and the v. Armontrout, 900 F.2d 127 (8th Cir. 1990) (duty to pursue alibi defense); extent to which, if at all, it would have assisted the jury in its understanding of Demarest v. Price, 905 F. Supp. 1432 (D. Colo. 1995) (complete failure to inves- the relevant matters beyond the common knowledge of human experience.”). tigate state’s case and interview witnesses), vacated by 130 F.3d 922 (10th Cir. 84. See Lief H. Carter, The Limits of Order 85 (1974) (“[T]he prosecutor adjusts 1997). But see DeLuca v. Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996) (alibi defense to cues from the defense attorney, the most important of which is the defense need not be investigated if counsel believes it is improbable). attorney’s trustworthiness.”). 78. See Helton v. Sec’y of Dep’t of Corr., 233 F.3d 1322 (11th Cir. 2000) (failure to 85. Id. at 123 (describing policy in one prosecutor’s office of “willingness to investigate or present physical evidence regarding victim). dismiss a case when polygraph examination indicated the suspect’s inno- 79. 5 John Henry Wigmore, Evidence § 1367, at 32 (J. Chadbourne rev. ed. cence,” and agreement between prosecutors and defense counsel “that if sus- 1974) (describing cross-examination as “the greatest legal engine ever invented pect failed the test he would plead guilty rather than take the case to trial.”). for the discovery of truth”). 86. See United States v. Thoreen, 653 F.2d 1332 (9th Cir. 1981); People v. Simac, 80. See Berryman v. Morton, 100 F.3d 1089, 1098 (3d Cir. 1996) (“Counsel had in 641 N.E.2d 416 (Ill. 1994); Miskovsky v. State ex rel. Jones, 586 P.2d 1104 (Okla. his hands material for a devastating cross-examination of [complainant] on the App. 1978). See also ABA Committee on Ethics and Professional Responsibility, critical issue in the case. Because of his failure to confront her with her prior Informal Opinion No. 914 (1966) (unethical conduct for attorney to participate sworn testimony, the jury did not learn that she had previously described the in substitution of other persons for true defendants). height of her attackers under oath, that she had previously recanted prior tes-

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32 | January 2009 | NYSBA Journal BENNETT LIEBMAN ([email protected]) is the Executive Director of the Government Law Center of Albany Law School. He is a graduate of Union College and New York University School of Law.

Photos of the State Capitol, the Senate chambers and the Western Staircase are from the N.Y. Red Book, 1908, Volume 17. The photo of Governor Hughes is from the N.Y. Red Book, 1909, Volume 18. All photos are courtesy of the N.Y. Public Library, scanned publications collection.

The Past as Present: The Last “Dead Heat” in the State Senate, 100 Years Ago By Bennett Liebman

n the last several years there has been considerable governor or presiding officer have in the Senate chamber discussion among New York State politicians (and should the equal division of that body occur? This article Ithose interested in politicians) about what might hap- considers this power in its political and historical con- pen if the state Senate were to become evenly divided texts, which may serve as guides in the present. between Democrats and Republicans. Currently, there are 62 Senate seats. Entering the 2008 elections, the Governor Hughes vs. Horse Racing Republican Party held 32 seats, and the Democrats held Considerable light can be shed on the role of the presiding 30 seats. At the 2008 election, the Democrats picked up officer by examining the events that transpired in Albany two seats and now technically have a 32-30 seat majority. 100 years ago. It was then that New Yorkers witnessed Nonetheless, after the election several of the Democratic the last major tie vote in the New York State Senate. The senators refused to align themselves with the leadership subject was horse racing, a provincial and often perplex- of either the Democratic or the Republican party. Thus, as ing issue that has perpetually plagued Albany. The chief of this writing, questions remain as to which party, if any protagonist in this debate was Governor Charles Evans party, would be the majority party in the state Senate. Hughes. Simply put, he was determined to end gambling Under these circumstances, the importance of the at racetracks in New York. presiding officer of the Senate becomes amplified. The Governor Hughes had been elected at the height position comes with a “casting,” or tie-breaking, vote in of the Progressive Era in American politics. One of the the chamber – but this is a power that comes with a large hallmarks of Progressive policies was antipathy towards asterisk. The presiding officer traditionally is the lieuten- gambling, and gambling in the early 20th century meant ant governor, but Lieutenant Governor David Paterson horse racing. In fact, Progressive policies were so suc- became Governor Paterson in March 2008. The temporary cessful that the number of racetracks in the United States president of the Senate now has the casting vote.1 dropped from 314 in 1897 to 25 in 1908.2 Hughes wanted The important question that naturally flows from New York to be part of that trend, and as matters stood in these political events is, What power would the lieutenant 1908 he needed legislation to do it.

NYSBA Journal | January 2009 | 33 In 1894 the New York and after a long debate, the anti-racetrack betting bill was State Constitution had been defeated by a tie vote of 25-25.11 amended to make all gambling in New York uncon- The Role of the Lieutenant Governor stitutional. Nevertheless, in Lieutenant Governor Lewis Chanler did not vote to 1895 the state Legislature break the tie. Chanler, unlike Governor Hughes, was a had taken action to defang Democrat. At the time of Chanler’s election, candidates the constitutional provision for lieutenant governor in New York did not run jointly by passing the Percy-Gray with candidates for governor12 but rather were elected Law.3 Under Percy-Gray, separately. Indeed, Chanler ran unsuccessfully against a gambling operation out- Hughes for the governorship later that year. side a racetrack would be During the debate in the Senate on the gambling bills a felony, but gambling at Chanler was challenged to vote on the legislation by a racetrack would be subject only to a civil penalty – Republican Senator Armstrong, who was a supporter.13 which was the amount of the bet. As a result, “practi- Armstrong asked Chanler to cast the deciding vote, stat- cally all restraint was removed from poolselling and ing, “And I call attention to the fact that this being a tie bookmaking on the tracks of racing associations, and the vote, the president of the Senate must cast the deciding constitutional prohibition was nullified in its application one.”14 Chanler responded, “The Senator is not in order. to race tracks.”4 He knows that the president of the Senate, not being a In 1908 Governor Hughes went on the attack against member of Senate, can’t vote on the passage of a bill.”15 the concept that the constitutional provision should be Nonetheless, Chanler voted to break a tie on a pro- ineffective at racetracks.5 In his annual message, Hughes cedural matter after the debate on the main bill. The stated: opponents of the legislation (the majority of whom were The Constitution makes it the duty of the Legislature to Democrats) pressed for an immediate vote to reconsider enact appropriate laws to prevent pool-selling, book- the vote by which the legislation had been defeated. Their making and other kinds of gambling. Experience has reasoning was that the effect of such a vote would be to shown that the laws enacted have not accomplished prevent the Senate from reconsidering the legislation at the purpose which the Constitution defines. The evils its regular legislative session. The proponents of the leg- and demoralizing influence, and it may be added, the islation, led by Republican Senators Raines and Agnew, economic waste, at which the Constitution aimed, exist moved to table the motion. Chanler, despite his political under the law and in fact are stimulated and increased party affiliation, voted with the proponents of the legis- through its provisions. . . . The Constitution makes lation to table the motion, thereby blocking the effort to no exception of race tracks. I recommend that the prevent the legislation from being reconsidered.16 The Legislature carry out the clear direction of the people without discrimination.6 vote by the Lieutenant Governor “permits the Hughes forces to take up the question again if they can get one Later in the legislative session Hughes wrote of gam- of the stray votes back on their side.”17 The next day bling at racetracks: “This is a scandal of the first order and Chanler was commended for his actions by the YMCA a disgrace to the State. The bills are not aimed at racing in Troy, New York. He was praised “for the ‘honesty and or at race tracks or at property. They are aimed at public courage of his convictions regardless of political senti- gambling, prohibited by the Constitution, condemned by ment in so casting his vote as to break the tie and save to the moral sense of the people, irrespective of creed, and the whole people the right again to present for passage conceded to be the prolific source of poverty and crime.”7 the racetrack bills.’”18 The legislation to criminalize gambling at racetracks The New York Tribune explained the situation by writ- (known as the Agnew-Hart bill after its two legislative ing, “Under the rules of the Senate the presiding officer sponsors) passed the state Assembly by an overwhelming has the deciding vote in case of a tie on all purely parlia- vote of 126-9 on March 26, 1908.8 The legislation then head- mentary questions. He has no vote on the direct passage ed to the Senate, where the outcome was far less certain. of a bill. For this reason he could not have broken the tie It reached the Senate floor for a vote on April 8, 1908. by which the bills were defeated.”19 The atmosphere was uniquely raucous. The New York A similar explanation was offered by the New York Tribune wrote, “Not in many years have such conditions World, which wrote, of open, flagrant and notorious scandal accompanied a Lieutenant Governor Chanler, who has no vote on the 9 battle over the passage of important legislation.” The final passage of a bill but who is permitted to dissolve events of the day even included a charge by one sena- a tie vote on motions voted with Raines and Agnew. tor that opponents of the bill had attempted to lure him Senator McCarron [a leading opponent of the racing away from attending the session.10 In this environment, bill] criticized the Lieutenant Governor for voting

34 | January 2009 | NYSBA Journal on the first motion, declaring that he should have refrained from taking a stand one way or the other.20

The Aftermath of the Tie Vote Governor Hughes took immediate exception to the Senate vote against criminalizing racetrack gambling. He stated, “It is impossible to believe that the people will permit the plain mandate of the constitution to be ignored. The contest has not ended. It has only begun. It will continue until the will of the people has been obeyed.”21 The Governor then called for an extraordinary session of the Legislature to pass the anti-gambling measures. In of the New York State Constitution makes that official the his message calling for the session, he wrote, “I, therefore, president of the Senate, but gives him or her only a “cast- urge you to discharge a manifest duty and to end the ing” vote. In general, a casting vote refers to the ability of discriminations in favor of race-track gambling which the potential voter to break ties.33 However, the casting cupidity inspired and now seeks to maintain.”22 vote power appears to be limited by Article III, § 14 of At the extraordinary session, Hughes’s bills passed the state Constitution, which provides that no bill can be by one vote in the Senate.23 The legislation24 did not passed or become law “except by the assent of a majority entirely kill horse racing in New York, however. While of the members elected to each branch of the legislature.” the Kenilworth track in Buffalo closed,25 the major thor- Thus, only if the lieutenant governor is considered a oughbred tracks in downstate New York and Saratoga, member of the Senate could he or she break a tie to ensure while weakened, remained open. Further, lawsuits were final passage of a bill. filed which limited the effect of the Agnew-Hart Law. To the extent that scholars have written on this subject, These suits were successful in that wagering transactions the conundrum has been resolved against true tie-break- totally oral in nature were found not to violate the stating power in legislation, because the lieutenant governor utes on bookmaking,26 and oral wagers continued to be has not been considered a member of the Senate. The taken at racetracks. leading treatise on constitutional history in New York is In 1910, while Hughes was still governor, the Charles Lincoln’s five-volume The Constitutional History Legislature passed a bill which attempted to close the of New York.34 Lincoln’s work has been cited 42 times in oral wagering loophole in the law.27 This time, all the New York State Court of Appeals decisions. tracks closed. There was no horse racing in New York Lincoln states that the lieutenant governor cannot vote State in 1911 and 1912. Once again, however, suits were on the final passage of legislation: “It is obvious that this brought challenging the reach of the anti-gambling laws. majority cannot be made up by the addition of the lieu- In Shane v. Gittens,28 the state Supreme Court, and then tenant governor’s vote. He is not a member of the senate, the Appellate Division, found that, notwithstanding the and legislative power is not vested in him, but in the sen- 1910 amendments, private oral gambling transactions ate and assembly.”35 did not constitute the crime of bookmaking. The crime Lincoln also believes, however, that on all votes that of bookmaking required an element of professionalism did not involve the passage of legislation the lieutenant or habitualness that was lacking in the oral transaction at governor could break ties with the casting vote. 29 issue. Based on this case, horse racing resumed in New This power apparently extends to all matters not 30 York on May 30, 1913. involving the passage of a bill and requiring only a Oral bets on horse racing continued as the key means majority vote, including the determination of election of legal gambling at the track until 1934, when a law contests, senate rules, the choice of its officers, including loosening gambling penalties was enacted.31 This law the temporary president, resolutions, either separate or was similar to the Percy-Gray Law of 1895 and mandated concurrent, adjournments, confirmations of appoint- only civil penalties for gambling violations committed ments by the governor, and removals from office.36 at race tracks. This law too was replaced when pari- mutuel racing was authorized by amendment to the state Other authorities agree that the lieutenant governor Constitution in 1939.32 may not vote on legislation.37 Robert Ward has written, As a matter of law, the No. 2 executive office in New The 1908 Vote Spotlights the Powers of the York is even weaker than its federal counterpart. Both Lieutenant Governor officials preside over the Senate. The vice president, The lively history of the 1908 gambling vote has meaning though, has the power to vote on any bill in the Senate today because it brings into focus the overall powers of when necessary to break a tie. The state Constitution the lieutenant governor in New York State. Article IV, § 6 gives the lieutenant governor a “casting vote” – his-

NYSBA Journal | January 2009 | 35 of order. You cannot vote for a bill, and you cannot vote on this.”45 The Lieutenant Governor said, “The constitution declares my right, and I have never heard such a thing doubted before and do not intend to be dictated to.”46 After the amendment was agreed to, the entire bill came up for vote. It also tied 16-16. “The lieutenant governor not voting on final passage, it was declared lost, and a motion to reconsider was tabled.”47 In comment- ing on this contretemps between Lieutenant Governor Saxton and Senator Cantor, the Brooklyn Eagle noted, “The lieutenant governor is not denied a casting vote on the passage of bills through any idea that it would be improper for him to vote on bills, but simply because the requirements of majority of a whole to pass bills makes torically interpreted to mean a vote that can only be a tie impossible, and the casting vote, therefore, likewise used on procedural matters.38 impossible.”48 A similar observation was made by the Temporary The New York Times had a similar view on the legisla- State Commission on the Constitutional Convention, tive fight. which was formed to help educate the State Constitutional There is nothing in the contention that Lieut. Gov. Convention of 1967. The Commission advised that the Saxton had no right to vote on the amendment. The lieutenant governor had enjoyed a casting vote in Constitution says that he shall have “only a casting the Senate since the first state Constitution in 1777. vote” in the Senate, and the sole restriction upon its use Nevertheless, “since Section 14 of Article III provides is the declaration that no bill shall “be passed except that no bill is to become law ‘except by the assent of the by the assent of a majority of the members elected to members elected to each branch of the legislature,’ the each branch of the Legislature.” At any other stage of Lieutenant Governor’s casting vote may only be exer- its progress, the “casting vote” may be used.49 cised in matters of legislative procedure.”39 The Temporary Commission further suggested that if In reviewing the voting on the police reorganization the decision were to be made to expand the powers of the bill a decade later, former Senator Lexow, who was the lieutenant governor, there was the possibility of enabling primary sponsor of the legislation, said, 40 him or her to vote on legislation. I called up that bill a dozen times before the close of Vote casting might be widened by a change in Article the session . . . and every time it was defeated by the tie III, Section 14, to apply to all legislative matters. This vote, three Republicans voting with the Democrats to would associate the office somewhat more forcefully prevent its passage. Every day the bill failed, I moved with the legislative branch and would put New York to reconsider the vote and had the motion lie on the practice in line with that of the federal arrangement table. Lieutenant Governor Saxton could vote on the and that of some states where the vice-president (or motion to reconsider, but he could not vote on the pas- lieutenant-governor) votes on any matters on which sage of the bill, so every day he would break the tie the senate is tied.41 and bring the bill before the Senate and every day the Other Ties in the New York Senate roll call would show sixteen Senators for and sixteen against the measure. The last vote of the session was a Other than the 1908 racing bill, the most prominent tie tie vote on the Police Reorganization bill.50 votes in the state Senate involved a bill reorganizing the New York City police force in 1895. Over a period of sev- There were other times where there were tie votes in eral weeks that year, the bill repeatedly lost by a tie vote the Senate, and on these occasions, the lieutenant gover- of 16-16.42 Efforts to kill the bill from being reconsidered nor would only use the casting vote where the issue did by the Senate after each failed tie vote were blocked by not involve the final passage of legislation.51 For example, Lieutenant Governor Saxton – who used his casting vote Lieutenant Governor Saxton refused to vote to break much like Lieutenant Governor Chanler in 1908 – to keep the tie on the Sailors’ Boarding House bill, which also the bill alive in the chamber.43 occurred in 1895.52 He “ruled that he had the casting vote At one point during this long fight, Lieutenant in all cases of a tie, except on the final passage of a mea- Governor Saxton used his casting vote to break a tie on sure.”53 There are no occasions where the casting vote of an amendment to the bill.44 His vote was immediately the lieutenant governor was utilized to pass legislation. challenged by Senate Minority Leader Cantor, who said, The historical view is probably best summarized by “The constitution says you shall vote only on questions an editorial run by the Brooklyn Eagle in 1891, after it

36 | January 2009 | NYSBA Journal Joseph L. Bruno) would be able to vote as a Senator and assume the casting appeared that there might be an even division between vote of the lieutenant governor. the parties in the Senate. The elected lieutenant governor 2. Robertson, The History of Thoroughbred Racing in America 196 (1964). was a Democrat. The Eagle opined: 3. 1895 N.Y. Laws ch. 570. The Percy-Gray Law was found constitutional in Sturgis v. Fallon, 152 N.Y. 1, 46 N.E. 302 (1897); see also People v Stedeker, 175 N.Y. The “casting vote” of the lieutenant governor in case 57, 67 N.E. 132 (1903); Lawrence v. Fallon, 152 N.Y. 12, 46 N.E. 296 (1897). the senate is in a tie is a limited power which should be 4. John A. Lapp, Race Track Gambling, 2 Am. Pol. Sci. Rev. 422, 424 (1908). clearly understood now. It does not extend to votes on 5. Robertson, supra note 2, calls Hughes “the man who finally came nearest bills proposed as laws when on their final passage, but to accomplishing the demolition” of racing and states “[t]o the racing fraternity it does extend to all resolutions and to all amendments Charles Evans Hughes is notorious as the man who brought on a blackout.” Id. at p. 194. or motions on bills themselves, short of the final pas- 6. Public Papers of Governor Hughes, Annual Message 26 (1908). sage of such bills. . . . Thus, on the final passage of the 7. Id. at 40–41. bill, the lieutenant governor has no vote at all. He can, however, in case of a tie vote on the organization of the 8. Race Track Bills Passed by Assembly, N.Y. Times, Mar. 27, 1908. senate, because this is decided by resolution. He can 9. The Vote on Racing Bills, N.Y. Tribune, Apr. 9, 1908. also in like case vote on the appointment of commit- 10. Racing Bills Are Defeated, N.Y. Times, Apr. 9, 1908. tees, including reports of the committee on elections 11. Id. or contested seats.54 12. Until a 1953 amendment to the state Constitution, the governor and the lieutenant governor ran separately and not on a unified ticket. See Robert Alan Carter, New York State Constitution: Sources of Legislative Intent 39–40 Tie Breaking in Other States (1988). While New York history and commentary do not support 13. Racing Bills Defeated, N.Y. American, Apr. 9, 1908. the practice of having the lieutenant governor break tie 14. Id. votes on legislation, courts in other states faced with a 15. Id. similar issue have been divided. 16. Id.; see The Vote on Racing Bills, N.Y. Tribune, Apr. 9, 1908. 17. The Vote on Racing Bills, N.Y. Tribune, Apr. 9, 1908; see also Racing Bills Beaten, Hughes Will Fight On, N.Y. Herald, Apr. 9, 1908. Courts in other states have found 18. Lieutenant Governor Praised, N.Y. Tribune, Apr. 10, 1908. 19. See The Vote on Racing Bills, N.Y. Tribune, Apr. 9, 1908. that the lieutenant governor is not 20. Race Track Bill Beaten, But May Yet Be Revived, N.Y. World, Apr. 9, 1908. The New York American similarly noted that Senator McCarron stated, “The authorized to break such ties. Lieutenant Governor is wrong. He should have refrained from voting.” Racing Bills Defeated, N.Y. American, Apr. 9, 1908. 21. See The Vote on Racing Bills, N.Y. Tribune, Apr. 9, 1908. Some courts have found that the lieutenant governor 22. See Public Papers of Governor Hughes, Annual Message 43 (1908). can utilize the casting vote to break the tie on legislation.55 23. Hughes Signs Racing Bills, N.Y. Times, June 12, 1908. However, courts in other states have found that because 24. 1908 N.Y. Laws chs. 570, 571. the lieutenant governor is not a member of the state senate, 25. See http://www.buffalohistoryworks.com/tonawanda/tonawand.htm he or she is not authorized to break such ties.56 Perhaps the and http://wnyheritagepress.org/photos_week_2004/kenilworth/kenilworth. most interesting case is Michigan, where its supreme court htm (last viewed February 28, 2008). initially determined that the lieutenant governor could not 26. See Lichtenstein v. Langan, 196 N.Y. 260, 89 N.E. 921 (1909); Jones v. Langan, 132 A.D. 393, 116 N.Y.S. 718 (2d Dep’t), aff’d, 196 N.Y. 551, 90 N.E. 1163 (1909). vote to break a tie on legislation57 but 70 years later found 27. L. 1910, chs. 486–488. 58 that this could be done. The court’s changed view on 28. 78 Misc. 7, 137 N.Y.S. 670 (Sup. Ct. Nassau Special Term 1912), aff’d, 155 the subject was largely determined by findings that sub- A.D. 921, 140 N.Y.S. 1139 (2d Dep’t), appeal dismissed, 209 N.Y. 527, 102 N.E. 1111 sequent changes made to the Michigan state constitution (1913); see also People v. Laude, 81 Misc. 256, 143 N.Y.S. 156 (Nassau County Ct. 1913). distinguished the latter case from the former.59 29. Shane, 78 Misc. at 13. 30. Robertson, supra note 1 at 213. Conclusion 31. See R.L. Duffus, Gambling Instinct Gets New Outlets, N.Y. Times, Apr. 22, If New York were a blank slate on the issue, the power of 1934; Open Betting Bill Signed by Lehman, N.Y. Times, Apr. 20, 1934; 1934 N.Y. the lieutenant governor to break ties on legislation would Laws ch. 233. be very much in doubt. However, the practical construction 32. See N.Y. State Constitution Art. I, § 9; Bryan Field, New York Pari-Mutuel Betting Starts Today with Opening of Jamaica Track, N.Y. Times, Apr. 15, 1940. given the state Constitution by scholars and prior lieuten- 33. See Kevin M. Abel, The Constitutional Mandate that the Lieutenant Governor ant governors – especially as this view affected the course Preside Over the Senate, 27 Okla. City U.L. Rev. 645, 658 (2002); Brown v. Foster, of racetrack gambling legislation a century ago – would 88 Me. 49 (Me. 1895). In E. Cobham Brewer, 1810–1897, Dictionary of Phrase and Fable (1898), “casting vote” is defined as “[t]he vote of the presiding lead one to conclude that the power does not exist. Only if officer when the votes of the assembly are equal. This final vote casts, turns, a court were to disregard the history and practice outlined or determines the question.” The American Heritage Dictionary of the English above might it conclude that the lieutenant governor could Language (4th ed. 2000) defines casting vote as “[t]he vote of a presiding officer 60 ■ in an assembly or council, given to break a tie.” Cf. Goldowitz v. Karnes, 283 N.Y. use the casting vote to break ties on legislation. 764, 28 N.E.2d 977 (1940). 34. Charles Z. Lincoln, The Constitutional History of New York (1906). 1. With the position of lieutenant governor being vacant, that position is assumed on an acting basis by the temporary president of the Senate. The tem- 35. Id. at 4 Lincoln 482. porary president of the Senate (who in March of 2008 was Republican Senator 36. Id.

NYSBA Journal | January 2009 | 37 37. See, e.g., Nancy Connell, Lundine Only Wants a Portion of the Job Would Seek Investigations, N.Y. Times, Apr. 11, 1894; Aldermanic Elections Bill, Brook. Eagle, Senate Reprieve, Albany Times Union, Oct. 24, 1986 (“The lieutenant governor Jan. 25, 1889. does not have the power to cast a tie-breaking vote on legislation, although he 52. Hangs Fire in the Senate, N.Y. Times, May 16, 1895. can break a tie on a resolution.”). 53. Id. 38. Robert B. Ward, New York State Government 81 (2d ed. 2006). 54. Legislature of New York, Brook. Eagle, Nov. 4, 1891. The Eagle, in an editorial 39. Temporary State Commission on the Constitutional Convention, 14 St. Gov’t 90 in 1895 concerning the consolidation of the City of New York, similarly said, (1967). “His power to vote to dissolve a tie extends only to resolutions, amendments 40. Id. at 92. or to motions preliminary to final passage of a measure and on its final passage 41. Id. he has no vote.” Nothing If Not Referendum, Brook. Eagle, May 10, 1895. 42. Hard Words in Senate, N.Y. Times, May 15, 1895. 55. Sweeney v. Otter, 119 Idaho 135 (1990); Advisory Opinion on Constitution- 43. Id. ality of 1978 PA 426, 403 Mich. 631 (1978); Opinion of Justices, 225 A.2d 481 44. Saxton’ Vote Challenged, Brook. Eagle, Apr. 24, 1895. (Del. 1966). 45. Id.; see also Strangled in the Senate, N.Y. Times, Apr. 25, 1895. 56. Ctr. Bank v. Dep’t of Banking & Fin. of State, 210 Neb. 227 (1981); Sanstead v. Freed, 251 N.W.2d 898 (ND 1977); Easbey v. Highway Patrol Bd., 140 Mont. 383 46. Saxton’ Vote Challenged, Brook. Eagle, Apr. 24, 1895. (1962); Coleman v. Miller, 146 Kan. 390 (1937). 47. Id. 57. Kelley v. Secretary of State, 149 Mich. 343 (1907). 48. Casting Votes, Brook. Eagle, Apr. 25, 1895. 58. Advisory Opinion on Constitutionality of 1978 PA 426, supra note 55. 49. The Reorganization Bill, N.Y. Times, Apr. 25, 1895. 59. Id. at 641–42. 50. Lexow on His Old Bill, N.Y. Tribune, Jan. 24, 1905. 60. The temporary president of the Senate similarly cannot break ties on 51. See Republican Senators and the Commission Bill, N.Y. Times, May 18, legislation since there would still not be a favorable vote on legislation by the 1882; Action on Other Measures, New York Times, May 8, 1884; A Fight Over majority of members elected to the Senate. From the NYSBA Book Store NEW RELEASE! TThehe PPlaintiff’slaintiff’s PPersonalersonal IInjurynjury AActionction IInn NNewew YYorkork SStatetate

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38 | January 2009 | NYSBA Journal The Medicare Secondary Payer Statute Medicare’s Recovery Rights in the Context of Liability Insurance (Including Self-Insurance) and No-Fault Insurance By Robert G. Trusiak

he Medicare program is administered by the Medicare program.5 These provisions require that certain Centers for Medicare & Medicaid Services (CMS), “primary plans”6 – as relevant here, liability insurance Ta component of the United States Department of (including self-insurance) and no-fault insurance plans – Health and Human Services. Medicare claims on behalf of be the primary payer for items and services furnished to beneficiaries who have received medical items or services Medicare beneficiaries, leaving the Medicare program to are reviewed and paid by CMS contractors, traditionally provide benefits only as a “secondary” payer. Currently, known as Part A “fiscal intermediaries” and Part B “carri- the liability and no-fault insurance MSP provisions oper- ers.”1 However, Medicare Secondary Payer (MSP) claims ate to save the Medicare Trust Funds approximately $500 for reimbursement of conditional payments made by the million in known savings per year with overall MSP sav- Medicare program are handled by a single national con- ings in excess of $6 billion per year. tractor known as the Medicare Secondary Payer Recovery The MSP provisions employ two mechanisms to Contractor (MSPRC).2 This article discusses compromise protect Medicare funds and to ensure that Medicare of Medicare Secondary Payor liability upon the nego- is the secondary payer. First, these provisions prohibit tiated resolution of the tort matter and the financial Medicare from making payments for medical items and consequences associated with the absence of resolving 3 Medicare liability. ROBERT G. TRUSIAK ([email protected]) is an Assistant United States Attorney, Western District of New York. Joshua Pennel and Michael The MSP Statute Hecker, law clerks for the Office of the United States Attorney, Western Congress created the MSP statute, § 1862(b) of the Social District of New York, assisted in the preparation of this article. Security Act4 to stem the skyrocketing costs of the

NYSBA Journal | January 2009 | 39 services that are otherwise reimbursable by Medicare if regulations provide that CMS has a right of action to payment has already been made or can reasonably be recover its payments from any entity that has received a expected to be made by another source that has primary primary payment and explicitly define the term “entity” payer responsibility.7 Second, these provisions authorize as including “a beneficiary, provider, supplier, physician, Medicare, as an accommodation to minimize beneficiary attorney, State agency or private insurer.”20 In addition concerns over continuity of care issues that might arise to these direct rights of action, Congress also provided from delays in the payment of medical bills, to make pay- the United States with a separate subrogation right. “The ments if a primary plan has not made or cannot reason- United States shall be subrogated . . . to any right under ably be expected to make payment promptly. However, this subsection of an individual or any other entity to any such payments are conditioned upon reimbursement payment with respect to such item or service under a to the Medicare Trust Funds.8 primary plan.”21 The MSP statute and implementing regulations make Finally, it is also important to point out the “double it explicitly clear that a primary plan, entities that make payment” provisions of 42 C.F.R. § 411.24(i). In the case payment on behalf of a primary plan, and an entity that of a liability (including self-insurance) or no-fault settle- receives payment from a primary payer shall reimburse ment, judgment, or award, if a primary payer makes its Medicare for any payment made with respect to an item payment to the beneficiary and Medicare is not reim- or service if it is demonstrated that such primary payer bursed, or if it makes payment to an entity other than has or had a responsibility to make payment with respect Medicare when it is, or should be, aware that Medicare to such item or service.9 Responsibility to make such has made a conditional primary payment, the primary a payment can be demonstrated in a number of ways, payer must nonetheless reimburse Medicare.22 including the existence of a judgment or a payment conditioned on a recipient’s compromise or release (whether Medicare’s Right to Reimbursement or not there is a determination or admission of liability) Private attorneys regularly refer to Medicare’s interest as with respect to what is claimed or released for the claim a “lien.” However, the use of this term is legally incorrect. against the primary plan.10 Further, Medicare is to be In one of the few court cases to discuss this issue, the reimbursed within 60 days of payment by the primary U.S. District Court for the Northern District of California plan, and interest may be imposed if the payment is not noted that “[t]he MSP statute does not state that Medicare made within that time frame.11 Moreover, if a primary has a lien. . . . The Secretary maintains that Medicare’s plan learns that Medicare has made a payment for ser- right is superior to a lien.” The court went on to hold that vices for which the primary payer should have made the MSP statute does not give the government a claim the primary payment, it must give notice to Medicare, against property and that “Medicare does not have a lien describing the particular circumstances, and it must interest in the settlement awards.” Rather, the statute repay Medicare.12 On December 29, 2007, President Bush creates a statutory claim for reimbursement which may signed the “Medicare, Medicaid, and SCHIP Extension be pursued by a direct action or through the right of sub- Act of 2007.”13 rogation.23 Significantly, the courts have recognized that In the event that the Medicare program is not reim- the United States’ right of reimbursement “is paramount bursed for its conditional payments made on behalf to any other claim.”24 of its beneficiary, the MSP statute and regulations set forth numerous avenues of recovery available to the The Statute of Limitations United States. First, the Medicare program may recover The proper statute of limitations applicable in cases its conditional payments “by direct collection or by off- involving liability insurance (including self-insurance) set against any monies [it] owes the entity responsible or no-fault insurance with primary payer responsibility for refunding the conditional payment.”14 Second, the is six years.25 The courts have held that this limitations United States “may bring an action against any or all period is applicable to MSP claims through the applica- entities that are or were required or responsible . . . to tion of 28 U.S.C. § 2415(a), which states that actions for make payment with respect to the same item or service money damages brought by the United States are barred . . . under a primary plan.”15 This right is characterized unless filed within six years after the right of action as a “direct right of action.”16 Significantly, under this accrues. In liability and no-fault cases, the right of action provision, the United States may actually sue the primary accrues from the later of the date of payment or the date payer for double damages.17 Additionally, the regulations that Medicare learns of the payment. require that in such circumstances, a “beneficiary must cooperate in the action.”18 Third, the United States may Medicare May Share Costs bring a direct action against “any entity that has received Under Medicare’s regulations, Medicare reduces its recov- payment from a primary plan or from the proceeds of a ery to take account of the cost of procuring the judgment primary plan’s payment to any entity.”19 The Medicare or settlement if procurement costs are incurred because

40 | January 2009 | NYSBA Journal the claim is disputed and those costs are borne by the When Representing a party against which CMS seeks to recover.26 This provi- Medicare Beneficiary sion is based on the recognition that the beneficiary may have incurred certain fees and costs in obtaining his or her recovery. However, when CMS recovers directly from When representing a Medicare beneficiary: an insurer, there is no such pro rata reduction. • Attorneys should immediately contact the COBC Reimbursement of Conditional Payments at the outset of a case involving the representa- As discussed above, the Medicare program certainly pos- tion of a Medicare beneficiary. sesses the legal authority to bring a direct action against any primary plan responsible to make payment as a • The COBC can be reached at 1-800-999-1118 primary payer under the MSP statute.27 However, it is far or by mail at: MEDICARE-COB, MSP Claims more consistent with the intent of Congress, which has Investigation Project, P.O. Box 33847, Detroit, authorized Medicare to make conditional payments for Michigan 48232. the benefit of Medicare beneficiaries, and more practical and sensible for all involved parties, to work together • The COBC will need the Medicare beneficiary’s cooperatively to maximize MSP collections. Such coop- full name, sex, date of birth, Social Security eration fosters the laudable national goal of sustaining Number (SSN) or Medicare Health Insurance the long-term fiscal viability of the Medicare program Claim Number (HICN), date of incident, and a and avoids overburdening the federal court system with description of the incident. expensive and unnecessary litigation. On occasion, a personal injury attorney suggests that • After the information has been received and beneficiaries should attempt to avoid the obligations reviewed by the MSPRC, the beneficiary may set forth in the MSP statute by filing an artfully worded access the interim conditional payment informa- complaint that seeks to exclude a claim for medical dam- tion at www.mymedicare.gov using his or her ages from its four corners. However, this appears to be at PIN number. odds with § 3017(a) of the New York Civil Practice Law and Rules, which instructs a personal injury plaintiff to • The MSPRC must be notified in writing once a include only a prayer for general relief and not to set settlement, judgment, or award is reached. The forth a specific recitation of damages. Section 3017(a) date, amount recovered, and any attorney’s provides that a court may grant any type of relief within fees or other procurement costs associated with its jurisdiction appropriate to the proof, whether or not the settlement, judgment, or award must be demanded. included. A copy of the settlement, judgment, or Moreover, most releases issued in the context of per- award may also be required. sonal injury settlements tend to be very broad in scope, releasing all causes of actions, sums of money, damages, • Once the information is reviewed the MSPRC will claims, and demands of any kind, in law or equity, that a issue a recovery demand letter. plaintiff ever had and further declare that the settlement constitutes payment for all damages and injuries arising • Medicare beneficiary may appeal the decision of from the incident. Medicare reads such a release as includ- the MSPRC under 42 U.S.C. § 1395ff or request a ing damages for medical expenses and, if not reimbursed waiver under 42 U.S.C. § 1395gg. Attorneys may for its conditional payments, could seek double damages also request a “compromise” under the criteria from the primary plan or could look to the beneficiary set forth in 42 C.F.R. § 405.376. or the beneficiary’s attorney as an entity that received payment from the settlement, judgment, or award for • All administrative remedies must be exhausted repayment of the Medicare conditional payment amount, before any legal action may be brought in fed- if appropriate.28 Thus, in settling a personal injury claim, eral court. Compromises are discretionary and a primary payer would assume the risk that it indeed was are not subject to appeal. not settling any claim for medical damages.29 Additionally, it is not apparent why a primary payer would want to subject itself to two separate lawsuits arising from an injury caused by its insured – one by the injured Medicare beneficiary and a subsequent one by the United States, on behalf of the Medicare program. Federal court litigation is time-consuming and costly, and it

NYSBA Journal | January 2009 | 41 would make more sense for the primary payer to resolve date of the settlement, the amount of the settlement, and all of its liability in one action and, in so doing, to support any attorney fees or other procurement costs borne by the the important public policy of judicial economy. beneficiary and associated with the settlement, judgment, It is also noted that a plaintiff’s chances of maximizing or award. In some instances the MSPRC may require a his or her recovery in a personal injury lawsuit is signifi- copy of the settlement, judgment, or award. The MSPRC cantly bolstered by the presentation of medical damages searches for additional Medicare-reimbursed claims and to the defendant. Medical expenses can oftentimes set updates the conditional payment amount, as appropri- the predicate for pain and suffering recovery and add ate. The MSPRC then uses the settlement, judgment, or “weight” to a plaintiff’s claim. Moreover, as discussed award information, including fees/costs borne by the above, Medicare may share in the cost of the plaintiff’s beneficiary, as appropriate, to calculate the recovery prosecution of the lawsuit, often resulting in a material claim amount and issue a recovery demand letter. The reduction in its recovery claim.30 And, as mentioned, if recovery demand letter includes information on the ben- Medicare must file a direct action against the primary eficiary’s administrative appeal rights under 42 U.S.C. payer, it will look to the beneficiary to assist in the pros- § 1395ff if there is a disagreement concerning the amount ecution of the case, as the regulations set forth a manda- or existence of the recovery claim, as well as information tory duty of cooperation. The failure to cooperate places on the right to request a waiver of recovery under 42 the possibility of liability squarely upon the beneficiary’s U.S.C. § 1395gg if the beneficiary believes he or she meets shoulders.31 the criteria for such a waiver of recovery.33 Ultimately, no legal action to contest Medicare’s reimbursement No Ethical Concern of conditional payments can be filed in federal court A personal injury attorney representing a client who is a until all applicable administrative remedies have been Medicare beneficiary does not by virtue of that fact enter exhausted.34 However, it should be noted that requesting into a fiduciary relationship with the Medicare program. a waiver of recovery pursuant to 42 U.S.C. § 1395gg is not Medicare is not the attorney’s client. Rather, the attorney required for exhaustion purposes. is representing a client who has a legal obligation to ensure If the attorney believes that the client’s case warrants that Medicare is reimbursed for conditional payments a compromise under the criteria set forth in 42 C.F.R. that are the subject of a recovery against the tortfeasor.32 § 405.376, he or she can request that the appropriate CMS Of course, the attorney has a duty to be familiar with all Regional Office compromise Medicare’s recovery claim. the laws that impact his or her obligations to the client. However, compromise decisions are discretionary in nature and not subject to appeal. Additionally, compro- Conclusion mise requests do not toll the time limit to file an appeal At the outset of a case involving representation of a or toll the assessment of interest. Medicare beneficiary in a personal injury/malpractice In conclusion, from Medicare’s perspective, a coop- action, the attorney should immediately contact CMS’s erative approach involving the Medicare beneficiary, his Coordination of Benefits Contractor (COBC) to initi- or her attorney, and the primary plan/payer limits the ate the opening of an MSP potential recovery case. The necessity of time-consuming, expensive federal court COBC can be reached at 1-800-999-1118 or by mail at: litigation, limits the primary payer’s risk of paying MEDICARE-COB, MSP Claims Investigation Project, double damages and preserves judicial resources. Such P.O. Box 33847, Detroit, Michigan 48232. The COBC will an approach constitutes good public policy by effectu- need the Medicare beneficiary’s full name, sex, date of ating Congress’s intent to keep the Medicare program birth, Social Security Number (SSN) or Medicare Health financially viable for present and future beneficiaries who Insurance Claim Number (HICN), date of incident, and depend upon this vital program. ■ a description of the incident. The COBC updates CMS’s 1. See 42 C.F.R. pt. 421. CMS is now in the process of transitioning to a new Common Working File, which then transmits information type of claims-processing contractor known as a Medicare Administrative to a system used by CMS’s MSPRC to establish a poten- Contractor (MAC). MACs will handle both Part A and Part B matters. tial recovery case. After information on claims paid by 2. The MSPRC has the responsibility for all new MSP recovery claims with the exception of the following: (1) provider/physician/other supplier dupli- Medicare, starting with the date of incident, has been col- cate primary payment recoveries, and (2) pending MSP accounts receivable lected and reviewed to determine if the claims are related where the recovery demand was issued by certain contractors prior to the to what is being claimed or released by the beneficiary, advent of the MSPRC on October 1, 2006. 3. See J. Michael Hayes, Are Medicare, Medicaid, and ERISA Liens? Resolving the MSPRC sends interim conditional payment amount “Liens” in Personal Injury Settlements, N.Y. St. B.J. Sept. 2007, p. 28. information to www.mymedicare.gov, where the benefi- 4. 42 U.S.C. § 1395y(b). ciary may access and print this information or authorize 5. See H.R. Rep. No. 96-1167 (1980), reprinted in 1980 U.S.C.C.A.N. 5526, 5752; U.S. v. Baxter Int’l, Inc., 345 F.3d 866, 874–75 (11th Cir. 2003); Zinman v. Shalala, his or her representative to use the beneficiary’s PIN 67 F.3d 841, 845 (9th Cir 1995). number to do so. Once there is a settlement, judgment, 6. Primary plans are defined at 42 U.S.C. § 1395y(b)(2)(A). See also 42 C.F.R. or award, the MSPRC must be notified in writing of the § 411.21. Although not the subject of this article, the MSP statute also applies

42 | January 2009 | NYSBA Journal to employer group health plan arrangements and workers’ compensation laws Hoste v. Shanty Creek Mgmt., Inc., 246 F. Supp. 2d 784, 788–89 (W.D. Mich. 2002); or plans. Mitchell v. Health Care Serv. Corp., 633 F. Supp. 948, 949 (N.D. Ill. 1986).) 7. See 42 U.S.C. § 1395y(b)(2)(A)(ii); 42 C.F.R. § 411.20(a)(2). 22. See Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, 417 (D.C. Cir. 1994), 8. See 42 U.S.C. § 1395y(b)(2)(B)(i); Baxter Int’l, 345 F.3d at 892. for a discussion of the “double payment” scenario. 9. See 42 U.S.C. § 1395y(b)(2)(B)(ii); 42 C.F.R. § 411.22. 23. Zinman v. Shalala, 835 F. Supp. 1163, 1170–71 (N.D. Cal. 1993), aff’d, 67 F.3d 10. Id. 841 (9th Cir. 1995). 11. See 42 U.S.C. § 1395y(b)(2)(B)(ii). 24. See, e.g., U.S. v. Geier, 816 F. Supp. 1332, 1337 (W.D. Wis. 1993). 12. See 42 C.F.R. §§ 411.25, 411.22. 25. See Manning v. Utilities Mut. Ins. Co., Inc., 254 F.3d 387, 397–98 (2d Cir. 13. Pub. L. No. 110-173, 121 Stat. 2492. (As relevant here, § 111 of the Act pro- 2001). vides that liability (including self-insurance) and no-fault insurers, as of July 26. See 42 C.F.R. § 411.37; In re Zyprexa Prods. Liab. Litig., 451 F. Supp. 2d 458, 1, 2009, must determine Medicare beneficiary status on all claims and report 466 (E.D.N.Y. 2006). those claims involving a Medicare beneficiary to the Secretary at the time of 27. See 42 U.S.C. § 1395y(b)(2)(B)(iii). settlement, judgment, award, or other payment. If the reporting is not timely made, the Secretary may enforce a civil monetary penalty of $1,000 per day per 28. See id.; 42 C.F.R. § 411.24(c)(2); 42 C.F.R. § 411.42(g). individual. It is noted that these new requirements do not eliminate any exist- 29. Medicare policy requires recovering payments from liability or no-fault ing MSP statutory or regulatory requirements.) settlements, judgments, or awards without regard to how the settlement, judg- 14. 42 C.F.R. § 411.24(d). ment, or award document stipulates or states disbursement should be made. This includes situations in which a settlement, judgment, or award does not 15. 42 U.S.C. § 1395y(b)(2)(B)(iii); 42 C.F.R. § 411.24(c)(2). expressly include damages for medical expenses. The only exception to this is 16. See 42 C.F.R. § 411.24(e). when a court of competent jurisdiction or jury, after ruling on the merits of the 17. 42 U.S.C. § 1395y(b)(2)(B)(iii); 42 C.F.R. § 411.24(c)(2). liability case, specifically designates amounts that are for payment of pain and suffering or other amounts not related to medical items or services. 18. 42 C.F.R. § 411.23. 30. See 42 C.F.R. § 411.37. 19. 42 U.S.C. § 1395y(b)(2)(B(iii). 20. 42 C.F.R. § 411.24(g). 31. See 42 C.F.R. § 411.23. 21. 42 U.S.C. § 1395y(b)(2)(B)(iv); see also 42 C.F.R. § 411.26(a). (It is noted that 32. See 42 C.F.R. §§ 411.22(a), 411.24(g). the Medicare regulations also empower Medicare to “join or intervene in any 33. See 42 C.F.R. Part 405 (subpart I for administrative appeals and subpart C action related to the events that gave rise to the need for services for which for waiver of recovery). Medicare is paid.” 42 C.F.R. § 411.26(b). Since most of the underlying tort liti- 34. See 42 U.S.C. § 1395ii; Cochran v. U.S. Health Care Fin. Admin., 291 F.3d gation takes place in state courts and since such courts lack jurisdiction over 775, 778–79 (11th Cir. 2002); Penoyer v. U.S., 2004 WL 437461 (N.D.N.Y. Feb. 3, the Medicare program, CMS does not normally intervene in such actions. See 2004).

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NYSBA Journal | January 2009 | 43 LEGAL RESEARCH BY WILLIAM H. MANZ

Researching Administrative Decisions, Declaratory Rulings and Advisory Opinions

nder New York State law, cer- Certain agencies, most notably the materials from a variety of sources, tain state agencies and depart- Office of the Attorney General and including the attorney general and Uments may issue decisions, the Office of the Comptroller, render the comptroller, and such agencies declaratory rulings, and opinions. For legal opinions to other governmental as the State Education Department, decisions, this power derives from entities, including executive branch the Public Service Commission, the legislation. For example, the ability of departments and municipal attorneys, Insurance Department, and the former the New York Workers’ Compensation on proposed actions. Attorney general Industrial Board. Board to hear disputed cases and opinions are either “formal” or “infor- Over the years, only a limited num- render decisions derives from the mal.” Opinions issued to state agencies ber of agencies and departments indi- Workers’ Compensation Law.1 In gen- are denominated “formal” because the vidually published decisions, rulings, eral, agency adjudicatory proceedings attorney general signs them as chief and opinions on a regular basis; many are governed by Article 3 of the N.Y. legal officer of the state. Informal opin- others followed a policy of non- or State Administrative Procedure Act ions are issued to local government selective publication. As a result, items (SAPA). Under SAPA, an adjudicatory attorneys; they are called “informal” from a specific agency may appear proceeding is defined as “any activity because it is ultimately the responsibil- under different titles, depending on which is not a rulemaking proceeding ity of the local government attorney the time period.6 For example, deci- or an employee disciplinary action to provide advice to the local govern- sions of the Commissioner of Educa- before an agency . . . in which a deter- ment.5 tion have appeared in the Education mination of the legal rights, duties or Researching these rulings, decisions, Department’s annual reports (1900 to privileges of named parties thereto is and opinions has always been more 1913), State Department Reports (1914 required by law to be made only on a complicated than researching case to 1958) and the Education Depart- record and after an opportunity for a law, for numerous reasons. The only ment Reports (1962–present). In some hearing.”2 state-published, regularly issued, com- instances, publication of decisions or In the case of declaratory rulings, prehensive source of materials from orders was erratic because of such fac- agencies formally interpret their own multiple agencies, the State Department tors as policy changes, budget cuts, or rules in response to a request, which Reports, ceased publication in 1958. delays. Further research complications may be based entirely upon hypo- This 75-volume set began in 1914 and may arise from changes in agency thetical situations.3 As § 204 of SAPA was compiled by the Miscellaneous names. The Education Department provides, “[o]n petition of any person, Reporter from 1917 to 1924, the Board was once known as the Department an agency may issue a declaratory rul- of Estimate and Control from 1925 to of Public Instruction, while the Work- ing with respect to (i) the applicabil- 1928, the Division of the Budget from ers’ Compensation Board was once ity to any person, property, or state of 1928 to 1944, and by the Department the Industrial Board (1915 to 1921), the facts of any rule or statute enforceable of State from 1944 to 1958. It included Industrial Commission (1922 to 1945), by it, or (ii) whether any action by it should be taken pursuant to a rule.”4 WILLIAM MANZ ([email protected]) is Senior Research Librarian, St. John’s University School of Declaratory rulings are binding on an Law; author of Gibson’s New York Legal Research Guide, 3d ed. (Buffalo: William S. Hein & Co., agency unless prospectively modified 2004). This article covers only materials issued by state-level departments and agencies. For a discus- by the agency or set aside or altered by sion of the availability of administrative materials issued by New York City, see Local Law Research in a court, and are subject to court review the May 2008 issue of the Journal. as provided in Article 78 of the CPLR.

44 | January 2009 | NYSBA Journal and the Workmen’s Compensation and Opinions of the Attorney General for sions of the Commissioner of Education Board (1945 to 1971). Another more the Year Ending ___ (1959 to 1989). (LexisNexis/State Education Dep’t recent example is the merger of the Workers’ Compensation Board and 1962 to present), published since 1962, Lobbying Commission and the Ethics Public Employment Relations Board and Decisions of the State Review Officer Commission to form the Commission decisions are published by LRP Pub- (State Education Dep’t 1991 to pres- on Public Integrity, as provided for by lications. PERB’s is the longest-run- ent), which consists of slip opinions on the Public Employee Ethics Reform Act ning. Its Official Decisions, Opinions and appeals from school district determina- of 2007.7 Related Matters of the Public Employment tions involving handicapped children. The amount of material available Relations Board of the State of New York Finally, although the Public Service varies greatly depending on the issu- has been published since 1967. Appear- Commission no longer publishes Pub- ing agency or department. Not surpris- ing 12 times a year, this publication lic Service Commission Reports (1961 to ingly, an area with multiple, hard-copy includes such features as a cumulative 1994), its decisions still appear in hard sources is taxation. The CCH compre- digest of cases, the full text of relevant copy in the Public Utilities Reporter, hensive loose-leaf tax set, New York statutes, and a case number index. Fourth Series. State Tax Reporter, includes in its “New Since 1987, LRP has published the deci- The increase in commercial online Matters” section the text of decisions sions of the Workers’ Compensation databases and free Internet sites has by Division of Tax Appeals adminis- Board in the New York Workers’ Compen- considerably broadened the availability trative law judges and the Tax Appeal sation Law Reporter. Appearing 23 times of administrative decisions, rulings, and Tribunal, as well as Department of a year, this publication also includes opinions. Many items that were former- Taxation and Finance advisory opin- statutes, rules, and regulations. ly available only from the department ions. Historical coverage for this title Other print reporters include Educa- or agency are now readily available is extensive since transfer binders tion Department Reports: Judicial Deci- online. Overall coverage varies; some date back to 1946. A second loose-leaf source, New York Tax Cases, published Web Addresses for State since 1992 by the William S. Hein Co., contains decisions of the New Agencies and Departments York City Tax Appeals Tribunal, the New York City Tax Appeals Tribunal Banking Department: http://www.banking.state.ny.us Administrative Law Judge Division, Board of Elections: http://www.elections.state.ny.us the State of New York Tax Appeals Commission on Judicial Conduct: http://www.scjc.state.ny.us Tribunal, and the Division of Tax Commission on Public Integrity: http://www.nyintegrity.org/advisory Appeals. (A third source, RIA’s State and Local Taxes: New York, which also Commissioner of Education: http://www.counsel.nysed.gov reported tax decisions in hard copy, Committee on Open Government: http://www.dos.state.ny.us/coog/ is now only available as an online findex.html product.) Department of Environmental Conservation: http://www.dec.ny.gov/ Historically, materials from a hearings/395.html small number of other state agencies Department of Health: http://www.health.state.ny.us have also been available in regularly Department of State: http://www.dos.state.ny.us published sets that can generally be Department of Taxation & Finance: http://www.tax.state.ny.us/pubs_ found in larger law libraries. From and_bulls/ 1979 to 2005, the comptroller’s opinions were published in a loose-leaf Ethics Commission: http://www.nyintegrity.org/advisory format in Opinions of the New York State Insurance Department: http://www.ins.state.ny.us Comptroller, by Command Information Office of the State Comptroller: http://www.osc.state.ny.us Services. Attorney general opinions Office of the Attorney General: http://www.oag.state.ny.us were published in another Command PERB: http://www.perb.state.ny.us/dec.asp Information Services loose-leaf set, Opinions of the New York State Attorney Public Service Commission: http://www.dps.state.ny.us General, from 1990 to 2006.8 Earlier State Education Department Review Officer: http://www.sro.nysed.gov/ opinions are available in the attor- dec.htm ney general’s annual reports (1893 to Tax Appeals Tribunal: http://www.nysdta.org 1958), Informal Opinions of the Attorney Temporary State Commission on Lobbying: http://www.nyintegrity.org/ General (1932 to 1940, 1943 to 1958), advisory

NYSBA Journal | January 2009 | 45 On the Web: Current Online Coverage

LexisNexis Westlaw Internet

Attorney General Opinions* 1976+ 1977+ 1995+ Banking Department Staff Interpretations 1990+ 1990+ Board of Election Opinions Varies Commission on Judicial Conduct Opinions 1997+ 1978+ 1978+ Commission on Public Integrity Advisory Opinions 2008+ Commissioner of Education Decisions 1991+ 1991+ Committee on Open Government Opinions 1993+ Comptroller’s Opinions 1979+ 1988+ Department of Environmental Conservation Decisions, etc. 1973+ 1970+ Varies Department of Health Administration Review Board Decisions 2000+ 1990+ Department of Law No-Action Letters 1984–2003 Department of State Materials Varies Department of Taxation & Finance Materials 1978+ 1978+ Varies Ethics Commission Advisory Opinions 1988–2007 Insurance Department Opinions & Letters 2000+ Varies 2000+ PERB Decisions and Opinions** 1986+ 1982+ 2000+ Public Service Commission Orders & Opinions*** 1972 State Education Department Review Officer Decisions 1990+ Tax Appeals Tribunal Varies Varies Varies Temporary State Commission on Lobbying 1978–2005 Workers’ Compensation Board Decisions 1989 1985

* Attorney General opinions are also available to Bar Association members through Loislaw. ** The PERB Web site offers brief opinion summaries only. Those seeking full-text decisions are directed to Westlaw or the LRP print publication. *** Comprehensive coverage begins with 1990.

materials are available commercially sophisticated search techniques. Many Web site, http://www.dos.state.ny.us/ and for free online, some only commer- of the free Internet sites have only basic coog/coogwww.html. ■ cially, and some only at the department search features, if any, and essentially or agency Web site. Similarly, database serve as document retrieval services. In 1. See N.Y. Workers’ Compensation Law § 142. 2. SAPA § 102(3); see also Patrick J. Borchers & back files may vary greatly depend- addition, since the sites are primarily David L. Markell, New York State Administrative ing on the source. Online availability intended for the general public, not the Procedure and Practice § 3.1 (2d ed. 1998). is subject to change. LexisNexis and legal researcher, legal-related materials 3. Borchers & Markell, supra note 2, § 4.21 (citing Westlaw occasionally add materials may be difficult to find. City of N.Y. v. N.Y. State Dep’t of Health, 164 Misc. 2d 247, 623 N.Y.S.2d 491 (Sup. Ct., Albany Co. 1995)). from new administrative sources and Finally, it should be noted that 4. SAPA § 204(1). less frequently stop updating data- materials which are not included in 5. Opinions of the N.Y. State Attorney General, bases. Similarly, new materials may a print publication or posted online http://www.oag.state.ny.us/bureaus/appeals_ opinions/search_intro.html (last visited Apr. 2, appear on the Internet, but others may may still be available. Generally, 2008). be dropped or have the extent of the unpublished agency decisions, rul- 6. For a comprehensive list of sources, see Robert back files altered. Formats also vary, ings and opinions are public records Alan Carter, Sources of Published and Unpublished Administrative Opinions in New York State (rev. with some sites providing documents and, except in special circumstances, ed. 1994) (available for download as part of the in html or MS Word, while others offer should be available upon request. State Library’s digital collection), available at http:// pdf scans of the originals. In some cases, a FOIL request may www.nysl.nysed.gov. Not surprisingly, the commer- be required. Information about mak- 7. 2007 N.Y. Laws ch. 14, § 1. 8. The Office of the Attorney General plans to cial online sources are the easiest to ing such requests is available at the continue a print version of the opinions and is cur- use, having a standard interface and Committee for Open Government rently looking for a new publisher.

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Mention code: PUB0409 when ordering. NYSBA Journal | January 2009 | 47 ATTORNEY PROFESSIONALISM FORUM

To the Forum: that is not the nature of the attorney- ful results for the client in both trans- I am partner in a general practice firm client relationship. actional and litigated matters. As a that has been representing, successful- Based upon the circumstances you suggestion, you might bring to your ly, a particular client in litigation and describe, there indeed has been a solic- client’s attention how you effectively transactional matters for several years. itation of the client by your bar associa- utilized a suggestion the client may The representation has been generally tion colleague. Nevertheless, her tac- have made, and how important the known by members of our local county tics, although galling to you, appear to counsel and client “team approach” bar association. fall within the ambit of what is allow- was in achieving a favorable result. Our relationship with the client able under DR 2-103 of the New York If the opportunity presents itself, you has been good. In addition, we have Code of Professional Responsibility might also point out to your client the participated with the client in several (“Code”). As stated in Simon’s New significance of having a partner in your high-profile community projects, and York Code of Professional Responsibility firm with an excellent reputation in the so have become identified as the attor- Annotated, 2005 Edition, at page 223, a legal community, as it was a critical neys for that client in the community lawyer may say to a close friend, “After factor in the successful handling of the at large. hearing your story, I think you ought to client’s transactional matter; the part- Recently, it has come to my atten- file a suit and I’d be glad to represent ner’s reputation was acknowledged tion that one of my bar association you,” or “You really ought to come into by the other attorney, the matter was colleagues (with whom I have no pres- my office to review your whole legal thus not truly contested, and the client ent cases) has been pursuing my cli- situation.” Assuming the personal rela- benefitted by saving time and avoid- ent. I became aware that the client tionship, this conduct is permissible ing additional legal expense. These are has been entertained by this colleague under the Code. In your case it appears ways you might hold on to the client with trips to the theatre, and has been that your bar association colleague has without gnashing your teeth over your invited, as my colleague’s guest, to developed such a relationship with the colleague’s behavior. golf, tennis and basketball games, as client, and her approach therefore falls The Forum, by well as to community fund-raisers. within the exception to the rule prohib- Owen B. Walsh Indeed, my client has indicated that iting solicitation. Oyster Bay, N.Y. she has become quite friendly with Moreover, you must bear in mind this colleague, whom she now consid- the duties imposed upon the lawyer in ers to be a “golfing buddy and a good the attorney-client relationship. These The Attorney Professionalism Committee friend.” Recently, my client indicated are, among other things, the duty to invites our readers to send in comments that when she complained about a preserve client confidences and secrets or alternate views to the responses business problem during a round of (DR 4-101); the duty to exercise inde- printed below, as well as additional golf my colleague had suggested that pendent professional judgment (DR hypothetical fact patterns or scenarios to her firm might better represent my 5-101, 5-104, 5-105, 5-107); the duty to be considered for future columns. Send client’s business interests. I resent this be competent (DR 6-101); and the duty your comments or questions to: NYSBA, obvious “poaching” attempt to take to refrain from damaging or prejudic- One Elk Street, Albany, NY 12207, Attn: my client as her own. ing the client (DR 7-101(A)). These obli- Attorney Professionalism Forum, or by My firm and I have been most gations run one way – from the lawyer e-mail to [email protected]. loyal to our client during our many to the client. There are no correlative This column is made possible through years of service, and I wonder – duties imposed upon the client, who the efforts of the NYSBA’s Committee on do any ethical or professionalism is free to continue or discontinue the Attorney Professionalism. Fact patterns, grounds exist that might preclude relationship with the lawyer. In short, a names, characters and locations presented this “theft of client” effort by my lawyer does not “own” the client; there in this column are fictitious, and any resem- competitive colleague? are only duties owed by the attorney. blance to actual events or to actual persons, Sincerely, Thus, your client is free to associate living or dead, is entirely coincidental. These Feeling Victimized with and develop a close and friendly columns are intended to stimulate thought relationship with another lawyer, even and discussion on the subject of attorney Dear Victimized: one you clearly consider to be a preda- professionalism. The views expressed are A critical concern of every practicing tory “client stealer.” those of the authors, and not those of the attorney is the retention of a client A lesson here might be to deepen Attorney Professionalism Committee or whose interests the attorney believes your own relationship with the cli- the NYSBA. They are not official opinions she has zealously pursued. As a conse- ent, and to move from being “good” on ethical or professional matters, nor quence, the lawyer may come to con- to being “cordial” as well – and, of should they be cited as such. sider the client as “bound to me,” but course, to continue producing success-

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NYSBA Journal | January 2009 | 49 LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: Speaking in Harris- changes the meaning of the statement A second engineer, who thought burg, Pennsylvania, at the from “I don’t care at all” to “I do care the instruction meant, “It is impos- Qend of a long day campaign- somewhat.” sible to add enough water,” left the ing, John McCain became confused A reader sent me a negative state- valve open. But the third engineer while trying to express his disagreement, asking “Isn’t this ambigu- understood the instructions to mean, ment with Congressman John Murtha, ous?” When asked about then-Pres- “You should not add too much water,” who had called the residents of that ident Clinton’s missile defense plan, and closed the valve. Finally the three area “racist.” McCain said, “I couldn’t President Bush had commented, “No engineers called the retiree for help. He agree with him more,” the opposite of decision would be better than a flawed yelled, “Turn off the water! It rusts hell what he intended. How could Mr. decision.” The remark is ambiguous. out of the valves!” McCain have avoided that problem? It can mean either “A flawed decision More examples of unintentional Answer: McCain’s first problem, of is better than no decision at all,” or “It ambiguity could be listed, but it is course, was that he gave his speech at the would be better to have no decision at refreshing also to see the opposite: end of a long day, during which he had all than to have a flawed one.” brilliant and unambiguous metaphors. attended three rallies in Pennsylvania, But negative ambiguity has one vir- Here are a few: given five satellite interviews with TV tue: As Alexander Pope said, it can “[The codicil] creates a teasing illu- stations and six radio interviews, done “damn with faint praise, assent with sion like a munificent bequest in a countless handshaking and consider- civil leer,/ And without sneering, teach pauper’s will.” able baby-kissing. His second problem the rest to sneer.” When a college – Supreme Court Justice was the pesky negative. Attempting professor tells a student, “This is not Robert Jackson to chastise and strongly disagree with bad writing,” the professor does not Murtha for labeling residents “racist,” mean that the writing is good. When a “Expedience may tip the scales McCain appeared instead to agree with student asks a professor for a job rec- when arguments are nicely bal- Mr. Murtha. ommendation, the professor can oblige anced.” Then, realizing his mistake, he made by writing, “I cannot recommend him – Benjamin Cardozo things worse trying to correct it, by too highly.” “Science is a first-rate piece of fur- saying, “I couldn’t disagree with you,” A 1975 court rationalized the niture for a man’s upper chamber, adding a negative instead of subtract- removal of a kidney from an incom- if he has common sense on the ing the original one. Finally, giving petent man without his permission by ground floor.” up the struggle to re-state his original saying, “The removal was not without – Oliver Wendell Holmes, Sr. remark, he said what he intended: benefit to him” (that “benefit” being “The advice of elders to young “My friends, I could not disagree with the satisfaction the man would have men is very apt to be as unreal as a [Murtha] more.” felt at approving his gift). list of the hundred best books.” The adjectives more and less are often Sometime ago, a reader commented – Oliver Wendell Holmes, Jr. ambiguous, and academia confers no on the ambiguity of can’t in the instruc- immunity to error. An official, com- tions his ophthalmologist had written Definition of a gold mine: “A liar menting on the price a developer had on his prescription: “Put 3 or 4 drops standing next to a big hole.” asked for land this university wanted in each eye every day. You can’t use – Mark Twain to buy, said, “This price amounts to too much of them.” The reader asked, Definition of the word recuse: “It nothing more than extortion.” (He “Does can’t mean, ‘should not’ or ‘it is means you will not prosecute the meant to say “less.”) not possible to’?” safe-cracker you once held the McCain’s dilemma recalls the prob- Another reader recalled Ed Asner’s flashlight for.” lem with the statement, “I couldn’t skit on Saturday Night Live, about the – Mark Russell care less” (which means, “I care not at ambiguity of can’t. Asner portrayed all”). That construction quickly became an engineer who had retired from popular after it was introduced around his power plant position. His parting GERTRUDE BLOCK ([email protected]) is lecturer the end of the 20th century. But notic- directions: “You can’t put too much emerita at the University of Florida College of ing the two negatives in “couldn’t water in the generator.” The follow- Law. She is the author of Effective Legal Writing care less,” the public changed that ing day, an engineer who read that (Foundation Press) and co-author of Judicial expression to “could care less” (per- instruction opened all the valves to Opinion Writing (American Bar Association). haps recalling the mathematical rule increase the water flow (believing that Her most recent book is Legal Writing Advice: that two negatives make a positive). the instruction meant, “It’s not possible Questions and Answers (W. S. Hein & Co., 2004). Removing the negative in couldn’t to add too much water”).

50 | January 2009 | NYSBA Journal NEW MEMBERS WELCOMED

FIRST DISTRICT Yaron Bentov Melissa Canton Samuel John Cocks Leslie Byrne Dubeck David Anthony Abadir Alexander Franklin Berbit Evan Samuel Cantor Ian Edward Cohen David Dubrovsky Mara Susannah Abols Michael Carmody Berens Rebecca Cantu Robert S. Cohen Jennifer Lynn Matthew Benjamin Graciela Juliana Bergner Deepica Capoor Reed Lawrence Collins Dudanowicz Abrams Nathan J. Berkebile James Francis Caputo Ruth Noemi Colon Alexander Fletcher Duke Seth Alan Abrams Emily Ann Berman Elizabeth F. Caraballo Christina Rachel Conklin Farrin Michele Dunn Laila Afridi David W. Bernstein Emily Jean Carey Danielle Alyse Contillo Lindsay Colbert Dunn Navine K. Aggarwal Marie Caroline Bertrand Benjamin Garrett Carson Bradley James Conway Burke Aislinn Dunphy Nikhil S. Agharkar Jakub Biernacki Tiffany Casanova Adam H. Cook Sara Edelman Johanna Katarina Agou David Eliyahu Binson Stephanie Allison Case Marshall Currey Cook Michelle Toritshemofe Smita Seshadri Aiyar R. Jeffery Black Valentina M. 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Brooks Jessie Choi Kathleen Diab Julia Fisherman Brian Adam Barish Bradley Marc Brown Richard Choi Aaron Matthew Diamond Caitlin Denison Halia Maria Barnes Robert Banks Bruce Malisa Rasik Chokshi Alizah Zissel Diamond Fitzrandolph Ross Kenneth Baron Benjamin Neal Brust Henry Chong Bianca Dias Soares Andrew J. Foley Matthew James Basile Anne Peyton Bryant Sohyoung Choo Veronica M. DiCamillo Heather Marie Folkes John Albert Basinger Veronica Bryant Marianne Wan-hay Chow Jonathan C. Dickey John Francis Ford David De La Garza Deborah J. Buchanan Jessica Petia Chue Analisa Dillingham Kaleen Serena Ford Bassett Robert Daniel Burak Yun Jae Chun Isabel Katherine Millissa Elizabeth Foster Ryan Michael Bathie Seth Eli Burch Jeana Lee Chung Reichardt Dische David Frank Michael Bavli Andrew Jeremy Butville Sul A. Chung Jamie D.C. Dixon Erica Eden Frank Christopher Lewis Beals Jason Jon Michael Cabral Victor Randolph Verzosa David F. Dobbins Jonathan J. Frank Raymond Wilson Jessica Conklin Calagione Cinco Elizabeth Joanne Dodson Adam Bynoe Frankel Beauchamp Jessica Calvo Matthew David Cipolla James Edward Doench Paul Frankenstein Pinchas J. Becker Danusia Kirsten Cameron John Ashley Clark Jeanine Candice Dore Alison Stafford Fraser Jennifer Lynn Bell Graham Malcolm Duncan Christopher Charles Ami Elizabeth Doshi Emma Kate Freudenberger Olaseni Akintola Bello Campbell Clarkin Amanda Candace Downey Stephanie Froes Viviana Kathleen Rebecca Maree Campbell Daniel Evan Clarkson Raya Lynn Doyle Erik Mark Fromm Rugiada Aur Beltrametti Paola Andrea Canales Curt R. Clausen Eyal Dror Timothy John Fronda Walker Krista Dawn Caner Megan Seitz Clinton Ariana Drusine-Stokes Claire Denise Frost Cindy Marie Belvisi

NYSBA Journal | January 2009 | 51 Elisabeth Carmel Frost Fagie Hartman Nicholas Perry James Joshua Katz Minji Kim Richard Salem Fussell Ting He Mark Samuel Jarashow Malcolm Gregory Katz Stephen Choi Kim Jason Richard Galbraith Kenneth Henry Hemler Stephanie Ida Jean Samantha J. Katze Jessica Lynne King Christopher Andrew Gale John Martin Hendele Karolina Jesien Aaron Stephen Kaufman Philip Andrew Carlos Guillermo Galliani Zachary Robert Henige Wei Jing Nathan Zelig Kaufman Kipczynski Lorena Galvez Marc Scott Hennes Benjamin Albert Johnson Nitin Kaushik Jordan Matthew Kirby Fredelina Esperanza Thomas Andrew Clarion Ellis Johnson Austin Yung-linn Ke Sandra Priebe Kister Garcia Hennessy Eric Arthur Johnson Sarah Kirsten Keech David Michael Klein Michelle Garcia Emanuelle Marie Henry Ryan Philip Johnson Heather Elizabeth Keegan David Michael Knapp Gabriella Marie Emmanuelle M. Henry Tamika Aletheia Johnson William Kellogg Lindsey Taylor Knapp Geanuleas Sylvia Analie Heredia William Joseph Johnson Melissa Ruth Kelly Kelly Lynn Kocinski Melissa Samantha Geller Charles Clemens Eric Jokinen Robert Patrick Kelly Jason Samuel Koenig Erika Gellert Herschel Helen Susan Jones Parker Burr Kelsey Brian Adam Kohn Tabatha Louise George Jessica Rose Hertz Anna Hyojin Joo Coleman Walker Ivan Sergeevich Deric Scott Gerlach Rene F. Hertzog Christina Michelle Jordan Kennedy Komaritsky Christopher Michael Uri Herzberg Veronica Jordan Edward T. Kennedy Brendan Christopher Gerson Martin Allen Hewett Jung Whan Ju Stacey Susanne Kerns Kombol Erica Maya Gersowitz Rachel Marie Hezel Heather Louise Kamand Keshavarz- Kerry-leigh Elizabeth Jonathan Michael David Geoffrey Higgins Kalachman Shirazi Kopke Gerstein Morgan Claire Hilpert Amelia Kathleen Kalil David G. Keyko Carmen Roshan Yemeserach Getahun Anne Lankford Himes Alexander Kandyba Benjamin Khabie Korehbandi Suchira Ghosh Thomas Y. Hiner Madeleine Patricia Kane Shammari Sharif Khan Benjamin Alex Korngut Sukanya Ghosh Nichole Hines Michael Evan Kantor Ataf Talib Khokhar Craig Stephen Kornreich Vincent M. Giblin James Austin Hobbs Brian Kao Johannes Leonardus Alina Belle Kors Daniel Howard Gibralter Nikhil-pranav Jagdish Kathleen Shing-yi Kao Agnes Kicken Alexey Koshelev George Thomas Gilbert Hodarkar Leila Raspberry Kaplus Amanda Young Eun Kim Ceridwen Johanna Koski Sarah Marie Gilbert Debora Adele Hoehne Ila Kapoor Byungkuk Kim Sonia Kiran Kothari Roderick Mackenzie Andrew Linn Hoffman Christopher Anthony Helen S. Kim Anna-Rachel Krakowsky Gilman Charles Davison Hoffman Karachale John Hyoung-Joon Kim Ethan Michael Krasnoo Jeffrey Scott Gluck Kristin Blemaster Hogan Jonathan Michael Karas Joon H. Kim Jill Anne Krauss Ran Goel William Scott Holleman Louise Caron Karstaedt Julie Y. Kim Carrie Ann Kreifels Daniel P. Goldberger Amber Hollie Nirendram Sanjay Jungah Kim Amanda Krohn Andrew Robert Mark Patrick Holloway Kathirithamby Linda Yoon Me Kim Apoorv Kurup Goldenberg Andrew K. Holmes Emily Rashal Goldfine Amanda Lee Holzhauer Carolina Rita Gonzalez Matthew Brady Aurora Gonzalez-McLean Homberger In Memoriam Shannon Farrah Gotfrit Enshan Hong Daniel Louis Gotkin Michael Joonki Hong James D. Andrews Matthew Bruce Halpern Joseph J. Onufrak Jennie Chantelle Govey Carolee Anne Hoover Avon, NY Melville, NY Mattituck, NY Christine Elizabeth Stephan Edward Robert P. Augello Vincent D. Hurley Kenneth P. Ray Graham Hornung Middletown, NY New City, NY Utica, NY Joshua Gordon Graubart Timothy Hawley Hosking John R. Bashaar Edward K. Kane Muriel H. Reis Daniel Joseph Gravel Charlotte Waisbren Towson, MD New York, NY New York, NY Sean Mikala Gray Houghteling Henry Day Brigham Joseph S. Kaplan Jacques F. Rose Ian Greber-Raines Li-tian Hsieh Chestnut Hill, MA New York, NY New York, NY Scott Anthony Griffin Helen Chiahua Hsu Bertram Bronzaft Edward P. Kelley Carl Stahl Shannon Lynette Griffin Lina Huang New York, NY State College, PA White Plains, NY Melanie Anita Grossman Charles Paul Matthew John Gurch Humphreville Christopher J. Connors William F. Kilgannon Lorraine Power Tharp Rachael Emily Gurlitz Danielle Jamae Hunt Utica, NY Bronxville, NY Albany, NY Emin Guseynov Safia Gray Hussain Joseph A. Conte Richard A. Krauss Rollin L. Twining Nicole Haff David Mark Hutchins Stratford, CT New York, NY Binghamton, NY Orval Keith Hallam Danny Jin Hwang William Ambrose Cotter Stewart E. Lavey Thomas F. Vasti Patricia A. Halling Stefanie Christine Hyder Boston, MA New York, NY Pleasant Valley, NY Matthew Craig Hamm Niamh J. Hyland Gloria B. Dunn Steven A. Maas David S. Williams Thea Dora Handelman Paul Joonki Hyun New York, NY Rochester, NY Albany, NY Virginia Iglesia David I. Hantman Richard L. Engel David J. Mahoney Philip F. Wolff Gary Edward Ireland Jared Marc Harary Fayetteville, NY Buffalo, NY Enfield, CT Jennifer Jaye Hardy Jamille Annette Jackson Robert Frank Roy I. Mandelbaum Anthony Zacharakis Lisa Ann Hargadon Michelle Patricia Jackson Irvington, NY Mineola, NY Tappan, NY Karen Beth Kaufman Jesse Roy Jacobsen Harris Thomas Donald Jacobson Stanley J. Glantz Dorothy M. Miner Brittany Lamar Harrison Edwin Andrew Jager West Palm Beach, FL New York, NY

52 | January 2009 | NYSBA Journal Martin Alexander Tzvi Natan Mackson Samuel Rand Miller Jose Ignacio Olmedo Jason E. Pruzansky Kurzweil Alexander Neil Macleod Cristina Isabel Miller- Lansac Arpan Kumar Punyani Robert Semir Kuster Shimon Magrill ojeda Hagglund John Hagan Olson William J. Purdy Katherine Radd Labarre Evelyn M. Mahony Joseph Milowic Steven Isaac Olson Ravi Purohit Chen Meng Lam Cosmin Maier Richard Min Maria De Lourdes Olvera Alex Purtill Robert Cory Lamonica Grant R. Mainland Michael Anthony Mincieli Monroy Drew Cameron Rabe David T. Lan Peter Mair Samuel Michael Mirkin Dan Or Hof Lauren Jessica Mandy Jui-wen Lan Nadia Nuzhat Majid Daniel Scott Mirman Adam Matthew Orgel Rabinowitz Sandra E. Langs Mikhail Mikhailovich Katie Laura Mitchell Shanna Nicole Orlich Sarah Gayle Rackoff Erin Elizabeth Laruffa Makhotin Skyla Rose Mitchell James Alexander Orme Ognjen Zarko Radic Joseph Everett Lasher Linda Abdel Malek Laurie Anne Moffat Jonathan Raymond Ozner Margaret Anne Radzik Oksana Lashko Rishi Dev Manchanda Man-ni Mok Ji Sun Pak Shaila Sayma Rahman Joshua Michael Lebewohl Eric Nyren Mann Marianna Moliver Kimberly Kristen Sumithra R. Rajashekara Andrew Zachary Shant Paul Manoukian Katarina Molnarova Palermo Manoj Ramachandran Lebwohl Jordana Sarah Marcus John Wickliffe Moorman Serena Palumbo Nicholas Richard Ranallo Vasily A. Ledenev Toni Mardirossian David McLean Morrison Gregory Kingsley Pan Sharon Houle Randall Abdul-rahman Abiodun Marika Maris Larkin Moore Morton Aja Kathleen Pardini Srilakshmi Madhavi Ravi Lediju Dawn Elizabeth Mark Dimitrios Moscholeas Insoo Park Arun Gopal Ravindran Alice Lee Neil Richard Markel Michael John Mosiello Jason Park Amanda Coston Rawls Cindy Cho Lee Jonathan Harris Marks Christine Lauren Mott Sangyoon Park Tashia Raymond Mark Daehee Lee Sarah E. Martel Rongrong Mu Sylvia H. Park Jason Jeffrey Reade Susan Lee Richard Thomas Martell Jessica Elizabeth Rebekah Hava Parker Kristyn Melissa Redmond Ross Michael Leff Catherine Mary Martin Muir-mccarey Heather Nicole Parlier Ilana Reed Bradley Seth Leinhardt Luis Danton Siddhartha Kishore Jennifer Pastarnack David Michael Reeder Amanda Marie Leith Martinez-corres Mukherjee Samir Balvant Patel Scott Bartron Reents John Michael Leitner Laura Simpson Martone Adan Canizales Muller Seema Nagin Patel Ofer Reger Courtney Elizabeth Lemli Rebecca Lynn Massimini Shaun Phillip Mulreed Vladimir Pavlovic Jonathan Dov Reich David Isaiah Lenzi Megan Laurel Maxwell Yeung Yin Daniel Mun Elizabeth Anne Paw Aliza Rachel Reicher Gregory Carl Leon Albert Pilavin Mayer Patrick D’a Murdoch Erin Marie Payne Courtney Ann Reichuber Renee Simon Lesser Kimberly Eugena Michele Murphy John Britton Payne Davina Maria Reid Colin James Levere McAdoo Victoria Elizabeth Robert Joseph Pellecchia Jeffrey Sandburg Reising Aaron Howard Levine Jason Peter McCann Murphy Amy Katherine Penn Fanny Renault Robert Scott Levine Austin Fredrick Abra Ruth Murray Joshua Allan Penner Eric Requenez Marina Levitsky McCullough David Hugh Murray Diana Maria Perez Jesus Martin Lomboy Einat Levy Kathleen Heather Irena Mykyta Rosalie Joann Perrone Reyes Elissa Stacy Levy McDermott Mitali Rasik Nagrecha John Whitney Perry Nazan Kristiana Riahei Ryan Whitney Lewendon Betsy Katrine McDonald Newman Antoin Nahas Mark Shelby Perry Anthony Rickey Lindsay Anne Lewis James Thomas Vivien G. Naim Sergei Pershman Damian Patrick Ridealgh Michael David Lewis McDonnell Amber Michelle Neal Courtney Janae Peterson Richard Lloyd Rieser Yongyi Li Amy Elizabeth McFarlane Susan R. Necheles John William Peterson Jonathan Mathew Right Odette Lienau Michelle M. McGreal Jessica Sophia Neff Joseph Philip Christopher M. Riley Terry Huang Lin Knox L. McIlwain Jeffrey Hamilton Amy Jo Phillips Elliott Jacob Rishty Xiaohui Lin Justin Robert Gilbert Newhouse Nancy Katharine Jonathan Alan Riskin Jeremy Asen Linden McKellar James Blair Newman Picknally Jeffrey Gedaly Risman Joshua Ryan Little Ryan A. McLeod Daniel Wing-yu Ng Mazdak Pielsticker Caitlin Rissman Zhiping Liu Kate F. McMahon Klara Ng Seth Alexander Piken Juliette Victoire Riviere David Y. Livshiz James Brody McMurtry Penelope Wai Ng Anna T. Pinedo Iris Roberts Esty Rosenfeld Lobovits Ajua Akilah McNeil Wendy Ng Adriana Cecilia Pinon Pamela Sydney Ellen Melissa London Micah Joseph Bellamy John Ngo Elisabeth Joy Piro Robertson Julia Victoria London McOwen Hai Nhu Nguyen Johanna K. Pitcairn James McKee Robinson Susan Marie Lowe Kelli Colleen McTaggart Rebecca Claire Nierling Ryan Spencer Plasky Andrew Ryan Roop Yun Lu Linda Marie Melendres Leigh Hendrick Nisonson Allison Brooke Podell Yaneris M. Rosa Ilana Nicole Lubin Joshua S. Mendelsohn Danielle A. Noonan Max Samuel Polonsky Ann Marie Rosas Tarsha Lania Tamara Riley Caroline Mendoza Sarah Norris David Andrew Pope Mark Byrne Rosen Luke Jorge Obed Villarroel Tasneem Shikari Novak Andrew Mark Por Omer Rosen Chelsea Marie Luna Meneses James Brendan Cushman Joanna Camet Portella Lee Mara Rosenberg Francis Emanuel Jacob Walter Mermelstein O’Grady Jason Bryant Porter Susan A. Rosenthal Lupinacci Moises Messulan Cindy Jane O’Hagan Jeanette Leah Potter Kenneth Irwin Rosh Deborah Lee Lusardi Chito A. Mgbako Jessica Taylor O’Mary Matthew Vincent Povolny Andrew Percy Ross Stacy Annemarie Lutkus Daniel Michael Edward L. O’Toole Alka Pradhan David C. Ross Kristen Gail Lyndaker Todd Garrett Middler Udodilim Azukaego Wendy Anne Prager Michael Lawrence Ross Olga Lysenko Aaron Migdol Okeke Megan K. Price Nicole Lyn Ross Jessica Anne Macina Anna Mihailova Karina A. Olevsky Lindsay Ann-Kelly Pruitt Jonathan A. Rotenberg Richard Jay Mack Aaron Scott Miller Melissa Anne Oliver Georgia D. Prussell Monika Roth

NYSBA Journal | January 2009 | 53 Eric Rothman David Benjamin Sherman Christopher Matthew Jami Mills Vibbert Nicole Kirsten Wright Geoffrey Edward Il Suk Shin Strong Sidney Joseph Vidaver Mark Wu Roughton Judith Shophet Daniel Joseph Stujenske Ramona Vijeyarasa Wendy Wei Wu Lindsay Hope Rubel Cindy Shinli Shu Brandon Kyle Sudduth Danielle Brooke Vilinsky Gregory D. Wyles Ivan Samuel Leslie Ilya N. Shulman Andrew Patrick Sullivan Emily Reed Vincent Michael Jonathan Wyman Rubinstein Maria L. Sicuranza Monica Cha Sunwoo Jennifer N. Vogel Xu Xia Elishama Avraham David Hart Siegel Neha Surana Kathryn Rebecca Vogel Zhangjun Xu Rudolph Carolyn Anne Silane Erica Jayne Swartz Jelena Vojinovic Maria Yam Steven Douglas Rummell Ari Jay Silverman Lorraine C. Sylvester Lida Volgina Jared Andrew Yaman Gia Ann Russo Tzi Yong Sim Stephen Christopher Lauren Rose Vollano Yanping Yang Jacqueline Marie Russo Michael Nathan Simkovic Szczerban Florian Alexander Ayse Yazici Martha Claire Hildebrand Keith Simon Makoto Takeda Freiherr Von Eyb Christopher Yuk Lun Sabo Jared Franklin Sine Gerardo Fulvio Talamo Nikolay V. Vydashenko Yeung Tyra Ruth Saechao Paul Lavaughn Sinegal Hong Tang Lynette Shant’ay Wade Catherine Yoon Taline Sahakian Matthew J. Sinkman Huimin Tang Richard Clarkson Wager Jaewon Yoon Pascelle Regine Saint- Matthew Charles Sippel Amanda Rachel Taub Matthew David Wagoner Sara Yoon Laurent Daniel Sirkis Hannah Eliza Taylor Emilie J. Walgenbach Mark White Yopp Michael David Saliba Adam Michael Siry Nicholas Tebelekian Peter Douglas Walgren Diane Ribeiro Young Karen Salomon Nicole M. Skalla Alison Kim Swee Teh Matthew Allen Walker Fiona Tin Yau Young Carolina Salvia Hannah Skeete Alesya Tepikina Shenade Michelle Walker Yan Yuan Daniel Samann Devin Andrew Slack Joaquin Pablo Terceno Tracy Morgan Wallach Jason Kent Zachary Giancarlo Bautista Jennifer Leigh Sloan Jamie Mary Thomas Lena Feng Wang Leila Zahedani Sambalido Adam Small Nakia Paula Thomas Ying Wang Ariel Isaac Zell Erik Matthew San Julian Carla Christina Small Cynthia Louise Allison Millie Warner Wen Zhang Rodrigo Surcan Dos Scott M. Smedresman Thompkins Nichola Mary Warrender Yu Zhang Santos Adam Michael Smith Laurice Blair Thrasher Joshua Patrick Warrum Ming Zhao Stephanie Marine Ulysses Scott Smith Pramod Thummala Corey Alexander Emily Zimmerman Sarzana Jeffrey Joseph Smodish Indran Thurairatnam Washington H. Michael Zografakis Jessica H. Savage Jordana Fish Sobey Erin Kathleen Tierney James A. Wawrzyniak Yasmin Zohar Michael D. Scates Daniel Sohnen Eu Ting Amanda B. Weare Rebecca Roselani Zubaty Maureen K. Schad John Richard Soler Lily Yuliani Tjioe Victoria McMakin Wei Joseph Vincent Zujkowski Sara Elena Solfanelli Joseph Lael Tobin Leah Larraine Weinberg Alexia Rhianon Schapira SECOND DISTRICT Evelyn M. Sommer Thomas Sig Tollefsen Leah Weinberg Lindsey Diamand Grace Ethel Albinson Justin G. Sommers Shannon Kathleen Rachel Beth Weinberg Schatzberg Musa Ali Christopher Ryan Soots Tomassi Ellen Pomfret Weir Jeffrey Thomas Kerry Lynn Ashton Micol Olimpia Sordina Mariam Toure Ronald Barry Weisenberg Schermerhorn Ronn Matthew Blitzer Joseph L. Sorkin Thao Ngoc Tran Allison Grodin Weiss Gina Marie Schilmoeller Felicia L. Boles Joseph Roy Sozzani Samantha Kay Trepel Michelle Denise Weiss Rachel Minden Schipper Sabrina Lisa Bonne-annee Salvatore Spagnuolo Sergiu Zgripcea Troie Thomas John Welling Corrine Nicole Schlarb William Peter Bonomo Ari Adam Spett Joshua Morgan Troy Nelson Honguo Wen Marni F. Schlesinger Randy Ryan Brathwaite Matthew Thomas Spitzer Travis Michael Troyer Peter Joseph Wenker Laura Schroeder Olivier Gerard Cassagnol Rachel Burke Springer Christopher Charles Laura Rachael Westfall Gavin Douglas Schryver Brian Chang Leonard Gregory Tucker Mor Wetzler Damon Anthony Lindsay Blair Coleman Sprishen Samantha Elizabeth Michelle Lynn Wexler Schwartz Kathleen Anne Collins Rachel Mary St. John Turino Elizabeth Ann White Leaor David Schwartz Robert Wayne Conley Michael Patrick Stafford Steven Wade Turnbull Joseph Emmet White Sarah Elizabeth Seewald Tracy Linda D’andrade Andreea Stan Elizabeth Ross Turner Patrick John White Marc Jonathan Seibald Jason Eldridge Joseph Timothy Stearns Miranda Holmes Turner Eric N. Whitney Brian W. Seid Morris Fateha Kimberly Lauren Steefel Cindy Eun Uh Keola Robert Whittaker Rahael Seifu Jacob Avi Feiner Andreea Nicole Olga Marie Urbieta Michael Wiener Matthew John Senatore Richard Edward Freeman Stefanescu Joshua Benjamin Urist David R. Wilbur Sanjay Sethi Andrew Michael Michele Robin Steiner Avra Celine Van Der Zee Peter Edward Wilhelm Jean Paul Sevilla Friedman Rose Ruth Stella Nicole Valery Vanatko Jonathan S. Willett Naureen Shah Yael Friedman Andrew Bowman Jarno Juhani Vanto Fenisha Ozella Williams Nirav S. Shah David Brian Gerba Stephens Zoe Agrambeli Vantzos Simon Jeffery Charles Kelsey Marie Shaikh Robert Giancola Daniel Mark Stephens Amanda Leah Vaught Williams Valentina Shaknes Kristina Giyaur Judy M. Sternberg Rina R. Vazirani Nicole R. Willis William Patrick Shanahan Oren L. Goldhaber Emily Liv Stewart Christopher Joseph Vanessa Anne Witt Mark Howard Shapiro Jessica A. Horani Alison Stocking Velenovsky Blanka Karolina Wolfe Meredith Anne Sharoky Ekaterina Idiatoulina Kardon Aaron Stolzman Leo Vellis Marc-andre Wolfe Brianne Alaine Shaw Syed Hasan Imam Edward Michael Stone Sri Devi Venkatasamy Matthew Alan Wolfe Maryellen Shea Gerry T. Johnson Jay Matthew Strader Carolina De Los Angeles Adam Coulter Wolk James Daniel Shead Eun Ju Jung Kelly Marie Straub Ventura Hilary Joan Wolkoff Justin Lee Shearer Nicole S. Junior Alison Brooke Strong James Patrick Veverka Misha Monique Wright Leon Benjamin Sher Joshua A. Katz

54 | January 2009 | NYSBA Journal Ali Kazemi SEVENTH DISTRICT Pamela Elkins Richardson Jacqueline S. Kim Lisa Ellyn Horwitz Tatyana Kitovsky Joseph Barrera Jonathan Ritter George Konstantinos Brian C. Hughes Kate Kochendorfer Daniel M. Howe Stephen Sarkozy Kontakis Mikhail Ilyaich Yakov Kozlenko Silvia Maria Lopez Faisal H. Sheikh Kevin Phillip Krupnick Benjamin G. Johns Julie Labuticheva Kristen Jane Phillips Saad Turab Siddiqui Meaghan Lawless Irene Sook Kang Jeff Leung Susan Sutterfield Wilks Tina P. Smith Jacqueline Susannah Argyrios Matthew Katos Lynnette Nefertiti Lockhart Shaun Robert Von Dana Lauren Steinberg Linder Zena Jihyun Kim Joseph Daniel Maclellan Knasick Wayne L. Thompson Carol Jane Litke Rinee Ramala Nalaine Laura Marie Maslauskas Susan Sutterfield Wilks Natalie Diane Torsiello David A. Luden Kissoon Ani Van Dyke Mason Richard W. Youngman Genese Nicole Walker Sean R. Macdavitt Jang Wook Kwon Lauren Hilley McSwain Melissa Manginello Sean Robert Lally EIGHTH DISTRICT Bradford White Evelina Miller Orla McCabe Lin Lin Jillian E. Brevorka Laura J. Winston Maria Novak Karen Dawn McGuire Hui Ma Alan J. De Peters Alexander Greg Yeres Stephanie Elizabeth Oddo Robert Mehran Orla Jane McCabe Justin K. Kurtz TENTH DISTRICT Elizabeth Joanne Owen Eleonora Maria Brian McCaffrey Anthony Edward Shaun P. Abraham James Seongjin Park Migliaccio Caroline Meng Lipinski Shirlee Aminoff Corey William Parson Eric Matthew Milner Gabriel Mignella Scott A. Stepien Catherine Amitrano-king Noah Harrison Passer Noel Munier Kap Misir Lori L. Thierfeldt Mark Kenward Antos Gina Marie Patterson Suzanne Marie Myron Kapeil Misir Denetra Dora Williams Jennifer Rose Asaro Jonathan Andrew Paul Brian Scott Nache Judy M. Mok Vadim Avdeychik Serge Felix Petroff NINTH DISTRICT Shagufah Nazaar Erin Molyneux Elizabeth Aviles Vlad Portnoy Ammar Akel Edyta M. Okarma Lenh Sit Mong Robert Miklos Babirad Michael J. Rapfogel Jonathan R. Alden M. Yvette Pacheco Leslie C. Myers Jesse Alex Baco Stephen Scott Roehm Gillian Taicia Ballentine Dominador Victor Donovan Glen Rinker- Stephen Rocco Barrese Amber Shavers Michael S. Bartolone Pascual Morris Cindy Helene Barrois Amber Nicole Shavers Stefanie A. Bashar Evelina Popijakowska Abigail Frances Richard E. Beckerman Michael Earl Shaw Dominique Renee Baxter Caroline P. Raffa-Tyree Rubenstein Bhavna Bhandari Dennis Raymond Shelton Roland Anthony Bloomer Jordan Elliot Reifler Niranjan Gowd Lisa Bisagni Erin Geiger Smith Darren A. Bowie Daniel H. Richland Sagapuram Melisa Debra Bliss Julia Ann Smith Katharine B. Brown Anna Rovenskaya Alejo Serra-ripol Monique Renee Burton Connie Solimeo Jody B. Burton Steven James Rowley Patrice E. Sessa Andrea Lynn Callan Sudarsana Srinivasan Nicole Lynn Caldararo Kevin Ryan Sahairam Frieda S. Shapiro Jeffrey Canarick Andre Kevin Sulmers Beth Linea Carlson Alisa Tannenbaum Schiff Carolyn J. Shields Grant L. Cartwright Dafna Tachover Kathryn McKenzie Kristina Marie Scotto Robert David Spitzer Alison Belle Cennamo Sabrina Thanse Chandler Barry H. Serper Colleen Patricia Thorp Henry Chou Nicole-Celina Urbont Areti Christoforatos Olga Someras Tzy-Fai John Wong Zachary Craig Cohen Diana Vaynshenker Joanna Helene D’Avella Terrence Lee Tarver Maria Hyunjun Yoo Elaine Mary Colavito William Watt Waldner Nicholas William Debbie M. Thomas Timothy John Decicco TWELFTH DISTRICT Nathan Ernest Weill Dicostanzo Monique Natasha Sean P. Devaney Michaela Erin Bradley Vielka Elisabeth Mariel Dreispiel Thomas Karen Barbanel Estis Nicole Louise Bramstedt Wilkinson Alexandra Dapolito Dunn Dimos Chris Tripodianos Kerri S. Flynn Jennifer Leigh Buentello Samantha Young Bryan Denis Duroy Stanley Chris Tripodianos Karen Anne Foley Janene Dorya Carter Mariam Zakhary Kimberly Ann Freyre Brian Wilson Charlene Patricia Forde Sherine F. Cummings Reva Labroo Golkar Brian John Wilson THIRD DISTRICT John Nicholas Forte Jose Defrank Tova Chava Gozdzik Kerri-Ann Janice Wright Elisabeth A. Colbath Jasmine Garcia-Vieux Keren Lee Farkas Jeffrey Matthew Jenny Yeh Bradley Michael Fischer Kenneth Lawrence Sienna Mary Florence Greenman Karl Egils Zamurs James Daniel Horton Gerber Fontaine Mark Anthony Hidalgo Stephanos Zannikos Nathan Sabourin Phiona S. Gardner Jacob Hollander Gavin Ross Goldstein Lincy Marie Thomas ELEVENTH DISTRICT Mineh Mesode Givens Sheila Francis Jeyathurai Joshua Jay Greene Kenneth Collins Weafer Ana Lucia Alvarado La’teea Monet Goings Michael Juliano David William Groeger Karen Aretha Blackman Morgan Blake Halley FOURTH DISTRICT Daniel Scott Kaufman- Paul Grotas Michael Bollag Reginald Ademola Jacobs Linda Ann Berkowitz Berson Paul B. Grotas Amatullah Khaliha Booth Joana Kaso Brenna Kathleen Sharp Anna Liming Linne Byron Hakimi Robert Harrison Brown Ingrid Gwenette Kelly Ann Luria Tara Hakimi FIFTH DISTRICT Marcelo Choi Jennifer Haesun Kim Kevin M. Mackay Kenneth Neal Hammer Stephen Lance Cimino Adam Reece Cohen Biju John Koshy Daniel Christopher Mara James F. Hanley James Patrick Egan Ilham Elkoustaf Kerwin Louis Ledesna Meghan Ann Mazzacone Terence Fintan Hanley Carlos A. Gavilondo Isidro Tomas Garbanzos Scott Duffield Levy Kristen Jeanne McCabe Erika-rae Miller-rowe Jon Michael Taurisano Frank Giglio Kathryn Elizabeth Miller Steven D. Meltzer Harvey Yasmeen Khali Gumbs Jaimee Marc Nadell SIXTH DISTRICT Marilyn Miller Alireza Hedayati Brendan James Zachary Christian Neeley Jared Emeral Baker Jennifer Rubin Moran Jessica Rachel Heller Hennessey Lisa Harumi Oshiro F. Daniel Casella Anthony Morando Richard Jordan Hochroth Rachel Hezel Vanessa D. Overland Anna Dmitriev Joseph Scott Ostroff Fainna Kagan Courtney Norman Hogg Daniel Arthur Padernacht Eric Leland Johnson Alia Riaz Jasleen Kaur

NYSBA Journal | January 2009 | 55 Robert A. Seeman Joshua Paul Boudreaux Gregory Scott Connor Thad Spencer Florence Kevin Wing Ho Ilana Will Jason Boudwin Robert M. Cook Sarah Elizabeth Florer Joy Elizabeth Hodge Benjamin Barrett Wolff Brent Alan Bowker Candice Melissa Cornish Javier Fernando Flores Mee Hong Hoe Scott Andrew Bowman Gail Elise Cornwall Kimberly Anne Fogler Yong Ho Hong OUT OF STATE Abby Cina Boxer Melanie Rose Costantino Flore Nicole Foyatier Tracy Claire Horan Khitam Ahmad Victoria Brancoveanu Stephen Joseph Cowen Robert Jeffrey Frances Melanie Brooke Horn Abdelkhaleq Arnold R. Braun Tara Marie Creegan Joseph Frank Christopher Hoskey David George-wayne Eric Andrew Braun Bart Albert Leocadia Creve Heather Margaret Franklyn George C. Howell Adams Dana Michele Bressman Amand Benoit D’hondt Sean Fraser Wen-hsing Hu Jennifer Collesano Adams Alissa Gabrielle Brodie Gloria J. D’Souza Ayana Niambi Free Ran Huang Michelle Denise Adams Adam Michael Brown Luca Loredano Dalla Amy Shannon Freed Xiaofei Huang Leonore Agrest Jamaal Rashad Brown Torre Di Sanguinetto George Robert Freund Yun Huang Bo Yong Ahn Cynthia Anita Browning Sharmili Poonam Das Qianfei Fu David Scott Huberman Jehyun Ahn Caroline Rieger Brownlie Andrew Alfred Daun Yijing Fu Jose Miguel Huerta Emilie B. Alexandre Markus Burgstaller Maria Lourdes Legaspi Oliver Justin Fuchs Alexandra Anne Hui Felipe Francisco Ballve Timothy Smith Burns Day Michael Shingo Funaki Bo Youl Hur Alice Karen Assandri Butcher Gianni De Stefano Corey John Gabriel Albert C. Hwang Alexis Lynn Alire Maria Francia Fatima Wim K.j. De Vlieger Kathrin Christa Gack Chi Ou Hwang Jeffrey Scott Allmon Madar Caganda Eran De Vries Karla Y. Garcia Justin Brett Incardone David Robert Alperstein Kristin Anne Calabrese Claire Marie Debelle- Jane Garrido Meredyth Lee Isaac Roberto Amore Duncan Joseph Campbell Fontaine Erica Gaston Nathanael David Mark Hamilton Anania Hui Cao Joseph John Decaporale Toya Lefay Gavin Isaacson Marian Ancheta Xue Cao Alexandra Deege Zelda Gerard Masaki Ishizuka Vineet Aneja Francesco Carloni William P. Demond Matthew P. Gerber John Chukwudi Iwuh Sofia Grace Lukban Eric Donald Carlson Muireann S. Dennehy Danielle Marie Gilberti Adam Jackson Angeles Giles Austin Carmichael Bert Jan Denolf Karla Ann Gil bride Phillip Michael Jacobs Imran H. Ansari Ellaine Antonio Carr Edda Charlotte Deriese Francesca M. Gizzi Lauren R. Jacoby Erika Arban Lazaro Carvajal Ronald Desimone Vasileios Gkarametsis Edward Abbott Jaeger Hallie Joy Aronson France H. Casseus Moira Kathleen Dickinson Evan Kaufman Glaberson Jeremy L. Janis Ramazan Arslan Tara Eliza Castillo Christopher J. Digiacomo Hannah Beth Gladstein Andrea Jansz Oluwafunso Adesola Cecilia Ines Castro Daniel Jason Dimuro Adam Joshua Glanzman Eddie Albert Jauregui Aweda Nadine Bernedette Yi Ding Scott Timothy Glennon Vivek K. Jha Ross Michael Aylward Chabrier Liliane Djahangir Maria A. Goetschalckx Mengbi Jiang Aravind Ayyar Sung Yong Chae Minh Duc Do Karen Virginia Goff Qingwen Jiang Sandrine Azzoppard Yuk Yin Isis Chan Aileen Doetsch Hui Ling Goh Dae Hwan Jo Arzo Baher Hae Gyung Chang Christopher James Michael Martin Goldberg Hilary Francoise Bing Bai Li-sung Chang Donadio Akiva Eliahu Goldman Jochmans Simon Harald Baier Michael June Chang Leah Jansen Donaldson Jordan Seth Goldsmith Devinder Kaur Johal Haris Zaheer Bajwa Sze Wan Florence Char Sean Peter Duffy Adam Jacob Gopin Jon R. Johnson Blake Daniel Ballin Jeffrey Mark Chebot Leah Renee Duggins Jared Andrew Gordon Kyle Robert Johnson Chen Bao Liqin Chen Dwaune Lavelle Dupree Meaghan Mary Goulding Matthew Sweeney Steven Todd Baron Soriya R. Chhe Aude Dupuis Eric Jason Grabois Johnston Kyle Charles Barry Michelle Alyssa Chi Julia Zarkhina Durbin Richard John Grabowski Meredith Allen Johnston Susan L. Barry Yaoyao Chi Martin T. Durkin Stefan Graiche Sarah Marie Jolly Dustin Jacob Barzell Jay K. Chien Gary St. Michael Emile Kenneth B. Grear Kevin W. Jones Matthew David Batastini Joybell Chitbangonsyn Eaton Aaron Paul Grieser Barry Joseph Jordan Amanda C. Baxter Ting-wei Chiu Peter H. Ehrenberg Richard David Grossman Dinesh Jotwani Jesse Galen Beardsworth Rita Choudhury Ifeoma Yema Ejezie Natalie Anne Guelfi Bo Moon Jung Marianne Fawzi Bechara Dane Traynor Diba Enayat Leonardo Marques Deana Kabakibi Mike Willem Jozef Christiansen Kazuhisa Enomoto Guglielmi Yosef Seffi Kaminitz Beckers Suk Jun Chun Makiko Enomoto Anik Guha Charles Thomas Kane Kristine Russo Begley Kyung Yoon Chung Christine McAuliffe Fagan Maria Hajiyerou Ayako Kaneko Thomas Martin Beline Roberto Cigliano Bianca Altagracia Fajardo Kelly Hyatt Hamilton Avraham Karlewski David J. Berardinelli Ashley Herrick Clarke Dandan Fan Elliot James Hammer Shaheen Karolia Jennifer Davi Berns Douglas Keefe Clarke Yu-cheng Jack Fan Henrik Juul Hansen Julia Anne Karwowski Alexia Marie Bertrand Lillian Claudio-Blum Nicholas Rocco Farnolo Yuko Hara Mona Francesa Salvacion Paul Richard Bessette David Blair Cohen Laura C. Fedyna Johnathon Hardaway W Katigbak Glenn Bettelheim Magdeline Denise Marisa Anne Fegan William Leslie MacLean Naonori Kato Michael Beurskens Coleman David Thomas Fein Haworth Ryotaro Kato Shilpi Bhattacharya Christopher Matthew Lisa Hill Fenning Robert F. Hecht Krisztian Katona Brant Warren Bishop Colongeli Michelle Amelia Ferrer Christopher Matthew Evangelia Katsari Bryan Blaney Davinia Dawn Conlan Gaby Finkel Hemrick Courtney Akinwale Christine Claudia John B. Connally Rebecca Cathleen Deborah Antoinette Kazembe Blomquist Bobby Dean Conner Flanagan Heslenfeld Glenn Anthony Kearney Sheila Bohm

56 | January 2009 | NYSBA Journal Michael Patrick Keleher Evelyne Yuen-kei Lo Brandon Edward Miller Orla Anne O’Connor Alexandre Poupard Paul Stephen Kelly Jennifer Ann Loheac Kelvin Konrad Miller David Stannard Lyle Thomas Preslar Michael Thomas Kenny Pauline Marie Loiseleur Linda Margareta O’Loughlin Mark Pring Mildred Caldwell Kerr Des Longchamps Mindrutiu Brittany Renee Oates Brian James Puchalsky Eric Craige Keuling Julien Lombard Ina Mitchkovska John Joseph Oberdorf Yi Qian Amani Cherry Mohsen Alina De La Caridad Nobutaka Mochizuki Heidi Kern Oertle Jian Qiu Khalifa Longenecker Matthew Christopher Wade Stuart Ogg Carlos Quintana Omar Aziz Khondker Giovani Ribeiro Loss Moench Gi Hyoung Oh Ivan Yugi Rabanillo- Gokce Kilic Justin James Lowe Rahim Moloo Wakako Ohga kuroki Won Juan Kim Yang Jeffrey David Lukaszyk Aili Cohen Monahan Benson Chiedozie Okafor Alexander Charles Rabb Beom Joon Kim Pamela Ingrid Lundquist Paige Holden Kasei Okumura Niloufar Rafi-kian Bum Soon Kim Michael A. Lupolover Montgomery Heather Marie Olson Aziz Fidel Rana Byungkook Kim Stuart David Lurie Dale Jon Montpelier Alaba Morenikeji Oludare Dinuka Gayathri Edward Chung-koo Kim Carl Robert Luthman Christopher Peter Tsuguhito Omagari Ranasinghe Jie Hyeong Kim Paul Easton Lycos Montville Naoko Omukai Marc S. Raspanti Kenneth Kim Christopher Philip Lynch Ashe Damien Moore Robert Joshua Ontell Rahul Ram Ravi Yeung Jin Kim Marina Lytko Nejjie Susana Morales Yasutaka Orihara Arkady Rayz Younwhoi Kim Feng Ma Marty Adrian Morris Alia Ornstein Laura Graciela Readinger Yuho Kim Ning Ma Ronen Morris Sunday Ogbuka Oruruo Rachel Diane Rebouche Lisa Faro King Tsuyoshi Maeda Andrea Morrison Ife Matoya Osaga Kathrin Reichenberger Fusaka Kirinuki Hiba Duraid Mahmud Brian Paul Morrissey Yvette Ostolaza Lawrence Joseph Reilly Monika Gabriela Majeed George Makhlouf Adeshola Morenike Alan Matthew Otto Stuart G. Reinfeld Kislowska Sarah Makuch Mos-shogbamimu Jeffrey Connell Page Tracy R. Reinmiller Keirsten Klatch Peter Louis Malone Thomas Paul Mosher Niccolo Pallesi Scott Evan Reiser Deanna L. Koestel Flavia Foz Mange Yevgenya Muchnik Stephen D. Palley Carolyn Beth Rendell Kazunori Koike John C. Manly Kurt Daniels Mundorff Siyuan Pan James Renihan Scott Jaller Koplik Jennifer Yik-ching Mao Motozumi Murakami Rajiv Dilip Parikh Mona Farah Ressaissi Nobuo Kosaka Michele L. Maresca Andrew John Murray Jung Sung Park Sumy Rhee Ioanna Koukouli Gregory Margoline Jennifer Lynne Murray Yun Kyu Park Gretchen A. Rice Carl Krasik Jonathan L. Marshfield Mark Victor Murray Jason Bryan Parker Michael Allan Richter Stephen Skelly Kreller Elizabeth Ann Martin Katharine Ann Muscalino James Manly Parks Cari Brett Rincker Mary Ann Angela Kricko David Bernard Massey Mariko Jo Nakabayashi Lavinia Pascariu Jayne Yvette Risk Karl Kronenberger Sean James Masterson Tetsuhiro Nakagawa William D. Pastorick Sungjin Ro Duvva Pavan Kumar David Thomas Anthony Elizabeth Anne Nanton James Leeland Patton Caroline Maryse Robert Malvika Kumar Mattingly Joseph Matthew Nevenka Pavlovic Lara Mendoza Robillo Wei-chun Kuo Leslie-Anne Maxwell Napurano John Joseph Pawloski Nicholas Linscott Daniel Noah Kuperstein Florent P. Mazeron William H. Narwold Daniel N. Pawuk Robinson Menka Sumiran Kuver Duston Kenneth McFaul Alexa Jean Nasta Vanesa Lorena Paz David Alexander Roche Clara Yin Leng Kwan Joanne McGilloway Ngozi Vivian Ndulue Michael Edward Karen Marie Roche Salvador B. Landau Lindsay Wilson McGuire Luke Andrew Nebush Pederson Stephen Thomas Rodini Andras Daniel Laszlo Luke Anthony McLaurin Melissa Jill Needle Sheng Peng Yolanda Rois Gregory Frederick Laufer Joshua McMurray Eduardo Manuel Negron- Hector B. Pereyra Laurie Ann Rollins Ana B. Lazo Tenzer Maris J. McNamara Navas Kristen Dana Perkins Claude Ronin Gaelle Le Quillec Daniel Thomas McNamee Annalise Kristine Nelson Paul De La Cruz Pery Svetlana Ros Jaimee Sara Lederman Robert J. McNelly Korey Arthur Nelson Robert Duane Peters Amy Caridad Rosa Anne Yujin Lee Siobhain Anne Laurie Jane Nelson Ian Kenneth Peterson Alexander Steven Rosas Shih-hsiang Lee McSweeney Barry H. Nemmers Jenetha Gayle Philbert Samantha Rosenberg Yi-hsuan Lee Nicole Grace Medrozo Mary Kristin Nicholes Michael Andrew Piazza Emma K. Rothfeld Jerome Marie Lehucher John Joseph Mehler Stephanie Beth Nickse Laura Jean Pierce Moncie Finia Rowther Curtis Brett Leitner Vincent M. Mekles Olivier Xavier Nicod Juan Jorge Piernas Natalie Louise Rubinstein Stephen Wayne Lemmon Sumati Menda Natalia Aleksandrovna William Piervincenzi Gary J.P. Ruckelshaus Susanne Lenz Felipe Mendoza Holguin Nicol David Aaron Pildis David Andrew Russcol Scott Michael Lesowitz Edward Bissau Mendy Michal Jacek Jay L. Pincus Anthony John Russo David Glenn Lever Laura Lynn Meny Niemkiewicz Anita Bech Piras Mark Bradley Ryerson Karneisha Crenshaw Levi Stephan Theodor Meyer Arlie R. Nogay Caleb Benjamin Piron Hyunkweon Ryu Shachar Levy Marc Dominick Miceli Kevin Kerina Nolan James Stephen Plackis Samuel Joseph Sadden Jennifer Tracy Li Michelle Frances Russell Evan Norman Michelle Marie Plater Moshe Benjamin Saiger Ruoran Li Mikelberg David Lawrence Norris Robyn Rochelle Polashuk Genta Saito Siu Liang Li Cristina Dal Pozzo Ermel Ryuichi Nozaki Benjamin Howard Hitoshi Sakai Yunfei Lian Milani Joshua David Nussbaum Pomerantz Ignacio Salvarredi Yuezhu Liang Julee Lynn Milham W. Scott O’Connell Katherine Sarah Potter Jamie Ellen Salzman Demetra Lynn Liggins Mason Mandrake Millar Aisling Marie O’Connor Krista Leigh Potter William Robert Samuels Byeong Lok Lim Alexandra Miller Elizabeth Margaret Ryan Paul Potter Jung Hwa Lim Khorover Markey O’Connor Anthony Scott Poulin Continued on Page 61

NYSBA Journal | January 2009 | 57 The Legal Writer summation persuaded the jury view- fier “more than” splits the infinitive Continued from Page 64 ing it as a whole, the summation was “to double.” Some split infinitives, filled with objectionable arguments.” like this one, cannot be corrected with adjourn [only] the [only] case [only].” Incorrect: “The lawyer to whom the mere modifier shifts. They require re- Where you place the word “only” alters brief was delivered immediately saw writing. Correct: “Foreclosure filings the sentence’s meaning. Correct: “Only the errors.” Was the brief “delivered in Supreme Court are expected next the prosecutor wanted to adjourn the immediately” to the lawyer or did the year to more than double their current case,” meaning that the prosecutor, no lawyer “immediately see the errors?” level.” one else, was interested in adjourn- “Immediately” simultaneously modi- ing the case. Or: “The only prosecu- fies the verbs “delivered” and “see.” Dangling Modifiers tor wanted to adjourn the case.” This The meaning depends on which of A dangling modifier is a word or sentence indicates that there’s only the two verbs is modified. Rewriting phrase that modifies the wrong phrase one prosecutor. Or: “The prosecutor the sentence so that the modifier no or describes something not in the sen- only wanted to adjourn the case.” The longer modifies both words clears up tence. The dangling parts of speech this ambiguity. Correct: “The brief was can also be transitions, like “hope- delivered immediately to the lawyer, fully” or “in conclusion.” They can Like hormonal high who saw the errors.” Or: “The brief also be participles, which are verbs schoolers, modiﬁ ers was delivered to the lawyer, who acting as adjectives in a sentence. Or fall for whatever is immediately saw the errors.” they can be appositives, subject modifiers equivalent to another subject in closest to them. Split Infinitives the sentence. Dangling modifiers make “To be or to not be” isn’t the question sentences illogical, usually by allowing “only” placed here means that the Shakespeare posed. He knew better something to hang precariously at the prosecutor wanted to do nothing but than to vigorously split his infinitives. beginning of a sentence. adjourn the case. Or: “The prosecutor An infinitive is the word “to” fol- The worst dangling-modifier wanted only to adjourn the case.” Or: lowed by a verb. Modifiers placed in offender is one that modifies no sub- “The prosecutor wanted to adjourn the middle of the infinitive create split ject at all, leaving the reader to wonder only the case.” Or: “The prosecutor infinitives, and splitting headaches for who performed the action of the sen- wanted to adjourn the only case.” readers. tence. Incorrect: “When dangling, avoid These sentences all indicate that the Move modifiers that sneak into an using participles.” In this sentence, prosecutor desired to adjourn this one infinitive. Incorrect: “The law profes- the word “dangling” is the dangling case and no other. Or: “The prosecutor sor worked to steadily gain his stu- modifier. “Dangling” is ambiguous: It wanted to adjourn the case only.” The dents’ respect.” In this sentence, modi- doesn’t refer logically to any word in a “only” in this position signals that the fier “steadily” splits the infinitive “to sentence. “Dangling” describes some- prosecutor wanted nothing to happen gain.” An easy solution is to reposition thing absent from the sentence. Correct: to the case except to adjourn. Writers the modifier elsewhere in the sentence. “When writing dangling phrases, avoid must position modifiers carefully to Correct: “The law professor steadily using participles.” state their intended meaning exactly. worked to gain his students’ respect.” Incorrect: “To determine whether to It’s confusing when a phrase modi- Some splits cannot be corrected. reverse, four factors must be consid- fies two subjects simultaneously. Example: “We ask the members of the ered.” Only a court, not factors, can Incorrect: “Even if the lawyer’s summa- audience to kindly take their seats.” determine, reverse, and consider. The tion persuaded the jury, viewing it as a The modifier “kindly” splits the infini- subject of this sentence, “the court,” is whole, the summation was filled with tive “to take.” The answer in most cases missing, leaving the modifier dangling objectionable arguments.” It is unclear is to move the modifier out of the infin- without a subject. Correct: “The court in this sentence whether the modifier itive into a safer position. But nothing must consider four factors to deter- “viewing it as a whole” modifies the works in this example. Incorrect: “We mine whether to reverse.” lawyer’s summation or the objection- ask . . . kindly . . . .” Also incorrect: “We Incorrect: “Finding no error, the judg- able arguments. Sometimes inserting ask the members of the audience to ment was affirmed.” In this elliptical or adjusting a comma will fix the prob- take their seats kindly.” clause, the writer fails to explain who lem. If not, rearrange the sentence or Some split infinitives are so com- found no error or who affirmed the break it into two. Correct: “Even if the monplace, they sound correct despite judgment. The solution is to identify lawyer’s summation persuaded the their grammatical inaccuracy. Incorrect: the subject. Using a noun or pronoun jury, viewing it as a whole the sum- “Foreclosure filings in Supreme Court to identify the actor will eliminate the mation was filled with objectionable are expected next year to more than dangling modifier. Correct: “Finding no arguments.” Or: “Even if the lawyer’s double.” In this sentence, the modi- error, the court affirmed the judgment.

58 | January 2009 | NYSBA Journal To prevent dangling, identify the unforeseen event, made the litigator will remedy this dangling modifier. subject of the sentence when using miss her dinner date.” Sometimes abandoning the modifier transitional words or phrases. Incorrect: Some dangling modifiers confuse will make a sentence easier to under- “Hopefully, she will win her lawsuit.” by identifying an incorrect subject. stand. Correct: “Our client must appeal The transition “hopefully” fails to refer Incorrect: “Choosing to shop at the the court’s decision.” Here are two final suggestions to keep your modifiers in check: Focus Modifi ers placed in the middle of the infi nitive on the part of the sentence you want create split infi nitives, and splitting headaches. to emphasize and highlight key ideas. Then skip confusion altogeth- er: Instead of adverbs, use concrete to a subject; it leaves the modifier dan- larger book store, the legal diction- nouns and, better, vigorous verbs that gling. Correct: “I hope she will win her ary was purchased at a lower price.” don’t require modification. Do that lawsuit.” Because the subject — who chose to and you’ll rarely have to worry about A dangling appositive is a subject go to the larger book store — isn’t modifier problems again. ■ that refers to the same subject else- identified, the reader will assume that where in the sentence. For example, in the legal dictionary chose to go to the 1. Groucho Marx playing Capt. Geoffrey T. Spaulding in Animal Crackers, Paramount Studios “The partner, the lawyer in the corner larger bookstore. The solution is to (1930). office, reviewed the documents,” “the write in the active voice. Identify who 2. Walt Disney Studios (1964). lawyer in the corner office” is the is doing what to whom — subject, appositive that refers to the partner, verb, object — and your modifiers the same subject. To avoid dangling, won’t dangle. Correct: “Choosing to GERALD LEBOVITS is a judge of the New York appositives must clearly refer to an go to the larger book store, the law City Civil Court, Housing Part, in Manhattan equivalent phrase. Incorrect: “The liti- student bought his legal dictionary at and an adjunct professor at St. John’s University gator worked on her brief until 10:00 a lower price.” Law School. He thanks students Melissa Livingston (Brooklyn Law School) and Kathleen p.m., an unforeseen event that made Incorrect: “Based on the court’s deci- Roberts (New York Law School) for their her miss her dinner date.” The appos- sion, our client must appeal.” “Based research help. Judge Lebovits’s e-mail address itive “an unforeseen event” doesn’t on” modifies “our client” and suggests is [email protected]. clearly modify an equivalent subject that the decision was based on “our in the sentence. Correct: “Late work, an client.” Inserting a noun or pronoun Are You feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.

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

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60 | January 2009 | NYSBA Journal New Members Continued from Page 57 Andrew Shi Ming Tsui Xueping Xiong Steven Mark Zager Kirk Matthew San Julian Cheryl Dunn Soto Yee Wa Tsui Jing Xu Angela Christine Kimberly Marie Sanchez Antoine E. Soueid Susan Song Turnbaugh Xi Xu Zambrano Ocasio Stephen John Squillario Phelps Turner Lijun Yan Qiushi Zhang Arielle Greenbaum Brian Patrick Stahl Zachary McAbee Tyler David Yerushalmi Yi Zhang Saposh Michelle Elise Stanfield Adanna Urunwa Jonathan Yi Ying Zhang Kristi Phillips Saretsky Isabella Karlina Ugwonali Shafir Hakeem Yiga Ting Zhong James Jesse Savegh Stankowski Mairee Uran-Bidegain Eun Jung Yoo Xi Zhou Tamara Marie Saverine Alan Wayne Stauber Constance Mitsue Utada Guk Yeol You Hui Zhu Eric Harris Schepard Peter Andrew Steciuk George Vladimir Utlik Bing Yu Mary Ruth Ziegler Daniela Kratka Schmidt Elizabeth Pauline Peter Utterstrom Chih-huang Yu Ludmila Zimovcak Bryanne Jeanette Schmitt Stedman Raluca Vais-Ottosen Shinichi Yuhara Michael Zogala Aaron Hugh Schneider Annabelle Steinhacker Wouter Jan Van Den Berg Albert Hyun Yun Lana Zolon Brian Patrick Schottler Braddock Joseph Angel Vandergrift Eric Insuk Yun Zhou Zou Raymond F. Schuler Stevenson Sarah Grant Vanderslice Joseph Benjamin Nicole Suzanne Steward Matthew John Vanek Schwartz Devin Miles Storey Keith Storm Varian Lee Deborah Schwartz Jennifer Mary Storipan Anthony James Vecchio Dennis S. Scott Michael David Story Veronica Villanueva Foundation Memorials Tatsuya Sekine Julie Straus Vicedo Young Joung Sel Robert Corey Streit Livia Vilaplana James Rocco Serritella Prasanna Anandh Victoria Vines fitting and lasting tribute to a Ali Karim Shaikley Subramanian Thomas George Wagner Adeceased lawyer can be made William L. Waldman Kelsey Walter Shannon Philip Paul Sudan through a memorial contribution to The Zachary Daniel Sharpe Calliope Makedon Peter L. Wallach New York Bar Foundation. This highly Sonya Hashim Sudbrough Aaron Edward Walters Shaykhoun Catherine Suh Judson Andrew Waltman appropriate and meaningful gesture on the Thomas Mark Sheehan Yi Sun Hongyan Wang part of friends and associates will be felt and Darryl Collings Sheetz Francesco Antonio Jui-te Wang appreciated by the family of the deceased. Carole Bray Sheffield Taddeo Eugenie Loring Warner Vivian Pinruh Shen Claire Marie Tafelski Julie Michelle Wigder Contributions may be made to The Xi Shen Sarah Taieb Warshaw New York Bar Foundation, One Elk Donald Kareem Sherman Jessica Leigh Talar Janelle A. Weber Street, Albany, New York 12207, stating Kurtis Butler Sherwood Wei Leong Tan Jason C. Webster Elior Daniel Shiloh Robert Steven Amiel Z. Weinstock in whose memory it is made. An offi- Noriaki Shinoda Tanenbaum Emily R. Weisslitz cer of the Foundation will notify the fam- Olga Afanassievna Yixin Harrison Tang Kristen Marie Welsh ily that a contribution has been made and Shishkova Michiko Tani Andrew Harris Werbrock by whom, although the amount of the con- Elizabeth Jane Wheeler Achilleas Nicholas Shizas Julia Ann Taurence tribution will not be specified. Tegan Sarah Shohet Brett David Taxin Rachel Marie-Pierre J. Gregory Taylor Laure Wiemer Crystal Dawn Shumaker All lawyers in whose name contri butions Noha Samir Sidhom Victoria Louise Taylor Brittany Anne Wilcox Tatiana Victorovna Arend R. Tensen Jodi S. Wilenzik are made will be listed in a Foundation Sidneva Douglas Evin Thea Christopher Keith Memorial Book maintained at the New York Joseph Georg-Alexander Daniel Edward Thiel Williams State Bar Center in Albany. In addition, Siegmann Tad Thomas Gregg Adam Williams the names of deceased members in whose David Silverman Annette Michelle Merlyn Williams-Britt memory bequests or contributions in the Daniel McMinn Singer Thompson Charles James sum of $1,000 or more are made will be Payal Chawla Singh Karen Andrea Thompson Willoughby Judah Samuel William Leigh Chase Thompson Allen C. Wilson permanently inscribed on a bronze plaque Skoff Yuan Tian Lawrence Paul Wilson mounted in the Memorial Hall facing the Thomas B. Slocum Cassandra Lynn Charlotte Alessandra handsome courtyard at the Bar Center. Philip J. Slotnick Tillinghast Winckler Este Vicci Smit Margaret C. Tinagero David Robertson Cian F. Smith Tzu Fei Philip Ting Wingfield Michael John Smith Melinda Elizabeth Gregory William Wirtz Tarin Ann Smithline Todgham Coren Jay Wise Jacob Adam Snow Alex Antonio Toribio Alexis Maren Wolf Vimala Snow Alexa Taiz Torres Tracey Beth Wollenberg Lynn Shapiro Snyder Lindsay Jo Trapp Adam David Wolper Jun Sung Son Garett Donovan Trombly Eric Lik Hang Wong Benlliam Yue Soo-hoo Hsin-huei Tsai Perrin Nell Wright Mykola Heorhiyovych I-ting Tsai Terrence Dalton Wright Sorochynskyy Clara Tse Genevieve Shao-wen Wu

NYSBA Journal | January 2009 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

EXECUTIVE Pro Bono Affairs 2008-2009 OFFICERS Patricia K. Bucklin Gloria Herron Arthur, Director John R. Horan, President Executive Director [email protected] 825 Third Avenue, New York, NY 10022 [email protected] M. Catherine Richardson, Vice President MARKETING AND Keith J. Soressi One Lincoln Center, Syracuse, NY 13203 INFORMATION SERVICES Associate Executive Director Patricia K. Bucklin, Secretary Richard J. Martin, Senior Director [email protected] One Elk Street, Albany, NY 12207 [email protected] Bar Services Cristine Cioffi, Assistant Secretary Desktop Publishing Frank J. Ciervo, Director 2310 Nott Street East, Niskayuna, NY 12309 Marketing [email protected] DIRECTORS Meetings MIS James B. Ayers, Albany Kathleen M. Heider, Director John M. Nicoletta, Director Vice Chair of The Fellows [email protected] [email protected] Jonathan G. Blattmachr, New York Jeffrey Ordon, Network Support Specialist Charles E. Dorkey, III, New York CONTINUING LEGAL EDUCATION [email protected] Emily F. Franchina, Garden City Terry J. Brooks, Senior Director Sonja Tompkins, Records Supervisor Sharon Stern Gerstman, Buffalo [email protected] [email protected] John H. Gross, Hauppauge Debra York, Registrar Lucian Uveges, Database Administrator Gregory J. Guercio, Farmingdale [email protected] [email protected] Robert L. Haig, New York CLE Programs Paul Wos, Data Systems and Paul Michael Hassett, Buffalo Jean E. Nelson II, Associate Director Telecommunications Manager Frank M. Headley, Jr., Scarsdale [email protected] [email protected] Barry Kamins, Brooklyn John J. Kenney, New York Kimberly Hojohn, CLE Program Coordinator Web Site [email protected] Henry L. King, New York Barbara Beauchamp, Editor Glenn Lau-Kee, New York Katherine Suchocki, Staff Attorney [email protected] [email protected] A. Thomas Levin, Garden City Cindy O’Brien, Program Manager MEMBERSHIP SERVICES Kay Crawford Murray, New York [email protected] Patricia K. Wood, Senior Director Carla M. Palumbo, Rochester [email protected] Sharon M. Porcellio, Buffalo CLE Publications Megan O’Toole, Membership Services Manager Richard Raysman, New York Daniel J. McMahon, Director [email protected] Thomas O. Rice, Garden City [email protected] Lesley Friedman Rosenthal, New York Kirsten Downer, Research Attorney Chief Section Liaison Sanford J. Schlesinger, New York Lisa J. Bataille [email protected] Justin L. Vigdor, Rochester [email protected] Patricia B. Stockli, Research Attorney Lucia B. Whisenand, Syracuse [email protected] PRINT AND FACILITIES OPERATIONS EX OFFICIO Mark Wilson, Publication Manager Roger E. Buchanan, Senior Director Susan B. Lindenauer, New York [email protected] [email protected] Chair of The Fellows Law Practice Management Building Maintenance Pamela McDevitt, Director Graphics [email protected] Print Shop JOURNAL BOARD FINANCE AND HUMAN RESOURCES Matthew Burkhard, Production Manager Paula M. Doyle, Senior Director [email protected] MEMBERS EMERITI [email protected] PUBLIC AFFAIRS AND As a tribute to their outstanding service to Finance ADMINISTRATIVE SERVICES our Journal, we list here the names of each Kristin M. O’Brien, Director Sebrina Barrett, Senior Director living editor emeritus of our Journal’s Board. [email protected] [email protected] HOWARD ANGIONE Law, Youth and Citizenship Program Cynthia Gaynor, Controller Immediate Past Editor-in-Chief Eileen Gerrish, Director [email protected] Rose Mary Bailly [email protected] Richard J. Bartlett LEGAL AND GOVERNMENTAL AFFAIRS Media Services and Public Affairs Coleman Burke Kathleen R. Mulligan-Baxter, Senior Director Nicholas Parrella, Media Services Manager John C. Clark, III [email protected] [email protected] Angelo T. Cometa Counsel’s Office Roger C. Cramton Patricia Sears Doherty, Editor, State Bar News Louis P. DiLorenzo Governmental Relations [email protected] Maryann Saccomando Freedman Ronald F. Kennedy, Director Brandon Vogel, Media Writer Emlyn I. Griffith [email protected] [email protected] H. Glen Hall Kevin M. Kerwin, Assistant Director Paul S. Hoffman [email protected] Charles F. Krause Philip H. Magner, Jr. Lawyer Assistance Program THE NEW YORK BAR FOUNDATION Wallace J. McDonald Patricia F. Spataro, Director Rosanne M. Van Heertum J. Edward Meyer, III [email protected] Director of Development Kenneth P. Nolan [email protected] Eugene E. Peckham Lawyer Referral and Albert M. Rosenblatt Information Service Lesley Friedman Rosenthal Eva Valentin-Espinal, Coordinator Sanford J. Schlesinger [email protected] Robert J. Smith Lawrence E. Walsh Richard N. Winfield

62 | January 2009 | NYSBA Journal 2008-2009 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

BERNICE K. LEBER FIRST DISTRICT Golinski, Paul A. Doyle, Vincent E., III Aaron, Stewart D. Hernandez, David J. Edmunds, David L., Jr. President Abernethy, Samuel F. Kamins, Hon. Barry Fisher, Cheryl Smith New York Abramowitz, Alton L. Park, Maria Y. * Freedman, Maryann Saccomando † * Alcott, Mark H. Romero, Manuel A. * Hassett, Paul Michael MICHAEL E. GETNICK Alden, Steven M. Sunshine, Hon. Jeffrey S. Lamantia, Stephen R. Anello, Robert J. Sunshine, Hon. Nancy T. Manias, Giles P. President-Elect Armas, Oliver J. Szochet, Diana J. McCarthy, Joseph V. Utica Badner, Lisa Ray THIRD DISTRICT Meyer, Harry G. Badway, Ernest Edward Breen, Michael L. O’Donnell, Thomas M. C. BRUCE LAWRENCE Baum, Simeon H. Casserly, Timothy E. O’Reilly, Patrick C. Secretary Berke-Weiss, Laurie Costello, Bartley J., III Porcellio, Sharon M. Blanchard, Kimberly S. DeFio Kean, Elena Rankin, Richard Thomas Rochester Borsody, Robert P. Doherty, Glen P. Sconiers, Hon. Rose H. Brown Spitzmueller, Janiece Farley, Susan E. Subjack, James P. SEYMOUR W. JAMES, JR. Brown, Peter Fernandez, Hermes Young, Oliver C. Treasurer Burns, Howard W., Jr. Gold, Majer H. NINTH DISTRICT Chang, Vincent Ted Greenthal, John L. Amoruso, Michael J. New York Chin, Sylvia Fung Higgins, John Eric Burke, Patrick T. Christian, Catherine A. Higgins, Patrick J. Burns, Stephanie L. KATHRYN GRANT MADIGAN Cohen, Carrie H. Kretser, Hon. Rachel Byrne, Robert Lantry Immediate Past President Collazo, Ernest J. Lally, Sean P. Campanaro, Patricia L. * Cometa, Angelo T. Liebman, Bennett M. Cusano, Gary A. Binghamton Crespo, Louis Meislahn, Harry P. Dohn, Robert P. Davis, Tracee E. Miranda, David P. Fontana, Lucille A. Draper, Thomas G., Jr. Moy, Lillian M. Goldenberg, Ira S. VICE-PRESIDENTS Drayton, Joseph Michael Nachimson, Steven G. Gordon Oliver, Arlene Antoinette Eppler, Klaus Netter, Miriam M. Gouz, Ronnie P. Finerty, Hon. Margaret J. FIRST DISTRICT Powers, John K. Kranis, Michael D. * Forger, Alexander D. Privitera, John J. Lagonia, Salvatore A. Claire P. Gutekunst, New York † Fox, Michael L. Roberts-Ryba, Christina L. Markhoff, Michael Freidman, Gary B. Salkin, Prof. Patricia E. Marwell, John S. Susan B. Lindenauer, New York Gallagher, Patrick C. Schofield, Robert T., IV Miklitsch, Catherine M. Gesinsky, Loren * Yanas, John J. * Miller, Henry G. SECOND DISTRICT * Gillespie, S. Hazard * Ostertag, Robert L. Goldberg, Evan M. FOURTH DISTRICT Breedlove, Brian H. Selinger, John Barry Kamins, Brooklyn Gredd, Helen A. † * Standard, Kenneth G. Gutekunst, Claire P. Burke, J. David Coffey, Peter V. Strauss, Barbara J. THIRD DISTRICT Haig, Robert L. Thornhill, Herbert L., Jr. Hariton, David P. Cullum, James E. Hon. Rachel Kretser, Albany Ferradino, Stephanie W. Van Scoyoc, Carol L. Hawkins, Dennis R. Wallach, Sherry Levin Hayden, Hon. Douglas J. Haelen, Joanne B. Lais, Kara I. Welby, Thomas H. FOURTH DISTRICT Hollyer, A. Rene Wilson, Leroy, Jr. Hynes, Patricia M. Rider, Mark M. Patricia L. R. Rodriguez, Schenectady James, Hon. Debra A. Rodriguez, Patricia L. R. TENTH DISTRICT Kennedy, Henry J. Stanclift, Tucker C. Asarch, Hon. Joel K. FIFTH DISTRICT Kera, Martin S. Sterrett, Grace Austin, Hon. Leonard B. * King, Henry L. FIFTH DISTRICT Block, Justin M. David M. Hayes, Syracuse Kobak, James B., Jr. Fennell, Timothy J. * Bracken, John P. Kougasian, Peter M. Gall, Erin P. Buonora, John L. SIXTH DISTRICT † * Krane, Steven C. † Getnick, Michael E. Cartright, Valerie M. Chase, Dennis R. David A. Tyler, Ithaca Larson, Wallace L., Jr. Gigliotti, Louis P. Lau-Kee, Glenn Gingold, Neil M. Clarke, Lance D. † Leber, Bernice K. Greeley, Kristin B. Cooper, Ilene S. SEVENTH DISTRICT Leo, Robert J. Hartnett, Elizabeth A. Fishberg, Gerard David M. Schraver, Rochester Lesk, Ann B. Hayes, David M. Franchina, Emily F. Lindenauer, Susan B. Howe, David S. Gann, Marc Larose, Stuart J. Good, Douglas J. EIGHTH DISTRICT * MacCrate, Robert Martin, Edwina Frances Longstreet, Ami S. Gross, John H. David L. Edmunds, Jr., Buffalo Masley, Hon. Andrea Mitchell, Richard C. † * Levin, A. Thomas McEnroe, Diane Crosson Pellow, David M. Levy, Peter H. Luskin, Andrew J. NINTH DISTRICT Miller, Michael Peterson, Margaret Murphy Millett, Eileen D. † * Richardson, M. Catherine Mihalick, Andrew J. John S. Marwell, Mount Kisco Morgan, Hadaryah Tebach Stanislaus-Fung, Karen * Pruzansky, Joshua M. Morril, Mark C. Virkler, Timothy L. Purcell, A. Craig * Rice, Thomas O. TENTH DISTRICT Morton, Margaret S. SIXTH DISTRICT Myers, Thomas Robinson, Derrick J. Cummings, Patricia A. Steinberg, Harriette M. John H. Gross, Hauppauge Nathanson, Malvina Denton, Christopher O’Neill, Paul J., Jr. Stempel, Vincent F., Jr. Egan, Shirley K. Walsh, Owen B. LEVENTH ISTRICT * Patterson, Hon. Robert P., Jr. E D Fortino, Philip G. Winkler, James R. Plevan, Bettina B. Gorgos, Mark S. David Louis Cohen, Kew Gardens Prowda, Judith B. Lewis, Richard C. ELEVENTH DISTRICT Reed, Thomas A. † * Madigan, Kathryn Grant Cohen, David Louis TWELFTH DISTRICT Reimer, Norman L. May, Michael R. Dietz, John R. Robertson, Edwin David Sheehan, Dennis P. Gutierrez, Richard M. Lawrence R. Bailey, Jr., Bronx Rosenthal, Lesley Friedman Tyler, David A. James, Seymour W., Jr. Rosner, Seth Lomuscio, Catherine SEVENTH DISTRICT Rothstein, Alan Lonuzzi, John A. Brown, T. Andrew Nizin, Leslie S. MEMBERS-AT-LARGE OF THE Russell, William T., Jr. Buholtz, Eileen E. Safer, Jay G. Terranova, Arthur N. EXECUTIVE COMMITTEE Burke, Philip L. Vitacco, Guy R., Jr. Sen, Diana Sagorika † * Buzard, A. Vincent * Seymour, Whitney North, Jr. Wimpfheimer, Steven Vincent E. Doyle, III Castellano, June M. Sherwin, Peter J.W. Gould, Wendy L. TWELFTH DISTRICT Timothy J. Fennell Sigmond, Carol Ann Harren, Michael T. Bailey, Lawrence R., Jr. Silkenat, James R. Kukuvka, Cynthia M. * Pfeifer, Maxwell S. Hermes Fernandez Smith, Hon. George Bundy Kurland, Harold A. Quaranta, Hon. Kevin J. Spelfogel, Evan J. Eileen D. Millett Lawrence, C. Bruce Sands, Jonathan D. Spiro, Edward M. Lightsey, Mary W. Schwartz, Roy J. David P. Miranda Tesser, Lewis * Moore, James C. Summer, Robert S. Wachtler, Lauren J. * Palermo, Anthony R. Weinberger, Richard Williams, Bryan R. Peter J.W. Sherwin Schraver, David M. OUT-OF-STATE Yates, Hon. James A. Lauren J. Wachtler Smith, Thomas G. Bartlett, Linda G. Yavinsky, Michael J. Tilton, Samuel O. Brown, Geraldine Reed Stephen P. Younger Younger, Stephen P. * Vigdor, Justin L. Cahn, Jeffrey Barton Zulack, John F. * Witmer, G. Robert, Jr. Elder-Howell, Andrea M. SECOND DISTRICT EIGHTH DISTRICT * Fales, Haliburton, II Adler, Roger B. Brady, Thomas C. * Walsh, Lawrence E. Bonina, Andrea E. Chapman, Richard N. Branda, RoseAnn C. Convissar, Robert N. Cohn, Steven D.

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

NYSBA Journal | January 2009 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

Writing Carefully, Misused Modifiers Must Be Avoided

odifiers are adjectives and the sentence. Correct: “One morning, I action being modified. Notice how this adverbs that limit or qualify shot an elephant while I was wearing sentence already has the preposition Mthe sense of other words in my pajamas.” “to.” Once you place the modifier next a sentence. A well-placed modifier Incorrect: From the movie Mary to the action or subject being modi- qualifies the meaning of a phrase and Poppins: Bert: “Speaking of names, I fied, “to” helps the reader determine gives the reader information. Correctly know a man with a wooden leg named who in the sentence had the issues. placed modifiers provide clarity and Smith.” Uncle Albert: “What’s the Correct: “I went to a lawyer because I emphasis. Misplaced, squinting, or name of his other leg?”2 The phrase had legal problems.” The trick is not dangling modifiers lead to baffling, “named Smith” is the modifier in this to use “with” at the end a sentence. knotted prose that confuses and inad- sentence; “named Smith” modifies “a For instance, “I robbed a bank with vertently amuses. Good legal writ- wooden leg,” giving the impression money” suggests that I wasn’t able ers must follow the rules of proper that one of the man’s legs is named to find a gun with which to rob the modification to avoid ambiguity and “Smith.” Reordering the sentence so bank. mistaken hilarity. that “I once met a man” and “named Incorrect: “The lawyer spoke to the Smith” are side by side will correct this judge with gusto.” The modifier “with Misplaced Modifiers misplaced modifier. Correct: “I once gusto” refers to the judge in this sen- You can lose your mind or even your met a man named Smith who had a tence instead of to the lawyer. Move head, but don’t misplace your modi- wooden leg.” the modifier so it correctly modifies fiers. Incorrect: “I threw the plaintiff across the intended subject. Correct: “The law- Like hormonal high schoolers, mod- the courtroom a law book.” The mis- yer, with gusto, spoke to the judge.” ifiers fall for whatever is closest to placed modifying phrase “across the Or: “With gusto, the lawyer spoke to them. A misplaced modifier is a word, courtroom” means that someone threw the judge.” phrase, or clause placed too far from the plaintiff across the courtroom. The the word or idea it modifies. To pre- writer can clarify the sentence by reor- Squinting Modifiers vent your modifiers from becoming dering it or by inserting a preposition A squinting modifier is a word that involved with the wrong sort, always so that “across the courtroom” isn’t floats mid-sentence, modifying two place them immediately next to the modifying “I threw the law book.” words or phrases at the same time. word being modified. Using the preposition “to” will explain Modifiers confuse when they squint at Incorrect: From Groucho Marx: “One what’s being thrown. Correct: “I threw both preceding and succeeding words morning I shot an elephant in my paja- a law book across the courtroom to the or phrases. These one-word modifi- mas. How he got in my pajamas, I don’t plaintiff.” ers include “almost,” “also,” “even,” know.”1 Groucho misplaced the modi- The word “with” is a commonly “exactly,” “hardly,” “merely,” “near- fying phrase “in my pajamas” to get a misplaced modifier, indicating mistak- ly,” “scarcely,” “simply,” and “solely.” laugh. The sentence would have lost en ownership in a sentence. Incorrect: “I Eliminate squinting modifiers by repo- its comedic value if he had correctly went to a lawyer with legal problems.” sitioning the modifier, rewriting the placed the modifier next to the phrase “With legal problems” modifies “a sentence, or inserting a comma. “one morning,” the idea he modified. lawyer” because the modifying phrase In particular, watch out for one- “I shot an elephant one morning while I is placed next to the wrong phrase. word modifiers like “only” and “just.” was wearing my pajamas” would have The misplaced modifier suggests that Where would you put “only” in this been an appropriate, though unfunny, the lawyer has legal problems. To sentence: “The prosecutor wanted to solution. Another unfunny but correct fix this sentence, place the modify- adjourn the case”? “[Only] the [only] solution is to insert a comma to sepa- ing phrase “with legal problems” next prosecutor [only] wanted [only] to rate “one morning” from the rest of to the phrase “I went,” which is the Continued on Page 58

64 | January 2009 | NYSBA Journal ways to 3 login!

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