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Journaljournalseptember 2003 | VOL NEW YORK STATE BAR ASSOCIATION JournalJournalSEPTEMBER 2003 | VOL. 75 | NO. 7 Inside Pretrial Expert Disclosure Unconscionability Verifying Citations Trial Court Opinions Foreclosure Sales BOARD OF EDITORS ONTENTS Howard F. Angione C Editor-in-Chief Queens e-mail: [email protected] CLE Insights – Pretrial Expert Disclosure in Rose Mary Bailly State Court Cases Albany David Paul Horowitz 10 Willard H. DaSilva Garden City Does the Doctrine of Contractual Unconscionability Louis P. DiLorenzo Have a Role in Executive Compensation Cases? Syracuse Paul Bennett Marrow Philip H. Dixon 16 Albany ® ® Lesley Friedman Rosenthal A Tale of Legal Research – Shepard’s and KeyCite New York City Are Flawed (or Maybe It’s You) Judith S. Kaye Alan Wolf and Lynn Wishart 24 New York City John B. Nesbitt Electronic Discovery Can Unearth Treasure Trove of Lyons Eugene E. Peckham Information or Potential Land Mines Binghamton Lesley Friedman Rosenthal 32 Sanford J. Schlesinger New York City View From the Bench – The Role of Trial Court Richard N. Winfield Opinions in the Judicial Process New York City John B. Nesbitt Eugene C. Gerhart 39 Editor Emeritus Binghamton So Your Client Wants to Buy at a Foreclosure Sale: Daniel J. McMahon Pitfalls and Possibilities Managing Editor Bruce J. Bergman 43 Albany e-mail: [email protected] Philip C. Weis D EPARTMENTS Associate Editor Oceanside President’s Message _______________ 5 Index to Advertisers _______________ 55 EDITORIAL OFFICES Crossword Puzzle _________________ 8 Classified Notices _________________ 55 One Elk Street by J. David Eldridge New Members Welcomed __________ 57 Albany, NY 12207 Attorney Professionalism Forum ____ 50 2003-2004 Officers _________________ 63 (518) 463-3200 Point of View _____________________ 52 The Legal Writer __________________ 64 FAX (518) 463-8844 by Marvin Rachlin by Gerald Lebovits ADVERTISING REPRESENTATIVE Language Tips ____________________ 54 Network Publications by Gertrude Block Sheri Fuller Executive Plaza 1, Suite 900 11350 McCormick Rd. Hunt Valley, MD 21031 O N T HE C OVER (410) 584-1960 e-mail: [email protected] This month’s cover illustration recalls three prominent individuals and a corporation whose headline-making court experiences have been affected by the types of issues ON THE WORLD WIDE WEB: explored in the article on electronic discovery. http://www.nysba.org Cover Design by Lori Herzing. 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 cita- tions 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 © 2003 by the New York State Bar Association. The Journal (ISSN 1529-3769), 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, Sep- tember, October, November/December. Single copies $18. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. Journal | September 2003 3 We are reformers in spring and summer; the Rockland County Bar Dinner, in autumn and winter, we stand by the old; and a Cyberspace Law Committee reformers in the morning, conservers at PRESIDENT’S meeting in NYC. I met with the Lord night. Ralph Waldo Emerson. Chief Justice of Ireland at the Irish- Summer is the time when one sheds one’s MESSAGE American Bar, attended the Erie tensions with one’s clothes, and the right County Bar Dinner, met with our in- kind of day is jeweled balm for the battered surance administrators Bertholon- spirit. A few of those days and you can be- Rowland Corp., attended a sympo- come drunk with the belief that all’s right with the world. Ada Louise Huxtable sium for the Lawyer Assistance Trust, met with a representative of I am a part of all that I have met. Trial Lawyers Care to better publicize Alfred, Lord Tennyson. their need for lawyers to help people A committee is a group that keeps minutes file claims for the federal 9/11 fund, and loses hours. Milton Berle. participated in IOLA’s 25th birthday ith the coming of Labor celebration, and attended the New York Press Club installation event. Day, everyone tells me, the Wsummer has come to an The end of June brought the quar- end. (Officially, we need to wait for terly Executive Committee and the autumnal equinox, which is Sep- House of Delegates meetings, at tember 22.) It is common Bar lore which we approved new policies to assure expanded diversity in our that nothing much happens in the membership and leadership, and summer. Having now experienced continued our discussion of pro- my only summer as your president, I posed changes in our governance. am going to take this opportunity to Action on these proposals should put that canard to rest. A. THOMAS LEVIN come to closure at the November As our readers are certainly House meeting. aware, my term started on June 1, Now You Know What At the end of the legislative ses- even though the installation cere- sion, the focus was on reform of the mony occurred later in the month in I Did Last Summer “Rockefeller Drug Laws,” a subject Cooperstown. However, the action on which we have been outspoken in urging the gover- started right away, and on June 2 there I was in Albany, nor and legislative leaders to come to agreement. Our on the street in front of the (under renovation) Court of five-point proposal for breaking this logjam received a Appeals as we celebrated the passage of the long- great deal of favorable attention across the state, leading awaited (and still not adequate) increase in 18-b as- to innumerable media interviews and editorial com- signed counsel fees. (Lorraine Power Tharp could not ments. Unfortunately, the issue remains unresolved. have found a better way to end her tenure.) Our legislative activity continued, with our involve- Ever since then, it has been a whirlwind of thor- ment in revision of the laws that led to the Desiderio de- oughly enjoyable organized commotion. Getting the cision. Our litigation against the FCC to remove lawyers year’s programs off to a flying start, I appointed new from the effects of the Gramm-Leach-Bliley law committees that are going to bring some challenging achieved success, as the FCC agreed not to enforce the concepts to us in the months ahead. Among our newest law against lawyers while the litigation was pending, committees are the Committee on Diversity and Leader- and the court denied the FCC’s motion to dismiss the ship Development, the Special Committee to Review the case, holding that there was no indication that Congress Code of Judicial Conduct, Special Committee on the intended that lawyers be included in these regulations. Jury System, and the Special Committee to Review the We publicized our proposals for revision of the rules Annual Meeting. We also have existing Sections and governing multi-jurisdictional practice, and published a Committees working on some new studies of both old Spanish version of our consumer information pam- issues and new ones. phlets. Our Family Law Section initiated a program to June gave me some idea of the extent to which my assist litigants who felt that they had been treated un- credit card and my frequent flyer accounts would be in- fairly in cases before a judge who is under investigation timately involved with my term of office. Without list- for wrongful conduct. ing some of the gory details and the innumerable media A. THOMAS LEVIN can be reached at Meyer Suozzi English interviews and conference calls, I attended a focus & Klein, PC, 1505 Kellum Place, Mineola, N.Y. 11501, or group in Clifton Park helping us study our publications, by e-mail at [email protected]. Journal | September 2003 5 PRESIDENT’S MESSAGE Circuit. I am also arranging meetings with local bar leaders in various regions of the state, to discuss issues July continued apace. I made a presentation before of mutual concern, so keep an eye out for me. the Chief Judge’s Commission on the Jury, attended the Family Law Section summer meeting in Vermont, the We are a busy organization, indeed. My peripatetic Committee on Attorneys in Public Service meeting in summer has reinforced my great admiration for our Latham, the Public Utility Committee summer meeting many volunteers, and especially so for our outstanding in Cooperstown, the Finance Committee meeting in staff. We recently were described in London’s Legal Week NYC. I attended the celebration of the publication of the as the most influential bar association in the United Legal Manual for New York Physicians, a joint effort of the States. We owe all credit for that to our Committee and State Bar (Health Law Section and CLE Committee, Section members, our hard-working officers and Execu- sponsors) and the State Medical Society. Then there was tive Committee members, and most of all to the staff at an enjoyable lunch with some of the Fourth District bar the Bar Center. leaders, and the Tax Section summer meeting, at the Lastly, as I try to remind our members all the time, Sagamore. this is your State Bar. We are here to serve the interests Then the dog days of August included attending a of our members, and the public interest.
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